Federalism Flashcards
Constitutions Federalism Provisions
No Federalism Clause
- A lot of Art IV controls the relationship
- Powers of federal government are specifically enumerated, and thus limited. All remaining power is “reserved” for the states
- A1 S8 Enumerated legislative powers of the national government
- A1 S10 excludes or limits a number of state powers
- A6 makes clear who wins if there is a conflict
- 10A reserves the power to the states everything the Constitution doesn’t give to the national government.
Faction problem and Madison’s solution (Federalist 10)
Factions are groups of people w/ common interests that are adverse to the public good.
Two main problems
1. They might pursue their own interests at the expense of the common good
2. They might oppress minorities
Solution: Rely on a large republic so that we can prevent oppression from factions.
Republic is better than a democracy because it filters people through a wise and public spirited representative (who would be more wise and more public spirited than the public at large)
But a large republic is even better than a small one
- More people to choose from so more likely to be wise and public spirited.
- larger = more interest groups which means harder to form majority faction
The Federalist Compromise
- Framers created a federal government that had limited and enumerated powers.
- States and the people retained all other powers of the government.
What are incidental / implied powers and how do they relate to NP clause
The grant of enumerated powers include other powers that were “incidental” to it.
These implied powers might be the means needed to carry out the granted power or other related powers.
Everyone agrees they must (1) be related to a principle power and (2) be smaller than the principle power
The Necessary & Proper clause is an explicit grant of incidental powers. Everyone agrees incidental powers exist. People disagree about how closely these powers have to relate to the principle power.
Three views + RS view on the incidental powers that flow from NP clause as they relate to the First Bank of the United States
- Jefferson (most strict)
- NP Clause doesn’t create any new powers. Just exists to expressly let people know these powers exist since they didn’t under AoC. Getting rid of the clause wouldn’t change the scope of the government’s power.
- Necessary = indispensable for carrying out the principle power.
- Re: BOTUS
- All enumerated powers can be exercised without BOTUS, so not necessary. - Madison (middle right)
- NP clause didn’t create new powers
- Necessary = “closely related”
- Re: BOTUS
- Too long of a chain to be “closely related.” If you stretch NP to cover BOTUS you basically do away with enumerated powers doctrine. - Hamilton (most liberal)
- Necessary = just means something convenient. You can do anything you want as long as it is helpful in carrying out principle power.
- 3 part test: NP allows Congress to use any power if - Congress has a legitimate end
- The claimed power has a reasonable relationship to that end
- Congress isn’t violating some other Constitutional provision
Re: BOTUS
- Under my own test I came up with the bank I came up with is Constitutional - CJ Snyder falls somewhere in the “NP doesn’t create any new power, it just tells you what is true” camp.
McCulloch v. Maryland
CJ, Marshall’s views on NP clause & incidental powers
CJ Marshall rejects Jefferon’s view which is what Maryland was arguing) (not sure if more like ham or mads tho)
- The word proper implies things outside of absolutely necessary [text]
- A1 S10 uses the work “absolutely necessary” and when people use two different words in different places its because they mean different things. [text]
- NP Clause is in the granting section (A1 S8) and not the limiting section (A1 S9) [structure]
Framers wanted the Constitution to be more flexible to adapt to the future. Too limiting of a view on Necessary makes it inflexible [purpose/consequences]
Then creates new test that looks a lot like Hamilton’s (see below)
McCulloch v. Maryland
Cj, Marshall TEST for NP Clause & incidental power
Under the Necessary and Proper Clause, Congress may use an incidental power if the power (looks pretty much like Hamilton’s)
(1) Congress must be pursuing a legitimate end
(2) Congress has to select means that are appropriate and plainly adapted for that end (relationship prong). Can’t be pretextual. Has to be the actual legitimate end that Congress is trying to achieve.
- But then Marshall doesn’t actually really apply this prong. And future courts generally followed suit not applying it.
- Not much scrutiny actually going in trying to figure out how close the relationship actually is or effect to determine if it is a pretextual or legitimate end.
- Need a relationship, but not going to get too involved with whether that relationship is satisfied.
(3) Congress can’t select means that are prohibited by the letter or spirit of the Constitution
Still needs to be a power smaller than the principle power think bookcase and wall. Cannot be a great power. Great powers ≠ proper.
- The power to compel people to buy products would be a great power (NFIB v. Sebelius)
McCulloch v. Maryland
Second (less important) holding
Maryland cannot adopt a special tax that only applies to BOTUS
- if states have the power to tax BOTUS, they have the power to destroy BOTUS (imagine a 100% tax)
- Just as Maryland can’t tax Ohio, it can’t tax the fed gov.
Fed can tax states tho bc the state has representation in the fed gov to protect it. Not true the other way around.
Commerce Clause
US v. Lopez & the Current Doctrine
US v. Lopez stopped the expansion of the CC. Defined three categories of activities that fall under CC and placed a limit on the substantial effects test: it must be an economic activity
Current doctrine:
Congress may regulate three broad categories of activities under the Commerce Clause;
1. The channels of interstate commerce
2. The instrumentalities of interstate commerce or the persons/things in interstate commerce; and
3. Interstate ECONOMIC activities that substantially affect interstate commerce.
Economic activities = activities that have a direct or proximate effect on market price (ex: production, distribution, consumption, etc.)
Aggregation principle from Wickard still applies.
- When making a determination on whether a behavior has a substantial effect, you don’t just look at the individual case, but you look at EVERYONE doing the same thing as that individual.
- Aggregate all the similar economic activity and then ask if there is a rational basis to believe the activity in the aggregate has a substantial effect on interstate commerce.
- ex: Wickard — even though Filbert’s own contribution to the demand of wheat was trivial, if we account for everyone producing their own wheat similarly situated, wheat demand is decreased significantly.
Commerce Clause current definitions
“Commerce” = includes buying, selling, and transportation for those purposes
“Among the several states” = means commerce that involves citizens from multiple states
“Regulate” = (a) creating rules that govern channels and instrumentalities of commerce; (b) prohibiting commerce; and (c) stimulating commerce
Why does the Commerce Clause NOT give Congress the power to CREATE an activity? (NFIB v. Sebelius)
[Text]
- if the power to regulate something included the power to create it, many of the provisions in the Constitution would be superfluous.
[Precedent]
- All of Court’s prior cases refer to regulation “of activity.” It presupposes there to be an activity to regulate.
[Consequences / Structure]
- Allowing Congress to regulate inactivity would allow Congress to regulate literally anything (even force people to eat broccoli(?)’
[Practice]
- Congress have never tried to use its commerce power to compel activity before. Constitutional novelty can be a sign of a severe constitutional problem.
History of Commerce Clause
US v. Darby & Wickard v. Filburn
Darby = HUGE expansion. Congress can reach intrastate activities (substantial effects test) AND we don’t care if their true motive was to regulate production.
Wickard = Takes things one step further than Darby. Here the thing being produced (wheat) is NEVER going to be sold. Introduces the aggregation principle.
Quick overview of the two views of 10A’s implication on state sovereignty
- The 10A is an interpretive rule. It doesn’t affect any analysis on whether Congress can regulate state governments. It is just a reinforcement that the enumeration that all powers not enumerated are left to the people.
- The 10A is an external substantive limit on Congress’s power. It prohibits Congress form using its power to regulate state govs in certain ways.
10th amendment as an internal limit
It doesn’t restrict/remove any of Congress’s power. It just tells you that anything not expressly delegated goes to the states.
- This effectively allows for MORE federal power.
Under this view, if you want to determine whether Congress has the power to force state governments to [INSERT POWER], you would ask only whether one of Congress’s enumerated powers allows Congress to adopt [INSERT POWER]. If the answer is yes, then the 10A poses no obstacle to Congress using that power against the state governments.
Should we worry about this eroding state sovereignty?
Garcia argues there are enough safeguards to protect federalism, but all of these have been pretty much eroded…
10th amendment as an external limit
10A carves out some of of Congress’s enumerated powers to prevent them from regulating state government in certain ways.
If you want to determine whether Congress has the power to force state governments to [INSERT POWER] you have to ask two questions. (1) Is there an enumerated powers. FINLLLLLLLLLLL
Taxing power
Express limitations on taxation
- Purpose. Must be to pay the debts and provide for the common defense and general welfare of the US
- No tax on exports
- Uniformity = most be the same rate on every state
- Apportionment = direct taxes need to be the same amount per person in every state
Taxing power
what is a direct tax
Tax falls directly on the individual who pays it.
Head tax, real estate tax
Taxing power
Implied limits on taxation
Taxing power is an indispensable power and can be used to achieve goals not otherwise attainable under other enumerated powers.
BUT Congress can’t use taxing power to impose regulations and penalties. At that point it is really just a regulation in disguise.
Taxing power
How to tell if something is a tax or a regulation enforced by penalty?
- Look to Congress’s primary motive.
- is it to raise revenue? or discourage a behavior? (in Bailey, Court ruled penalty bc: came on heels of Hammer, imposed a super super heavy penalty; and looked similar to the code they were trying to adopt in Hammer) - If Congress calls something a tax, there will be a STRONG presumption by the courts that it is a tax.
- Even if it’s called a penalty, can go ahead and find it to be a tax still due to doctrine of Constitutional avoidance.
Where does the power to spend come from?
Most people think it comes from the taxing power.
- taxes and spending have a common-sense relationship (taxing is raising revenue TO spend)
Argument against
- it could have easily explicitly included the spending power and it didn’t [text]
Some other people think it comes from the necessary and proper clause
- power to spend money seems closely related to the other enumerated powerss, regardless of what Congress is trying to accomplish with those powers.
Madison v. Hamilton view on the scope of Spending Power
Hamilton (view has been accepted by the Court since 1937)
- Congress is NOT limited by their enumerated powers.
- Only limit = the word “general” means it can’t be entirely for a locality or something that only benefits a small group…
- but even this check is mainly political. Courts should defer to Congress’s judgment as to what is for the general welfare and what is not.
Madison
- General welfare is just shorthand for Congress’s enumerated powers.
Spending Power & state sovereignty.
What can Congress encourage states to do by offering them money?
Congress can attach strings to funding to encourage states to do something as long as 5 requirements are met:
- The exercise of power must be in pursuit of “general welfare”
- but give Congress a ton of deference of what is in the interest of General welfare. Almost never going to fail this prong. - Any condition that the states have to meet must be imposed unambiguously
- states have to able to know what they are getting themselves into when they accept the funding - There has to be a relationship between the condition and the spending.
- Reltaionship has to be to the particular program Congress is encouraging in the funding (can’t be: if you change your state flower we will fund your highways)
- BUT relationship prong meant to be flexible (Dole). Drinking age and highway funding = related enough. - Condition Congress is imposing cannot require the states to do something unconstitutional
- Congress can’t offer the states any sort of deal that is coercive
- NFIB ACA IS corrective. If states refuse, they loose their medicaid funding which is like 10% of most state budgets.
