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Dueling Federalisms

Recent Rulings By The Rehnquist Court Have Reignited The Historic Debate Over The Meaning Of The Tenth Amendment 

By Karl Manheim 

Karl Manheim is a professor of law at Loyola Law School. He would like to thank his research assistant, Alina Demeter, for her invaluable assistance on this article. 

The most persistent constitutional issue in American history is the distribution of power between the states and national government. Issues of federalism dominated the ratification debates in 1788, threatened the establishment of federal institutions during our nation's formative years, tore the country apart in 1861, crippled the national government during the years of industrial expansion and economic depression, facilitated the New Deal, and breathed life into civil rights, equal protection, and individual liberties. The history of federalism is the history of America. 

As we exit this century, it seems that every year the Supreme Court announces a further retreat in the scope of federal power. The states' rights agenda of the Supreme Court currently resembles its jurisprudence of the period between the 1880s and the 1930s. During those years, the Court invalidated a wide range of federal laws regulating a changing and growing economy. The Court held that agriculture, mining, manufacture, employment, and even some transportation could not rationally be considered interstate commerce. Federal laws on these subjects, the Court held, were unconstitutional in a twofold, or dual, sense: they exceeded the enumerated powers of Congress and invaded the retained sovereignty of the states. 

The era of "dual federalism" coincided with the era of economic substantive due process exemplified by Lochner v. New York.1 The combined effect of dual federalism and Lochner was to disable state and federal economic regulation even in the face of the Depression. It was not until President Roosevelt attempted to pack the Court that it began upholding New Deal legislation. The turnabout year was 1937, but the final nail in the coffin of dual federalism was hammered in United States v. Darby in 1941.2 Justice Harlan F. Stone declared that the Tenth Amendment3 provided no independent check on the powers of Congress. The amendment, he wrote, "states but a truism.…[T]here is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment."4 

States' rights did not die along with the ideology of dual federalism. Indeed, the same year the Court decided Darby, it also announced the Pullman abstention doctrine-that unclear questions of state law should be adjudicated in state court before federal claims are tried in federal court.5 Still, the extent of federal power and the application of federal laws to the states remain the principal battle grounds of federalism. Recent cases have constricted the commerce power of Congress as well as its ability to impose obligations on state officers and hold states accountable through civil actions in federal court. These developments signal a major revival of states' rights jurisprudence. Some of the new doctrines even bear a striking similarity to the states' rights arguments of the secessionist states during the Civil War. Recent and controversial developments in Tenth Amendment jurisprudence include the breadth of federal commerce power, and state immunity from federal regulation. 

Article 1, Section 8 of the U.S. Constitution grants Congress the power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Chief Justice John Marshall gave the clause an expansive reading in 1819 in McCulloch v. Maryland,6 in which he announced the doctrine of implied powers, leaving to Congress the determination of whether particular laws were "necessary and proper" for the implementation of the enumerated "great" powers. In upholding the charter of the Second Bank of the United States, Marshall noted, "[W]ere its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity…is to be discussed in another place,"7 namely, Congress. In other words, Congress could select virtually any regulatory means to achieve its interstate commerce objectives. Only if interstate commerce was a mere "pretext" for regulating the wholly internal affairs of a state would the Court intervene. Marshall continued his broad reading of federal powers in Gibbons v. Ogden,8 in which he read the commerce clause to "comprehend every species of commercial intercourse." 

United States v. Lopez
Marshall's expansive interpretation of federal power has not fared well in the Rehnquist Court. In United States v. Lopez,9 the Supreme Court invalidated the Gun-Free School Zones Act of 1990,10 which prohibited possession of firearms within 1,000 feet of schools. Chief Justice Rehnquist's decision in Lopez established a three-part test for determining which activities Congress could reach with its commerce power. First, Congress could regulate the channels of interstate commerce, such as the various modes of transportation.11 Second, Congress could regulate the instrumentalities of interstate commerce, including persons and things in interstate commerce. Third, Congress could regulate other activities so long as they had a substantial relation or effect on interstate commerce. 

The first two areas embrace interstate commerce itself-the movement of goods and services across state lines. Even the narrowest interpretation of congressional power would include the channels and instrumentalities of trade. Accordingly, the first and second categories in Justice Rehnquist's triad sidestep the battle over states' rights. The dispute lies in his third category-intrastate activities that are substantially related to interstate commerce. In name, it is similar to the test used by the conservative Court in the years of dual federalism.12 The real question is: who gets to decide whether a particular regulatory measure is sufficiently related to interstate commerce to justify federal action? 

In the era of dual federalism, the Court routinely employed the argument that most economic activities were wholly local and generally unrelated to interstate commerce.13 Noting that virtually all commerce could be broken down into its constituent intrastate parts, each of which is beyond congressional power, the Court nonetheless held that such an analysis was the inevitable result of federalism: 

Everything which moves in interstate commerce has had a local origin. Without local production somewhere, interstate commerce…would practically disappear. Nevertheless, the local character of mining, manufacturing, and crop growing is a fact, and remains a fact, whatever may be done with the products.14 

Does the Court's holding in Lopez-that guns in school zones do not sufficiently affect the nation's economy as to be subject to federal regulation-take us back to dual federalism? The answer lies in the application of the Lopez standard. The substantial-effect prong of Lopez is informed by several factors: 1) did Congress make its own findings that the subject of regulation affected commerce? 2) Is there a jurisdictional element in the law, such that each application will require proof of an interstate connection? 3) Is the regulated activity commercial in nature? Judicial determination of "substantial effect," if actively pursued, represents a sharp departure from Justice Marshall's deferential approach and the rational-basis test used for most of two centuries.15 

In Lopez, the Gun-Free School Zones Act failed each element of the new test. The act did not regulate the channels or instrumentalities of interstate commerce, and it lacked any of the factors informing the third element. The Court noted that there were no congressional findings relating possession of weapons near schools to interstate commerce and that the act applied whether or not a gun was proven to have moved in interstate commerce. Finally, mere possession of a weapon was not an economic activity. The Court was not persuaded that the use of a weapon would have dramatic economic consequences; it was not use that was prohibited but possession. Within this formalist framework, the Court refused to "pile inference upon inference" to connect this local activity to commerce, and declared the law unconstitutional.16 

Despite the ominous implications of Lopez, neither subsequent decisions of the Supreme Court nor of the lower courts have been rushing to judgment on federal legislation. In practice, the net effect of Lopez has been to require congressional vigilance in demonstrating a connection to interstate commerce. For statutes to survive, Congress should make actual findings showing effects on interstate commerce. The Court will then use such findings as evidence of a rational basis and defer to Congress. If this trend holds, the legacy of Lopez will be simply to require that Congress do its homework. 

Applications of Lopez
Several significant federal laws regulating wholly intrastate noneconomic activity have withstood constitutional challenge under the substantial-connection criterion of Lopez. Federal courts have upheld commerce clause challenges to federal statutes prohibiting gambling, interference with access to reproductive health clinics, possession of machine guns, the use and carrying of a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a felon. Courts have upheld CERCLA federal environmental regulation and the Drug-Free School Zones Act. 

Recently, the Fourth Circuit continued a trend in several federal circuits and upheld Title III of the Violence Against Women Act17 under the commerce clause.18 In particular, the court assessed the validity of USC Section 13981, whose purpose was to protect the civil rights of victims of gender-motivated violence and to promote the "public safety, health and activities affecting interstate commerce."19 Since the enactment of VAWA, one circuit court and five district courts have rejected constitutional challenges to it. 

Similarly, several circuit decisions have upheld the Freedom of Access to Clinics Act. FACE enables persons who provide or seek reproductive services to recover civil remedies against anyone who obstructs, injures, or intimidates people seeking to obtain or provide reproductive health services. Courts upholding the act have done so principally on the basis of congressional findings, particularly: the existence of an interstate market for both providers and recipients of reproductive health services, and the substantiality of the threat posed to interstate commerce in such services by activity proscribed by the act. As indicated by FACE, Congress can go a long way toward insulating its enactment from Lopez by making the necessary findings. 

Lopez has had a mixed result in the Ninth Circuit. Most cases applying Lopez have sustained the application of federal law, but a few have found that the necessary elements were not met. Defendants have challenged numerous federal criminal statutes under Lopez. The Ninth Circuit has upheld convictions for: unlawful possession of a machine gun,20 carjacking,21 possession of a firearm by a felon,22 and drug trafficking. The court also upheld the validity of 21 USC Section 846 regulating interstate drug trafficking as applicable to wholly intrastate activity, deferring to congressional findings of substantial effects on interstate commerce.23 It also affirmed a conviction under the Hobbs Act24 for robbery and extortion of bank funds through stolen ATM cards. The court held that the use of a telephone to connect with out-of-state banks was a sufficient connection to interstate commerce. In another telephone case, the court upheld 18 USC Section 1029(a), which prohibits the "cloning" of cellular telephones.25 Since telephones are instrumentalities of interstate commerce, no substantial-effect analysis needed to be made. 

In other cases, the Ninth Circuit upheld 18 USC Section 922(x)2, prohibiting juvenile possession of a handgun, and the Indian Major Crimes Act (18 USC Section 1153).26 But in two companion cases, the court partially invalidated the Child Support Recovery Act.27 The statute was intended to aid law enforcement authorities in prosecuting parents who flee a jurisdiction to avoid state enforcement of child support obligations. However, proof of interstate movement was not necessary in prosecutions under the CSRA. Without this jurisdictional element, the court ruled, there is insufficient connection to interstate commerce. Prosecutions for failure to pay child support can still be brought under CSRA if a custodial parent takes a child out of state, but if the offending parent never leaves the jurisdiction, there is no use of the channels of interstate commerce, nor has there been any activity that substantially affects interstate commerce.28 

The Ninth Circuit's only other invalidation of federal law under Lopez was the reversal of a conviction for arson of a private residence.29 The court held that the government failed to prove the residence was used in an activity that substantially affected interstate commerce. However, the court upheld a conviction for arson of a rental-unit property, holding that the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties.30 

Thus, it appears that the powers of Congress have been narrowed under Lopez but not crippled as they were in the era of dual federalism. Legislative power approximates a zero sum game; as congressional power ebbs, state power grows. Thus Lopez marks a mild resurgence in states' rights. The big jump backward, however, has occurred under a different aspect of the Tenth Amendment. 

State Sovereignty
The historical use of the Tenth Amendment has been to limit the breadth of the substantive powers of Congress. A second application has emerged in recent years; the Tenth Amendment also imposes affirmative limits on the powers Congress does possess when those powers are used to invade state sovereignty. 

When Congress passes laws regulating private behavior, those laws might displace state power through preemption. In this manner, expansion of federal power results in a concomitant contraction of state authority. The Tenth Amendment was used during the era of dual federalism to cabin this encroachment on states' rights. However, when Congress regulates the states themselves, either by making them subject to the same laws as apply to private parties or by targeting state functions, state power is affected in a more direct and obvious way. These "invasions" implicate this second function of the Tenth Amendment. 

As state functions increasingly touch areas subject to federal regulation, the Tenth Amendment, in its second application, is frequently called into play. Many interactions between states and the federal government fall under the rubric of cooperative federalism, which arises when states voluntarily participate in federal programs. Conditional federal grants to the states are the best example of this. States enjoy little Tenth Amendment protection when they invite federal involvement.31 But when states are unable to decline participation in federal policy by rejecting federal funds, Congress's ability to enlist the states is severely circumscribed. 

The modern era of active Tenth Amendment jurisprudence began in 1976 with National League of Cities v. Usery,32 in which the Court held that application of the Fair Labor Standards Act to state and municipal employees violated state sovereignty. Justice Rehnquist's decision held that Congress could not regulate the states in areas of traditional state concern if the law affected the states in their sovereign capacity. Requiring local governments to pay employees the minimum wage did just that, because it hit the states in the heart of their sovereignty-their treasuries. Imposing financial obligations on the states, even in matters related to interstate commerce (such as labor relations) violated state sovereignty.33 Although the Tenth Amendment did not explicitly immunize states from generally applicable federal law, that was the Court's understanding of the constitutional scheme. Under Usery, state sovereignty was superior to federal sovereignty. How else could states be immune from federal law enacted pursuant to an enumerated power, unless they were the "supreme" authority? 

Less than a decade later, Usery was overruled in Garcia v. San Antonio Metropolitan Transit Authority.34 Justice Blackmun (reversing his vote in Usery), stated that "state sovereign interests are more properly protected by procedural safeguards inherent in the structure of the [political process], than by judicially created limitations on federal power."35 The bicameral composition of Congress, especially the states' representation in the Senate, provided the structural protection of state interests the framers had intended in their vision of federalism. Since no law could be enacted unless a majority of state representatives approved it, judicial enforcement of states' rights was unnecessary, absent an extraordinary defect in the political process.36 

Justice Rehnquist filed a short dissent, stating only that states' rights federalism would "in time again command the support of a majority of this Court."37 His prediction quickly came true with the appointments of David Souter and Clarence Thomas to the Supreme Court. The first signs of change came in a case that was both a warning to Congress and an elaboration on the political structure theory of Garcia. In Gregory v. Ashcroft, the Court held the Age Discrimination in Employment Act did not apply to mandatory retirement ages for state judges.38 Because congressional interference with a state's qualification for its judges would "upset the usual constitutional balance of federal and state powers," Congress must make its intention to do so "unmistakably clear in the language of the statute." 

The breach of the dike came the following year in New York v. United States.39 The Low-Level Radioactive Waste Policy Amendments Act created a statutory duty for states to provide for the safe disposal of radioactive waste generated within their borders. The act encouraged state compliance through a series of steps. The Court upheld the use of monetary incentives for state compliance40 but struck down a provision that required states that had failed to provide for disposal to "take title" to nuclear waste generated within their borders.41 

The irony of New York is that the invalidated act had been proposed by the National Governors' Conference as a means of breaking the logjam regarding nuclear waste. Moreover, it was adopted by unanimous vote in both houses of Congress,42 meaning that not a single state, through its representatives in Congress, felt the law too intrusive on state autonomy. Apparently, state representatives in Congress cannot be trusted to vote on behalf of their states' own sovereign interests. It is a good thing that the Supreme Court is there to protect the states, lest they disappear into a nation. 

States' rightists have welcomed the Supreme Court's recent dual sovereignty cases as heralding the end to unfunded mandates.43 The Ninth Circuit, however, has not been quite so enthusiastic. For instance, California sued the United States and various federal officials for constitutional and statutory claims premised on the adverse impact on the state of federal immigration policy. In State of California v. United States, the Ninth Circuit held that the United States did not "commandeer" state legislative policies by imposing costs associated with undocumented aliens or by conditioning receipt of Medicaid funds on an agreement to provide emergency medical services to aliens.44 

Similarly, in State of Nevada v. United States Department of Energy, the Ninth Circuit ruled that the department's denial of Nevada's request for funds from appropriations under the Nuclear Waste Policy Act did not commandeer Nevada's governmental processes into federal service.45 The act did not directly compel Nevada to enact or enforce a federal regulatory program but rather provided Nevada with an opportunity to participate in the Department of Energy's nuclear waste repository siting decisions. 

In another Nevada case, the Court ruled that federal ownership of public lands there did not violate state sovereignty. Federal ownership did not invade the core powers reserved to Nevada, such as the police power, or prevent Nevada from exercising its civil and criminal jurisdiction with respect to such lands, as long as it exercised its power in a manner that did not conflict with federal law.46 

Finally, in a significant voting rights case, Voting Rights Coalition v. Wilson, the Ninth Circuit upheld the National Voter Registration Act of 1993 (known as the Motor Voter Law).47 When Governor Wilson's administration refused to enforce the act, the United States and various public interest organizations sued. The district court granted a permanent injunction requiring state officials to implement the law. The Ninth Circuit Court of Appeals affirmed, holding that Article I, Section 4 of the U.S. Constitution gives Congress authority to override state law on federal elections. Moreover, the cost of complying with the act, even if significant, must be borne by California. The only solace for the state was that it retained exclusive authority to conduct state elections.48 

Despite such occasional setbacks, the agenda of states' rights federalism is progressing in the Rehnquist Supreme Court. This new (or renewed) vision of federalism includes not merely the affirmative restraints of the Tenth Amendment but also expansive immunity under the Eleventh and shrinking federal power under the Fourteenth. In the past two years, the Court has held that states were immune in federal court from commerce clause legislation49 and that Congress lacked civil rights enforcement power to protect religious freedom from state burdens.50 

Breard v. Greene
Federalism takes many forms, some of which are quite surprising and counterintuitive. Recently, for example, the Supreme Court held that a state's procedural rules in capital cases can defeat the treaty obligations of the United States. In Breard v. Greene,51 a Paraguayan national was convicted of capital murder in Virginia and sentenced to death. His habeas corpus petition in federal court claimed that Virginia authorities violated the Vienna Convention on Consular Relations by failing to advise him of his rights to contact his consulate. The Republic of Paraguay also filed suit. Both petitions were dismissed by lower courts on jurisdictional grounds.52 Thereafter, Paraguay filed suit in the International Court of Justice. On April 9, 1998, the ICJ noted jurisdiction and issued an order requesting that the United States "take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings."53 Breard and Paraguay then filed petitions in the Supreme Court for a stay.54 

The Supreme Court rejected both petitions. It held that "the procedural rules of the forum State govern the implementation of the treaty in that State." Since Breard had not raised his Vienna Convention rights in state court, the ICJ stay must be disregarded.55 Of course, "if the Governor [of Virginia] wishes to wait for the decision of the ICJ, that is his prerogative. But nothing in our existing case law allows us to make that choice for him."56 The governor did not so choose, and Breard was executed. 

As the cases indicate, many substantive policy issues become subsumed under the mantle of federalism. Of course, this technique is nothing new. For instance, opponents of civil rights have long claimed they were merely protecting state sovereignty, not racial politics. If "states' rights" is merely social and economic conservatism under another name, then federalism is an ideology. Advocates of "neutral principles" and "strict constructionism" would then lie exposed as judicial activists. It is hard to decry activism, as many judicial conservatives claim to do, and advance a policy agenda at the same time. Federalism provides a good shield to hide behind. 

1 See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (regulatory and business legislation invalidated as denying "liberty of contract"). The Lochner principle has been soundly repudiated.

2 United States v. Darby, 312 U.S. 100 (1941) (overruling Hammer v. Dagenhart, 247 U.S. 251 (1918), which held that Congress was without power to exclude the products of child labor from interstate commerce). 

3 U.S. Const. amend. X: "The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

4 Darby, 312 U.S. at 123. 

5 Cf. Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941) (federal courts must abstain from adjudicating federal claims when state courts might resolve controversy through interpretation of state law). See also Younger v. Harris, 401 U.S. 37, 44-45 (1971) (describing "Our Federalism"). 

6 McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). 

7 Id. at 422. 

8 Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824). 

9 United States v. Lopez, 115 S. Ct. 1624 (1995). 

10 18 U.S.C. §§922(q)(2)(a), 921(a)(25). 

11 The Court also cited Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), thus suggesting that hotels and restaurants are also channels of interstate commerce. 

12 See generally Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (1960). 

13 See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (Congress cannot regulate wages, hours, or other working conditions of miners). See also Schechter Poultry Co. v. United States, 295 U.S. 495, 550 (1935) (sale of diseased chickens could not be regulated by Congress because not directly related to interstate commerce); United States v. E.C. Knight, 156 U.S. 1 (1895) (American Sugar Refining Company, which controlled 98% of the nation's sugar industry, was not engaged in interstate commerce). 

14 Carter, 298 U.S. at 304. 

15 See Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264 (1981) (Court would invalidate legislation only if Congress had no rational basis for its finding that a regulated activity affects interstate commerce or if there is no connection between the regulatory means selected and the asserted ends). From 1937 to 1995, the Court did not strike down one federal law using the rational-basis test. 

16 United States v. Lopez, 115 S. Ct. 1624, 1625 (1995). 

17 42 U.S.C. §13981(a). 

18 See Brzonkala v. Virginia Polytechnic Institute and State University, 132 F. 3d 949 (4th Cir. 1997). 

19 Id. at 964. 

20 See United States v. Rambo, 74 F. 3d 948 (9th Cir. 1996). 

21 See United States v. Oliver, 60 F. 3d 547 (9th Cir. 1995). 

22 United States v. Hanns, 55 F. 3d 1456 (9th Cir. 1995). 

23 See United States v. Tisor, 96 F. 3d 370 (9th Cir. 1996). 

24 United States v. Atcheson, 94 F. 3d 1237 (9th Cir. 1996); see also United States v. Woodruff, 122 F. 3d 1185 (9th Cir. 1997) (government need only show a de minimus effect on interstate commerce to meet the jurisdictional element of Lopez and sustain a Hobbs Act conviction). Woodruff seems at odds with Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964), which upheld the Civil Rights Act of 1964 as a valid exercise of the commerce power of Congress. 

25 United States v. Clayton, 108 F. 3d 1114, 1116 (9th Cir. 1997). 

26 United States v. Michael R., 90 F. 3d 340 (9th Cir. 1996) (upholding 18 U.S.C. §922 (x) (2), which prohibits juvenile possession of a handgun); United States v. Lomayaoma, 86 F. 3d 142 (9th Cir.) (upholding the Indian Major Crimes Act, 18 U.S.C. §1153). 

27 Child Support Recovery Act, 18 U.S.C. §§228 et seq. 

28 United States v. Mussari, 912 F. Supp. 1248 (9th Cir. 1995), decided with United States v. Schroeder, 912 F. Supp. 1240 (9th Cir. 1995). 

29 United States v. Pappadopoulos, 64 F. 3d 522 (9th Cir. 1995). 

30 United States v. Gomez, 87 F. 3d 1093 (9th Cir. 1996). 

31 See South Dakota v. Dole, 479 U.S. 982 (1986). 

32 National League of Cities v. Usery, 426 U.S. 833 (1976). 

33 Id. at 848. 

34 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 

35 Id. at 552. 

36 Id. at 555. 

37 Id. at 579. 

38 Gregory v. Ashcroft, 501 U.S. 452 (1991). 

39 New York v. United States, 505 U.S. 144 (1992). 

40 Id. at 174. 

41 Id. at 175. 

42 The Low-Level Radioactive Waste Policy Act passed by a vote of 378-0 in the House and 79-0 in the Senate. 

43 See, e.g., Printz v. United States, 117 S. Ct. 2365 (1997), in which the Court invalidated portions of the Brady Handgun Violence Protection Act, which required local law enforcement officials to conduct background checks on prospective handgun purchasers but did not offer federal funds to cover the costs of compliance. 

44 State of California v. United States, 104 F. 3d 1086 (9th Cir. 1997). 

45 State of Nevada v. United States Department of Energy, 133 F. 3d 1201, 1207 (9th Cir. 1998). 

46 United States v. Gardner, 107 F. 3d 1314 (9th Cir. 1997). 

47 42 U.S.C. §§1973gg-1 to 1973gg-10. 

48 Voting Rights Coalition v. Wilson, 60 F. 3d 1411 (9th Cir. 1995). 

49 Seminole Tribe v. Florida, 517 U.S. 44 (1996). See also Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028 (1997) (limiting Ex Parte Young exception to the Eleventh Amendment). 

50 City of Boerne v. Flores, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997) (invalidating the Religious Freedom Restoration Act of 1993). For a full discussion of Boerne, see David B. Cruz, State of Sovereignty, Los Angeles Lawyer, July-Aug. 1998, at 32. 

51 Breard v. Greene, 118 S. Ct. 1352 (1998). 

52 The defendant had not raised the Vienna Convention in his state appeal and therefore was barred under the habeas rule of procedural default. Paraguay was barred from suing Virginia officials by the Eleventh Amendment. 

53 Technically, the ICJ order came in the form of a request to delay Breard's execution. In the diplomatic parlance of the ICJ, a request is the equivalent of a stay granted by an American court. 

54 Breard filed a petition for an original writ of habeas corpus; Paraguay filed a motion for leave to file a bill of complaint under U.S. Const. art. III, §2 (original jurisdiction over cases "affecting Ambassadors…and Consuls"). 

55 Breard, 118 S. Ct. at 1355. The Court also held that the Vienna Convention had been implicitly modified by the Antiterrorism and Effective Death Penalty Act of 1996, which reinforces the state procedural default rule. 

56 Id. 

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