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Federalism and Separation of Powers

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The government of the United States operates on a basic principle called “federalism." That means 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 (listed) powers granted to the federal government by the Constitution.

A state’s power is limited only so that 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 its 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 without 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 (an example of such a case would be prohibiting minority-owned business from labeling their product “Made in Southernstate”).

Following the 1819 decision of McCulloch v. Maryland, 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 to 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 every bit of minutiae fully described. Rather, the powers specifically listed in the Constitution include some further implied powers.

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 Supreme 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.

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

In other words, while the Constitutional powers granted to the federal government are static (they do not change over time), 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 federalist 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.

The Role of Congress

Being the legislative branch of our government, the Congress is vested by the Constitution with the power to make laws in certain areas. Section 8 of Article I provides a list of these powers. Remember that whatever power is not specifically granted to Congress by the Constitution is, by definition, prohibited to it. As the Tenth Amendment says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Here is a list of some of the powers given to Congress by the Constitution:

1) The General Welfare Clause is quite broad, and permits Congress to create any tax and spend monies on any program which they believe will serve the general welfare of the citizens of the various states. There is one crucial limitation: While Congress may tax and spend for the general welfare, it may not merely pass laws aimed to serve the general welfare.

EXAMPLE: After years of study Congress finally concludes that cigarette smoke really does harm smokers and those around them. In an effort to serve the general welfare, Congress passes a law banning the manufacture, sale, possession or use of cigarettes in any state. The law would exceed Congressional authority under the General Welfare Clause and would be struck down as an unconstitutional exercise of power.


EXAMPLE: Not easily discouraged, Congress decides to impose a $10 per pack tax on cigarettes and to spend the proceeds on tobacco education and cancer research. The laws imposing the tax and establishing the educational and research programs would be valid under the General Welfare Clause. 

2) The Commerce Clause gives Congress power to regulate the channels of interstate commerce. 

Through Supreme Court cases we can identify four general areas in which the Commerce Clause gives Congress authority to act. 

First, Congress may regulate the channels of interstate commerce. 

Second, Congress may regulate the instrumentalities of interstate commerce.

Third, Congress may regulate things which move across state lines. 

Finally, Congress may regulate activities which have a substantial effect on interstate commerce. 

In practice, the commerce clause is very broad and is the source of authority for most of Congress’ laws.

The Powers of the President

Article II of the Constitution vests the powers of the executive branch in the President of the United States and details the powers of that office. In short, the executive branch is responsible for carrying into effect the laws as passed by the legislative branch and making sure that the laws are observed. The responsibilities are best split into two separate areas – Domestic Affairs and Foreign Policy.

Domestic Affairs

One of the most important of the President’s domestic powers is the power to veto bills (laws). Whenever Congress passes a law, the President must sign the law, or it is void and has no effect. If a President refuses to sign a bill, he “vetoes” the law (“veto” is Latin for “I forbid"). However, Congress can override a Presidential veto with a vote of 2/3 of the members of the Senate and the House of Representatives.

The Appointments Clause in Article II gives the executive branch and the President, not Congress, the power to appoint federal officials. The President has the power to appoint federal judges, ambassadors, and other "principal officers” of the United States, subject to Senate confirmation of such appointments. “principal officers” here includes ambassadors and members of the Cabinet. Although the Senate may opt not to confirm a Presidential appointment, Congress cannot limit or eliminate the President’s powers to make the appointments.

Along with the power to appoint comes the power to remove. Except where restricted by law, the President may remove any executive branch officer. 

While Congress may impeach and thereafter remove a President, the President does enjoy certain immunities from prosecution. Regarding civil suits seeking money damages for any Presidential acts while in office, the President is absolutely immune. In Clinton v. Jones (the Paula Jones sexual harassment lawsuit against President Bill Clinton), it was made clear that the President enjoys absolutely no immunity for non-Presidential acts. Not only was the President subject to suit from Paula Jones, the Court refused to grant him even temporary immunity which would have allowed the President to put off his defense until his term of office was complete. The rationale behind the immunity – of ensuring that the President need not fear personal liability for acts of office - was entirely inapplicable according to the Court. Acts prior to taking the office of the Presidency are therefore also not included in the President’s shield from suit.

The President does have an executive privilege covering Presidential papers and discussions, which affords further protection. Although this privilege will, on occasion, yield to other overriding governmental interests. In United States v. Nixon (the Watergate tapes case), we are provided with the only Supreme Court decision which draws boundaries for this privilege. There, it was found that whether the privilege applies or not, is decided by the Court, not the President, and that because of the need to fully develop the facts relevant to a criminal trial, the privilege was outweighed in that case and disclosure could not be avoided.

Finally, Article II grants the President “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This means that the President may pardon someone who is accused or convicted of a federal crime, but the President holds no such power regarding violation of state law or civil, as opposed to criminal, cases.

Foreign Affairs

The President is named “Commander in Chief of the Army and Navy” by Article II. So, while only Congress has the authority to formally declare war, controversy abounds regarding the President’s ability to commit armed forces abroad in the absence of such a Congressional declaration. 

Some areas are clear, such as the authority for the President to commit our forces to defend against a sudden attack. It is also clear that Congress may delegate its powers to the President in advance, to be exercised at the President’s discretion (as happened prior to the 2003 invasion of Iraq), so long as the delegation is not overly broad. It is not clear, however, just what are the President’s powers to commit to a preemptive strike prior to an anticipated enemy attack or to commit troops to defend our allies against a sudden attack, absent approval from Congress.

Article II grants the President broad discretion over foreign policy. The two most important means of establishing foreign policy are treaties and executive agreements, and these operate differently with respect to state and federal laws and the Constitution.

Article II, Section 2, clause 2 grants the President

“Power, by and with the Advice and Consent of the Senate, to make Treaties.”

Treaties are approved when ratified by a 2/3 majority vote of the Senate.

Executive Agreements are not constitutionally authorized, but are nonetheless agreed to be within the powers vested in the President. The most immediately apparent difference between a treaty and an Executive Agreement is that Executive Agreements do not require Senate approval.

So, what is the advantage in the President seeking Senate approval and entering into a treaty rather than an Executive Agreement? The answer is that only a treaty can triumph over any existing federal law that contradicts it, and it is precisely that power of the treaty which makes Senate approval necessary and desirable. 

Note, that in no case will state law be allowed to interfere with the terms of either a treaty or an Executive Agreement. Were it otherwise, the states could effectively invalidate the President’s power to conduct foreign policy, as any agreements with foreign nations with which a state disagreed could be essentially nullified by the individual states.

EXAMPLE: The President enters into a treaty with China, which the Senate ratifies. The treaty provides, in part, that goods exported from China to the U.S. will be taxed at a particularly low import tax rate, in exchange for which goods shipped from the U.S. to China will enter China’s stream of commerce without having any import tax imposed. Suppose it would be possible for a number of states to now pass laws which would impose hefty import taxes on Chinese goods. The U.S. as a whole would not be living up to its end of the bargain, and the President’s ability to enter into agreements with foreign nations would be seriously compromised. 

The Supreme Court and the Federal Judiciary

Article III of the Constitution places the judicial power of the United States

“in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Section 2 extends federal judicial power to “cases and controversies” arising out of several areas. Central to our concern here is that the federal courts are given jurisdiction (power to hear cases) over Constitutional issues and issues arising from federal law. 

The intermediate appeals courts in the federal system (courts to which cases from trial court can be appealed to) are called Circuit Courts, which generally cover the District Court appeals from several neighboring states. The court of final appeals, of course, is the Supreme Court.

One of the most important roles of the federal courts is to adjudicate (decide) the "Constitutionality" of Congressional acts. It was the historic case of Marbury v. Madison (in 1803), which established that the Supreme Court has the power to declare unconstitutional any act of Congress which conflicts with the Constitution. Essentially, the reasoning was that because the Constitution is the highest law of the land, any law conflicting with the Constitution necessarily must be struck down.

EXAMPLE: Congress, in a remarkable turn of events, decides that the nation’s economic difficulties are largely due to the number of women who are employed at full-time positions, thus not properly raising their children who grow up without any sense of responsibility and eventually become poor employees. They therefore pass a statute requiring a freeze on the hiring of all women until such time as Congress otherwise mandates. It is the duty of the federal courts to strike down this act as unconstitutional and refuse to enforce it.

Reviewing the Constitutionality of an act of Congress is something the Supreme Court or any federal court can do. But the Supreme Court plays another vital role, as an appellate court. The Supreme Court may grant certiorari (which means that it agrees to hear the case) to hear an appeal from a federal court. It may also review the decision of the highest court of any state if the state court's decision depended on federal law. If, however, the decision was based on state law and the federal law was not necessary to the outcome, the Supreme Court has no jurisdiction to hear the case. 

Structure of the American Court System

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