{"id":50712,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/bush-versus-bush.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"bush-versus-bush","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/bush-versus-bush.html","title":{"rendered":"Bush Versus Bush"},"content":{"rendered":"\n
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<\/a><\/td>\n\n

BUSH VERSUS BUSH<\/h1><\/td>\n <\/tr>\n

By MICHAEL C. DORF<\/h2><\/a><\/td>\n <\/tr>\n

Monday, Sep. 11, 2000 <\/td>\n\n <\/tr>\n <\/table>\n \n\n

How George W. Bush’s Likely Supreme Court Nominees Could Undermine His Own \n Education Policy<\/b><\/p>\n

As Texas Governor George W. Bush and Vice President Al Gore vie for the political \n center, education has emerged as one of the issues on which the candidates display \n seemingly sharp differences. Bush would spend federal funds to provide tuition \n vouchers for use at private schools, while Gore would focus his efforts on improving \n failing public schools.<\/p>\n

The Presidential election may indeed have a substantial impact on national \n education policy — but not because of the candidates’ views about vouchers. \n Even under the Bush plan, vouchers would play a relatively small role, and both \n candidates support a substantial federal commitment to education. <\/p>\n

Instead, it is through Supreme Court nominations that the next President may \n have his most lasting impact on education. And while Gore Justices are likely \n to uphold Gore education policies, Bush Justices might well vote to strike down \n the very federal education proposals Bush is currently touting in his campaign. \n<\/p>\n

The Court’s Trend Of Restricting Federal Power<\/b><\/p>\n

Over the last five years, a conservative 5-4 majority of the Supreme Court \n has repeatedly restricted federal power. Just this June, for example, in United \n States v. Morrison<\/i>, that majority invalidated a provision of the Violence \n Against Women Act that allowed victims of gender-motivated violence to sue their \n attackers. According to the Court, the statute’s subject matter was too local \n to justify a federal law.<\/p>\n

In 1995, in United States v. Lopez<\/i>, <\/b>the same Justices invalidated \n a federal law barring gun possession within 1,000 feet of a school on the same \n basis. The federal government argued that safe schools are essential to our \n national economy, and thus fall within the federal government’s historically \n broad power to regulate interstate commerce. In response, Chief Justice Rehnquist \n wrote, on behalf of the Court, that “criminal law enforcement [and] education” \n are areas “where States historically have been sovereign” — and thus, areas \n where the federal government cannot intrude.<\/p>\n

Bush Justices Are Likely To Strike Down Anti-Youth-Handgun Law<\/b><\/p>\n

Governor Bush has repeatedly stated that he would appoint to the Supreme Court \n jurists in the mold of Antonin Scalia and Clarence Thomas, the two Justices \n who take the most restrictive view of federal power. Ironically, such Justices \n would likely invalidate some of the very education measures Bush supports, and \n upon which he has staked much of his candidacy. That’s because the new Bush \n Justices would only bolster the Court majority in favor of restricting federal \n power. <\/p>\n\n\n

Bush has, for example, called for tougher enforcement of the Youth Handgun \n Safety Act, which prohibits, among other things, handgun possession by minors. \n But even given the Court’s current makeup, that provision, if challenged, could \n be ruled unconstitutional under the Lopez<\/i> precedent, which strongly implies \n that federal gun control laws are unconstitutional unless they require the government \n to prove that the particular gun in each case has moved in interstate commerce. \n Although other provisions of federal law require such proof, the youth gun possession \n provision that Bush wants to enforce has no such requirement. Therefore, it \n might well be invalidated by the current Court, and the likelihood of its demise \n would only increase if Bush were to fill the next Supreme Court vacancies. \n <\/b><\/p>\n

Bush Justices Could End Conditional Federal Education Grants<\/b><\/p>\n

Most of Bush’s education proposals, like most of Gore’s, take the form of federal \n grants to states in exchange for state compliance with federal rules. Under \n the Bush plan, for example, states receiving federal money would be required \n to implement annual math and reading tests, create systems of accountability \n for individual schools, and enforce safety standards. How would such conditions \n fare at the Supreme Court? That too may depend on who appoints the next Justices. \n Again, Bush Justices might well quash the very proposals Bush is currently putting \n forward. <\/p>\n

In yet another 5-4 decision, in Printz v. United States<\/i>, the Justices \n in 1997 invalidated the background check provision of the Brady Handgun Violence \n Prevention Act, on the ground that Congress cannot instruct state officials \n to carry out federal law. The Court’s decision left open a loophole allowing \n the federal government to do just that if the instructions take the form of \n conditions on federal grants. Under this loophole, the Bush proposals would \n survive Court scrutiny.<\/p>\n

But the loophole may not last very long — and Scalia-clone Bush Justices could \n be the ones to close it. Writing for the Court in the Printz<\/i> case, Justice \n Scalia observed that “it will be time enough to” consider the constitutionality \n of conditions attached to federal grants “if and when their validity is challenged \n in a proper case” — remarks that may foreshadow the end of the conditional-grant \n loophole.<\/p>\n

Older cases already say that conditions on federal grants will be deemed unconstitutional \n if they amount to “coercion.” Should the Court so wish, it would be a relatively \n simple matter to find that a great many programs of conditional spending amount \n to impermissible coercion. If Bush Justices think like Scalia — as Bush has \n promised they will — they might very well take this route. If they did, the \n federal government would be faced with the Hobson’s choice of giving states \n unconditional cash grants for education — and thus setting no federal education \n policy at all — or simply not giving grants at all.<\/p>\n

Gore Justices, In Contrast, Are Likely To Uphold Federal Education Measures<\/b><\/p>\n

Should Vice President Gore win the election, the Supreme Court might invalidate \n some of his ambitious education proposals, but the rulings could be temporary. \n That is because, should he have the opportunity, Gore is likely to nominate \n Supreme Court Justices whose views are similar to those of Clinton appointees \n Ruth Bader Ginsburg and Stephen Breyer. Ginsburg and Breyer consistently vote \n to defer to Congress’s judgment as to what is properly a national, rather than \n merely a state or local, concern. In their view, if Congress believes an education \n issue is truly national, then the Court should not substitute its own judgment. \n With just one more like-minded colleague, Justices Ginsburg and Breyer, along \n with Justices Souter and Stevens, could reverse the Court’s recent insistence \n on treating problems that often have national dimensions, such as education, \n as if they were always and only local concerns.<\/p>\n

By appointing Supreme Court Justices, the next President will have a lasting \n influence on a great many issues — from abortion and affirmative action to church-state \n separation, the environment, and gay rights. More immediately, and more ironically, \n should the next President be George W. Bush, his Supreme Court appointees could \n well play the decisive role in scuttling one of his very own policy priorities: \n education.<\/p>\n\n<\/span>\n\n\n

\n

\n\n\nMichael C. Dorf is Vice Dean and Professor of Law at Columbia University \n School of Law.\n

\n\n<\/p>\n <\/div>

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