Contemporary Federalism: The State and Federal Relationship

State Authorities Amendment IX – “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 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.” Reserved powers of states – commonly known as police powers Gonzales v. Oregon (2006) United States v. Lopez (1995)

Congressional Action: Preemption Preemption doctrine – three instances where state regulation is precluded or invalidated by federal regulation: When Congress expressly states that it intends to preempt state regulation When a state law is inconsistent with federal law, even though no express preemption statement has been made by Congress When Congress has enacted a legislative scheme that comprehensively regulates a field

Congressional Inaction: The Dormant Commerce Clause Basic Question: Does the commerce clause preclude state action in some circumstances, even in the absence of federal legislation? Cooley v. Board of Wardens (1851) Cooley doctrine – If a subject in interstate commerce is by nature national in character or needs uniformity of law to be effective, then its regulation is exclusively federal. If not federal, then it falls within the state sphere.

Other Issues Discriminatory State Laws Burdensome State Laws Liquor Laws State Taxation as Discriminatory and Burdensome State as Market Participant Privileges and Immunities

Intergovernmental Immunity Chisholm v. Georgia (1793) 11th Amendment McCulloch v. Maryland National League of Cities v. Usery San Antonio Metropolitan Transit Authority New York v. United States Gregory v. Ashcroft Seminole Tribe of Florida v. Florida Alden v. Maine Kimel v. Florida Board of Regents Board of Trustees of University of Alabama v. Garrett Nevada Department of Human Resources v. Hibbs

Compacts and Interstate Comity Article I, § 10, clause 1:prohibits states from entering into treaties, alliances, or confederations with foreign nations. Clause 3 of this section further states that “[n]o State shall, without the Consent of Congress … enter into any Agreement or Compact with another State, or with a foreign Power.”

Comity Cooperation, or comity, between the states is constitutionally mandated in some circumstances. Article IV, § 1: full faith and credit. Interstate rendition clause (Article IV, § 2, clause 2): [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.

Guarantee and Militia Clauses Article IV, §4, states: 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.

State Constitutionalism and the New Federalism State constitutional law may not decrease or limit federally secured rights, but a state may extend civil rights beyond what the federal Constitution secures. Washington state constitution protects “private affairs” Georgia’s constitution protects freedom of “conscience” Illinois prohibits both public and private actors from infringing freedom of expression

Approaches to Dual Constitutionalism Three approaches (models) Primacy Interstitial Dual sovereignty Doctrine of adequate and independent state grounds