Okay, folks, we're going to go ahead and get started with our week five material. This week, we're talking about federalism and our federal system of government. So we're going to start by looking at the founders definition of federalism and their intent.
We'll look at the structure of government and how it's set up. We'll be looking at both the horizontal distribution of power. There we're talking about separation of powers and checks and balances, and then the vertical distribution of power, meaning federalism. And then finally, we'll take a look at how judicial review and the Supreme Court have shaped federalism in subsequent years to the founding. So what is federalism?
Federalism. is a system of government where political authority is divided between different levels of government, right? And here we're talking about the division between the federal government and the state government.
So political authority is divided between the federal government and the state governments. So one of our founding fathers, Noah Webster, said that we can have no union, no national justice until the states resign to one supreme head the exclusive power of legislating, judging, and executing in all matters of a general nature. Everything of a private or provincial nature must still rest on the grounds of the respective state constitutions.
So here we see the founders distinguishing between those powers that belong to the federal government and to the states. So when we think of what powers belong to the states, what things do states do that the federal government can't do, right? So when we talk about, you know, registering births, deaths, marriages, etc. probate or the you know a result the winding down of people's estates um the um you know filing articles of incorporation um for the uh for the to start a business in a state uh licensing usually if you're going to be licensed to practice medicine or law or something of that nature that usually belongs to the state um activities that economic activity that occurs within a state uh historically um is you know within the province of uh the state government now we'll get to a particular change in that here but anyhow um those are some of the things that's just sort of the tip of the iceberg in terms of what the states do you So Noah Webster continues saying that the sovereignty and the republican form of government of each state is guaranteed by the Constitution.
The bounds of jurisdiction between the federal and respective state governments are marked with precision. Hamilton continues in regarding the role of the states of the federal system in Federalist 9. He says that the proposed Constitution so far from implying an abolition of state governments, makes them constituent parts of the national sovereignty by allowing them a direct representation of the Senate and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds with the idea of federal government.
Now, something that we're going to talk about when we talk about the legislative branch. is the fact that originally under the constitution it was the state legislatures that elected the senator so that's why he talks about the states having direct representation in the senate and then the other portions of sovereign power we kind of already discussed So here you have a graphic of, you know, federalism and how it works. We see sovereignty is split between the federal government and the 50 states.
And we're going to contrast this later with other forms of government. So we're going to continue now to the horizontal distribution of power. And here we're talking about the separation of powers and checks and balances. So what is the separation of powers? Separation of powers means the division of governmental authority into three branches, legislative, executive, and judicial, each with specified powers and duties on which neither of the other branches.
can encroach so we have the uh legislative power right the legislative power i'm sorry the legislative branch um the legislative power that is the power to make laws is granted to congress which consists of a house and a senate so according to james madison the legislative branch has three characteristics. One, it is bicameral, meaning a legislature with two chambers. Contrast this with a unicameral legislature, which means a legislature with one chamber. Why do we have a bicameral legislature? And it's to ensure that the legislature does not become the dominant institution of government.
So So You'll recall that that was one of the issues with the government under the Articles of Confederation, where the legislative branch had, you know, pretty much did everything. We didn't have checks and balances and separation of powers under that form of government, at least certainly not to the extent that we do under the Constitution. The other thing that Madison says. is that a law must first be passed by the people, then by the states. So meaning the House and then the Senate.
Additionally, he says, the Senate will be less likely to succumb to bad schemes or the passions of the people. This goes to the founders'distrust of purely democratic forms of government, while at the same time recognizing the need for the people to have a say in their government, which goes back to... this idea of liberalism and popular sovereignty.
Finally, Madison says the Senate provides a source of stability in the legislature in light of the two-year terms in the House. So Madison here is recognizing that some portion of the legislature needs to have some sort of institutional knowledge about issues and to contrast with the two-year terms in the House. The second characteristic is representative government.
So this is a government where decisions are made through the representatives of the people, right? So the legislative branch is a Republican institution, lowercase r, right? So people elect the representatives and then the representatives decide. Thirdly, the legislative branch is a branch of enumerated powers, meaning It's a branch of express powers, those powers granted to Congress by the Constitution. We know there what the powers of Congress are because they're written in the Constitution.
So examples include the power to tax, the power to borrow, the power to regulate commerce between the states, establish uniform naturalization of bankruptcy laws, and so forth. At the end of Article 1, Section 8, which is the provision that contains many of the expressed powers of Congress with regard to legislation, we have something called the Necessary and Proper Clause. So the Necessary and Proper Clause says that, or means that the proper means of executing the legislative powers given to it are necessary to pass. are to pass rather necessary and proper laws. So, for example, the power to lay and collect taxes must mean the power to pass laws necessary for the execution of that power.
As you, for those of you that may go on to study law or are interested in this sort of thing and for looking at further research, The Supreme Court has said that the necessary and proper clause is not an independent source of authority to legislate. It must be coupled with another Article 1, Section 8 power. Why do we have a necessary and proper clause? The reason we have a necessary and proper clause, according to Alexander Hamilton in Federalist 33, is to prevent the state. from sapping the foundations of the union, meaning that we don't want the states to engage in activities that are necessarily going to undermine the credibility and, you know, authority of the newly formed government.
So this recalls back to problems that the government had under the Articles of Confederation, where the states, for example, would enter into agreements with other nation states in Europe, and then the European powers would play the states off one another and the American government. So that caused a number of foreign policy problems. And so the idea here is to prevent that.
Now, folks like the anti-federalists were concerned that having a provision like the Necessary and Proper Clause would destroy local government, meaning the states, and individual liberty. And Hamilton's response to this in Federalist 33 was that, no, there's no destruction of local government and liberty because the government would operate the same even if these clauses didn't exist. And if the government abuses its authority under the Necessary and Proper Clause, Hamilton says the following. He says, if the federal government should overpass the just bonds of its authority and make tyrannical use of its powers, the people must appeal to the Constitution and take whatever measures are necessary to repair the injury done to the Constitution, depending on the circumstances. We now come to the executive branch, and Article 2, Section 1 says that the executive power is vested in the President of the United States.
So the executive power, meaning the power to enforce federal law, is granted to the President of the United States. So the power to enforce federal law is granted to the President. So what are some of the powers that the President has? He has he's the commander in chief, which means he's in charge of the armed forces.
He has the power to grant pardons and reprieves. He has the power to nominate and sometimes appoint ambassadors. And Article two, Section two enumerates a number of the other of the president's powers. And so we're just giving a cursory overview of the three. branches of government here as part of our discussion of separation of powers.
So finally, we come to the judiciary, right? So Article 3, Section 1 says that the judicial power is vested in the Supreme Court in inferior courts than Congress can establish. So by judicial power being the power to apply the law justly in a particular case.
And then Congress has, subsequent to the ratification of the Constitution through the Judiciary Act of 1789, Congress created a three-tiered judicial system with trial courts, appellate courts, and appellate courts. We'll be discussing that more when we discuss the judiciary. So in addition to the judicial power, the Supreme Court wields the power of judicial review. This is a judicially made doctrine, right, that the Supreme Court, that federal courts have the power to invalidate legislative and executive actions as unconstitutional, right? So federal courts can rule on the constitutionality of legislative and executive acts.
So another principle of American government that runs concurrently with the separation of powers is checks and balances. So what does checks and balances mean? This is the theory of governmental power where each branch of government has the ability to counter the actions of any other branch so that no single branch can control the entire government.
So. This is the theory where each branch of government has the ability to counter the actions of any other branch so that no single branch can control the entire government. So we have a couple of examples.
First, the presidential veto. So when the president receives a bill from Congress, he can either, you know, for the sake of this discussion, he can either sign the bill or veto it. He can also engage in something called.
pocket veto, but that we're getting a little bit ahead of ourselves here. So if he vetoes a bill, that means that the bill cannot become a law, right? However, Congress can override a presidential veto if, after a veto, the bill passes with a two-thirds vote in both chambers, okay? Think about also the war power. So of the government.
So the president is the commander in chief of the armed forces, meaning he's in charge of the armed forces. But only Congress can declare war. So Congress declares wars and the president executes the war. OK, so that's how our Constitution is designed.
So. We mentioned earlier, we've talked about the horizontal distribution of government. We're now going to return to the vertical distribution of government.
I'm sorry, the vertical distribution of power. So, again, that means federalism. And as we said, federalism is a system of government that divides political authority between the federal government and the state governments.
So. One of the features of federalism is its respect for state sovereignty. So this is the authority of the state to exercise its legitimate powers within its boundaries, free from external interference.
So both this idea of federalism and state sovereignty are derived from the Constitution. Each government is supreme within its sphere of jurisdiction. So contrast this with other forms of government. So on the one hand, we have unitary government. So what does unitary government mean?
This means that political authority is concentrated in a single national government. Political authority is concentrated in a single national government. The regional governments.
are simply subordinate forms that are appendages of a national government. Okay, so the regional governments are merely an extension of the central government. Okay, so in a unitary government, you have a central government. The regional governments are merely extensions. So we see this in communist countries.
We also see this... in some European governments as well. France comes to mind at the moment.
So on the one hand, we have, on one end of the spectrum, we have unitary government. And then on the other, we have confederation. So what is a confederation? A confederation is a league of nearly independent states.
where you have a weak central government and highly independent states. So the locus of political authority is in the states with a weak central government. So what are the advantages of federalism?
One, it can accommodate a diverse system. So... Meaning that you have differences in, you know, if you look at the United States, you have differences in, you know, history and culture and traditions and so forth.
And consequently, you're going to see, you know, differences in laws, perhaps, you know. favoring a particular type of industry or group of industries or, you know, you know, customized to some local practice. So the, you know, you still maintain the variety of those, these regional areas rather than being subject to the uniform standards of a central government. Federalism also protects against tyranny of the majority.
So if we didn't have, so if we had a unitary system, then where the states are merely extensions of the federal government, then when the central government passes a law, then, you know, certainly it's binding on citizens vis-a-vis the federal government. but we retain the uniqueness of the state system. The other thing that we see is that federalism adheres to the principle of subsidiarity.
So this is the idea that institutions of a higher order shouldn't interfere with institutions of a lower order. so that they're deprived of their function. So if you think about in your experience, maybe you have a boss that micromanages you or you have some friends with helicopter parents, we would say that those types of actions, the micromanaging boss or the helicopter parent, violate the principle of subsidiarity.
Likewise, federalism respects the, you know, sovereignty of the individual states. All right. So if we're working our way through the Constitution here, and that's what, you know, we've been doing, we're going through those provisions that are listed that we're going through those provisions that are listed.
that touch on the relationship between the federal government and the states and what the federal government can do and what the states can do or what they can't do. So under Article 1, Section 10, there are certain things that the states can't do under any condition. They cannot enter into any treaty, alliance, or confederation, nor can they coin money. Also, under Article 1, Section 10, there are certain things that Congress can't or I'm sorry that the states can do, but they must obtain permission from the Congress. And so what are some things they can do with the permission of Congress?
They can lay any imposts or duties upon imports or exports, and they can keep troops or ships of war in a time of peace. So if you compare these provisions of Article 1, Section 10, these are provisions that say States, these are things you can't do. Article 1, Section 8 says these are the things that Congress does. Beyond this, we have something called the Full Faith and Credit Clause, which says that states have to recognize the official acts of other states.
like marriages, divorces, adoptions, court orders, and judicial decisions. Another important provision is the Privileges and Immunities Clause, which says that the citizen of each state shall be entitled to all the privileges and immunities of citizens in the several states, meaning visitors to a state are given the same legal protection, travel rights, and property rights. as the state's own citizens.
Next, we come to Article 4, Section 4, the Guarantee Clause. So the Guarantee Clause says that 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 the application of the legislature of the executive against domestic violence.
So the Guarantee Clause says that a Republican form of government rather than a Democratic form of government or a direct democracy, if you prefer, is guaranteed to the states. The Supreme Court has said that it is the Congress and the executive branch that determine the. Republican character of the states. When the Guarantee Clause says that the government will protect the states from invasion and domestic violence, here we're talking about insurrection and rebellion.
Another significant provision is the Supremacy Clause. So the Supremacy Clause, Article 6, Paragraph 2, means that the U.S. Constitution, federal laws, and treaties are the law of the land.
Or more specifically, the U.S. Constitution and constitutional laws and treaties are the supreme law of the land. That's what it really says.
Now, the Supreme Court. when it interprets the Constitution, has developed something called the preemption doctrine. Preemption doctrine says that the federal law is supreme where Congress intends to occupy the field or a state law conflicts with federal law.
So Congress intends to occupy the field where it intends to legislate exclusively. So one area where the Supreme Court says Congress has intended to occupy the field is in the area of immigration. And in cases where state law conflicts with federal law, the sort of classic example of recent years is where state laws legalizing the recreational and medicinal use of marijuana conflict with federal law because The Food and Drug Administration still characterizes marijuana as, you know, a narcotic. Now, has the federal government, you know, the last two or three presidents really done a lot to challenge this?
You know, not a whole lot. So we'll see how this plays out. So another concern that the Anti-Federalists have is that this provision of the Constitution would destroy local government and liberty.
Again, we're returning to this objection. And Hamilton defends the inclusion of the Supremacy Clause. He says the operation of constitutional government would be exactly the same. without this provision. Further, Hamilton makes an argument based on the doctrine, the liberal doctrine of popular sovereignty.
He says when a number of political societies enter into a larger political society, he says that larger political society must necessarily be supreme over these other societies. Right. Because otherwise, why would you join this larger political body?
Right. He says otherwise you would have a treaty dependent upon the good faith of the parties, which is not a government. So he's saying we have a federal system and we don't have a Confederate system. Now, what if the government abuses its authority under the Constitution?
Under the Supremacy Clause, Hamilton says, you know, he says, like with the necessary proper clause, he says that the people must appeal to the Constitution and, you know, take the measures that would be necessary, you know, meaning, you know, voting people out of office and so forth. So we also have some amendments that touch directly on the relationship between the federal government and the states. And so we have the Ninth Amendment, which says that the enumeration of the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Meaning just because certain rights aren't listed doesn't mean that the people gave them up. So Madison was concerned about, you know, including a Bill of Rights. He says if we forget something, those powers would be absorbed by the general government. But and he said that this was the best argument against a Bill of Rights. However, the states were intent on this provision, so this was a concession to the states.
We also have something called the Tenth Amendment. The Tenth Amendment says that powers not delegated to the United States by the Constitution or prohibited by it to the states are reserved to the states, respectively. or to the people so here's what um madison says about this he says that the states are particularly anxious that it should be declared in the constitution that the powers not there and delegated should be reserved to the several states now madison says he thinks that this amendment is unnecessary because it's self-evident you know, based on the, you know, four corners of the Constitution. But he says he doesn't see the harm in making such a declaration.
And so since he doesn't see the harm, he'll go ahead and propose it. He's being very reasonable right there. You know what I'm saying? Look at them all, you know, getting along and stuff.
All right. So we're going to go ahead and take a look at judicial review and its impact on federalism. So probably starting at the late 1800s, early 1900s. we have a debate in the judiciary and more broadly about the role of the federal government. So this is, you know, once we get to the progressive era of the late 1890s through the 1920s.
And then in the 1930s, President Franklin Roosevelt attempted to push through a series of legislative initiatives known as the New Deal. And then the Supreme Court issued a set of rulings that expand the power of government and blur the lines between the federal government and the states. And some call this cooperative federalism.
while other scholars simply refer to it as centralization. So this gets us to start thinking about this distinction between federalism and a unitary system. So now that's where you could argue the conversation is.
So let's go over some. important Supreme Court cases. So first, we're going to take a look here at McCullough versus Maryland.
So, and this simply, so we're talking about the role of judicial review, so it makes sense, at least to me, that we talk a bit about judicial review. Here, we'll return, of course, to it when we talk about the judiciary. So, What are the facts of the case? The facts are this. The Second National Bank of the United States was accused of corruption, inefficiency, and was being held responsible by the states for the economic downturn in the country.
And so responding to public outcry to the bank States started to adopt heavy restrictions and levy taxes against the second bank, National Bank. So, for example, Maryland levied a $15,000 tax on the Baltimore branch. So McCullough, the bank's cashier, the branch manager of the Baltimore branch, refused to pay the tax. And then the state of Maryland sued.
And so the question here is, does the state have a power to tax? an institution created by Congress pursuant to a constitutional exercise of its power. And the court said no. The court determined that the creation of the bank was necessary and proper, right? And consequently, because the federal constitution and laws made pursuant to it are supreme.
And, um... The court also said that the states have no power to control the operations of constitutional laws enacted by Congress. All right.
So here we have the U.S. Supreme Court, the judiciary, striking down a. um you know striking down this state action um saying you know relying on the necessary and proper clause and then here also the supremacy clause so once we determine that the congress acted constitutionally the federal law is supreme i'm sorry we said um that we were talking about judicial review that's marbury versus madison um but here what we're looking at is um the court you know sort of an example of the court uh you know getting involved and you know affirming the principle of the supremacy clause uh and the necessary and proper clause in saying, okay, federal governments, you can do this, states, you can't do this.
So, but when we get into this other case here, Wickard v. Filburn, we're going to be looking at, you know, court again, upholding an act of Congress, which is a bit more. controversial. And anyhow, so here we're looking on how Congress is ruling on the constitutionality of legislative acts and executive acts. So it's that umbrella. So my apologies for the confusion.
All right. Let's take a look here at Wickard v. Filburn. So this is an interesting case.
So the Wickard v. Filburn involves the Commerce Clause, which is one of the provisions in Article 1, Section 8. And it says that Congress has the power to regulate commerce among the several states. So why is that important? Well, let's look at the facts of the case. So in Wickard v. Filburn, we had a farmer named Filburn who owned and operated a small farm in Ohio. Beyond some of the other projects he sold, he also grew a small crop of wheat every year.
And there was a U.S. Department of Agriculture regulation which put a... quota on the amount of wheat that you can sell on the open market. So when Filburn would sell his wheat, he would use the excess over the quota. He would reserve that, okay?
And then he would use it as feed for his livestock and for his poultry. He would use some of it to make flour for home consumption. And then he would keep the rest for seeding for the following year.
So anything over the quota, the Department of Agriculture quota, he would keep it a reserve. He wouldn't put that out in the market. Nevertheless, Filburn was fine, right?
$117.11. And so Filburn sued the Department of Agriculture. and the Secretary of the Agriculture.
So the issue here is, may Congress regulate purely intrastate activities under the Commerce Clause? Now, an intrastate activity, I-N-T-R-A, that's, we're talking about an economic activity that occurs within a state. We don't have a commercial transaction between parties in different states.
That would be intrastate, I-N-T-E-R. So this is activity occurring exclusively within the state of Ohio. So the question is, can Congress regulate purely interstate activities?
And the court said, yes. Personal consumption of wheat reduces demand on the market. And they also recognized that the effect of a single farmer is small.
However, in the aggregate, it may affect the value of wheat. tweet at large. So the court ruled in favor of the government in this case. Now, what are the implications?
So this is the facts may not seem that interesting. They might be a little bit boring to some, but the impact is profound. So according to the legal scholar Erwin Chemerinsky, he said there were a number of ramifications from this case. And I believe he's the dean at UC Berkeley or UC Irvine right now. All right.
Anyways, that's neither here nor there. So he says, Wickard v. Filburn expands Congress's commerce power. We remove distinctions between commerce and other stages of business, between direct and indirect effects of interstate commerce. And now Congress can regulate any activity that has a cumulative effect on interstate commerce, right? So any activity that has this cumulative effect, now we can regulate.
Chemerinsky goes on to say that the 10th Amendment is no longer viewed as a limitation on congressional power. And as a matter of fact, between 1933 and 95, no federal law was struck down on the basis that it exceeded the scope of Congress commerce power. So every time a government regulation or government law was challenged on the basis that it exceeded, the Congress exceeded its authority, the Supreme Court ruled for the government. So what does that do?
That expands the power of Congress to legislate. And it expands correspondingly the power of the executive branch through the bureaucracy to regulate. So what do we see then? What results then is we see an expansion of, you know, government power in this area.
It's not until the Rehnquist Court in 1995 and United States versus Lopez that we see the states or I'm sorry, that we see the Supreme Court. The Supreme Court. reasserting the principle of federalism in this area. So in United States v. Lopez, we have Congress passing a bill which made it a crime for any individual to knowingly possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone. So we have a 12th.
grade are convicted for carrying a handgun in a school zone. And the defendant sues on the grounds that the law was outside the scope of the commerce power. So the issue here is, does the commerce power extend to activities that have no apparent connection to interstate commerce?
And, you know, the answer here is no, according to the Supreme Court. court. The activity being regulated must substantially affect interstate commerce.
Possessing a gun in a school zone is not an activity that does that. Otherwise, the court says the commerce power would extend to any activity that leads to a violent crime or any economic productivity of individuals. So why are we talking about the commerce clause and the commerce power if we're talking about a 12th grader bringing a gun into a school zone because the federal government was arguing that this law was constitutional under the commerce power primarily the government was saying that if we don't uh that if we don't rest this this prosecution and this uh government action on the commerce clause then um this is gonna drive up insurance rates, you know, for school districts. Okay. And the other thing that the government said is that if we don't have this provision resting on the Commerce Clause, it will deter individuals from traveling across state lines into neighborhoods or areas where they might not otherwise go.
So the government thought that the effects that the government was concerned about were sort of too far down the causal chain, too far. The effect was too far from the cause. Rather that if the government's going to whether it's Congress, if it's Congress, they're going to regulate something. It has to have a substantial effect on interstate commerce.
So what sorts of things substantially affect interstate commerce? Examples include what the court calls the instrumentalities of interstate commerce. So interstate highways, airplanes, navigable waters within the United States, railroads, and so forth. Okay.
So to give you an idea of what they think, what substantially affects interstate commerce, those are the things Congress can regulate. Another significant case, a 1997 case, was Prince v. The United States. So here we have a law called the Brady Act that directs local law enforcement to conduct background checks on potential gun owners. And so there were some, I believe, police departments and others that sued. And the legal issue in this case was, can the federal government compel the states to administer a federal regulatory program?
And the answer here is no. States are sovereign entities and not mere instrumentalities of the federal government. So this goes back to this idea that we have a federal system. government rather than a unitary or cooperative federalist situation.
Also, the court said that Congress can't strip the president of his enforcement powers and give them to the states. So remember, the executive power means that the president is responsible for enforcing federal law. It is not local law enforcement. Right. So based on these two grounds, the court held or the court struck down this provision of the Brady Act.
All right. So that's going to do it for us on our discussion of federalism. And so if you have any. questions, please reach out to me via email or message me through Canvas. You can also see me during office hours.
If you can't make it to office hours and you'd like to talk with me about this subject or anything else related to the class, you can always email me to schedule an appointment. All right, guys, good luck with the material this week, and I will talk to you next time.