法律英語(yǔ) Legal Lad 2013 Constitution 101: Federalism

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Today’s Topic: Constitution 101 – Federalism

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the 12th installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.

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Federalism Defined

Federalism refers to our system of divided sovereignty, in which some government functions are vested in the central government and others in the states. It’s a theme that runs throughout the U.S. Constitution which, of course, created the federal government but also assumes the continued existence of states with their own legislatures and their own laws. The Constitution, for example, assumes that states will maintain their own militias, which could be called into service by the federal government “to execute the laws of the Union, suppress insurrections and repel Invasions.” Today, the state militias are known as the National Guard.

The Tenth Amendment

Article I of the Constitution defines the scope of federal law by delegating certain powers to Congress – these are typically referred to as the “enumerated powers.” The implication of Article I is that all other government powers are left to the states. That implication, however, was not enough to satisfy skeptical state politicians. Seven of the state conventions that ratified the Constitution demanded an amendment that would expressly protect the sovereign powers of the states—a demand that was ultimately met by the Tenth Amendment. According to the Tenth Amendment: “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 the people.” The Tenth Amendment was understood as a reaffirmation of the federalism principles inherent in the structure of the Constitution.

The Sick Chickens Case

For 150 years after ratification of the Bill of Rights, the Supreme Court invoked the Tenth Amendment as a limitation on federal power. Most famously, in 1935 the Court struck down the National Industrial Recovery Act – which was the centerpiece of President Franklin Roosevelt’s New Deal program – as a violation of the Tenth Amendment. That case, sometimes referred to as the “sick chickens case” involved an attempt by the federal government to criminally charge some Brooklyn-based butchers for violating the new “Live Poultry Code.” The Court held that the Tenth Amendment precluded Congress from usurping the states’ power to regulate business practices, including poultry butchers.

The Tenth Amendment as a “Truism”

Just six years after the sick chickens case, however, the Court reversed course. In United States v. Darby (1941) the Court upheld the Fair Labor Standards Act of 1938 (FLSA), which imposed uniform wage and hour standards throughout the United States, with violators barred from selling goods across state lines. Before then, the relationship between employer and employee had been strictly a matter of state law. But now the Court held that the Tenth Amendment is “but a truism” – in other words, a self-evident truth that does not add anything to constitutional law. The Court went on to hold that regulating wage and hour standards was an appropriate means to achieve one of Congress’s constitutional ends, namely, the regulation of interstate commerce.

The Anti-Commandeering Rule

Since Darby, the Supreme Court has been much less inclined to cite the Tenth Amendment in striking down federal law. However, the Court has developed a limiting principle known as the anti-commandeering rule. Under this rule, the federal government is prohibited from forcing state officials to implement federal laws, or coercing state legislatures to enact certain policies. Even federal grant programs, which are technically voluntary, can sometimes amount to coercion. In the Supreme Court’s 2012 decision on the Obama healthcare law (the Affordable Care Act), the Court actually struck down part of the law that threatened to withhold all Medicare funding from states that refuse to expand their Medicare eligibility criteria. The main part of the law, of course, was upheld by the Court.

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