What is Federalism?


Federal Government:
When states form a league, alliance, or union such that each state maintains separate sovereignty to some degree regarding purely local matters, but otherwise centralizes government for national purposes, they establish a "federal government". This is contrasted with a "confederation of states", in which the central government which is formed by an alliance is substantially more restrained in its powers and purpose.

Necessary and Proper Clause:
Article I, Section 8, clause 18 of the Unites States Constitution gives Congress the 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…”

Exceedingly small details, or details of relatively minor importance.

Statute of Limitations:
State or Federal statutes which set maximum time periods during which a claim may be brought in court. When time is up “the statute has run” and the claim is barred.

To temporarily stop or suspend the running of a statute of limitations.

Writ of Certiorari:
A written judicial order is called a writ. A writ of certiorari is an order by an appeals court, such as the U.S. Supreme Court, which when granted, orders the lower court to send the case up for hearing at the higher level. The U.S. Supreme Court has discretion on whether to grant a writ of certiorari on any given case, and while review is sought for over 5,000 cases each year, the Supreme Court grants certiorari on fewer than 5% of these. See “Agenda Setting and Case Selection,” H.W. Perry, Jr., from Gates and Johnson (eds.), The American Courts: A Critical Assessment, Washington D.C.:CQ Press, 1991.

To say that the United States formed a Federal System which operates today, is to say that the governments of the states coexist with the national, or federal, government. This federal government has specifically enumerated powers which are granted, and limited in their scope, by the United States Constitution.

The Constitution established three separate branches of federal government – the legislative, the executive, and the judicial – and each branch wields and asserts only those powers specifically provided to it in the Constitution.

The interaction between Federal and state governments, therefore, is defined by the concept of Federalism and the specifically enumerated powers granted the Federal government by the Constitution.

A state’s power is limited only insofar as no state may pass any law which violates the Constitution. For example, a state has the right to pass a law setting the maximum speed limit at 55 miles per hour, as this does not violate any Constitutional provisions. The state does not need to be empowered by the Constitution to pass such a law – its powers are inherent.

The Federal government, however, is limited to passing laws in only those areas in which the Constitution bestows it power. So while the Federal government can withhold national highway funds from states which do not comply with its desire for a 55 m.p.h. speed limit, the Federal government itself is unable to pass such a law absent Constitutional authority.

EXAMPLE: Southernstate wishes to pass a law requiring that all whiskey which is labeled as “Made in Southernstate” pass certain purity standards. The state requires no constitutional authority to pass such a law, provided the legislation does not otherwise violate the Constitution (for example by prohibiting minority-owned business from labeling their product “Made in Southernstate.”)

Following the 1819 decision of McCulloch v. Maryland, 17 U.S. 316 (1819), the scope of the Congressional power granted by Article I of the U.S. Constitution increased significantly. This is because the Court in McCulloch found that not every power meant to be granted Congress could have been spelled out in the Constitution. The difference between the Constitution and a complete legal code is that the Constitution does not require that every power be explicitly stated or minutiae fully described. Rather, the powers specifically enumerated in the Constitution entail some further implied powers, and the "Necessary and Proper Clause" must be read to grant precisely these implied powers to Congress.

In McCulloch, the problem centered around a federal bank operating in violation of Maryland law. Maryland law required that any bank issuing notes do so only under authority of the state and only on paper issued by the state. The state charged a fee for the paper, and the statute provided for penalties for violations. The Constitution did not specifically grant Congress the power to create such a bank, nor does the Constitution specifically give Congress the right to ignore Maryland law in this regard, but the Court held that Congress did have the power to handle national finances, and that a federal bank was therefore a "useful, convenient and essential instrument" for fulfilling this Constitutional obligation.

Congress is given the power to establish federal courts under the Constitution. Necessarily, some court rules must be established in order to ensure the smooth operation of these courts. Although there is no specific Constitutional provision to that effect, the Federal Rules of Civil Procedure (a set of guidelines for how federal civil litigation operates) are permissible pursuant to the Necessary and Proper Clause.

But the Necessary and Proper Clause is not some legal technicality belonging to the past. As recently as April of 2003, in Jinks v. Richland County, South Carolina, 123 S. Ct 1667 (2003) the Court found Congressional power to pass an act based on the Necessary and Proper Clause. Jinks’ husband was arrested for failure to pay child support and died from alcohol withdrawal while still in detention four days following his arrest. Jinks lost her wrongful death suit in Federal court, then filed and won a jury verdict in South Carolina state court. The state appealed to its Supreme Court, arguing that Congress has no Constitutional power to pass a law which tolls the statute of limitations for state-law claims brought in state court, and that without the benefit of the Federal tolling law, Jinks’ claim was barred by the Statute of Limitations. On writ of certiorari to the U.S. Supreme Court, the Court pointed out that a similar federal statute was upheld in 1871 and that the Court “long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be “absolutely necessary” to the exercise of an enumerated power.” Jinks at 1671, citing McCulloch at 414. See also Stewart v. Kahn, 78 U.S. 493 (1871).

So from McCulloch in 1819 to Jinks almost 200 years later, the Court has held its ground that the threshold test for the Necessary and Proper Clause is somewhere below strict necessity . So long as the Congressionally chosen means is rationally related to a Constitutionally permitted end, the Necessary and Proper Clause may be properly invoked as the source of Congressional power.

What does all this mean? It means that while Congress has only the powers specifically enumerated in the Constitution, Congress may also have other, non-enumerated powers, which are implicitly required to carry out the enumerated powers. It also means that for a case involving the Necessary and Proper Clause which makes it all the way to the Supreme Court, the outcome is not a foregone conclusion.

EXAMPLE: The Constitution requires Congress to apportion to the states Representation in the House “according to their numbers.” In 1941 a Federal statute was enacted which, when applied in 1990, caused Montana to lose one of the two seats it held in the House of Representatives. Montana sued and the case ended up in the Supreme Court. The Court held that Congressional selection and application of the method by which to apportion Representatives is valid under the Necessary and Proper Cause. While the method and formulas were not themselves necessary – Congress could have chosen others – it was necessary to choose some specific manner of calculation, and Congress did not enter into the task lightly or hastily. See Department of Commerce v. Montana, 503. U.S. 442 (1992).

Instructive here is an excerpt from the decision of New York v. United States, 505 U.S. 144, 157 (1992):

"This [Constitutional] framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role."

In other words, while the Constitutionally enumerated powers granted the Federal government are static, absent a Constitutional amendment, the meaning and scope of those powers must remain sufficiently flexible to allow for an increasingly responsible, and powerful, Federal government.

So, the interaction between state and Federal government in our Federal system is a fluid concept, which operates differently as it is applied in different times and different contexts, and over time, Congress’ power has steadily increased in range pursuant to Supreme Court decisions.

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