American Federalism "The States should be left to do whatever actsthey can do as well as the General Government." --Thomas Jefferson
What is Federalism?● Federalism divides power Constitutionally between national and state governments● Federalism addresses two main questions: ➢ What level of Join, or Die by Benjamin government should do Franklin, published to encourage the former colonies to unite what? against British rule ➢ Who should pay for it?
What We Already Know● The federal government is a limited government. ➢ See Article I, Section 8● Certain tasks have been reserved solely for the federal government. ➢ See Article I, Section 10● How limited the federal governments power is depends on how the Supreme Court interprets “commerce” and “necessary and proper.”
What is Still Unanswered● When does the federal government have exclusive authority over an area of regulation? ➢ put another way, can the states also regulate in areas over which the federal government could also exercise control? th● What does the 10 Amendment add to American federalism?● How did the 14th Amendment change American federalism?
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
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.
Express Preemption ● Plaintiffs were members of American Airlines frequent flier program. ● They sued under the Illinois Consumer Fraud Law after AA had changed the rules of the program.Airline Deregulation Act of 1978 - ● AA claimed the Ill. law was“No State . . . shall enact or pre-empted by federal law.enforce any law, rule, regulation, ● Court (5-3) agreed with AA,standard or other provision havingthe force and effect of law relating stating there was expressto rates, routes, or services of any pre-emption.air carrier.”
Gonzales v. Oregon (2006)● What was Congress intent, according to the Court, when it created the CSA?● Does the Court seem to think that the Congress could regulate how doctors prescribe drugs to their patients? ➢ Is so, then why not allow the CSA to trump the Oregon law? ➢ Do you think all the Justices would agree with this conclusion about the power of the federal government?● How is this case different than Raich? ➢ We are dealing with the same law after all.
Field Preemptionin July 2000, President Clinton and German Chancellor Schröder signed anexecutive agreement (the German Foundation Agreement) under which theGerman government agreed to create a publicly and privately-funded foundationto afford compensation to anyone who had "suffered at the hands of Germancompanies during the National Socialist era."
The New Alien Wars and Pre-emption● There are currently 12 million illegal aliens living in the United States.● Recently state legislatures have been passing laws aimed at keeping illegal aliens out of their states. ➢ Arizona law allows state to revoke business license of companies who hire “undocumented workers.” ➢
Chamber of Commerce v. Whiting (2011)● Federal law “preempt[s] any State or local law imposing civil or criminal sanctions . . . upon those who employ, or recruit or refer for a free for employment, unauthorized alien.”● Arizona law “allows superior courts in Arizona to suspend or revoke business licenses of employers who knowingly or intentionally hire unauthorized aliens.”● Express Pre-emption?
United States v. Arizona (2012)● The law seeks regulate immigration by: ➢ instructing police to determine immigration of status of any person they otherwise legally detain (from arrest to simple traffic stop), ➢ making a violation of Arizona for failing to register as an alien under federal law, ➢ making it illegal for unlawful aliens to work or try to obtain work, and ➢ giving police power to make warrantless arrests of anyone whom they have probable cause to believe has engaged in a deportable activity.
United States v. Arizona (2012)● Article I, Section 8 – Congress has the power to create uniform rules of Naturalization.● Question to consider: ➢ Are portions of the law related to work or immigration? ➢ Isnt this just a law to help local officials enforce federal law? It is after all illegal under federal law to be in the country without a visa, work, etc.
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.● What purpose does this serve?
Printz v. United States Brady Handgun Violence Prevention Act Signed November 30, 1993
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)?
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?
Amending the Constitution
ReviewSeparation of Powers Exercise
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.