Contemporary Federalism October 3, 2017

Growth of Federal Power Before the 1930s Since the 1930s Delivered the mail Defended the shores Promoted westward expansion Supported the development of higher education Built the world’s strongest military Provided pension and healthcare benefits to the elderly Built the interstate highway system Supported education

More Federal Initiatives Since the 1930s Supported medical and scientific research Adopted measures to ensure clean air and water and safe workplaces, and to prohibit discrimination against individuals based on race, gender, ethnicity, etc. Supported agricultural production Provided disaster relief Regulated energy production, financial transactions, advertising, etc. Remember: Federal actions must be justified constitutionally because the powers of the federal government are delegated powers.

Tea Party Conservatives Tea Party conservatives believe that every item on the list after “build the world’s strongest military” is unconstitutional. Some Tea Party folks believe that everything after the 1930s is unconstitutional.

The Commerce Clause Congress justified many of its actions on the basis of the Commerce Clause, the constitutional provision giving Congress authority to "regulate commerce . . . among the several states." Congress used the Commerce Clause as a basis for legislation dealing with such diverse subjects as child labor, agricultural price supports, and racial discrimination in public places. In each instance, Congress argued that the particular activity it sought to regulate was part of interstate commerce.

This decision favored a strong national government. Wickard v. Filburn, 1942 Ruled that the Commerce Clause gives Congress authority to regulate wheat production, even for farmers that do not sell their crops. Historical point: Judges appointed by FDR make up a majority of the Supreme Court. This decision favored a strong national government.

This decision favored a strong national government. Katzenbach v. McClung, 1964 Ruled that Congress has the authority under the Commerce Clause to prohibit discrimination in restaurants, hotels, etc. because they serve people traveling from state to state. Historical point: The decision was made by the Warren Court (Earl Warren was chief justice), the most liberal court in American history. This decision favored a strong national government.

This decision favored states’ rights. United States v. Lopez, 1995 The federal law that prohibits firearms possession on school premises is unconstitutional because weapons possession on school property does not have a substantial effect on interstate commerce. Historical point: The Supreme Court in 1995 was closely divided between liberal and conservative justices. This decision favored states’ rights.

This decision favored a strong national government. Gonzalez v. Raich, 2005 Congress can ban the use or possession of marijuana, even in states that permit its use for medicinal purposes, because local cultivation of marijuana has a substantial effect on the illicit drug market. Historical point: The Supreme Court in 2005 was closely divided between liberal and conservative justices. This decision favored a strong national government.

Healthcare Reform and the Individual Mandate The Patient Protection and Affordable Care Act requires people who are not otherwise insured to purchase health insurance. Depending on their income, the government will help them cover the cost. This provision is known as the individual mandate. People who fail to purchase insurance must pay a higher income tax.

Defending the Mandate Congress justified the mandate on the basis of the Commerce Clause. Congress could require people to purchase health insurance because the decision not to purchase insurance affects interstate commerce. People without insurance will drive up costs by using emergency rooms. Incidentally, Congress has authority to levy taxes. The penalty for not paying insurance could be justified as a tax.

Challenging the Mandate Critics charged that Congress exceeded its constitutional authority by requiring people to buy health insurance. If Congress can do that, is there any limit on its power? They asked the Supreme Court to declare the mandate and the entire healthcare reform act unconstitutional.

NFIB v. Sibelius The Supreme Court upheld the Affordable Care Act (healthcare reform) in a 5-4 decision, ruling that the individual mandate was justified on the basis of Congress’s authority to levy taxes. The mandate, the Court ruled, was a tax and Congress has the authority to levy taxes. However, five justices held that Congress did not have authority under the Commerce Clause to impose the mandate because the Constitution only gives Congress the power to regulate commercial activities, not become active in commerce by purchasing insurance.

What We Have Learned How has federal power grown since the 1930s? What role has the Commerce Clause played in the growth of federal power? In which cases did the Supreme Court rule that Congress’s use of the Commerce Clause to justify its actions was constitutional? In which cases did the Supreme Court rule that Congress’s use of the Commerce Clause to justify its actions was unconstitutional? Did the Supreme Court rule that the Affordable Care Act was constitutional?