Janus-Faced Federalism: State Sovereignty and Federal Preemption in the Rehnquist Court

The Roman god Janus had two faces, looking in opposite directions. This split appearance is an apt metaphor for the Rehnquist Court's decisions involving federal-state relations. One face, which has received much attention over the past decade and a half, is characterized by the Court's post-1990 decisions concerning state sovereignty, sovereign immunity, and the reach of Congress's powers under the Interstate Commerce Clause and the 14th Amendment. All have had a devolutionary thrust, bolstering state authority or insulating state institutions against federal law and regulations. The second, less recognized face is distinguished by the Court's emerging doctrines concerning federal preemption of state and local authority. In these cases, the Supreme Court—often led by members of the new federalist majority—has tilted surprisingly in favor of federal authority. This article examines both faces of contemporary judicial policy making on matters of federalism, with a particular focus on the implications for federal preemption.