Pryor is a leader of the modern states’ rights movement, and has actively sought to limit the authority of Congress to enact laws under the Commerce Clause and the Fourteenth Amendment, to the significant detriment of individual rights and freedoms as well as the environment. According to Pryor, “we have departed too much from the Framers’ vision of a national government of limited powers — particularly over the last 60 years or so. . . .”3 Pryor has urged a restrictive interpretation of the Commerce Clause, asserting that Congress
should not be in the business of public education nor the control of street crimes. . . With real federalism, Congress would . . . make free trade its main domestic concern. Congress would not be allowed to subvert the commerce clause to regulate crime, education, land use, family relations, or social policy. . . With the New Deal, the Great Society, and the growing federal bureaucracy, we have strayed too far in the expansion of the federal government . . . .
Pryor’s states’ rights activism apparently began in law school, where he founded the Tulane Law School chapter of the Federalist Society6. Pryor unabashedly proclaims that federalism is “near and dear to my heart.”7 The title of a speech that Pryor gave before the Atlanta Lawyers’ Chapter of the Federalist Society in 2001 — “Fighting For Federalism” — encapsulates Pryor’s ideology and agenda.8
In that speech, Pryor gave “an outline of the competitive federalism for which I have been fighting.”9 He then praised “the Rehnquist Court” for “promot[ing] federalism with increasing frequency by enforcing” what he calls “constitutional limits on federal power.” In particular, Pryor spoke approvingly of a series of 5-4 Supreme Court rulings, and his own role in these cases, limiting congressional power under the Commerce Clause and the Fourteenth Amendment, calling them “steps in favor of federalism [that] represent a breakthrough in the restoration of dual sovereignty and enumerated powers.”10 Although Alabama was a party in several of these cases, Pryor elected in most of them to reach out voluntarily and file amicus curiae briefs arguing for severe restrictions on federal authority to protect civil and individual right. These and subsequent 5-4 cases in which Pryor participated include:
Pryor’s efforts to push “states’ rights” and “federalism” further, despite rejection by the Supreme Court
Although Pryor has praised the Court for these and other decisions, he has expressed very clear concern about the narrow 5-4 margin of many of the rulings, and linked the future of “federalism” to future Supreme Court appointments: “Most of the important federalism decisions of the last decade were reached by a 5 to 4 vote. A single appointment to the Court by the Bush administration could decide the fate of federalism. If all goes well, that future will be bright.”13
In fact, in July 2000, looking ahead toward the presidential election, Pryor gave a speech in which he offered similar praise for the Court’s recent states’ rights rulings, and linked his hope for further limitation of congressional power by the Court to the election of George W. Bush and Bush’s likely Supreme Court nominees. In that speech, Pryor said, “this term of the Supreme Court convinced me that the Court has become the last best hope for federalism. So I come today to praise three major federalism decisions of the last term of the Supreme Court and to explain my observation that the Rehnquist Court is our last best hope for federalism.”14
Pryor ended his speech with a warning that all is not well with the Court. Each of the decisions I praised today was reached by a five to four majority. We are one vote away from the demise of federalism. And in this term the Rehnquist Court issued two awful rulings that preserved the worst examples of judicial activism: Miranda v. Arizona and Roe v. Wade. The proponents of federal power realize, however, that these results can be changed in our favor with a few appointments to the Supreme Court. Perhaps that means that our real last hope for federalism is the election of Governor George W. Bush as President of the United States who has said his favorite justices are Antonin Scalia and Clarence Thomas. . . I will end with my prayer for the next administration: Please God, no more Souters.15
Leaving no room for doubt as to where he stands and his own role in the movement to curtail the power of Congress, Pryor in a 2001 speech about “federalism” concluded by stating, “If history is any guide, the next frontier of federalism cases will . . . involve spending clause legislation and the constitutional issues of sovereign immunity and enforceability in section 1983 suits. . . The groundwork for significant decisions has been laid in cases of statutory construction starting with Pennhurst and leading to Alexander v. Sandoval. I only hope I can participate in this next phase . . .”16
In fact, in a number of the cases discussed above, Pryor has specifically urged restrictions on federal authority with respect to individual and other rights that were much more severe than the Court’s final rulings. In Kimel, Pryor suggested that Congress had no power to legislate under the Fourteenth Amendment with respect to age discrimination because it was not concerned with a “suspect” classification like race and national origin, a radical theory that would further limit Congress’ ability to protect individual rights17. In Sandoval, Pryor did more than argue that there is no private right of action to enforce Title VI regulations that prohibit actions with a discriminatory impact. He suggested that implying such a right would violate state sovereignty and that Title VI “does not authorize federal agencies to create rules barring disparate effects” caused by a statewide program, regardless of the means of enforcement. Brief for Petitioners, Alexander v. Sandoval, 1999 U.S. Briefs 1908, at *4, *26 (Nov. 13, 2000). The brief criticized the discriminatory effects standard, noting derisively that “every law has a disparate impact on someone” and that “efforts to regulate disproportionate impacts wherever federal dollars appear” would have “far-reaching” and negative effects, a view that could significantly undermine federal discrimination protections even beyond the results in Sandoval. Id. at *39, *26.
Pryor also urged the Court to go further than even the 5-4 majority would go in restricting Congress’ authority to protect the environment in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”). The Court ruled 5-4 in SWANCC that Congress had not specifically authorized the Army Corps of Engineers to regulate disposal of solid waste into wetlands, within a state, that serve as important habitats for migratory birds, a result supported in Pryor’s amicus brief. But Pryor, who proudly proclaimed that he was the “only” state attorney general to file a brief in SWANCC “in support of federalism,”18 went a significant step further. He claimed (along with SWANCC) that Congress did not have the authority under the Commerce Clause to grant such ability to the Corps, asserting that this would give Congress a “general police power” over “local zoning and land use matters” and “eminently local activity.” Brief for the State of Alabama as Amicus Curiae in Support of Petitioner, SWANCC v. United States Army Corps of Engineers, 1999 U.S. Briefs 1178 at *9, *14 (July 27, 2000).
As four justices explained in SWANCC, however, this theory had “no merit” and could have devastating results. 531 U.S. at 197 (Stevens, J., dissenting). The matter was clearly not truly “local,” since “the protection of migratory birds is a textbook example of a national problem.” Id. at 195 (emphasis in original). Moreover, accepting Pryor’s theory could make Congress powerless to deal effectively with many water pollution and other problems that originate “locally” in one state that produce significant harmful effects across state lines.19
In another case, recently dismissed voluntarily by the petitioner, Pryor filed a brief arguing that it violates sovereign immunity to hold a state agency liable for violating Title II of the Americans with Disabilities Act, which specifically prohibits discrimination on the basis of disability by any public entity. In his amicus brief in Medical Board of California v. Hason, Pryor took even further his troubling arguments in Morrison with respect to congressional findings, claiming that hearings and other legislative history should not even be considered in determining whether there is a proper basis for congressional action. Brief of the Commonwealth of Virginia, the States of Alabama, et al., as Amici Curiae in Support of Petitioner, Medical Board of California v. Hason, 2002 U.S. Briefs 479, *6-*9 (Jan. 10, 2003). Although the Court will not be called upon to rule on Pryor’s radical theory since Hason was dismissed, it is important that it be explored fully by the Senate Judiciary Committee.20
In fact, views advanced by Pryor on states’ rights and federalism are so extreme that they have been rejected on several occasions by this Supreme Court, including three decisions unanimously rejecting Pryor’s arguments. Specifically:
Overall, it is clear that Pryor has advocated an extreme “states’ rights” legal philosophy that has already seriously harmed the ability of Congress to protect the rights and interests of Americans and that would, if fully implemented, even further undermine that authority in the future. This aspect of Pryor’s record alone raises serious concerns about his nomination to a powerful lifetime position on the federal court of appeals.22