FEDERALISM CASES
Parts of the Constitution giving the national
government power over the states.
THE SUPREMACY CLAUSE
(Article VI)
“This Constitution, and the Laws of the
United States which shall be made in
Pursuance thereof…shall be the
supreme Law of the Land;”
Copyright © 2011 Cengage
FEDERALISM CASES
Parts of the Constitution giving the national
government power over the states.
THE “NECESSARY AND PROPER”
CLAUSE
(Article I, Section 8, Clause 18)
Congress has 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 in the Government of the
United States,”
Copyright © 2011 Cengage
FEDERALISM CASES
Parts of the Constitution giving the national
government power over the states.
THE COMMERCE CLAUSE
(Article I, Section 8, Clause 3)
Congress has the power:
“To regulate Commerce with foreign
Nations, and among the several States,
and with the Indian Tribes;”
WHAT IS INTERSTATE COMMERCE?
Copyright © 2011 Cengage
FEDERALISM CASES
THE COMMERCE CLAUSE
• Originally, the Supreme Court distinguished
between interstate and intrastate commerce.
• Over the years, the Court has abandoned efforts to
make that distinction.
• The Court has drastically broadened what is
considered to be “interstate commerce.”
“Commerce is like a stream flowing
through the country, drawing to itself
contributions from thousands of
scattered enterprises and depositing its
products in millions of individual
homes.”
Wilson text, p. 57
FEDERALISM CASES:
McCULLOCH V. MARYLAND
(1819)
• Congress had the power to incorporate the
bank.
• Chief Justice Marshall noted that Congress
possessed unenumerated powers not explicitly
outlined in the Constitution.
Necessary and proper clause.
• “[I]t may with great reason be contended,
that a government, entrusted with such ample
[enumerated] powers...must also be entrusted
with ample means for their execution.”
FEDERALISM CASES:
McCULLOCH V. MARYLAND
(1819)
• Maryland could not tax activities of the
national government engaged in the
execution of constitutional powers.
•“The power to tax is the power to destroy.”
• The power to destroy = supremacy.
• States are not supreme thus the Maryland
tax is unconstitutional.
FEDERALISM CASES:
McCULLOCH V. MARYLAND
(1819)
IN A NUTSHELL
• Marshall:
"the
Constitution
andderived
the
• The
Constitution
and laws
from it
laws made are
in pursuance
thereof
supreme to the
laws ofare
states.
federal
government
cannot be
supreme.• . The
.they
control
the
controlled
by of
thethe
states.
constitution
and laws
respective
• Congress has implied powers to make laws
states, andnecessary
cannot be
controlled by
to carry out enumerated powers.
them."
FEDERALISM CASES: GIBBONS V. OGDEN (1824)
•New York's licensing requirement for out-ofstate operators was inconsistent with a
congressional act regulating the shipping trade.
• The New York law was invalid by virtue of the
Commerce Clause.
• Marshall developed a clear definition of the
word commerce, which included navigation on
interstate waterways.
• “The power to regulate commerce extends to every
species of commercial intercourse…among the several
States. It does not stop at the external boundary of a
State.”
FEDERALISM CASES: GIBBONS V. OGDEN (1824)
• He concluded that regulation of navigation by
steamboat operators and others for purposes of
conducting interstate commerce was a power
reserved to and exercised by the Congress.
IN A NUTSHELL
Congress has the power to regulate
interstate commerce. Gibbons added
meaning to the legal definition of
“interstate commerce.”
FEDERALISM CASES: U.S. v. LOPEZ (1995)
Is the 1990 Gun-Free School Zones Act, forbidding individuals
from knowingly carrying a gun in a school zone, unconstitutional
because it exceeds the power of Congress to regulate interstate
trade under the Commerce Clause?
• The possession of a gun in a
local school zone is not an
economic activity that might,
through repetition elsewhere,
have a substantial effect on
interstate commerce.
•The law is a criminal statute
that has nothing to do with
"commerce" or any sort of
economic activity.
FEDERALISM CASES:
U.S. v. LOPEZ (1995)
“We have really not been too... strict about what the farthest
reach of the Commerce Clause may be. But as I read our
cases…I think all of them involve the issue of whether
commercial activity of some sort... renting a hotel room,
growing a commodity that is used in commerce... whether some
commercial activity is interstate commerce or not, and one can
say we're prepared to be very broadminded about that.
But here you have regulation of something that is not
commercial activity in any sense of the word, merely the
possession of an item… [Anything] that relates to commerce, the
Federal Government can control, securities regulation, all sorts
of things…This doesn't relate to commerce, even.”
Justice Antonin Scalia
FEDERALISM CASES: U.S. v LOPEZ (1995)
“To uphold the Government's contention that [the
law] is justified because firearms possession in a
local school zone does indeed substantially affect
interstate commerce would require this Court to pile
inference upon inference in
that would
INaAmanner
NUTSHELL
There are
limits toClause
what is
accepted
convert congressional
Commerce
authority
to
under
theofumbrella
of “interstate
a general police
power
the sort held
only by the
commerce.” A student bringing a gun
States.”
to school goes beyond the limit.
FEDERALISM CASES: PRINTZ V. UNITED STATES
(1997)
Using the Necessary and Proper Clause of Article I as
justification, can Congress temporarily require state CLEOs to
regulate handgun purchases by performing those duties
called for by the Brady Bill's handgun applicant backgroundchecks?
FEDERALISM CASES: PRINTZ V. UNITED STATES
(1997)
• State legislatures are not subject to
federal direction.
• In this case by performing backgroundchecks on applicants for handgun
A NUTSHELL
ownership, the Necessary andIN
Proper
law violated the Tenth Amendment by
Clause does not The
empower
the federal
commanding state agents to carry out a federal
government to compel state CLEOs to
regulatory program. Scalia: “Such commands are
fulfill its tasks - fundamentally
even temporarily.
incompatible with our system of
dual sovereignty.”
•The Brady Bill could not require CLEOs to
perform the related tasks of disposing of
handgun-application forms or notifying
certain applicants of the reasons for their
refusal in writing, since the Brady Bill
reserved such duties only for those
CLEO's who voluntarily accepted them.
FEDERALISM CASES: MORRISON V. UNITED STATES
(2000)
“A bipartisan Congress concluded that gender-based
violence substantially affects the national economy based
on a 4-year legislative record through which it found that
gender-based violence and the fear of that discriminatory
violence deters women's travel interstate, restricts
women's choice of jobs and ability to perform those jobs,
reduces national productivity, and increases medical and
other costs.
“Each of these findings was fully supported by evidence.
“For example, Congress heard from women whose
batterers kept their partners from working, who wouldn't
let them leave home if they did work, or who inflicted
visible injuries so that they were afraid to go to work or
were physically unable to show up.”
FEDERALISM CASES: MORRISON V. UNITED STATES
(2000)
• Congress lacked the authority to enact a statute
under the Commerce Clause or the Fourteenth
Amendment since the statute did not regulate an
activity that substantially affected interstate
commerce.
IN A NUTSHELL
• Rehnquist: “IfViolence
the allegations
here are
true, no does not
against
women
civilized system of justice could fail to provide
substantially
affect
“interstate
[Brzonkala] a remedy
for the conduct
of...Morrison.
But under our federal
commerce.”
system that remedy must be
provided by the Commonwealth of Virginia, and not
by the United States."
• Justice David H. Souter, dissenting, noted that
VAWA contained a "mountain of data assembled by
Congress...showing the effects of violence against
women on interstate commerce.“
• 5-4 decision
FEDERALISM CASES
THE COMMERCE CLAUSE
Is choosing not to purchase
health insurance “participating
in commerce?”
Ken Cuccinelli
Attorney General of Virginia
FEDERALISM CASES
THE COMMERCE CLAUSE
The health insurance mandate “is
unconstitutional because the federal
government is claiming that the
source of its power for imposing the
mandate is the Constitution’s
Commerce Clause, which gives the
federal government the power to
‘regulate commerce among the
several states…’ We argue that if
someone isn't buying insurance,
then – by definition – he is not
participating in commerce. How,
then, can the government use the
Commerce Clause to regulate noncommerce, ie. regulating inactivity?”
Ken Cuccinelli
Attorney General of Virginia
FEDERALISM CASES
THE COMMERCE CLAUSE
“The Commerce Clause is important
because ____________________.”
It can be used by Congress to pass a wide
variety of legislation so long as there is a link to
commerce. Many activities are linked to
“commerce” and almost all “commerce” can be
considered “interstate.”
However, there are limits on the types of laws Congress
can pass under the Commerce Clause. Lopez, Printz and
Morrison all offer specific limits.