220 American Government and Politics Spring, 2000 Kenneth Janda, Instructor

Federalism and Limitations on National Government The nature of a federal government--shared sovereignty over a territory and its inhabitants National powers State powers 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." Under laws of Congress, the INS has power over the fate of Elian Gonzalez. But 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 father. #3 is "to regulate commerce . . . among the several states." The national government could impose a sales tax, but it has not. 45 of the 50 states rely on a Sales Tax to fund state government. Internet 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 individuals That is, the national government lacks "police powers" to protect citizens' Health Morals Safety Welfare However, 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 Washington" 1936 Gallup Survey: "Which do you favor, concentration of power in the federal governments or in the state governments?" 44%State 56National 1939 Roper Survey: "Which do you think is the most honest and efficient in performing its own special duties?" 41%Federal 17Local 12State 1941 Gallup Survey: "Do you think there is too much power in the hands of the national government?" 56%No 32Yes 1964 Gallup Survey: 28%Federal government has too much power 35Has right amount 31Should use its power more 1995 Time/CNN Survey "Do you favor or oppose having the states take over more responsibilities now performed by the federal government?" 75%Favor 15Oppose   Pre-World War II changes in the nation-state relationship, showing power of the court to interpret the powers of Congress and the President. As discussed in class yesterday, the expansion of national power over the states occurred in 1937. When Roosevelt was elected in 1932 with huge majorities in Congress, he attacked the depression with a major expansion of national powers. After 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. This brought fiery opposition from those who contended that Roosevelt was undermining the independence of the judiciary. Although 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 industrial society. Sometimes referred to as the switch in time that saves nine.   Trends in increase of national power under the Warren Court in the 1960s. Consider the Heart of Atlanta Motel v. US (1964) The 1964 Civil Rights Act barred discrimination in restaurants, hotels, and other places of public accommodation 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. Consider the 1965 Voting Rights Act as a case in which the national government won over the states: Article I Section 2 of the Constitution gives the states the power to specify qualifications for voting. 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. The Voting Rights Act allowed the national government to send in registrars in counties with a history of low black registration. Curbing the increase of national power under the Rehnquist Court in the 1990s. 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. Writing for the majority, Chief Justice Rehnquist made these points: The 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 terms." Next, Congress will want to legislate a national curriculum because classroom learning has a substantial efect on interstate commerce. Writing for the minority, Justice Breyer said: The statute "falls well within the scope of the commerce power as this Court has understoond that power over the last half-century." "Courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activities and interestate commerce." Some observers feel that this case signals a major shift in the federal system of powers. Perhaps existing federal laws making carjacking a federal offense will be invalidated. Perhaps 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 test. In March 1996, the Rehnquist court in Seminole Tribe v. Florida used the 11th Amendment to the Constitution to further restrict national power. The 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 state's consent. In 1988, Congress passed the Indian Gaming Act. It required tribes to negotiate with their respective states about running certain gambling operations. The law also authorized a tribe to sue a state in federal court if the state refues to participate in good-faith negotiations. The Seminole Tribe sued Florida, claiming that it refused to bargain over opening a casino on the tribe's land. The Court held, 5-4, that the 11th Amendment protects the State from federal lawsuits, even if Congress has authorized them. The majority consisted of-- Appointed by William Rehnquist--Reagan Sandra Day O'Conner--Reagan Antonio Scalia--Reagan Kennedy--Reagan Clarence Thomas--Bush The minority was John Paul Stevens--Ford David Souter--Bush Ruth Bader Ginsberg--Clinton Stephen Breyer--Clinton David Souter wrote a 92 page dissent for the minority Souter: "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." According 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 health care. This 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. Whether this 5-4 majority will solidify and even grow depends on who is next appointed to the bench, which will be determined by the next election.