Wednesday, November 02, 2005

Reviving the New Federalism?

In the wake of Raich, can we expect Alito to help breath some life back into the new federalism? Alito's dissent in United States v. Rybar (dissenting, on commerce clause grounds, from a decision upholding a statute criminalizing mere possession of a machine gun) and his decision in Chittister v. Department of Community and Economic Development (holding unconstitutional certain provisions of the Family and Medical Leave Act on the basis of sovereign immunity principles) (h/t AgendaGap) strongly suggest he may do just that.

Lawyers, Guns and Money has some interesting thoughts on Chittister and what the case might reveal about Alito's general view of sovereign immunity doctrine. Dave Kopel at the Conspiracy posts on Rybar and similar cases, concluding that, far from being an outlier:
Alito's position i[n] Rybar was the same as that [of] a significant minority of lower federal court judges who have tried to apply the Supreme Court's precedents faithfully.
Lastly, the Agitator (gracious host of my Fantasy Football league) fears that Alito may prove just another wishy-washy federalist. I hope not. In any event, it's probably a bit early to weep. Then again, things haven't been going well recently.