Federalism- Take 2
09/19/12
Evidence of Unitary or Federal?
Mixed response to toddler plans
Toddlers are encouraged to be healthy,
competent learners
A proposed "national
curriculum" for babies and
toddlers in England has
received a mixed response.
Under the Childcare Bill,
childminders would teach the
curriculum to children "from
birth" - with some worrying that it
might be too prescriptive.
http://news.bbc.co.uk/2/hi/uk_news/education/4420138.stm
Let’s look at the struggle b/w states and the feds—
starting with the feds—it can be the boss by using sticks
or carrots
Mandates or "sticks"
The supremacy clause means they trump—so they can tell the states
what to do—that’s the “preemption doctrine”: if state and fed law
conflict, fed law preempts state law
Of course it must be acting in its
“sphere” of enumerated powers found
where?
And even more expansively, within its
implied powers made possible the
what clause?
EXAMPLE: Most environmental legislation
(States are told: Clean up the air . . period).
Clean Air Act
Example: Civil Rights Legislation
Remember: if the feds are mandating something, they must be acting
within their “sphere”
Separate but equal
drinking fountains
are bad . . . But that
is not the question
here—the question
is can Congress do
anything about it?
Is it within their “enumerated powers
sphere?
They say yes it is within our authority to regulate
_________and pass the Civil rights act
And the “umpire” upholds it:
In Heart of Atlanta Motel v. United States (1964), the Court
ruled that Congress could regulate a business that served
mostly interstate travelers;
in Katzenbach v. McClung (1964) the Court ruled that the
government could regulate Ollie's Barbecue, which served
mostly local clientele but sold food that had previously
moved across state lines;
and in Daniel v. Paul (1969), the Court ruled that the
government could regulate a recreational facility because
three out of the four items sold at its snack bar were
purchased from outside the state.
Another Example: Americans with Disabilities Act
Americans with Disabilities Act—States (and businesses) may not
discriminate in employment and state and local governments must
provide equal access to service, employment , buildings and
transportation—
Important note: Mandates can be funded . . . Or they can be partially funded . . . Or
they can be unfunded . . . But they are a stick—the states must do it. The ADA was
unfunded.
No Child Left Behind was partially funded
It’s a mandate
And Utah refuses to comply
with any parts that are
unfunded
Fiscal Federalism
Fiscal Federalism is
the power of the
national government to
influence state policies
through grants
Then there is the carrot approach . . .
Carrots or strings attached to grants as "condition of aid"
These proliferated in 1970's
tells state govs. what they must do if they want money
can apply just to a program---like if want highway money it must have a
highway beautification plan, or what that has to do with drinking?
or can cover all grants--if state builds anything with federal money, it must
conduct an EIS. ("crosscutting)
CNN July, 1996: Louisiana's legislature was the last to raise
the minimum drinking age to 21 in order to save $14 million
to $18 million per year in federal highway funds. In March,
the state's highest court ruled that the minimum age hike was
unconstitutional.
A federal law enacted in December 2004 designates
September 17 as "Constitution Day and Citizenship Day," to
commemorate the signing of the United States Constitution on
September 17, 1787. The federal law is included in Section 111 of
Pub. L. 108-447 (Consolidated Appropriations Act of 2005). It
contains the following provision in Section 111(b): "Each
educational institution that receives Federal funds for a fiscal
year shall hold an educational program on the United States
Constitution on September 17 of such year for the students
served by the educational institution."
The U.S. Department of Education has published additional
information about the new law at
www.ed.gov/legislation/FedRegister/other/2005-2/052405b.html. If
September 17 falls on a non-school day, educational institutions
may hold the educational program during the preceding or
following week.
Let’s see how this plays out in the
real world of today .. . . Shall we?
http://www.nytimes.com/2010/09/15/health/policy/15hea
lth.html
Health Care Law Could Mean End of Federalism If It Is Upheld,
Virginia AG Warns http://www.cnsnews.com/news/article/75212
Federal Judge Blocks Key Portions of Arizona
Illegal Immigration Law
http://www.foxnews.com/politics/2010/07/28/federaljudge-rules-arizona-immigration-law-dispute/
Key parts of Arizona anti-immigration law blocked
http://www.reuters.com/article/idUSTRE66R45C20100728?rpc=21
Federal Judge Dismisses Officer's Challenge to Arizona
Immigration Law: this illustrates
http://www.foxnews.com/politics/2010/09/01/federal-judge-dismisses-officerschallenge-arizona-immigration-law/
Another way Congress can tell the states what to do:
14th Amendment, Section 5:
14th amendment section 1 says “No State shall 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”
Section 5 goes on to state “The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article”
On that basis, the Court upheld a provision of the Voting Rights Act that
prevented states from using English language literacy tests as qualifications for
voting. The Court decided that the law was a valid exercise of Congress's
enforcement power under the Fourteenth Amendment, because it was aimed
at remedying state-sponsored discrimination
But the discrimination by the states must be well documented. . .
Facts of the Case
In 1994, while enrolled at Virginia Polytechnic Institute (Virginia Tech), Christy
Brzonkala alleged that Antonio Morrison and James Crawford, both students
and varsity football players at Virginia Tech, raped her. In 1995, Brzonkala
filed a complaint against Morrison and Crawford under Virginia Tech's Sexual
Assault Policy. After a hearing, Morrison was found guilty of sexual assault and
sentenced to immediate suspension for two semesters. Crawford was not
punished. .. . Ultimately, Brzonkala dropped out of the university. Brzonkala
then sued Morrison, Crawford, and Virginia Tech in Federal District Court,
alleging that Morrison's and Crawford's attack violated 42 USC section 13981,
part of the Violence Against Women Act of 1994 (VAWA), which provides a
federal civil remedy for the victims of gender-motivated violence. Morrison and
Crawford moved to dismiss Brzonkala's suit on the ground that section 13981's
civil remedy was unconstitutional. In dismissing the complaint, the District Court
found that that Congress lacked authority to enact section 13981 under either
the Commerce Clause or the Fourteenth Amendment, which Congress had
explicitly identified as the sources of federal authority for it. Ultimately, the Court
of Appeals affirmed.
• Question
• Does Congress have the authority to enact the
Violence Against Women Act of 1994 under
either the Commerce Clause or Fourteenth
Amendment?
• Conclusion
• No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist,
the Court held that 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 nor did it redress harm caused by the state.
Chief Justice Rehnquist wrote for the Court that [i]f the allegations
here are true, no civilized system of justice could fail to provide
[Brzonkala] a remedy for the conduct of...Morrison. But under our
federal system that remedy must be provided by the
Commonwealth of Virginia, and not by the United States."
Dissenting, Justice Stephen G. Breyer argued that the majority
opinion "illustrates the difficulty of finding a workable judicial
Commerce Clause touchstone." Additionally, 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."
OK so the Trump Cards for the feds are
.
The Preemption Doctrine which derives from the Supremacy
Clause: and says: federal law trumps conflicting state law
But only if Congress is legitimately exercising . . . .
An enumerated Power . . With the commerce clause being
especially useful to them:
Or an implied powers created through the “Elastic” or “necessary
and proper” clause
Or if there is a clear pattern of discrimination so they say they
can use section 5 of the 14th amendment
Any other time . . . States trump
Because of general principles of federalism
Because of the 10th amendment:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved for
the States respectively, or to the people
And because of the 11th amendment which recognizes the
states sovereign immunity so the feds can’t allow individual
damage suits against state officials
11TH AMENDMENT: PROTECTS STATES
• After Patricia Garrett, Director of Nursing for the
University of Alabama, was diagnosed with breast
cancer, her treatment forced her to take a substantial
leave from work. Upon her return, her supervisor
informed her she would have to give up her position.
She claimed the ADA protected her, and sued the
state. In Univ. of Alabama v. Garrett (2001) 5 to 4
decision: Ct. held that Congress did not have the
constitutional authority to open state government to
lawsuits by their employees for violation of the Americans
with Disabilities Act (protected by the 11th amendment)
How about this case?
Facts of the Case
George Lane and Beverly Jones were disabled and could not access upper floors in
Tennessee state courthouses. Lane, Jones, and several others sued Tennessee in
federal district court, alleging that by denying them public services based on their
disabilities, Tennessee was in violation of Title II of the Americans with Disabilities Act
(1990). According to Title II, no person may be denied access to "services, programs, or
activities" on the basis of his disability. The act allows alleged victims of discrimination
to sue states for damages.
Tennessee asked that the case be dismissed, claiming that it was barred by the 11th
Amendment's prohibition of suits against states in federal courts (the sovereign
immunity doctrine). The state cited Alabama v. Garrett (2001), in which the U.S.
Supreme Court ruled that Congress had acted unconstitutionally in granting citizens the
right to sue states for disability discrimination (such as the denial of employment) under
the 14th Amendment's equal protection clause. In that case the Supreme Court
reasoned that Congress did not have enough evidence of disability discrimination by
states to justify the waiver of sovereign immunity.
Question
Did the Americans with Disabilities Act violate the
sovereign immunity doctrine of the 11th Amendment
when, based on Congress's 14th Amendment
enforcement powers of the Due Process clause, it
allowed individuals to sue states for denying them
services based on their disabilities?
1
HOLDING: Ruling narrowly, the court held that states could be sued
under the Americans With Disabilities Act for failing to make their courthouses
accessible. The law requires accessibility for a broad array of public services
and programs, but Justice Stevens's opinion for a 5-to-4 majority confined itself
to the plight of wheelchair users in Tennessee who were barred by architectural
barriers from entering county courthouses. Whether states can claim immunity
from suit in other applications of the disability law remains to be seen in future
cases Limited as it was, this decision was significant as a break from past
decisions rejecting Congressional efforts to overcome the states' constitutional
immunity from suit. The majority said Congress was justified in this context by a
well-documented history of the exclusion from state judicial proceedings of
people with disabilities. Chief Justice Rehnquist dissented, along with Justices
Scalia, Thomas and Kennedy.
So these were all cases involving conflict between
state and federal law
But remember the supremacy clause made 2 other
things “supreme” . . . What were they?
So now we will look at more disputes over whether
state sovereignty can be taken away by . . . .
Other provisions in The FEDERAL Constitution
Oregon v. Mitchell (1970) Does Congress have the Constituonal authority to
reduce the voting age to 18
Nevada v Hibbs
Facts of the Case
William Hibbs, an employee of the Nevada Department of Human Resources,
sought leave to care for his wife (who had beenin a serious car accident) under the
Family and Medical Leave Act of 1993 (FMLA). The FMLA entitles an eligible
employee to take up to 12 workweeks of unpaid leave annually for the onset of a
"serious health condition" in the employee's spouse. The Department granted
Hibbs's request for the full 12 weeks of FMLA leave and, after he had exhausted
that leave, informed him that he must report to work by a certain date. When Hibbs
failed to do so, he was fired. Pursuant to FMLA provisions creating a private right of
action "against any employer" that "interfered with, restrained, or denied the
exercise of" FMLA rights, Hibbs sued in Federal District Court, seeking money
damages for FMLA violations. The District Court concluded that the Eleventh
Amendment barred the FMLA claim. The Court of Appeals reversed.
Question
May an individual sue a State for money damages in federal court for violation of
the Family and Medical Leave Act of 1993?
• Yes. In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the
Court held that State employees may recover money damages in federal
court in the event of the State's failure to comply with the FMLA's familycare provision. The Court reasoned that Congress both clearly stated its
intention to abrogate the States' Eleventh Amendment immunity from suit
in federal court under the FMLA and acted within its authority under
section 5 of the Fourteenth Amendment by enacting prophylactic, rather
than substantively redefining, legislation. "In sum, the States' record of
unconstitutional participation in, and fostering of, gender-based
discrimination in the administration of leave benefits is weighty enough to
justify the enactment of prophylactic [section] 5 legislation," wrote Chief
Justice Rehnquist. Justices Antonin Scalia and Anthony M. Kennedy, who
was joined by Justices Clarence Thomas and Scalia, filed dissents.
Goodman vs Georgia 2006 (first Roberts Court case on
Federalism)
Mr. Goodman asserts that his cell, where he is confined 23
or 24 hours a day, is too small at 12 feet by 3 feet to allow
him to maneuver his wheelchair, that he lacks an
accessible toilet and shower and that guards leave him
sitting in his own waste rather than assist him. Further, he
says he lacks access to recreational facilities and to the
prison law library. He claims that this violates the 8th
amendment and that the Americans with Disabilities Act of
1990 abrogate state sovereign immunity for suits by
prisoners with disabilities challenging discrimination by
state prisons?
Question:
Did Title II of the Americans with Disabilities Act of 1990 validly abrogate
state sovereign immunity for suits by prisoners with disabilities challenging
discrimination by state prisons? Was Title II a proper exercise of
Congress's power under Section 5 of the Fourteenth Amendment, as
applied to the administration of prison systems?
Conclusion
Yes and yes. In a unanimous decision authored by Justice Antonin Scalia,
the Court ruled that Title II abrogates sovereign immunity in cases where
violations of the 8th Amendment are alleged. The 14th Amendment
incorporates the 8th Amendment (that is, applies it to the states). Congress
can enforce the 14th Amendment against the states "by creating private
remedies against the States for actual violations" of its provisions, which
can involve abrogating state sovereign immunity. However, the Court did
not address the question of whether Title II validly abrogates sovereign
immunity when the 8th Amendment is not involved.
Solid Waste Agency of Northern Cook County v. US Army
Corps of Engineers does the federal government have power to
block construction of a garbage dump because the planned site
provides important habitation of migratory birds
Briefly . . . Federalism in the US: the ebb and flow
Early sources of Federal Power
McCulloch: Supremacy clause and N & P clause allow Congress to establish a
national bank, even if “bank” is not enumerated, the power is implied
Gibbons Vs Ogden (1824) the court ruled for the first time that the power to
regulate commerce was more than just the traffic of commerce, it included
navigation on rivers even when it means regulating inside a state
until the late 30s' a steady growth of the National Gov
through Civil War (nullification is dead) , reconstruction and
Progressive era BUT in the form of dual Federalism (ie in
distinct spheres of authority)
by late 40's National government trumped-marble cake (shared spheres of authority) with
National gov holding most of power and then until
the 70's national government grows
Why? Depression leads to FDR and new deal and
the switch in time that saves 9; War (WWII and
Cold War), Civil Rights, environmental movement
etc. all look to fed. gov to solve problems and find
it more sympathetic than states
In the 1980’s and 1990’s power starts to return to the states
The “devolution Revolution”
Why?
Leadership:
Who was our president then class? “Gov’t IS the problem:
Followed by whom? And he carries a copy of the 10th amendment in his pocket
1994 We get the “Republican Revolution” the first time Republicans control
both Houses since 1954—and they pass the “Contract with America” which
promises to return power to the states (more block grants, unfunded mandates
limited etc—see your book)
Deficit
End of Cold War
public confidence in feds
goes down with scandals like
Watergate, Savings and Loans,
budget procurement scandals
($200 toilet seats for the
pentagon etc)
Welfare Reform in the 1990’s gives power to
the states in the from of block grants
• States are given wide discretion to
determine the services to be
provided and the groups that may
be eligible for services, usually low
income families and individuals. In
addition to supporting social
services, the law allows States to
use their allotment for staff
training, administration, planning,
evaluation, and purchasing
technical assistance in developing,
implementing, or administering the
State social service program. States
decide what amount of the Federal
allotment to spend on services,
training, and administration.
Lopez v USA
• Should there be a national Gun-Free
School Zone?
• High School in San Antonio- senior
arrested for carrying a concealed
weapon
• 1995 Rehnquist court
• first United States Supreme Court case
since the New Deal to limit the use of
the Commerce Clause
• Congress has since re-passed the lawnow if the gun is involved in interstate
commerce
• This has been supported by numerous
court decisions
And the Rehnquist Court
In 1995 for the first time since
New Deal the Court invalidated
an exercise of Congress's
asserted authority to regulate
interstate commerce when it
invalidated the 1990 Gun-Free
School Zones Act---
and in many terms since the
mid-1990s the Supreme Court
struck down some federal laws
as exceeding its authority to tell
the states what to do
And in the "Noughties" . . . The struggle between the two goes on
War on Terrorism . . .
Gives power to which
level of government?
“Real ID law” 2005 requires
states to use sources like
birth certificates and
national immigration
databases to verify that
people applying for or
renewing driver's licenses
are American citizens or
legal residents
Supreme court goes both ways
Printz 97Brady
Handgun
Bill
unconstituti
onal- can’t
cite
Commerce
Clause
Vs
Gonzalez v Raich (2005) ruling that under
the Commerce Clause of the United States
Constitution, the United States Congress
may criminalize the production and use of
home-grown cannabis even where states
approve its use for medicinal purposes.
Morrison