Ann Althouse, The Vigor of the Anti-Comandeering Doctrine in Times of Terror69 Brook. L. Rev. 1231 (2004)THE VIGOR OF ANTI-COMMANDEERING DOCTRINE IN TIMES OF TERROR Ann Althouse*69 Brook. L. Rev. 1231 (2004)†I. INTRODUCTIONAlthough the Rehnquist Court has acquired a reputation for enforcing federalism,1 in reality its efforts have not been very robust. So far, the Court has crafted its doctrine to show some deference to state and local government, but it has not threatened federal power where it is seriously needed. To a great extent, the Court’s federalism decisions have served the interests of federal power, in that the cutbacks of recent years have removed unnecessary cases from the federal courts and placed off limits some areas in which Congress might otherwise posture for political effect. This constraint on federal power actually increases the likelihood that Congress will attend to matters that genuinely require national coordination.2*1232 Surely, the war on terrorism demands federal attention: Local efforts tailored to local preferences are obviously not enough to deal with an international network of terrorists that threatens national security.3 Yet, in carrying out the massive federal effort needed to deal with terrorism after September 11, 2001, the national government inevitably looks to *Robert W. & Irma M. Arthur-Bascom Professor, University of Wisconsin Law School. This Article is part of the David G. Trager Public Policy Symposium, Our New Federalism? National Authority and Local Autonomy in the War on Terror. I would like to thank Brooklyn Law School and all of the participants in the Trager Symposium, especially Susan Herman and Ernie Young, and, for editing assistance, John Althouse Cohen.†© 2004 Ann Althouse. All Rights Reserved.1To rely on the New York Times, one could easily get the impression that the Court has gone on a mindless rampage, enforcing federalism without regard for national interests, leaving Congress powerless to protect us from evils of all kinds. See, e.g., Linda Greenhouse, For a Supreme Court Graybeard, States' Rights Can Do No Wrong, N.Y. TIMES, Mar. 16, 2003, § 4, at 5 (referring to "a stunning series of federalism decisions that have curbed the power of Congress to bind the states to the full reach of federal law," and that represent a "federalism revolution," "ignited" by Chief Justice Rehnquist and "likely to define his place in Supreme Court history").2Thus, it resisted the federalization of crimes and torts traditionally handled at the state level by placing a limit of the exercise of the commerce power. United States v. Morrison, 529 U.S. 598 (2000) (finding insufficient power to create a tort cause of action for gender-motivated acts of violence); United States v. Lopez, 514 U.S. 549 (1995) (finding insufficient power to make gun possession in a school zone a crime). For a more extended discussion of the opinion, expressed in the text, that the Court’s federalism has been moderate, see Ann Althouse, Inside the Federalism Cases: Concern About the Federal Courts, ANNALS AM. ACAD. POL. & SOC. SCI., March 2001, at 132, 142 (2001) (arguing that the Court "has not reverted to its pre-1937 activism but merely alerted Congress to think more carefully about whether federal solutions and federal court access are really needed or whether to rely on state and local laws and state court adjudication"); Ann Althouse, On Dignity and Deference: The Supreme Court’s New Federalism, 68 U. CIN. L. REV. 245, 268 (2000) (characterizing current federalism doctrine as "a creditable and moderate" balance between dividing powers and benefiting individuals); Ann Althouse,The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 RUTGERS L.J. 631, 689 (2000) (noting that the Court’s recent federalism cases have only "sought to limit the way Congress can do things, not to place areas of regulation wholly off-limits to Congress," and ought to be considered "reasonably moderate and responsive to the needs of the competing institutions: the states, the Congress, and the courts").3Local law enforcement might be reasonably well suited to deal with some isolated activities that are labeled terrorism, such as an individual bomber operating in one location. Cf. Jones v. United States, 529 U.S. 848 (2001) (narrowing the interpretation of 8 U.S.C. § 844(i), which authorizes federal prosecution of the use "of fire or an explosive" to destroy a building).