2. The Government and the States ● Overarching Question – on what topic can States legislate? ● Constitution enumerates powers of Federal Government ● Constitution and Amendments sets forth limitations on States. ● State powers fall somewhere in the middle ● Two Final Federal v. State areas of law: ● Supremacy Clause ● 10th Amendment
3. Three Groups of Governmental Powers ● Those granted exclusively to the federal government or expressly denied to the States, ● also includes implied grants of power. ● Those exercised concurrently with the States. ● Supremacy Clause ● Those reserved to the States exclusively, ● because they do not fall within enumerated powers of the Congress. ● 10th Amendment
4. Supremacy Clause ● “Constitution and the Laws of the United States which shall be made Prusuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby - Article VI, United States Constitution
5. Two Preemption Areas ● Federal Law expressly preempts state or local law. ● Preemption is implied by a clear congressional intent to preempt state or local laws. ● Field Preemption – congress intends that federal law should exclusively regulate an area (field) of law. ● Conflict Preemption – situation where there are state and federal law on point, and there is no way for person to comply with both.
6. Tenth Amendment ● The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. - Tenth Amendment to the United States Constitution. ● Real question is: Can Federal laws be declared unconstitutional as violating this constitutional provision?
7. Why Protect State Sovereignty? ● Decrease likelihood of federal tyranny ● Probably more relevant in earlier times. ● Enhance democratic rule by providing government that is closer to the people with more power ● Allow states to be laboratories for new ideas. ● Remember the concurring opinion in Lopez?
8. Printz v. United States Brady Handgun Violence Prevention Act Signed November 30, 1993
9. Questions ● What part of the Brady Handgun Violence Prevention Act is at issue in this case? ● According to Justice Scalia, can the federal government force state courts to enforce federal law? ● Again, according to Justice Scalia is there in anything in the Constitution or early federal law that indicates that the federal government can impose obligations on state governments to enforce federal law? ● Does Justice Scalia believe that President Wilson ordered state governments during World War I to enforce the law requiring men to sign up to be potential soldiers (selective service)?
10. Questions ● What is the meaning of "dual sovereignty" on page 103? ● Why is the 10th Amendment important to this discussion? ● Based on the prior decision of New York v. United States, what does the court say about the federal governments ability to compel States and state officers to enforce federal law?
11. Amending the Constitution
12. Review Separation of Powers Exercise
13. Separation of Powers Exercise ● Hillary Clinton has just resigned as Secretary of State. A new Secretary of State must be appointed. ● Congress passes a bill banning gay marriages. Opponents of the bill believe it is unconstitutional and should not be law. ● A government antiterrorism commission issues a report suggesting that contributions by American citizens to charitable organizations in the Middle East should be prohibited. ● The U.S. Government has never recognized the Islamic Republic of Iran as a legitimate country. President Obama would like to do so. ● Pursuant to an Executive Order issued by the President, the Department of Homeland Security orders workers in the U.S. Postal Service to begin opening suspicious packages they believe might be from terrorists.