1. 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”)

2. 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

3. 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)

4. 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

5. 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?

6. 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
: Era of utter deference
4. Post 1995: Some new limits…but uncertain practical significance

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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