Court Flip-Flop

By Michael S. Serrill

No theory of government is more dear to the hearts of Washington conservatives than the "new federalism"--the notion born in the Nixon . Administration that the Federal Government should give back to the states and cities much of the power that it has acquired since the New Deal. The new federalists' position got a major boost in 1976 when the U.S. Supreme Court ruled that Congress had only a limited right to interfere with "traditional" functions of local governments. But one Justice, Harry Blackmun, was a reluctant member of the shaky 5-4 majority in that case. Later Blackmun sided against states when they tried to use the 1976 ruling to challenge federal power. Last week the Justice abandoned his earlier vote completely and led a new 5-4 majority in overturning the 1976 decision and restoring Congress's broad authority to regulate many state and local government activities. It was a rare reversal of so recent a precedent.

The court's flip-flop prompted dismay not only among local officials but also among some court observers who think that such an abrupt and emphatic reversal on so important an issue makes a mockery of the judicial function. "This shows the influence of personalities over the rule of law," says University of Virginia Law Professor A.E. Dick Howard. "It tends to undermine public confidence in the stability of our justice system." Dissenter Justice Lewis Powell was similarly troubled. "Respect for the authority of this court," he wrote, is "not served by the precipitous overruling of multiple precedents."

The high-court turnaround came in an obscure case from San Antonio, where the local transit authority challenged the U.S. Labor Department's right to apply federal wage and hour rules to overtime payments of its bus drivers and other employees. A U.S. district judge concluded that public transit was one of the core local functions protected under the 1976 Supreme Court ruling, and that the wages and hours of transit workers were therefore immune to federal regulation. In overturning that finding, Justice Blackmun wrote for the court majority that various federal tribunals had failed utterly to agree on which local functions had to be left alone, and that such decisions are better left to elected representatives in Congress. "The political process ensures that laws that unduly burden the states will not be promulgated," he wrote. Judges should hardly ever second-guess that process, Blackmun added, concluding that the 1976 standard had proved "unsound in principle and unworkable in practice."

Union officials in San Antonio and elsewhere were delighted by the new court position, which should result in moderately increased overtime pay for some municipal workers. Gerald W. McEntee, president of the American Federation of State, County and Municipal Employees, said the decision ends nine years of "second-class citizenship" for public employees. Backers of local autonomy were shocked. "The court sits as arbiter of power among levels and branches of government," complains Lawrence Velvel, former chief counsel of the State and Local Legal Center in Washington. "That's its role. When the majority throws up its hands because the problems are too tough, that's simply an abdication of responsibility."

Not at all, replies Columbia University Law Professor Herbert Wechsler, one of the nation's foremost experts on federal-state relations. The San Antonio decision, he says, merely returns the high court to a position that it has held for 50 years. Wechsler argues that the 1976 decision was a "fluke" that the legal system is well rid of. "The Constitution gives Congress the power, without any qualifications, to regulate interstate commerce," the professor notes, "and this is interstate commerce" because the wages and hours of public employees, along with many other local government activities, affect the national economy.

But even Wechsler admits that the "vacillating" of the court on the issue hurts the bench's image. Former Reagan Justice Department Lawyer Bruce Fein has a harsher assessment: "This reinforces the notion that this court is without a head." The Burger Court has long been pushed and pulled by an unpredictable, shifting center. During his 14 years on the court, Blackmun, 76, has voted with the court's conservatives on many criminal-justice issues but frequently sided with the liberals on other questions. Some observers see the San Antonio reversal as the latest assertion of independence by a Justice once considered to be a solid member of the conservative bloc. Last week's majority was made up of Centrists Blackmun, John Paul Stevens and Byron White plus Liberals William Brennan and Thurgood Marshall. "You can almost see them getting together and saying, 'Let's win one against the Gipper,' " says one leading court expert.

The basic states' rights issue involved is an uncommonly volatile one. The now reversed 1976 decision itself reversed a 1968 decision, a constitutional zigzag that scholars believe has never before occurred. And another zag may not be far off. Given the probability that President Reagan will make at least one new court appointment, many observers predict that the states' righters may soon regain control. "The majority thinking in this case is doomed," says Velvel. Indeed, in a surprisingly candid judicial version of "the South will rise again," Justice William Rehnquist, author of the 1976 decision, last week wrote tersely, "I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this court."

With reporting by David Beckwith/Washington and Raji Samghabadi/New York