Federalism Federalism?  Division of power between the central government and the government of each state. States preexisted the Fed Gov which was created for specific, limited purposes preserve and regulate a open, common market; provide for common defense; conduct uniform foreign affairs Constitution focuses on creating a new central government with limited, enumerated powers….which can not act except pursuant to the powers given (and incidental means necessary & proper to those ends) Creates Very Few Direct Limits on States (mostly those associated with preserving the market and the union) which, in contrast to feds, have general welfare “police powers” Limited but: ART. VI federal law is supreme Thus, by defining federal power we know what is “left over” for the States (10th A “truism”)

Basic Premises for Challenge to Federal Power Every action must be traced back to…justified by…an enumerated power Implied powers are only justified as means to accomplish the enumerated powers No power to pursue the “general welfare” You can not determine scope of federal power by reference to state power…no specific powers are strictly “reserved” for the states (10th A debate) THUS When Federal Government acts, locate the likely relevant power, apply appropriate legal standard/rule/test that evaluates its limits

The Big Three 18 clauses in Article I with many important powers immigration, armed forces, money, intellectual property, bankruptcy BUT 3 Most Commonly Invoked & Litigated Tax & Spend Regulate Interstate & Foreign Commerce Civil War Amendments (enforce 13, 14 & 15th A rights against states)

Power to Tax & Spend Art. I Text: Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States… Issue: Scope of power to tax & spend limited to pursuit of other enumerated powers? S.Ct. not limited like other powers…Congress can tax & spend for any purpose involving “general welfare” of United States Key Distinction: spending not “regulating”…can spend money on issues that it can not directly control important factual distinction b/w spending vs regulating Incidental Power to “protect” spending

Commerce Power & Federalism Text: power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” Critical Interpretive Question: What is “interstate” and what is “commerce”? --potentially everything is part of commerce; many local activities “affect” interstate commerce…how should the words “among the states” and “commerce” be interpreted?

Role of Courts in Defining Commerce Power By defining inter-state commerce power federal courts, in essence, also define federal power & American federalism (relationship b/w States & Central Gov.) Historical Progression (ebb & flow of power): four judicially created “eras” 1. Gibbons & Broad Initial Definitions 2. Lochner Era & Judicially Created Limits on Federal Commerce Power—Hammer v. Daggenhart 3. 1937-95: Era of utter deference 4. Post 1995: Some new limits…but uncertain practical significance

Defining Modern Federal Commerce Power Categories of Activities/ Subjects Within Federal Power: Plenary authority to control, protect and regulate Channels Instrumentalities look for links in the statute to IC…crime if D uses mails, internet, etc…if so, statute only applies if Channel or Instrumentality is involved thus, Congress is “protecting” that part of IC Intrastate Activities if: Congress has a rational (reasonable , factual) basis for finding substantial, aggregate effect on Interstate Commerce or its Congress’ regulation of it Wickard remains a viable example

Judicial Retrenchment? Lopez & Guns in Schools 1st federal statute under CC struck down since 1937 Morrison & Gender Based Violence Deference & Evidence Congress relied upon? Commercial activity distinction …general but not “categorical” requirement Gonzalez & Medical Marijuana Commercial activity to “use” “grow” for personal medical treatment? Nexus to market Protection of regulatory scheme Framework & Triggers

Everyone’s favorite wrong answer 10th Amendment? Everyone’s favorite wrong answer Not relevant to definitions of federal powers tautology w/o substantive content (e.g., can’t determine scope of federal commerce power by reference to “state controlled” subjects alleged to be implicit w/in 10th A) Garcia: 10th A does not define or protect “traditional, core governmental” state functions from federal regulation of general applicability…improper for federal judges to interfere b/c Constitution leaves balance of state – federal power to political processes…the people 10th A does protect independence and autonomy of states by preventing federal “commandeering” of state legislative and executive processes  Feds can create $ incentives, can offer “cooperative federalism” but may not force states to legislate or enforce federal law

Enforcing the Civil War Amendments 1868 Amendments 13th (no slavery), 14th (citizenship, equal protection & due process), 15th (no racial discrimination in voting) Constrain States (“no state shall…”) NOTE: Previously no limits on States involving individual rights…eventually most of “bill of rights” are made applicable to States via 14th A “enabling clauses” Congress shall “enforce” through appropriate legislation significant shift toward federal power (now can control individual rights, and state interferences S.Ct. “enforce” also means “protect” “remedy” “prevent” and “deter”…broad power Includes power to authorizes private suits against State Governments in federal courts

Limits of 14th A Enforcement Power City of Boerne enforce does not mean “redefine” rights Examples If Congress provides a remedy broader than the right as strictly defined Remedy must be Congruent & Proportionate in light of State Violations

11th Limits 11th A  forbids suits by individuals (NA to federal gov.) for $ (not injunctions) against state government (not local) in federal court relevant when and if Congress attempts to authorize suits against the state in federal courtsCan abrogate state immunity to enforce 14th A rights But this remedy must be C & P