916                                               ARIZONA LAW REVIEW                                           [Vol. 31




The Framers of the Constitution feared a centralized and unrestrained federal authority.10 Since the Court, in the Garcia and Baker decisions, has removed one of the last constitutional restraints designed to prevent an excessive consolidation of power in the federal government, a more centralized federal authority may result.  The Court's holdings, and the alarm expressed by the Chairman of the National Governors Association and others, suggest that the problems and benefits associated with a centralized government should be explored.

Centralization gives rise to several problems.  First, the existing federal bureaucracy may grow.11 This possibility becomes even more of a concern when examining some of the criticisms the Advisory Commission on Inter-governmental Relations (ACIR) levels at federal regulatory

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. . . A basic tenet of . . . constitutionalism is that no branch of government should be the ultimate judge of its own power.

. . . [S]afeguarding that process cannot be left to the unrestrained discretion of the political branches.

Howard, Federalism: The Linchpin of Liberty, state legislatures, May/June 1987, at 22, 23, 25. [Additionally,] political success is not relevant to the question whether the political processes are the proper means of enforcing constitutional limitations. . . . The States' role in our system of government is a matter of constitutional law, not of legislative grace.

Garcia, 469 U.S. at 566-67 (Powell, J., dissenting) (emphasis in original).

[Moreover,] [t]he notion that the sovereign position of the States must find its protection in the will of a transient majority of Congress is foreign to and a negation of our constitutional system.  There will often be vital regional interests represented by no majority in Congress.  The Constitution was designed to keep the balance between the States and the Nation outside the field of legislative controversy.

New York v. United States, 326 U.S. 572, 594 (1946) (Douglas, J., dissenting).

The . . . belief of the Framers of the Constitution [was] that the states played a vital role in our system and that strong state governments were essential to serve as a counterpoise to the power of the federal government. Furthermore, the Constitution never would have been ratified if the states and their courts were to be stripped of their sovereign authority except as provided by the Constitution.

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239 n.2, reh'g denied, 473 U.S. 926 (1985). Today we have a responsibility to address the issue of over-centralization of power in the federal government. . . . [The] swing of the pendulum, well past the extreme . . . must be corrected. . , ... The extreme swing has created a loss of effectiveness and efficiency. [T]he handwriting . . . is on the wall . . . .

Sununu, Evolution and Erosion of Federal Principles, ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, IS CONSTITUTIONAL REFORM NECESSARY TO REINVIGORATE FEDERALISM? A ROUNDTABLE DISCUSSION, at 5 (Nov. 1987) [Hereinafter ROUNDTABLE]. "[T]he foundation has been eroded. It is diseased, and unless [we] want to lose [the balance] . . . remedial work [is required.] We are not asking for a change. We are asking for restoration." Discussion, ROUNDTABLE at 31. "The idea that the Supreme Court . . . would abdicate that function of protecting the states from the Congress is revolutionary and plainly contrary to the Founders' intentions." Id. at 35. As a result, "[t]he future of American federalism is in doubt." ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, FEDERALISM AND THE CONSTITUTION; A SYMPOSIUM ON GARCIA, at 11 (July 1987) [Hereinafter FEDERALISM],

Constitutional principles do not depend upon the rise or fall of particular legal doctrines. . . . [T]he Court shirks its responsibility because it fails to inquire into the substantial adverse effects on state and local governments that would follow from federal taxation of the interest on state and local bonds.

Baker, 108 S. Ct. at 1371 (O'Connor, J., dissenting). "Federal taxation of state activities is inherently a threat to state sovereignty." Id. at 1372 (O'Connor, J., dissenting).

10. THE FEDERALIST NO. 17, at 41 (A. Hamilton) (R. Fairfield, 2d ed. 1966).

11. ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, REGULATORY FEDERALISM: POLICY, PROCESS, IMPACT AND REFORM, at 290 (Feb. 1984) [Hereinafter REGULATORY REFORM] (from the standpoint of history and federalist philosophy, some congressional statutes enacted signal a movement toward a wholly national or unitary state).

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