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Intro.7.3 Federalism and the Constitution

Another basic concept embodied in the Constitution is federalism, which refers to the division and sharing of power between the national and state governments.1 By allocating power among state and federal governments, the Framers sought to establish a unified national government of limited powers while maintaining a distinct sphere of autonomy in which state governments could exercise a general police power.2 Although the Framers’ sought to preserve liberty by diffusing power,3 Justices and scholars have noted that federalism has other advantages,4 including that it allows individual states to experiment with novel government programs as laboratories of democracy5 and increases the accountability of elected government officials to citizens.6

Although the text of the Constitution does not clearly delineate many of the boundaries between the powers of the federal and state governments, the Supreme Court has frequently invoked certain constitutional provisions when determining that Congress has exceeded its constitutional powers and infringed upon state sovereignty.7 One well-known provision, regarded by the Court as both a shield and sword to thwart federal encroachment, is the Tenth Amendment, which provides that 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. In modern times, the Court has vacillated8 between the view that the Tenth Amendment operates to restrict Congress’s power9 and the view that the amendment is a mere truism10 that cannot be used to strike down federal statutes.11 Other notable provisions addressing Congress’s power relative to the states that the Court has debated include the Supremacy Clause in Article VI, which establishes federal law as superior to state law;12 the Commerce Clause in Article I, Section 8, Clause 3, which grants Congress the authority to legislate on matters concerning interstate commerce;13 and Section 5 of the Fourteenth Amendment, which grants Congress the power to enforce that Amendment’s guarantees against the states through the enactment of appropriate legislation.14 More broadly, federalism principles also undergird many Supreme Court decisions interpreting individual rights and the extent to which the Court should federalize, for example, the rights afforded to state criminal defendants.15 But judges and scholars disagree on how basic principles of federalism should be realized, and a key point of controversy is whether the judiciary should enforce the interests of the states against the Federal Government or leave the resolution of such key questions about the relationship between federal and state power to the political process.16

Footnotes

  1.  Jump to essay-1See Bond v. United States, 572 U.S. 844, 857–58 (2014) (Among the background principles . . . that our cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution.).
  2.  Jump to essay-2The Federalist No. 45 (James Madison) (The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.). See also United States v. Morrison, 529 U.S. 598, 618 (2000) (Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.).
  3.  Jump to essay-3Bond v. United States, 564 U.S. 211, 222 (2011) (By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.); United States v. Lopez, 514 U.S. 549, 576 (1995) (Kennedy, J., concurring) (Though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.).
  4.  Jump to essay-4See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies 127 (4th ed. 2011).
  5.  Jump to essay-5See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.).
  6.  Jump to essay-6See FTC v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992) (Federalism serves to assign political responsibility, not to obscure it.); see also Lopez, 514 U.S. at 576 (Kennedy, J., concurring) (The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States.).
  7.  Jump to essay-7Cf. Chemerinsky, supra note 4, at 115 (A basic principle of American government is that Congress may act only if there is express or implied authority in the Constitution, whereas states may act unless the Constitution prohibits the action.).
  8.  Jump to essay-8Id. at 3 (Early in [the 20th] century, the Court aggressively used the Tenth Amendment as a limit on Congress’s power. After 1937, the Court rejected this view and did not see the Tenth Amendment as a basis for declaring federal laws unconstitutional. In the 1990s, however, the Tenth Amendment was once more used by the Supreme Court to invalidate federal statutes.).
  9.  Jump to essay-9See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 273–74 (1918) (The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the states in their exercise of the police power over local trade and manufacture. The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.), overruled, United States v. Darby, 312 U.S. 100 (1941); Nat’l League of Cities v. Usery, 426 U.S. 833, 851–52 (1976) (holding that Congress’s Commerce Clause power did not extend to regulation of wages, hours, and benefits of state employees because the Tenth Amendment reserves that area to the states), overruled, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); NFIB v. Sebelius, 567 U.S. 519, 588 (2012) (Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.).
  10.  Jump to essay-10Darby, 312 U.S. at 124 (The amendment states but a truism that all is retained which has not been surrendered.).
  11.  Jump to essay-11NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (upholding the National Labor Relations Act of 1935 as a proper exercise of Congress’s Commerce Clause power and consistent with the Tenth Amendment); Darby, 312 U.S. at 123–24 (The [Tenth Amendment] states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.); San Antonio Metro. Transit Auth., 469 U.S. at 556–57 (holding that Congress’s Commerce Clause power extended to regulation of wages and hours of state and local employees and declaring that the Court’s decision in Nat’l League of Cities v. Usery underestimated, in [the Court’s] view, the solicitude of the national political process for the continued vitality of the States).
  12.  Jump to essay-12See generally Gregory E. Maggs & Peter J. Smith, Constitutional Law: A Contemporary Approach 246 (2d ed. 2011) (noting the doctrine of federal preemption, which is based on the Supremacy Clause, is the most common constitutional ground upon which state laws are judicially invalidated).
  13.  Jump to essay-13See, e.g., United States v. Lopez, 514 U.S. 549, 551 (1995) (holding that Congress had exceeded its Commerce Clause power when it enacted a law criminalizing possession of a firearm near a school).
  14.  Jump to essay-14See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (holding that the scope of Congress’s enforcement power under Section 5 of the Fourteenth Amendment did not grant Congress the power to invade the sovereign rights of the states), superseded on other grounds by statute as stated in Holt v. Hobbs, 574 U.S. 352 (2015).
  15.  Jump to essay-15See, e.g., Coleman v. Thompson, 501 U.S. 722, 726 (1991) (This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus.); Spencer v. Texas, 385 U.S. 554, 563–64 (1967) (Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial . . . But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.) (internal citations omitted).
  16.  Jump to essay-16E.g., Gonzales v. Raich, 545 U.S. 1, 33 (2005) (upholding Congress’s regulation of intrastate cultivation and possession of marijuana for medical use as a proper exercise of its Commerce Clause power and stating that more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress). Scholars have also considered this question. See generally Jesse H. Choper, The Scope of National Power Vis-a-Vis the States: The Dispensability of Judicial Review, 86 Yale L.J. 1552, 1557 (1977) ([T]he federal judiciary should not decide constitutional questions respecting the ultimate power of the national government vis-a-vis the states; the constitutional issue whether federal action is beyond the authority of the central government and thus violates ‘states rights’ should be treated as nonjusticiable, with final resolution left to the political branches.).
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