On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote:

What is federalism?

Federalism is the mixed or compound mode of government, combining a general government (the central or 'federal' government) with regional governments (provincial, state, cantonal, territorial or other sub-unit governments) in a single political system. Its distinctive feature, exemplified in the founding example of modern federalism by the United States of America under the Constitution of 1787, is a relationship of parity between the two levels of government established. It can thus be defined as a form of government in which there is a division of powers between two levels of government of equal status

In other words there is a division of power between the federal (national) government and the governments of the individual states.

How do we know which powers belong to federal governments and which powers belong to state governments?

Often times this is clear but in many cases it is not clear.

1. Express powers

Thus, there are powers which definitely belong to the federal government and these are found in article 1 section 8.

Enumerated or express Powers

Enumerated Powers are those powers specifically spelled out in the Constitution. These include the powers of Congress, as well as the Powers of the President. These include such powers as those granted in Article I, Section 8:

2. Implied Powers

Implied powers are the powers held by congress and the president, even though they are not mentioned in the Constitution. These powers, though they are not specified, are necessary in order for congress to carry out its responsibilities under the enumerated, or stated, powers. They are derived from the Necessary and Proper Clause at the end of article 1 section 8

3. Denied powers

Then there are powers which may not be exercised by the federal governments.

Denied Powers

Not only does the Constitution delegate and divide powers, it denies certain powers to prevent both the federal and state governments from overstepping their bounds. Denied powers are found in Article I, Sections 9.

4. Denied powers

Then there are powers which may not be exercised by the state governments.

These are also called Denied Powers

Not only does the Constitution delegate and divide powers, it denies certain powers to prevent both the federal and state governments from overstepping their bounds. Denied powers are found in Article I, Sections 10.

5. Reserved Powers

In the U.S. Constitution, certain specific powers are granted to the federal government. The Constitution reserves all other powers to the states. These are known as “reserved powers.” The reserved powers clause is not found in the body of the Constitution itself, but is part of the Tenth Amendment.

Amendment 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.Then there are certain powers called concurrent

6. Concurrent powers

Concurrent powers are powers a federal system of government that are shared by both the federal government and each constituent political unit (such as a state or province). These powers may be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject-matter. Concurrent powers are contrasted with reserved powers (not possessed by the federal government) and with exclusive federal powers (possession by the states is forbidden or requires federal permission).

In the United States, examples of the concurrent powers shared by both the federal and state governments include the power to tax, build roads, establish bankruptcy laws, and to create lower courts.

Example:

Article 1, Sec. 9, Par. 1 of the Constitution, Congress shall have power "to lay and collect taxes, duties, imposts and excises."

Article 1, Sec. 10, Par. 2, "No State shall without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of Congress.

Ever since the beginning of our history, the states have maintained the right to impose taxes. The Federal Government has always recognized this right. When our Constitution was adopted, the Federal Government was granted the authority to impose taxes. The states, however, retained the right to impose any type of tax except those taxes that are clearly forbidden by the United States Constitution and their own state constitution.

https://www.treasury.gov/resource-center/faqs/Taxes/Pages/state-local.aspx

Article 4

Article Four of the United States Constitution outlines the relationship between the various states, as well as the relationship between each state and the United States federal government.

Article IV

Section 1.

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

The first section requires states to extend "full faith and credit" to the public acts, records and court proceedings of other states. Congress may regulate the manner in which proof of such acts, records or proceedings may be admitted.

Section 2.

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Clause One of Section 2 requires interstate protection of "privileges and immunities". The seeming ambiguity of the clause has given rise to a number of different interpretations. Some contend that the clause requires Congress to treat all citizens equally. Others suggest that citizens of states carry the rights accorded by their home states while traveling in other states.

A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

Clause Two requires that fugitives from justice may be extradited on the demand of executive authority of the state from which they flee.

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

This clause was rendered mostly moot when the Thirteenth Amendment abolished slavery.

Section 3.

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

The First Clause of Section Three, also known as the Admissions Clause,[6] grants to Congress the authority to admit new states into the Union. Since the establishment of the United States in 1776, the number of states has expanded from the original 13 to 50. It also forbids the creation of new states from parts of existing states without the consent of the affected states and Congress.

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

This clause, commonly known as the Property or Territorial Clause, grants Congress the constitutional authority for the management and control of all territories or other property owned by United States. – Eg Guam is a territory

Section 4.

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

This clause, sometimes referred to as the Guarantee Clause, has long been at the forefront of the debate about the rights of citizens vis-à-vis the government. The Guarantee Clause mandates that all U.S. states must be grounded in republican principles such as the consent of the governed.

The Supremacy Clause and the Doctrine of Preemption

What happens when state law conflicts with federal law? The answer relies on the doctrine known as federal preemption.

The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the "supreme law of the land." This means that judges in every state must follow the Constitution, laws, and treaties of the federal government in matters which are directly or indirectly within the government's control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law.

But in the absence of federal law, or when a state law would provide more protections for consumers, employees, and other residents than what is available under existing federal law, state law holds. For instance, federal anti-discrimination law does not include LGBTQ individuals as a protected class. Therefore, an openly gay employee in Kansas can be lawfully fired simply for being gay. But an Illinois employee may sue under state law for wrongful termination if their sexual orientation or gender identity (either actual or presumed) was a factor in the firing.

Eg Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

A court’s Preemption analysis begins with three assumptions.

First, that Congress does not casually preempt state law. This assumption is strongest when the legal issue is one of the general health and welfare of a state’s citizens and consumers.

Second, that Congress’ purpose in enacting the law is a primary concern of the Preemption analysis. Congress’ purpose is evident in two ways: the language of the statute and its framework, and the complete statutory and regulatory scheme.

Third, the relative importance to the State of its own law is immaterial to the analysis. State law must yield to federal law.

Express Pre-emption case

Express Preemption is the simplest form of Preemption. As stated by the Court in Jones v. Rath, “ Congressional enactments...override state laws with which they conflict.” Jones presents the classic example of Express Preemption. In Jones, Congress passed a law requiring certain information to be included in food labels, and a particular method for calculating that information. Congress included language which made it clear that any state law that overlapped with the federal statute was preempted. California had an overlapping food label law which required similar information, but used a different method to find that information. Several food packagers challenged California’s law as preempted. The Supreme Court agreed, and struck down the California law.

Implied Pre-emption cases

McCulloch v. Maryland

Facts of the case

In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. The state appeals court held that the Second Bank was unconstitutional because the Constitution did not provide a textual commitment for the federal government to charter a bank.

Question

Did Congress have the authority to establish the bank?

Did the Maryland law unconstitutionally interfere with congressional powers ie was there federal preeemption?

Conclusion

Congress has the power under the Necessary and Proper Clause to charter the second Bank of the United States.

Maryland may not impose a tax on the bank.

In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.

Pursuant to the Necessary and Proper Clause (Art. I, Section 8), Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the U.S. Constitution. Marshall redefined “necessary” to mean “appropriate and legitimate,” covering all methods for furthering objectives covered by the enumerated powers.

Marshall also held that while the states retained the power of taxation, the Constitution and the laws made in pursuance thereof are supreme (supremacy clause ) and cannot be controlled or destroyed by the states.

Pennsylvania v. Nelson

Facts of the case

Nelson, a member of the Communist Party, was convicted of violating the Pennsylvania Sedition Act. This Act was implemented prior to Congress's adoption of the Smith Act of 1940 (amended in 1948) which prohibited the same conduct as Pennsylvania's law.

Question

Did the Smith Act supersede enforcement of Pennsylvania's sedition law?

Conclusion

Yes. The Court held that Pennsylvania's law was unenforceable and was superseded by the federal act. Chief Justice Warren argued that the scheme of federal regulation of seditious activities was "pervasive" and "left no room for the states to supplement it." Furthermore, the federal act dealt with an issue of primary importance to the national government which made any enforcement of similar state laws potentially harmful to the smooth execution of national statutes.

Gonzales v. Oregon

Facts of the case

In 1994 Oregon enacted the Death with Dignity Act, the first state law authorizing physicians to prescribe lethal doses of controlled substances to terminally ill patients. Attorney General John Ashcroft declared in 2001 that physician-assisted suicide violated the Controlled Substances Act of 1970 (CSA). Ashcroft threatened to revoke the medical licenses of physicians who took part in the practice. Oregon sued Ashcroft in federal district court. That court and, later the Ninth Circuit, held Ashcroft''s directive illegal. The courts held that the CSA did not authorize the attorney general to regulate physician-assisted suicide, which was the sort of medical matter historically entrusted to the states.

Question

Did the Controlled Substances Act authorize the attorney general to ban the use of controlled substances for physician-assisted suicide in Oregon?

Conclusion

No. In a 6-3 opinion delivered by Justice Anthony Kennedy, the Court held that Congress intended the CSA to prevent doctors only from engaging in illicit drug dealing, not to define general standards of state medical practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to declare a medical practice authorized under state law to be illegitimate.

Some interesting areas where this has not yet been resolved:

Historically, the federal government has not cracked down every single time a state and federal law contradict. If state law contradicts federal law but it's not something that affects national security or international relations, the fed might not intervene. In Nevada, certain counties have legalized prostitution, which also violates federal law, but the federal government has so far not enforced the doctrine of pre-emption in Nevada. Prostitution is illegal according to U.S. federal law, but under Nevada state law, counties with a population of less than 700,000 people can legally have legal brothels. Unlike in Arizona, the federal government has not sued the state to shut down prostitution, and unlike California's medical marijuana dispensaries, the fed has not raided any brothels in the state. You could argue that prostitution is also an international issue, since human trafficking is certainly a problem that crosses state and national borders, but the federal government has not taken any action in Nevada.

Probably the best litmus test for how the federal government will handle marijuana legalization in Colorado and Washington is to look at how it's handled legalized medical marijuana in other states.

As we saw earlier, the federal government can enforce the doctrine of pre-emption, but it doesn't exercise its full power in every case. In California, where medical marijuana is legal, the federal government has taken a different tack.

California legalized medical marijuana in 2003, and the state's marijuana facilities have had a rocky relationship with the federal government, especially beginning in the fall of 2011. Dispensaries in California have been subject to federal raids, though in most cases there haven't been any arrests -- instead, the government seizes and destroys the business owner's plants and sometimes shuts the businesses down completely.

In Colorado, dispensaries and other medical marijuana businesses have been subject to raids and audits conducted under federal law. (see below for a relevant case)

The interstate commerce clause

The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.

Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states. The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States.

The commerce clause has traditionally been interpreted both as a grant of positive authority to Congress and as an implied prohibition of state laws and regulations that interfere with or discriminate against interstate commerce (the so-called “dormant” commerce clause). In its positive interpretation the clause serves as the legal foundation of much of the U.S. government’s regulatory power.

Dispute exists within the courts as to the range of powers granted to Congress by the Commerce Clause. It is often paired with the Necessary and Proper Clause, and the combination used to take a broad, expansive perspective of these powers.

The Commerce Clause is the source of federal drug prohibition laws under the Controlled Substances Act. In a recent medical marijuana case, Gonzales v. Raich, the Supreme Court rejected the argument that the ban on growing medical marijuana for personal use exceeded Congress' powers under the Commerce Clause. Even if no goods were sold or transported across state lines, the Court found that there could be an indirect effect on interstate commerce. The Court relied heavily on a New Deal case, Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops because the aggregate effect of individual consumption could have an indirect effect on interstate commerce.

United States v. Bishop Processing Co., 287 F. Supp. 624 (D.C. Md. 1968), that the movement of AIR POLLUTION across state lines from Maryland to Delaware constituted interstate commerce that is subject to congressional regulation. The plaintiff, the United States, sought an INJUNCTION under the federal Clean Air Act (42 U.S.C.A. §§ 7401 et seq. [1955]) to prevent the operation of the Maryland Bishop Processing Company, a fat-rendering plant, until it installed devices to eliminate its emission of noxious odors. The defendant plant owners argued, among other contentions, that Congress was powerless to regulate their business because it was clearly an intrastate activity. The court disagreed. Foul-smelling air POLLUTION adversely affects business conditions, depresses property values, and impedes industrial development. These factors interfere with interstate commerce, thereby bringing the plant within the scope of the provisions of the federal air-pollution law.

A brief comment on the “dormant commerce clase”

The Dormant Commerce Clause, or Negative Commerce Clause, in American constitutional law, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the US Constitution. The Dormant Commerce Clause is used to prohibit state legislation that discriminates against interstate or international commerce.

Justice Anthony Kennedy has written that: "The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent."

Thus, in a dormant Commerce Clause case, a court is initially concerned with whether the law facially discriminates against out-of-state actors or has the effect of favoring in-state economic interests over out-of-state interests.

Discriminatory laws motivated by "simple economic protectionism" are subject to a "virtually per se rule of invalidity"

Example:

City of Philadelphia v. New Jersey, 437 U.S. 617 (1978)

On account of its location wedged between New York City and Philadelphia (two of the largest cities on the East Coast of the United States), New Jersey has long been a heavily industrialized state, frequently containing factories and other facilities for businesses centered in or servicing the major cities nearby; as well as in the state. Among the facilities developed in New Jersey was waste processing, including both toxic waste and regular municipal-waste landfills. Municipalities and businesses outside New Jersey made such extensive use of the state's waste-processing facilities that in 1973, the New Jersey Legislature passed a Waste Control Act (N.J.S.A. § 13 et seq.) prohibiting the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State."

Subsequent to the passage of the Act, the City of Philadelphia, whose municipal waste was delivered in part to landfills and other waste-processing facilities in New Jersey, filed suit against the New Jersey Department of Environmental Protection in the Chancery Division of the New Jersey Superior Court, seeking an injunction against enforcement of the Waste Control Act on the grounds that it was unconstitutional. The New Jersey Supreme Court, however, found that the law advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce. It therefore found it permissible under the Commerce Clause of the Constitution. The plaintiffs appealed to the Supreme Court of the United States.

whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.

Another way that federal Government controls the state governments: Funding

Types of Federal Grant Funding

The federal government offers financial assistance to the states, various non-federal government agencies, and other entities. The purpose of these grants is to support a program or function that is beneficial to the public. Federal grants cannot be used as federal assistance, or loans to individual people. Additionally, federal grants may not be used to acquire property, or contract services for the direct benefit of the federal government. Federal agencies offer more than 1,000 grant programs each year, each of which falls into one of the following categories:

Project Grant Funding

Project grant funding is awarded to subsidize certain specific services, for a fixed period of time. Once a project grant has been approved, the funding agency accepts applications from eligible organizations, who compete for a portion of the total grant funding. Once the application period has ended, the agency evaluates each one, then awards grants to those who best meet the application criteria.

As an example of project grant funding, the U.S. Department of Justice operates the Justice and Mental Health Collaboration Program. This program gives grants to states, local government agencies, and Indian tribal organizations to improve access to mental health services for criminals suffering from mental illness. Applicant agencies must submit a statement of how their projects will address the program’s required six objectives. About 20-30 of the highest-scoring applicants receive grants.

Formula Grant Funding

Formula grant funding is used for ongoing programs that serve a particular group of people, such as children with disabilities, or low-income students. Formula funding does not have a competitive selection process, but is determined based on general criteria, such as population, or other census criteria. All applicant agencies that meet the application requirements can receive funding under the formula grant funding process.

As an example of formula grant funding, the U.S. Department of Health and Human Services (“DHHS”) operates the Nutrition Services Incentive Program, which provides grant funding to encourage efficient delivery of nutritious meals to the elderly in a given geographical area. The formula used to determine the size of grant awarded to each applicant is based on the number of meals served to the elderly in the prior year, as compared to other states or regions. The system is automatic in that, as long as each state reports their meal tallies, the DHHS reimburses $0.50 per meal delivered.

Block Grant Funding

Block grant funding is also determined on a formula basis, though these grants fund broad concerns, rather than specific individual projects. Block grants, given to address such purposes as education, public health, or safety, allow the recipient agencies broad discretion in operations and applying the funds. Examples of block grant recipients include Community Development, Adult Social Services, and Temporary Assistance to Needy Families.

Categorical Grant Funding

Categorical grants are offered to governmental entities and agencies to be used for a very narrowly defined purpose. Categorical grants are awarded to applicants who meet the qualifications, based on a pre-defined formula. These types of grant come with reporting requirements, to ensure the continued adherence to program conditions. Examples of categorical grant funding include Head Start programs, Magnet School programs, Forestry Assistance programs, and Asbestos Abatement programs.

What are the powers of Congress?

Federal law is supreme, and therefore it may preempt to a state or provincial law in case of conflict. Concurrent powers can therefore be divided into two kinds: those not generally subject to federal preemption (like the power to tax private citizens); and, other concurrent powers.

Denied Powers

Not only does the Constitution delegate and divide powers, it denies certain powers to prevent both the federal and state governments from overstepping their bounds. Denied powers are found in Article I, Sections 9 and 10. These include prohibiting the federal government from taxing the exports of any state, or conferring titles of nobility. In addition, the states cannot make treaties or alliances with foreign countries.

Ever since the beginning of our history, the states have maintained the right to impose taxes. The Federal Government has always recognized this right. When our Constitution was adopted, the Federal Government was granted the authority to impose taxes. The states, however, retained the right to impose any type of tax except those taxes that are clearly forbidden by the United States Constitution and their own state constitution.

https://www.treasury.gov/resource-center/faqs/Taxes/Pages/state-local.aspx

Categorical grants – use the money for a specific purpose even if it guides exclusive state grants

Block grants – do what you want

Mandate – tie funding of one thing with compliance with another thing

FEDERALISM