and Limitations on National Government
- The nature
of a federal government--shared sovereignty over a
territory and its inhabitants
- Article I
Section 8 of the Constitution begins by saying "The
Congress shall have power . . ." and then it enumerates
18 powers for the national government
- #4 is to
"establish a uniform Rule of Naturalization."
laws of Congress, the INS has power over the fate of
under the principle of federalism, the national
government cannot force police in the state of Florida
nor the city of Miami to turn Elian over to his
- #3 is "to
regulate commerce . . . among the several states."
national government could impose a sales tax, but it
- 45 of
the 50 states rely on a Sales Tax to fund state
companies skirt these laws, and states are asking the
national government to force internet companies to
charge and collect sales tax.
- #18 is "To
make all laws which shall be necessary and proper for
carrying out into Execution the foregoing powers.
- Section 8
does not give Congress a specific power to provide for
education, so that is left to the states
- With few
exceptions (as in the case of Elian Gozalez) the National
government has no powers to act directly on
- That is,
the national government lacks "police powers" to protect
over time U.S. citizens have come to expect the national
government to improve their lot in life.
- This is
despite a growing negativism about the "government in
Gallup Survey: "Which do you favor, concentration of
power in the federal governments or in the state
Roper Survey: "Which do you think is the most honest
and efficient in performing its own special
Gallup Survey: "Do you think there is too much power
in the hands of the national government?"
government has too much power
use its power more
Time/CNN Survey "Do you favor or oppose having the
states take over more responsibilities now performed
by the federal government?"
War II changes in the nation-state relationship, showing
power of the court to interpret the powers of Congress and
discussed in class yesterday, the expansion of national
power over the states occurred in 1937.
Roosevelt was elected in 1932 with huge majorities in
Congress, he attacked the depression with a major
expansion of national powers.
his reelection in 1936, Roosevelt sought to deal with
a hostile court by proposing a judicial reorganization
bill to add new judges for each one over 70, up to six
new judges for the Supreme Court.
brought fiery opposition from those who contended
that Roosevelt was undermining the independence of
Roosevelt's plan was defeated, the court switched
its position in a series of cases in 1937,
approving by 5-4 votes a series of cases that
stressed a very broad interpretation of Congress'
power to regulate activities that had "a close and
substantial relation to interstate commerce,"
recognizing its need to meet the challenge of an
referred to as the switch in time that saves
increase of national power under the Warren Court in the
the Heart of Atlanta Motel v. US (1964)
1964 Civil Rights Act barred discrimination in
restaurants, hotels, and other places of public
- In 1883
the Court had struck down a similar law on the grounds
that private acts of discrimination could not be
forbidden by the national government.
- In this
case, the Court found ample power in the Congress'
power to regulate interstate commerce.
the 1965 Voting Rights Act as a case in which the
national government won over the states:
I Section 2 of the Constitution gives the states the
power to specify qualifications for
- But the
15th Amendment (1870) provides that no person shall be
denied the right to vote on account of race, color, or
previous condition of servitude.
Voting Rights Act allowed the national government to
send in registrars in counties with a history of low
increase of national power under the Rehnquist Court in the
- In 1995,
60 years after the 1964 and 1965 decisions of the Warren
Court, the Rehnquist Court significantly limited
Congress' power to regulate interstate commerce.
- In U.S.
v. Lopez (1995), by a 5-4 vote, the court declared as
unconstitutional a national law banning the possession
of guns near schools.
for the majority, Chief Justice Rehnquist made
Gun-Free School Zones Act of 1990, which made it
a a federal offense for a person to have a gun
in a school zone, "has nothing to do with
'commerce' or any sort of economic enterprise,
however broadly one might define those
Congress will want to legislate a national
curriculum because classroom learning has a
substantial efect on interstate commerce.
for the minority, Justice Breyer said:
statute "falls well within the scope of the
commerce power as this Court has understoond
that power over the last
must give Congress a degree of leeway in
determining the existence of a significant
factual connection between the regulated
activities and interestate commerce."
observers feel that this case signals a major shift in
the federal system of powers.
existing federal laws making carjacking a federal
offense will be invalidated.
also even the Contract with America plans to
establish a national network to pursue deadbeat
parents and stiffer penalties for child
porngraphers are unconstitutional according to this
- In March
1996, the Rehnquist court in Seminole Tribe v. Florida
used the 11th Amendment to the Constitution to further
restrict national power.
11th Amendment provides that the national courts
cannot uudge suits against a State by citizens of
another state nor of a foreign country without the
1988, Congress passed the Indian Gaming Act.
required tribes to negotiate with their respective
states about running certain gambling
law also authorized a tribe to sue a state in
federal court if the state refues to participate in
Seminole Tribe sued Florida, claiming that it
refused to bargain over opening a casino on the
Court held, 5-4, that the 11th Amendment protects the
State from federal lawsuits, even if Congress has
majority consisted of-- Appointed by
Souter wrote a 92 page dissent for the minority
"Given the Framer's general concern with curbing
abuses by state governments, it would be amazing if
the scheme of delegated powers embodied in the
Constitution had left the National Government
powerless to render the States judicially
accountable for violations of federal rights."
to some constitutional scholars, the case raises
questions about whether individuals can use the
courts to force states to abide by a variety of
federal laws, including environmental pollution and
decision comes as political power is shifting from
the national to the state governments through block
grants and a retreat from national legislation.
- The court
divided 5-4 exactly the same in the Seminole case as in
the Lopez case.
5-4 majority will solidify and even grow depends on who is
next appointed to the bench, which will be determined by the