Kerry Sautner, I'm the Chief Learning Officer at the National Constitution Center. Today's class is all about the big constitutional concept of federalism and separation of power. I promise you, we're going to do even more big concepts than that, and we have a lot to go through today and we're going to watch these big concepts in action and how they play out over time. Now to join us in this class, we're with one of our top scholars at the National Constitution Center, Tom Donnelly.
Tom, would you like to say hi to all our students as we kick off today's class? Tom Donnelly Absolutely. Hi, everyone.
Thanks so much for being with us. Kerry Sautner Tom, there's a lot to get through today, and the students are really excited to dive into these concepts. Here's some key questions, essential questions that are going to guide us through our class. We always want to start off with clean definitions for everybody. We'll ask what is separation of powers?
Along with that, we have to ask what is checks and balances, or what are checks and balances? Then what is federalism? Where do we find these things in the Constitution? Why do we have them as well? Then this class, we can't wait to dive into when these have been put into play and how they've balanced out.
Now, the keep is like an endpoint where we always talk about these big, we want to make sure that our students know that there's a modern implication for these questions. What I wanted to do first was just pose a hypothetical, and we'll get to remember that these actions of the past really do affect us today. So our hypothetical today is, does Congress have the power to pass a law?
requiring everyone to wear a mask during a pandemic. This is going to be a federalism, a checks and balances, a separation of powers question. But let's begin as we ponder that question with the definitions of these big concepts. We'll start with separation of power.
Tom, walk us through these three big ideas. Thomas Donnelly, So starting with the separation of powers, simply stated, this is just the idea that the Constitution distributes political power. between three branches of government.
So we have a legislative branch, Congress, an executive branch led by a single president, and a judicial branch headed by a single Supreme Court. So that's the separation of powers. And that's connected to another big principle, which is the principle of checks and balances.
So this is the idea that, so first we separate power between different branches of government, but then checks and balances is the system the Constitution sets up. that grants each of those branches of government the power to check abuses by the other branches. So at the national level, we separate power into three different branches, and then we give each of those branches the powers to check the other ones.
So that's separation of powers, checks and balances. The last big principle for this week is federalism. So if separation of powers is splitting power at the national level between three branches of government, federalism is about the fact. that the Constitution also distributes power at two different levels of government.
Some power going to the national government and a lot of power remaining with the states. That division of power between the national government and the states is our system of federalism. Kerry Sautner I love this class because we put these pieces together to show, and you said it right there, how do we divide power?
How do we divide power across the national government? How do we then divide power again between the national government and the state government. All of this is being done, and to say this in the nicest way possible, it's because these guys are really scared of power being in the hands of one part of the government. They're at the Constitutional Convention and we're going to look at the Constitution next and where these powers are spelled out, and where these checks are spelled out.
But what is it that makes them so worried that they keep spreading it out and keep separating it? Kerry, they have two different things in mind. You know, one is even before the U.S.
Constitution, we have a framework of government, the Articles of Confederation, which create a really, really weak national government and really, really powerful states. And so they think at that point in time that that system doesn't quite get the divisions of power right. We want to give the national government more power to address genuinely national problems, give it the power to tax, to regulate the economy in certain ways, etc.
But at the same time, you have to remember, we fought a revolution against a distant, out-of-touch government in Great Britain, a king. a parliament. As they're creating this new national government, they wanted to make sure that they didn't create something all-powerful, so replacing a distant powerful government with a new distant powerful government.
The big vision here is that they wanted to come up with a way to avoid abuses of government power at all levels. The best way they came up with that was to divide power, divide power at the national level through separation of powers, and then divide power between the national government and the states through federalism. They saw this as a key protection. against abuses by government. And you're right, there's so many kind of pendulum swings going through that short period of time around from the Declaration of Independence to the Constitution, you know, very scared of a big giant national government that's too far away.
And then watching how it doesn't work when there's not enough power and there's not a strong national government. So maybe somewhere with these two ideas will swing and kind of center our pendulum. So let's kind of look closely at the Constitution, kind of zero in on it. Talk about separation of powers. Separation of powers first begins with who has the power of the government.
Can you walk us through where in the Constitution we see power given to different parts of the national government? Thomas Donnelly, MD, PhD Absolutely. We always have to remember beginning with the preamble, the power begins with the American people.
This idea of popular sovereignty, we are initially given the power and then we distribute that power to different branches of the government. The Constitution's Articles 1, 2, and 3 establish the three branches of the national government. Article 1 of the Constitution establishes the legislative branch Congress, which is responsible for making the laws.
Article 2 establishes the executive branch led by a single president, which is responsible for enforcing the laws. Article 3 establishes the judicial branch headed by the Supreme Court responsible for interpreting the laws. That's the key separation of powers between those three branches of government.
It's in Article 1. two, and three. Thank you, Gouverneur Morris of Pennsylvania, the Constitutional Convention delegate who came up with this way of organizing the Constitution. It makes it very, very easy to follow and see where these powers are.
But of course, even with the separation of powers, the other key principle at work in the Constitution is that idea of checks and balances. The easiest way to see this is just with a concrete example. Just think about the lawmaking process that the Constitution sets up.
In Article 1, it gives Congress the power power to make our nation's laws. But at the same time, the Constitution builds in place certain checks. So for a bill to become a law, it has to pass the two houses of Congress, so the U.S.
House and the U.S. Senate. But that's not the end of the story. It still has to pass its way through two additional checkpoints.
The first one is the president. So the president is given through the Constitution the veto power. So after a bill passes Congress, it goes to the president's desk.
desk. The president could either sign it or veto it. The president said we could sign it or say no to this new law. So that's one possible checkpoint.
Sometimes the president's looking and saying, is this law constitutional or unconstitutional? If it's unconstitutional, the president vetoes it. It thinks that Congress is abusing its power. So that's one checkpoint.
But even if a law gets through Congress, it's signed by the president, there's still, after the law is signed by the president, people can go to court and challenge that law and argue that it's unconstitutional, that even though the Congress and the president approve of this law, that the courts still have a role in deciding whether or not a law is constitutional or unconstitutional. That's that checkpoint known as judicial review. So for each law, it has to get through Congress, it has to get through the president, it has to get through the judiciary. And the big idea here, Kerry, is that we want many checkpoints in place for people to look at the law, make sure it's consistent with the constitution.
The other is that generally speaking, this process is really complicated. It slows our politics down and the framers were hoping that this new national government would have more power than it had before, but at the same time, that politics would slow down such that enough eyes are getting on that law, enough hands are involved in it, that you can create good policy. Kerry Sautner I love that idea to think about each of these branches not just having a power, but a responsibility to say, I checked the Constitution and this is okay..
each branch is like a clearinghouse. And then if it's not right, one of them will tug in a different direction to make sure that it becomes correct or changes. Now, this idea of separate powers and dividing and separating powers, you know, isn't just Madison as like a light bulb going off in Virginia all by himself. There's a lot of lived experiences, but there's also ideas coming from people like Locke and Montesquieu.
Can you kind of explain to our students what ideas that these two had and how Madison used those to kind of come up with this plan, along with the other constitutional convention delegates? Yeah, I mean, it's a reminder that the founding generation especially. were always looking to draw on really two separate sources. They were looking to try to look at the best political thinkers of the past who were drawing the words asking the same questions they are. This is where Locke and Montesquieu come in.
Then we're also looking to learn from their own lived experiences. Between the Declaration of Independence and the new constitution, Americans themselves were living under a series of state constitutions. They were learning through those experiments, what worked and what didn't work. What they're pulling from Locke and Montesquieu, so Locke's Second Treatise of Government and Montesquieu's Spirit of the Laws, is this general idea of the separation of powers.
That you really do want to be able to, there is a danger in placing legislative, executive, and judicial power all in one particular branch, or even in the case of a king, in one particular person. As such, to avoid those sorts of abuses, what you should really do is separate that power out. divided between different branches of government.
Then also, Madison's innovation being making sure that then those branches of government are also set up against each other. Because as you said, Kerry, it's so cool that with each branch of government, there's power there to ensure that there is a constitution check as each action, as each law is coming through, that each branch of government can play a role in making sure that everyone's remaining faithful to their oath to uphold the constitution. Kerry Sautner-I love that. I love that they take these brilliant ideas, but then they innovate them and change them a little.
This is almost like a Venn diagram where they're overlapping upon each other to have that check, and they're not clean and fully separated. Now, as we dive into these pieces and look at these sections, we also want to dive into federalism. Where in the Constitution, and this is the ragu of the Constitution, it's in there.
It's all over it. Where is... federalism in the Constitution and how do you see it play out?
Thomas Donnelly, MPH, Yeah, it really is, Kerry. Once you start looking, you can see it everywhere. Now, the federalism, the word is not mentioned in the Constitution.
There's no clear federalism clause, but as you can see on the screen here, everywhere from Article 1 of the Constitution, where we're establishing the powers of Congress, all the way to Article 6, where we're establishing the supremacy of national law. In provision after provision, we see different parts of the Constitution speaking to what powers go to the national government, what powers go to the states, which powers of the national government not have, and even in certain cases, which powers do the states not have? In each of these areas of the Constitution, we see both the framers when they create the original Constitution, but we the people as we amend the Constitution, grasping with this big question of federalism as to which power goes to the national government, which power goes to the states. The question here, Kerry, is that, why did the founding generation think that federalism was a good idea.
Why was it important to have the division of power between the national government and the states? There are a couple of different reasons for that. For the founding generation, part of the idea was they didn't want all power to go to this big new national government. For them, they wanted to ensure that a good amount of political power remained with the governments that were closest to the American people. In their views, that was the state and local governments.
They create this new national government. with powers to address certain genuinely national issues like national taxation, regulating commerce between the states, serving as a single voice for America on the world stage, so foreign affairs, all of these big things they wanted the national government to be able to do where they thought it was important for the nation to speak with one voice. But the other thing they knew is that we are a diverse nation. As you look at the founding generation, so many of the people in the founding generation felt more connected to their states.
than to the national government. They wanted to make sure that there was a system in place where you had a lot of power remaining with the states to allow the states and their people to shape policies in diverse ways that suited their communities best. What's amazing is, as a matter of theory, this has served great purposes in America.
The great metaphor we hear in 1932 is from Justice Louis Brandeis, where he looked at federalism and said, The beauty of it is that it creates laboratories of democracy. And the idea here is that once you grant powers to the states to shape policies on education, health care, the environment, any number of issues, it allows for a few different important things. You know, one thing is states can just agree to disagree.
So states on certain issues can just take different approaches that suit their communities, and that's fine. And that's part of the system of federalism. But the other thing is that we can use...
what the states are doing as natural experiments and look at different policies that are experimented in state A and state B on a particular issue and we can learn from those experiences through federalism the states can be bold. and we can learn from them. So that over time, good ideas have a way of filtering up from the states all the way up to the national level. The classic example here, Kerry, in many ways, is women's suffrage. The women's right to vote, women at the ballot box began in the Western states, and the idea worked so well that it spread east even before we had a national constitutional amendment.
It went from the Western states all the way east to big states like Michigan and New York. even before we had a 19th Amendment ending sex discrimination in voting. This idea of women's suffrage went from something where people weren't sure if it was a great idea to it being tested out in the states and it eventually being written into the Constitution. The flip side is that once we have a national government, we also have the ability on certain issues to say, no states, you can't do that.
When the national government's acting within its own powers, it can look at what states are doing on certain issues and say, No, that policy is not acceptable in the United States. A key example here is civil rights legislation. So we had Southern states putting up a system of Jim Crow segregation all throughout the South where African-Americans were discriminated against.
And then eventually the civil rights movement, working with the national government, passed key legislation like the Civil Rights Act of 1964, the Voting Rights Act of 1965, which promised racial equality for everyone and eradicated Jim Crow in the South. So there. The federalism allows for bubbling up, but also in certain things, the national government is saying no, not in America. Kerry Sautner And I think that balance, again, is the whole point about separating power and ensuring that there is a tug-of-war that when we think about federalism, we say, national government, this is your job. You're supposed to look at us as a nation and follow the Constitution and what our nation needs.
Again, it makes sense in between states. any kind of big picture idea. And then for state government, what's your job? Knowing your people the best.
But when something bubbles up from the states that isn't following the Constitution, the national government has the supreme power to come down and say, no, this is not allowed. So it completely makes sense how these things are shifted. And as we look in to how this has played out over time, it was a great idea laid out, but it really had to be tested as we go through.
Some of the biggest tests start right away. We talk about bank and Washington. Again, they write this concept into the Constitution of federalism, this concept into the Constitution and separation of powers, and then very quickly, something tested. Usually the beginning test start with Hamilton.
Always one for testing boundaries. Tell us the story, Tom, about the National Bank. Thomas Donnelly Smith, Jr.: First, big constitutional debate in America is over the constitutionality of a national bank. And what's so cool about this is the initial constitutional debates, they don't happen at the Supreme Court. They happen within George Washington's administration.
And so it creates, it's an amazing cast of characters, Curry. You have Washington as president, you have Alexander Hamilton as treasury secretary, you have Thomas Jefferson as secretary of state, you have James Madison in the House of Representatives. And, you know, You're right.
In many ways, the moving force here is Alexander Hamilton. Just to appreciate what they're trying to do here, there's this new constitution. It's the earliest days of the republic and they have to figure out what it means and how much the national government can do versus how much is left with the states, and the national bank becomes a flashpoint.
Alexander Hamilton makes the argument that what this government needs is a big, bold economic policy. If you want to be a great nation, if we want to have a great economy, That's something that really the national government needs to do through big national economic policy. The states, leaving it to them, they won't be able to handle it.
And at the core of Hamilton's economic vision is the idea of a national bank. Hamilton sees his plan through Congress. Congress passes. It's a federalist Congress, so its political allies are in control. They pass Hamilton's economic plan.
But remember, under this system of separation of powers, checks and balances, once that bill passes Congress, it ends up on George Washington's desk. He has to make a decision. Do I sign it or do I veto it?
Do I say yes, do I say no? For Washington, he's thinking everything I'm doing, everyone's watching me closely, I have to be careful. I have to make sure we're doing here is consistent with the Constitution.
What he does is he asked his cabinet, he's got really smart people in there. He says, what do you think? Do you think this is constitutional or unconstitutional?
Can Congress create a bank or can it not? Hamilton, it's his plan. Of course, he says yes. He says yes, this is what the Constitution was about. It was about being able to address big national problems like our economy.
Yes, a bank allows us to do that constitutional. The flip side is that Thomas Jefferson, James Madison. They say, no, this extends beyond what the national government can do. Mr. Hamilton, tell me, where is the clause in the Constitution? Where's the established bank clause?
I read Article 1, Section 8, where the powers of Congress are. I don't see that in there. So they argue that a national bank is unconstitutional. Ultimately, Washington sides with Hamilton. He signs the bill.
Washington concludes the bank's constitutional, but that doesn't end the debate, Kerry. I'll pause there. I don't know if there are any questions, but I can pause at that moment.
No, I love this story because first of all, you look and you watch, they put a constitution into play, but now they're trying to figure out exactly what it means. And they get down to the words and say, what are the words in the meaning of the constitution? And then what are the rights and responsibilities of each branch?
And Washington so brilliantly developing a cabinet and then also asking the cabinet for their advice around what is the right move for the president. Is this a valid constitutional question and which way do I go? Keep going with the story.
I just wanted to frame that a little bit for our students. Thomas Donnelly, Yeah, absolutely. Another two decades pass, and this question is still being debated, the constitutionality of a national bank. It finds its way before the Supreme Court and Chief Justice John Marshall.
It's the same question as before, you have the same set of arguments on either side. Some people arguing that a bank is constitutional, some arguing that a bank is unconstitutional. What does Chief Justice Marshall say? He says on the one hand, yes, Thomas Jefferson, yes, James Madison, you're right.
There is no established bank clause in the Constitution. But where you're wrong is you're not reading the Constitution the right way. A Constitution can't list literally everything in there.
If that were the case, it would be a humongous book. Part of the idea of a Constitution is that it's a small document that everyone can read and own. It's only going to have certain.
broad outlines about congressional power. But if we look at a national bank, it's closely related to many of the powers and duties given to Congress. If you look at Article 1, Section 8, there are key powers like the power to tax and spend for the public welfare, to borrow money, to regulate interstate commerce, etc.
What Marshall argues is that although there isn't an established bank clause in the Constitution, that establishing a bank is so closely related to these different powers that Congress does have. that Congress is permitted to establish a bank. He also says that part of the reason I know this and that it's the right way to read the Constitution is that I read all the way to the end of Article 1, Section 8 of the Constitution and has what's called the necessary and proper clause which says that Congress will have the power to, quote, make all laws which shall be necessary and proper for carrying into execution the foregoing powers.
For Marshall, it's enough that Congress is granting a bunch of powers that are related to a national bank that the necessary and proper clause confirms for him that he's able to read between the lines of the Constitution and imply certain powers that aren't there specifically written in the text. Kerry Sautner I think that's unbelievably important. Actually, this is one of Hamilton's biggest worries when writing the Bill of Rights.
What if you don't write it all down there? It doesn't mean that the rights aren't implied. It goes back and forth.
What are these big ideas in the Constitution and how do they spell out? Now, Fast forward, what? Almost like 30 years later, it's not the same outcome.
So tell us story part two of the banking saga. Thomas Donnelly, Yeah. So this is now the coda to the story. It's 1832, and we have a different president. It's President Andrew Jackson.
He has a different vision of the Constitution than George Washington, Alexander Hamilton, and John Marshall. Jackson agrees with Jefferson and Madison. He believes a national bank is unconstitutional.
And Congress has just passed a bill rechartering the bank. It gets to Andrew Jackson's desk. And again, just like Washington did, Jackson has the power and responsibility to decide whether to sign this law or to veto it. And people are daring him to veto it because the Congress specifically put this bill in front of him because it's an election year.
Jackson's going to be running for he's running for reelection. And they don't think that Jackson's going to have the guts to veto the National Bank. Apparently, they didn't really understand Andrew Jackson. He said, I'm going to veto this thing.
Importantly, he doesn't just veto it, he writes what is known as a veto message. This is where Jackson is explaining his reasons for vetoing the bill to the American people. He makes really three simple arguments.
One, the bank is unconstitutional. James Madison, Thomas Jefferson, they were smart, they were right. There's no established bank clause in the Constitution. The bank is unconstitutional. Congress does not have that power.
Two, as a matter of policy, the National Bank is a terrible policy. I'm here to speak for the American people as president. The bank only represents the elite, the wealthy, the few. It doesn't represent the rest of us. It was a matter of policy.
I think the National Bank is a bad idea. Finally, third, I don't care what John Marshall said. I don't care what the Supreme Court said.
I as president take an oath to the Constitution. I as president have the power to veto bills. I as president and as a human being, have my own powers of reason to decide what's constitutional and unconstitutional.
I think the bank's unconstitutional, so I will veto it. In the end, Andrew Jackson vetoes the Second National Bank, and he wins reelection in 1832. Kerry Sautner Two questions for you. One, is this the first memo to go with a veto that was ever established? Thomas Donnelly No, no, veto messages were-Kerry Sautner Typical.
Thomas Donnelly Yeah, they were part of the precedent because the idea is, the president is an important constitutional actor who takes an oath to the Constitution. If you read the veto message and other ones throughout history, they read a lot like Supreme Court opinions because they're really explaining their constitutional views. That goes with my second question, is this pushing the power of the president at the time, or have presidents before him said this terminology that, no, my job is to check the Constitution too, and this is constitutionally why it's not relevant, made that stake in the ground that Jackson does in this moment?
Well, presidents had long thought that they could use vetoes to express their constitutional views. Jackson was an innovator in that he vetoed more legislation than presidents who came before him. His critics would say that he's abusing the veto power. Jackson would just say, I'm exercising my constitutional responsibilities, but vetoes themselves were flashpoints for Andrew Jackson for sure. Kerry Sautner-Awesome.
It's always interesting. Yes, it's clearly like they didn't know who they were talking to. As we're on Jackson, let's keep this idea of separation of powers and the checks and balances between the branches. but focus for the next story on executive orders.
The veto power is one of the powers of the presidency, but executive orders is a power of the president as well. Where in the Constitution is executive orders? What really is the role of executive orders before we get into the story around Truman?
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They are simple ways to the president's ordering other people around. So the question becomes from a constitutional legal perspective, not so much executive orders in and of themselves, but it's the very specific question of Where is the president getting the authority to order this person to do that? Is there a part of the Constitution that gives the president the power?
Is there a law passed by Congress that gives the president the power? The critics of the president's use of executive orders tend to argue that presidents use executive orders to sort of bend and expand the powers that are actually there. So they're viewed as an abuse of power where they're acting without authority.
But ultimately, the question for us as constitutional students and lawyers is to always ask, OK? President, where are you getting this power from? Okay.
That's what the students are going to ask us when they hear this story. Truman is trying to explain where he's getting this power from, but give us the facts of the story and what was happening. It's the 1950s, and we've got the Korean War going on. Lay out the story for us and then we'll ask our students, does the president have power to do this? Because this one I always think is a zinger.
This is the classic case of Youngstown Sheet and Tube Company versus Sawyer. It's 1952. We always call it the steel seizure case. It's the Korean War. Steel workers are going on strike. President Truman responds to the threat of strike by saying, I'm going to seize these steel mills.
They're a threat to national security. The army needs steel. I'm going to seize them and make sure that they keep running. That's sort of the crux of the case. Kerry Sautner But they haven't striked yet.
They were in a bargaining that wasn't working correctly. Thomas Donnelly Yes. Kerry Sautner So if the tension's at hand and there's a war going on and they need steel for the war to be successfully completed.
So you can see in a way that the president has to ensure that our safety and security is met. So students, real quick in the chat, what do you think? Do you think Truman had the power?
under the Constitution, under his executive orders, to move forward with this. So I'll give you guys one second to answer. Under the power of national security, that's what Warren's sharing. And this is, you know, and Tom, you'll get into the rest of the story.
I don't want to give away the answer. If, okay, Cameron shared, if SCOTUS says yes, then yes, it's up to them. Emily shares, in my opinion, after a few seconds to think, I don't think he had the power to do this.
And Barbara said, only if it's temporary. Ooh, I like that, Barbara, putting some time on it. And James, sorry, no, not as the commander in chief. Okay, tell us how it rolls out and I'll give you Robert Jackson, the different Jackson. to help tell this part of the story.
Thomas Donnelly, Ph.D.: Absolutely. Truman is arguing that I have this power under Article 2 of the Constitution. I'm the Commander-in-Chief of the Army and Navy of the United States.
Broadly speaking, this gives me the power to take the actions necessary to carry out and win a war. If the steel workers go on strike, it's going to undermine the war effort. I have the power to step in and seize these steel mills and make sure that the steel continues to be produced.
This dispute ends up before the Supreme Court. Truman thinks he's going to win. He's thinking, I appointed a bunch of these justices, FDR, my political ally, appointed the others, but he was shocked he lost.
Truman loses, the Supreme Court says no, seizing the steel mills here is unconstitutional. The majority, and it's a six to three vote, so it's not unanimous, but it's six to three. The majority opinion written by Hugo Black says that the commander in chief power didn't permit Truman to seize the steel mills. He had to go to Congress and ask for authorization.
But the most famous opinion is by Justice Robert Jackson. It's a separate opinion known as a concurring opinion, so he agrees with the majority, but he has his own way of analyzing the issue. He says, when we look at presidential power, we need to split it into three different buckets. The first is when the Congress is acting with congressional approval. In those cases, when president wants to do something, Congress says it's okay, the president's power is at its maximum.
At the same time when the president acts in the face of congressional disapproval, so the president wants to do something, but Congress says no, the president has its least authority to act. They said, Supreme Court, Robert Jackson says it's when the president's power is at its, quote, lowest ebb. And then finally, when Congress has neither approved nor disapproved of the president's actions, the president's operating in sort of a zone of twilight somewhere between these two situations. Importantly for the Steele seizure case, Jackson places Truman's actions.
in that second bucket where Truman's acting under his independent presidential authority in the face of congressional disapproval. Jackson says, no, Truman, you don't actually have that independent power. If you go blacks right, you need to go to Congress to get approval, so your actions here are unconstitutional. Kerry Sautner I love this scale and measurement.
Our students can think about when they're working together, the different branches, they're at a maximum. When they're working at odds with each other, at the lower when we're looking at executive orders and then when they're somewhere odd in between you're in that zone of twilight um so very twilight to me curry yeah twilight zone yeah um which i love and i wonder if this is the same time period that twilight zone got big um just thinking of that on a side note um so as we're kind of looking at these pieces now we're going to look at like the modern question and we're going to wrap this up in about two minutes but thinking about the same idea, but with Congress in power and saying, what is the question? So does Congress, thinking about federalism here, does Congress have the power to pass a law requiring everyone to wear a mask during a pandemic? You can put separation of powers in here, and you can put federalism in here as well. So Tom, kind of walk us through, how would this play out if it came up, and how would it work or not work?
Yeah, I mean, from the federalism element, Kerry, it's worth emphasizing that this is the sort of law that traditionally we would associate with state and local governments. So state and local governments, that level of government is given a broad what's called the police power, which is sort of a funny way of just saying that state and local governments have the power to pass laws that promote the health, safety and welfare of their residents. This is seen as a very broad power.
And so if a case, if say you have a state or locality passing a mask mandate. The case there would pit the state's broad police powers against other rights that are written in the Constitution, say Bill of Rights protections. Those would be how those classic cases would turn up. You wouldn't have to search hard for either the rights or the powers.
But for Congress, we have to ask a different question. Because Congress isn't given a broad police power to pass laws to promote the health, safety, and welfare of all Americans. When the founders created the new Constitution and the new government, they created a Congress of limited powers.
We have to look at especially Article 1, Section 8 of the Constitution to try to find where does Congress have the power to pass a law like this. Congress would probably rely on one of three different parts of the Constitution. One, they might look at the commerce power under Article 1, Section 8. And this is the idea that Congress has the power to pass laws that regulate commerce between the states.
And so the Supreme Court has read this power quite broadly over time. And Congress's strongest argument in this context would be probably some sort of mask mandate connected to things that are happening at businesses, whether for workers or for consumers. That would be one argument Congress could make. The flip side is that challengers would say, no, no, no, Congress. The Supreme Court has recently trimmed back on these powers somewhat, so it's not a slam dunk.
It'll be a constitutional debate. That's clause one. The next is Congress's spending power.
So Congress has the power under Article 1, Section 8 to tax and spend to promote the general welfare. And here Congress can often either offer states money to do things or threaten to take federal money away if states refuse to do things. And so they could create some sort of laws that either give the states money or threaten to take away money in light of whether or not states pass.
mask mandates. Again, the Supreme Court, this is not an unlimited power. So the court would have to figure out whether or not the specific mandate passes muster, but that's sort of a second spot.
The third is that Congress may try to leverage the Necessary and Proper Clause of Article I, Section 8. We talked about that with McCullough, but they would certainly use the Necessary and Proper Clause, but even so, the Necessary and Proper Clause is not an independent source of power. They would still have to find other parts of the Constitution to justify the power. In the end, Congress has obviously not passed a national mask mandate, but hopefully this gives you a sense of how the Supreme Court, regardless of a justice's perspective, the sorts of arguments that they would have to sit through in deciding this question.
Kerry Sautner-Fascinating, Tom. Then it makes me always think they have to look at the Constitution, know the Constitution so well, and then just like a constitutional lawyer, be able to pull the parts that they are going to use to validate their choices, their opinions, and their action. Really fascinating look at not just understanding the whole constitution, but how the powers are separated, where they're implied, where they're direct, and where they need to complement each other by different branches or different sections of the constitution.
Now, we do have a few questions for a wrap up. Students, I want to thank you all for joining us. If you have to jump, we understand. But if you want to stay for a couple of follow-up questions, and a lot of this was around the Supreme Court, hang out with us. I'm just going to stop the share real quick, but thank you everybody very much.
Thanks everyone.