GOVT 2305
Federalism is the third
constitutional principle we cover in
this class. As with the others, it
involves the division of power
within government.
Officially this refers to the division
of government into two levels: the
national and the state. Unofficially,
it also includes a third level, local
government, which can be a city,
county or a single purpose
Local governments are not
mentioned in the U.S. Constitution.
States, as part of their reserved
powers, have the authority to pass
laws allowing groups of individuals
to pass laws regulating their
American government is actually
composed of thousands of distinct
governments layered one upon the
other. Here’s a list based on 2007
National – 1
State – 50
Counties – 3034
Municipalities – 19,429
Township – 16, 504
School Districts – 13, 506
Special Districts – 35,052
That’s a lot. What are these things?
What is a nation anyway?
The concept of a nation is not that
old. The Treaty of Westphalia
(1648) Created the modern nation
state with sovereign authority
within its borders.
Wikipedia: Country
Federalism is an Accidental
The American Federal system
grants sovereignty to two levels of
This was not an anticipated
outcome of the Constitutional
The division between the national
and state level was the result of
the compromise in the
constitutional convention dubbed
“The Great Compromise.”
You might want to look through a
couple of web resources: First,
Wikipedia’s: Federalism in the
United States.
The second link is to Wikipedia’s
category page on Federalism Case
Law. This takes you to various
other pages with information
about major court cases which
have ruled on disputes associated
with federalism.
A federal system is different than a
unitary or confederated. In the
former sovereignty rests fully in
the upper level, in the latter it is in
the lower level.
Unitary, Federal, and
Confederated Systems
Unitary: The national government
dominates and the states exist as
administrative units only.
This is the relationship that exists
between the state of Texas and the
254 counties. They have little
independent authority and
implement state laws.
Confederacy: The states possess
sole sovereign authority and a
weak central authority exists to
mediate disputes between them.
They have no real authority over
the states.
The Articles of Confederation
The Southern Confederacy
Two components of the Articles of
Confederation make this explicit:
The Articles of Confederation
Article II. Each state retains its
sovereignty, freedom, and
independence, and every power,
jurisdiction, and right, which is not
by this Confederation expressly
delegated to the United States, in
Congress assembled.
The Articles of Confederation
Article III. The said States hereby severally
enter into a firm league of friendship with
each other, for their common defense, the
security of their liberties, and their mutual
and general welfare, binding themselves to
assist each other, against all force offered
to, or attacks made upon them, or any of
them, on account of religion, sovereignty,
trade, or any other pretense whatever.
The theoretical idea behind
federalism is that each level of
government can best perform
certain functions and that
responsibility for these functions
should be divided accordingly.
Recall that the Constitutional
Convention was called by those
who were concerned that the
states, under the Articles of
Confederation, were unable to
adequate provide for their
commercial and security needs.
These had to be provided
uniformly across the states.
Broad – national – interests (as
defined by the federalists) were to
be provided by the national
government. These are listed in
Section Eight of Article One of the
Constitution – this will be covered
more thoroughly below.
Here’s a succinct graphic that
outlines the powers of the state
and national governments. Notice
that some powers are shared by
Some terminology would be helpful
Delegated (Enumerated) Powers:
Power specifically give to the national
Reserved Powers: Powers (unstated)
granted to the states.
Concurrent Powers: shared by each
level of government.
Here is a more exhaustive list of
the powers held by each level of
National Power
Internal improvements
Disposal of public lands
Immigration law
Centralized National Defense
Foreign policy
State Power
Property law
Estate and inheritance law
Commerce laws of ownership and exchange
Banking and credit laws
Labor and union laws
Insurance laws
Family laws
Morals laws
Occupations and professions laws
State Power (continued)
Public health and quarantine laws
Public works laws, including eminent domain
Building codes
Corporations law
Land use laws
Water and mineral resource laws
Judiciary and criminal procedure laws
Electoral laws, including parties
Local government laws
Civil service laws
Local Governments
Variances (adaptation of state law
to local conditions)
Public works
Contracts for public works
Licensing of public accommodations
Assessable improvements
Basic public services
A general term used to describe
the powers granted to the states
and by extension local government
is “police powers.”
police power is the government to
regulate behavior and enforce
order within their territory for the
betterment of the general welfare,
morals, health, and safety of their
Its generally stated that local
governments perform “house
keeping” functions for
They keep things neat, tidy and
safe: Sewage, drainage, street
repair, stuff like that.
Local governments can take a
variety of forms: City, county, multi
purpose, single purpose.
Federalism also involves regional
governments as well
In Texas these are called Area
Councils of Government, they
attempt to coordinate activities
within the governing entities in a
particular area.
The local region is located in the
Houston-Galveston Area Council
A dispute:
What should the balance be
between national power sand state
What are the advantages and
disadvantages of centralized
control and coordination?
A centralized structure can offer
efficiency in how functions are
provided, but they tend to be “topdown” organizations. Decisions
made at the top may not
necessarily be well connected to
the needs at the bottom.
From the Cato Institute, a paper
asking what sorts of regulations
are best handled on the federal
What are the advantages and
disadvantages of de-centralized
control and coordination?
It’s the opposite of the centralized
model. They are bottom-up,
meaning that services and
functions can be finely tuned to
the needs of specific regions, but
the over all structure can be
chaotic and inefficient.
One argument in favor of granting
greater flexibility to state and cities
is that they can serve as
“laboratories of democracy.”
AEI: Laboratories of Democracy.
States can experiment with
different ways to solve problems.
Some will succeed, some will fail.
Each will provide lessons about
what to do and not do in order
address a given policy problem:
education for example, or prison
This assumes that we can’t really
solve certain problems on paper –
we can only try different options
and see what works best
Note: Nations, states and cities are
distinct units.
The nation and the states are political
units primarily. They possess sovereign
power, traced to the people.
Local governments are primarily
economic units. They are not
sovereign entities.
A city begins as an economic
enterprise first, and achieves
political status afterwards.
This is not true for counties.
A county is the administrative arm
of the state. It is responsible for
basic services to non-city residents
and for the provision of certain
state functions.
In Texas counties are responsible for:
- issuing state automobile licenses, among
other licenses issued by the state
- voter registration
- conduction of elections
- property tax assessment and collection
- maintaining vital records: birth and death
- conducting health and welfare programs
Controversy: What is the legal
status of cities, since that is not
established in the Constitution?
There are two conflicting theories
about the status of cities. One is
Dillon’s Rule, the other is the
Cooley Doctrine.
Dillon’s Rule
Municipal corporations owe their
origin to, and derive their powers and
rights wholly from, the legislature. It
breathes into them the breath of life,
without which they cannot exist. As it
creates, so may it destroy. If it may
destroy, it may abridge and control
Cooley Doctrine
Local government is a matter of
absolute right; and the state
cannot take it away. The argument
was made in a concurring decision
in a court case, which does not
make it binding.
In the United States, Dillon’s Rule
predominates. A city is subject to
control by the state, although
solvent, powerful cities are
generally autonomous for all
practical purposes.
Non-solvent cities can be taken
over by states, though critics argue
that it undermines democratic self
City governments need charters
issued by the states in order to
govern. There two general types:
General Law
Home Rule
General Law
General law cities are smaller cities whose
powers are limited; they operate according to
specific state statutes that define their powers
and duties. They are restricted to doing what the
state directs or permits them to do. If a general
law city has not been granted the express or
implied power by the state to initiate a
particular action, none may be taken.
Home Rule
Home rule cities are cities with populations of
more than 5,000 in which citizens have adopted
home rule charters. A charter is a document that
establishes the city’s governmental structure
and provides for the distribution of powers and
duties among the various branches of
government. In order to be implemented, the
charter must be approved by the people at an
election. Likewise, changes in the charter must
be approved by a vote of the people.
The legal position of home rule cities is the
reverse of general law cities. Rather than
looking to state law to determine what they may
do, as general law cities must, home rule cities
look to the state constitution and state statutes
to determine what they may not do. Thus, if a
proposed home rule city action has not been
prohibited or pre-empted by the state, the city
generally can proceed.
We discuss this concept more
thoroughly in GOVT 2306.
Let’s look at federalism from a
constitutional perspective.
Ongoing controversy exists over
how precisely the divisions
between national and state powers
ought to be can be drawn, or
whether these powers are shared
to some degree.
A contemporary description:
Should the relationship between the
national and state governments be like a
layer cake or a marble cake? Ought there
be an intermingling of functions between
the national and state governments?
Layer cake federalism is the relationship
between the central government of a nation and
that of its states, where the powers and policy
assignments of the government hierarchy
("layers" of government) are clearly spelled out
and distinct from one another. This form of
federalism is also called Dual Federalism.
In other words, the national government deals with the
issues that are national and the states deals with the
state and local issues. Ideally, there will be no
interference between the two arenas.
Marble Cake Federalism is a form of federalism
where there is mixing of powers, resources, and
programs between and among the national,
state, and local governments. Federalism is a
system of government in which power is divided
between a central government and regional or
sub-divisional governments. In marble cake
federalism there will be an intermingling of all
levels of government in policies and
programming. This is also known as co-operative
Remember that Madison and
Hamilton presented plans to the
Constitutional Convention which
would have established unitary
systems of government.
Hamilton’s Plan
Madison’s Plan
Both proposed a national
government far stronger than the
states. The national government
could appoint state governors and
veto state laws.
They were unsuccessful
in doing so. The plans were
A sufficient number of delegates
supported state power to force a
The Great Compromise
Establishes the principle of
dual sovereignty. This was one of
the several compromises in the
national government that we
discussed previsouly.
The national government is
connected both to the people
(through the House of
Representatives) and the states
(through the Senate).
The state and national
governments therefore are equal.
This is a very tricky relationship
that inevitably lead to conflict. Its
tough to have two bosses.
Among the questions raised:
What role should each level play in
governing? Was there a clear
intent established by the authors
of the Constitution that must be
maintained? Or is the relationship
meant to be dynamic?
These are still dominant questions
Consider the ongoing conflict
between the state of Texas and the
US government over multiple
The Civil War was fought, in many
ways, to resolve questions over the
relative power of each level of
More on this below.
Several Federalist Papers focused
on the relative powers of the
national and state governments,
and the question whether the
power of the national government
would interfere with that of the
Federalist #39 addresses whether
the federal plan in the Constitution
is still a republic. Since all powers
are ultimately based on the
people, he argues that it is.
Federalist #40 argues that the
members of the convention did not
violate their mission by creating a
federal system.
Federalist #41 outlines the general
powers that were considered to be
necessary to grant to the national
That we may form a correct judgment on this
subject, it will be proper to review the several
powers conferred on the government of the Union;
and that this may be the more conveniently done
they may be reduced into different classes as they
relate to the following different objects: 1. Security
against foreign danger; 2. Regulation of the
intercourse with foreign nations; 3. Maintenance of
harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility;
5. Restraint of the States from certain injurious acts;
6. Provisions for giving due efficacy to all these
Federalist #42 details why foreign
power (treaty making, the
regulation of foreign commerce,
etc…) as well as the regulation of
interstate commerce needs to be
given to the national government.
Federalist #43 defines what the
term miscellaneous powers refers
Federalist #44 details and justifies
the restrictions placed on state
These points culminate in a broad
argument in Federalist #45 about
the relationship between national
and state powers.
Key Quote:
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.
The former will be exercised principally on
external objects, as war, peace, negotiation, and
foreign commerce . . . The powers reserved to
the several States will extend to all the objects
which, in the ordinary course of affairs, concern
the lives, liberties, and properties of the people,
and the internal order, improvement, and
prosperity of the State.
What does this mean?
Few and Defined:
The powers delegated to the
national government in Section
Eight of Article One and implied in
the General Welfare, Commerce,
and Necessary and Proper Clauses.
These are either enumerated,
meaning that they are clearly listed
in the document, or implied,
meaning that they are assumed to
be loosely based on the
enumerated powers.
Numerous and Indefinite:
The states have the reserved
powers, meaning in essence
everything else.
A we will see further below, the
logic used in the federalist papers
to describe the relationship
between the state and national
governments would be radically
transformed by the Civil War
amendments – notably the 14 .
The principle change was that
citizens of the state were officially
recognized as being citizens of the
United States. States could no
longer treat American citizens
unequally, nor deny to them the
privileges and immunities
guaranteed in the US Constitution.
Transformations have also
occurred as a result of loose
interpretations of certain clauses
within the Constitution. This
transition begins during the New
More on this below.
Now we should spend a moment
describing the various powers
described above, as well as other
related to federalism.
This will help us understand the changes
that have occurred over American history
that have led to a larger national
government than once existed.
Here are key terms related to the
types of powers that exist:
The Delegated Powers
The Delegated Powers -- also called
the enumerated or the expressed
powers (these terms are often used
interchangeably)-- are those clearly
written, and listed, in the Constitution
and granted to Congress.
Its what Congress has the authority to
write laws about.
I tend to use the term delegated
powers because that’s the word
used in the 10th Amendment.
The term enumerated refers to the
fact that these powers are
provided in a list.
Generally these powers fall into two
broad categories: commercial and
military. Whatever is clearly listed is
considered to be a delegated power.
Remember that these powers were the
ones Federalist were most concerned
about securing. These were not secure
under the Articles of Confederation.
Here is an important qualifier:
There is no general power
regarding commerce and the
military, rather there are specific
enumerated powers pertaining to
different aspects of each.
Article One, Section Eight
This is the part of the Constitution
where those powers are listed.
Let’s look through them.
Commercial powers first:
To borrow money on the credit of the
United States;
To regulate Commerce with foreign
Nations, and among the several States, and
with the Indian Tribes;
To establish a uniform Rule of
Naturalization, and uniform Laws on the
subject of Bankruptcies throughout the
United States;
To coin Money, regulate the Value thereof,
and of foreign Coin, and fix the Standard of
Weights and Measures;
To provide for the Punishment of
counterfeiting the Securities and current
Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and
useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right
to their respective Writings and
To constitute Tribunals inferior to the
supreme Court;
Here’s a key assumption underlying these
powers, it is the idea that the national
government is in a better position to
regulate these things because they ought
be common across the states.
Here’s a question we will consider as we go
through this section. As the economy
develops, what other functions ought to –
or ought not to – be similarly regulated on
the national level?
Now for the military powers:
To define and punish Piracies and Felonies
committed on the high Seas, and Offenses
against the Law of Nations;
To declare War, grant Letters of Marque
and Reprisal, and make Rules concerning
Captures on Land and Water;
To raise and support Armies, but no
Appropriation of Money to that Use shall
be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and
Regulation of the land and naval Forces;
To provide for calling forth the Militia to
execute the Laws of the Union, suppress
Insurrections and repel Invasions;
To provide for organizing, arming, and
disciplining, the Militia, and for governing
such Part of them as may be employed in
the Service of the United States, reserving
to the States respectively, the Appointment
of the Officers, and the Authority of
training the Militia according to the
discipline prescribed by Congress;
Here is a key assumption
underlying these powers being
given to the national government.
Defense is a national matter. If left
to the state there is little reason to
believe that there coordinated
efforts to defend the nation.
Articles 2 and 3 also contain
certain powers that were granted
to the executive and the judicial
branches. These will be covered
more fully when we cover those
articles soon enough.
Article 2 enumerates certain
expressed powers for the
president. These will be expanded
on in an upcoming section.
The powers are of two sorts: those exercised alone
without legislative approval and those that require
consent of the Senate or House. Powers of the
President Alone: commander in chief of the armed
forces; commission officers of the armed forces; grant
reprieves and pardons for federal offenses (except
impeachment); convene Congress into special session;
receive ambassadors; take care that the laws be
faithfully executed; make use of the "executive power"
of the office; appoint officials to lesser offices. Powers
shared with the Senate/House: make treaties; appoint
ambassadors, judges, and high governmental officials;
approve legislation.
Some of these powers can be very
controversial, notably the commander in
chief powers.
Are there any limits to this power? Once
the US is at war, what limits can be placed
on the president’s decisions? Are a great
many additional powers (surveillance,
detention, targeted killings) inherent
within the commander in chief powers?
Related to the concept of inherent
powers is the term “plenary
powers.” This refers to full powers
granted to an individual or
institution. This type of power
cannot be checked, which makes it
problematic for an obvious reason.
Article 3 similarly defines the
powers of the Judiciary. It primarily
states what the jurisdiction of the
nation courts are.
Again, more on this when we look
at the Judiciary.
There is a related category called
the restricted powers. There are
two clauses in the Constitution
that clearly restrict powers on the
part of the national and state
The Constitution places few clearly
defined restrictions on the powers of
the national government. It also
mandates the national government be
neutral towards the states. Policies
cannot benefit one at the expense of
the others.
These are found in Article One,
Section Nine
1. The migration or importation of such persons
as any of the states now existing shall think
proper to admit, shall not be prohibited by the
Congress prior to the year 1808, but a tax or
duty may be imposed on such importations, not
exceeding 10 dollars for each person.
2. The privilege of the writ of habeas corpus
shall not be suspended, unless when in cases of
rebellion or invasion the public safety may
require it.
3. No bill of attainder or ex post facto law shall
be passed.
4. No capitation, or other direct tax shall be laid
unless in proportion to the census or
enumeration herein before directed to be taken.
(Modified by Amendement XVI)
5. No tax or duty shall be laid on articles
exported from any state.
6. No preference shall be given by any regulation
of commerce or revenue to the ports of one
state over those of another: nor shall vessels
bound to, or from one state, be obliged to enter,
clear, or pay duties in another.
7. No money shall be drawn from the treasury
but in consequence of appropriations made by
law; and a regular statement and account of the
receipts and expenditures of all public money
shall be published from time to time.
8. No title of nobility shall be granted by the
United States: And no person holding any office
or profit or trust under them, shall, without the
consent of the Congress, accept of any present,
emolument, office, or title, of any kind
whatever, from any king, prince, or foreign state.
The Reserved Powers
When we discussed the
Constitutional Convention, we
mentioned that despite the fact
that Federalists wanted to
strengthen the national
government, forces were also
interested in ensuring that states
were able to maintain authority in
certain areas.
Article 1, Section Ten contains
specific limitations on the power of
the state governments.
These limits are intended to ensure
that the state do not assume any
power that is national in scope.
Article 1, Section 10, Clause 1
No State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of
Marque and Reprisal; coin Money; emit
Bills of Credit; make any Thing but gold and
silver Coin a Tender in Payment of Debts;
pass any Bill of Attainder, ex post facto Law,
or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
Article 1, Section 10, Clause 2
No State shall, without the Consent of the
Congress, lay any Imposts or Duties on Imports
or Exports, except what may be absolutely
necessary for executing it's inspection Laws: and
the net Produce of all Duties and Imposts, laid
by any State on Imports or Exports, shall be for
the Use of the Treasury of the United States; and
all such Laws shall be subject to the Revision and
Control of the Congress.
Article 1, Section 10, Clause 3
No State shall, without the Consent of
Congress, lay any Duty of Tonnage, keep
Troops, or Ships of War in time of Peace,
enter into any Agreement or Compact with
another State, or with a foreign Power, or
engage in War, unless actually invaded, or
in such imminent Danger as will not admit
of delay.
The attendees at the convention
did not see the need to explicitly
state what the power of the states
were regarding what types of laws
they could pass, but such language
was included in the Bill of Rights.
It became the 10th 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.”
Notice that the amendment refers
also to the powers reserved to the
people, not only the states.
We’ll dig into that some other
This part of the amendment also
overlaps the content of the Ninth
More on that in the next section.
The reserved powers are argued to refer to
the police powers. These are laws that
related to the health, welfare, safety and
morals of a community.
As with the quote from Federalist #45
referred to previously, it implies that the
powers of the states are more vast than
those of the national government.
While the 10th Amendment is
commonly referred to in political
contexts, it has not been used
often in court cases.
Click here for the Tenth Amendment Center for
an example of a political group focused on the
One example of a recent court case
invoking the 10th Amendment is
Printz v US, where parts of the
Brady Bill were found
unconstitutional since it mandates
that state officials carry out federal
law, in this case background checks
on handgun purchasers.
Disputes between the national and
state governments are usually
based on other parts of the
Constitution – notable the implied
powers which we will be discussing
Texas is commonly at the center of
Tenth Amendment disputes.
Interests that can dominate the
state government are often unable
to dominate the national
government. Conflict is inevitable.
Much of the conflict centers on whether
the reserved powers are immune from any
interference from the national
government. One of the delegated powers
of the national government is the ability to
regulate commerce between the states.
The reserved powers are assumed to be
those that are fully intrastate. They have
no impact on what happens in other
Is something that happens in one
state has an impact on another, it
is argued that the national
government has jurisdiction over
it. But this is controversial since it
can be argued that almost anything
that happens in a state can have an
impact beyond its borders.
This is especially true since
technology allows for rapid
communications and
transportation. Certainly more
rapid than existed when the
Constitution was written.
The Implied Powers
This is the most controversial of
the powers since it is the most
flexible and subject to
The Implied Powers are the powers
the are considered necessary in
order to carry out the delegated
These tend to be based on what
are called the “elastic” clauses.
These include:
The Taxing and Spending Clause
The Commerce Clause
The Necessary and Proper Clause
The expansion of national power over the
course of time has been driven by
expanded reinterpretations of these parts
of the Constitution.
A great many Supreme Court cases have
involved challenges to whether laws are in
fact based on constitutional language. For
example, the recent Supreme Court case
over the ACA (Obamacare) justified it
based on the taxing and spending clause.
Since the relationship between the
national and state governments is
due to interpretations of the
Constitution, the Supreme Court is
responsible for determining the
nature of federalism.
But this can be highly
Nearly two centuries ago, Chief
Justice Marshall observed that “the
question respecting the extent of
the powers actually granted” to
the Federal Government “is
perpetually arising, and will
probably continue to arise, as long
as our system shall exist.” – John
The Taxing and Spending Clause
Article 1, Section 8, Clause 1
The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the
common Defence and general Welfare of
the United States; but all Duties, Imposts
and Excises shall be uniform throughout
the United States.
For further info:
This – obviously – refers to the
power to raise revenue and to then
spend it. But this is not as simple
as it may seem.
Taxes can do many other things in
addition to raising revenue.
Taxes can be used to regulate
commerce, to encourage or
prohibit behavior, or to protect
domestic industry , in addition to
other things.
The related power to spend can
also be used to encourage the
states to adopt certain policies.
Drinking ages, medical services for
the poor etc…
This is especially controversial
when tied into the General Welfare
How narrowly or broadly should
this clause be read?
This was a place where the fight
between Madison and Hamilton
over whether the Constitution
should be strictly or loosely
interpreted played out.
Does the General Welfare Clause grant an
independent power for Congress to spend
money on any matter related to the general
welfare of the people so long as it does not
favor one region or group over another? Or does
spending still have to be tied directly to a grant
of power within the Constitution?
This was a major controversy early in American
history – one that still reverberates today.
Limited interpretations of the rule
were common prior to until 1937.
Example: The Child Labor Tax Law
of 1919 was found unconstitutional
because its was intended primarily
to regulate child labor.
In 1936 – in US v Butler - a tax on
companies that processed farm
products that was designed to
maintain crop prices was found
But this limited view would change
in 1937.
The principle transition in this
clause occurred during the New
Deal after the Social Security Act
was passed and was subsequently
challenged in court.
The case was Helvering v Davis.
The court ruled that the act was
constitutional under the General
Welfare Clause.
- the full story from SSA Online.
From the decision: “Congress may spend money
in aid of the "general welfare." Constitution, Art.
I, section 8; United States v. Butler, 297 U.S. 1,
65; Steward Machine Co. v. Davis, supra. There
have been great statesmen in our history who
have stood for other views. We will not resurrect
the contest. It is now settled by decision. United
States v. Butler, supra. The conception of the
spending power advocated by Hamilton and
strongly reinforced by Story has prevailed over
that of Madison, which has not been lacking in
Yet difficulties are left when the power is
conceded. The line must still be drawn between
one welfare and another, between particular
and general. Where this shall be placed cannot
be known through a formula in advance of the
event. There is a middle ground, or certainly a
penumbra, in which discretion is at large. The
discretion, however, is not confided to the
courts. The discretion belongs to Congress,
unless the choice is clearly wrong, a display of
arbitrary power, not an exercise of judgment.
This is now familiar law.”
The opinion states that the
problem of old age poverty is
national in scope and the solution
offered in the SSA is also national
in scope. So it fits under the
general welfare clause.
In the 1960s, this logic would also
justify amending the Social
Security Act to provide for medical
assistance for the elderly
(Medicare) and the poor
These were two of many programs
launched during The Great Society,
which was the name used to
describe policies that aggressively
attempted to eradicate poverty
and the circumstances that created
The Supreme Court’s recent
decision on the Patient Protection
and Affordable Care Act –
Obamacare – was based on similar
In the majority decision, John
Roberts explicitly argued that the
act was not constitutional under
the Commerce or Necessary and
Proper Clauses, but was so under
the Taxing Clause.
“ is abundantly clear the Constitution does
not guarantee that individuals may avoid
taxation through inactivity. A capitation, after
all, is a tax that everyone must pay simply for
existing, and capitations are expressly
contemplated by the Constitution. The Court
today holds that our Constitution protects us
from federal regulation under the Commerce
Clause so long as we abstain from the regulated
activity. But from its creation, the Constitution
has made no such promise with respect to
But an additional part of the act
was not found to be authorized
under the Spending clause.
The requirement that states must
expand Medicaid or risk losing
existing Medicaid funding was
judged to be coercive.
The Necessary and Proper Clause
Article 1, Section 8, Clause 18
“The Congress shall have Power To . . .
make all Laws which shall be necessary
and proper for carrying into Execution
the foregoing Powers, and all other
Powers vested by this Constitution in
the Government of the United States,
or in any Department or Officer
More Background
Critical Dispute:
What does “necessary
and proper” mean?
Does it refer to any power that is
useful to government’s ability to
carry out a delegated power?
Or does it only refer to those
powers that are essential to it?
As with other constitutional
matters, the Hamiltonians argued
for a loose reading while the
Jeffersonians argued for a loose
Early example: The Debate over a
National Bank.
A national banks was argued by
Hamilton to fall under the clause
because the bank would help the
national government carry out its
commercial and currency powers.
You might get something out of
looking at these lessons plans
regarding the battle over the bank.
And also commentary on the
subject made by Justice Story.
Hamilton’s position would be
accepted in McCulloch v.
For a fuller discussion of cases
involving the necessary and proper
clause, click here for a link to
But decades later President
Andrew Jackson would argue that
these powers could be carried out
by the Treasury Department
without a National Bank. The bank
was not essential to carrying out
the delegated powers.
Click here for his veto message
regarding the bank which outlines
this view point.
Recent cases involving the
Necessary and Proper Clause
United States v Comstock
The court agreed that the
necessary and proper clause
authorized commitment of people
deemed “sexually dangerous” after
they fulfilled their sentences
National Federation of
Independent Business v. Sebelius
The court did not see a
constitutional justification for the
ACA based on the Necessary and
Proper Clause because the power
was not “proper.”
Here’s commentary about Robert’s
ruling on the Necessary and Proper
Clause and the ACA.
The Commerce Clause
The Commerce Clause:
“The Congress shall have Power To
. . . regulate Commerce with
foreign Nations, and among the
several States, and with the Indian
Links regarding the Commerce
Legal Information Institute
Exploring Constitutional Conflicts
This was one of the enumerated
powers, but over time questions
have been raised about the full
meaning of the word “commerce”
and what it in fact takes to regulate
commerce between the states.
A handful of disputes have existed
regarding this clause.
An early one concerned whether
states could regulate interstate
commerce? According to Gibbon v
Ogden (1824), no. A state could
not prevent an individual licensed
by the national government from
engaging in interstate commerce.
Licensing for interstate commerce
must be a national function in
order to ensure that licenses, and
commercial rules in general, are
consistent across the country.
During the bulk of the 19th Century,
the powers of the national and
state government were distinct,
but as technology improved,
commercial relations between the
state began to increase and
Beginning in the 1880s, Interstate
Commerce Act of 1887, national
institutions had been established
that began interfering with state
Some laws were found
unconstitutional, but not all of
The Sherman Anti-Trust Act was
found constitutional in Swift v US,
and the court ruled that the
national government had the
power to regulate local economic
activity if it was related to
interstate economic activity.
The principle change in the definition
of the commerce clause was driven by
progressives in the late 19th century.
Does “commerce” mean trade in
finished products, or does it also mean
the manufacturing and labor involved
in creating those products?
The Progressive Era
For decades the Supreme Court
defined commerce in a limited
manner. This led to a variety of laws
aimed at addressing social problems
on a national level being found
“In our view the necessary effect of
this act is, by means of a
prohibition against the movement
in interstate commerce of ordinary
commercial commodities to
regulate the hours of labor of
children in factories and mines
within the states, a purely state
A real shift did not occur until the
New Deal
The New Deal
The “New Deal” is the term given
to a series of laws passed in the
wake of the Great Depression that
granted addition powers to the
national government on the
premise that states were not able
to effectively handle the
The New Deal necessitated a
reinterpretation of constitutional
language, notable the definition of
the word: “commerce”
During FDR’s first term, the
Supreme Court did not find New
Deal legislation constitutional.
They held a rigid view of
Found unconstitutional:
National Industrial Recovery Act
Schechter Poultry Corp.
v. United States
This led to a conflict between the
executive and judicial branches
that came to a head in the court
packing scheme.
In order to resist the effort to add
new members to the court, the
court began reversing its opinions
of certain New Deal policies.
The key switch was by Justice
Owen Roberts.
The two most consequential cases:
National Labor Relations Board v.
Jones & Laughlin Steel
1937 - The Wagner Act, which
authorized the national government to
force corporations to recognize labor
unions was found constitutional
because labor was included in the
definition of commerce.
Wickard v. Filburn
1942 - The concept of interstate
commerce was expanded to allow
for national regulation of intrastate
activity if intrastate activity affects
interstate activity.
Over the past century the size of
the national government, and the
scope of its powers, has increased
significantly. This has required a
rethinking of the proper role of
each level of government and the
reinterpretation of constitutional
language justifying it.
It has also been highly
controversial. States tend to not
like federal encroachments on
what they see as their sovereign
power, but minorities in state
citizens often feel undeserved by
the state government and seek
redress on the national level.
For almost 60 years no major piece
of legislation regarding the
commerce clause that allowed for
an expansion of national power
was found unconstitutional.
This was due at least in part to
Democratic successes in
presidential elections.
Many of these policies placed the
national government in a
cooperative relationship with the
states and local governments.
The national government would
establish an objective and
encourage the states to go along.
Often these are implemented with
matching grants.
The national government would
encourage the states to engage in
certain endeavors by matching
state dollars with federal dollars.
One of the first area projects
funded with matching federal
dollars was the dredging of the
Port of Houston.
Interstate Highway System
primarily built with a mix of 90%
FHWA funds from the Highway
Trust Fund and 10% matching state
DOT funds.
Other Examples of Such Policies:
Health Care
The states have been encouraged
to develop certain programs which
focus on issues of national concern
– but had previously been thought
to fall fully under the reserved
powers – by providing funding to
encourage states to do so.
Some researchers have called this the era
of Cooperative Federalism. The national
and state governments co-operated on
issues of mutual concern.
This replaced the era of Dual Federalism
where each level of government worked
independently on its own issues in
isolation of the others.
Whereas the relationship between
the national and state
governments previously had
resembled a layer cake, they
suddenly resembled a marble cake.
In the 1960s, the use of these grants,
specifically categorical grants, led
researchers to coin the term “regulated
federalism” because the national
government was now in a position to
pressure the state to follow federal
guidelines or risk losing federal funds.
Click here for a brief description of the
stages of federalism.
More recently (beginning in the
mid – 1990s) court cases have
ruled against further uses of the
Commerce Clause to expand
national power.
There have been efforts to halt, or
possibly roll back the expansion of
the national government, by
reinterpreting constitutional
language as it had been prior to
the New Deal.
The Constitution in Exile
Researchers have called this effort
New Federalism, which is an
attempt to transfer powers back to
the states – the fancy term for this
effort is devolution. Some
supporters want to go further and
privatize certain government
functions completely.
This is part of a broader effort to
minimize the scope of government
generally and the national
government specifically.
These shifts have involved
reversing the Supreme Court’s
attitude towards things like
The first indication that a shift
might be underway was the
decision by the court to not find
the Gun Free Schools Zones Act
constitutional on the basis of the
Commerce Clause.
United States v. Lopez
1995 - The Supreme Court rejected the
argument that the national government
could pass a law based on the commerce
clause. They rejected the idea that the
federal government could outlaw gun
possession near school zones because it
had a suppressing effect on commercial
Gun Free School Zones Act was
judge to be unconstitutional
because it did not directly impact
economic behavior – it only
indirectly did so. In addition, the
activity was judged to be local in
“The Lopez court stated that
Congress may regulate (1) use of
the channels of interstate
commerce, (2) the
"instrumentalities" (for example,
vehicles) used in interstate
commerce, and (3) activities that
substantially affect interstate
A second:
United States v. Morrison
2000- The Supreme Court rejected
the argument that a national law
allowing women to sue those who
physically attack them was justified
since such activity interfered with
economic activity.
It focused on the civil rights
remedy of Violence Against
Women Act.
These and other cases indicated an
effort to roll back the scope of
national power under the
commerce clause, but the decision
in Gonzales v. Raich complicated
Gonzales v. Raich
2005 – the Supreme Court
reaffirmed the constitutionality of
the national Controlled Substances
Act and its supremacy over
California’s Compassionate Use
“This activity was the result of the belief that federal
law preempted that of California. The government
argued that if a single exception were made to the
Controlled Substances Act, it would become
unenforceable in practice. The government also
contended that consuming one's locally grown
marijuana for medical purposes affects the interstate
market of marijuana, and hence that the federal
government may regulate—and prohibit—such
consumption. “
- click here for a summary of the various decisions.
Current questions involve the
potential constitutionality of the
Health Care Law.
Are challenges to the Health Care
Law offering an opportunity to roll
back the commerce clause?
The court ultimately ruled that the
ACA regulated inactivity. People
cannot be forced into the
commercial sector in order to
regulate it.
Here’s commentary about Robert’s
ruling on the Commerce Clause
and the ACA.
A few notes on the 14th
The relationship between the
national government and the
states was greatly affected by the
14 Amendment.
The 14th Amendment nationalized
citizenship and denied states the
ability to deny their privileges and
Relevant Text: “Section 1. All persons
born or naturalized in the United
States, and subject to the jurisdiction
thereof, are citizens of the United
States and of the State wherein they
reside. No State shall make or enforce
any law which shall abridge the
privileges or immunities of citizens of
the United States . . .”
This text will later allow the
national government the
opportunity to allow those who
feel they have been discriminated
against the ability to challenge that
discrimination in a federal court.
Also relevant: “ . . . nor shall any
State deprive any person of life,
liberty, or property, without due
process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws.”
Both of these phrases grant
national over the states.
Prior to the 14th Amendment, the
restrictions on legislative powers
spelled out in the First Amendment
– such as the free exercise of
religion – only limited national
power, not state power.
This changed gradually after the
14th Amendment when various
cases were brought to court
ultimately forcing the Supreme
Court to consider whether limits
on the national government
applied to state governments as
This nationalized the Bill of the
Rights by applying it to the states
piece by piece. The process has
been called the Selective
Incorporation of the Bill of Rights
to the States.
This will be discussed more fully
An early case that raised this
question was United States v.
"We have in our political system a government
of the United States and a government of each
of the several States. Each one of these
governments is distinct from the others, and
each has citizens of its own who owe it
allegiance, and whose rights, within its
jurisdiction, it must protect. The same person
may be at the same time a citizen of the United
States and a citizen of a State, but his rights of
citizenship under one of these governments will
be different from those he has under the other."
Here’s an example of a specific
case: the guarantee of freedom of
speech was incorporated against
the states in the case of Gitlow v.
New York
The requirement of equal
protection has allowed the
national government – at least in
theory – to be a resort for citizens
who feel that the states have
discriminated against them
Study Guide
- What are the delegated, reserved and implied
powers? Give examples? Where do they come
from? What controversies exist about them?
- Be familiar with the various issues associated
with the commerce clause.
- How does federalism impact sovereignty in the
United States? What other relationships can
exist between state and national governments?
- What is the difference between a nation, a
state and a city?
- What Supreme Court cases have affected the
relationship between the national and state
government? Be familiar with that impact.
- What impact did the 14th Amendment have on
the relationship between the national and state
- What is the Constitution in Exile movement?
- What is an inherent power and why are these
- What are the types of powers that are
explicitly granted to the national government?
- What limits are placed on the powers of the
- What factors led to the division of government
in the United States to the nation and the
-What is the source of the powers of cities and
local governments?
- What is the consequence of loose and strict
interpretations of the Constitution? Which parts
of the Constitution are most subject to loose
interpretations and what have been the
consequences of this?
- What early disputes existed over the scope of
national powers? What court cases helped
resolve these issues?
- What different – separate - functions do
national, state and local governments generally
An example of unconstitutional
The Keating-Owen Act of 1916,
which outlawed child labor, was
found unconstitutional in Hammer
v. Dagenhart.

GOVT 2301