He executes the instructions of Congress, may veto bills passed by Congress, and executes the spending authorized by Congress. The president declares states of emergency, publishes regulations and executive orders, makes executive agreements, and signs treaties ratification of these treaties requires the vote of two-thirds of the Senate.
He makes appointments to the federal judiciary, executive departments, and other posts with the advice and consent of the Senate, and has power to make temporary appointments during the recess of the Senate.
The judicial branch Supreme Court determines which laws Congress intended to apply to any given case, exercises judicial review, reviewing the constitutionality of laws and determines how Congress meant the law to apply to disputes.
The Supreme Court arbitrates how a law acts to determine the disposition of prisoners, determines how a law acts to compel testimony and the production of evidence.
The Supreme Court also determines how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. The amount of discretion depends upon the standard of review, determined by the type of case in question. Federal judges serve for life. Privacy Policy. Skip to main content. Search for:. Federalism in the Constitution. Federalism Federalism is the system where sovereignty is constitutionally divided between a central governing authority and constituent units.
Learning Objectives Discuss the origins and development of federalism in the United States from the ratification of the Constitution to the Great Depression, and identify the structure of federalism. Key Takeaways Key Points Federalism is based on democratic rules and institutions in which the power to govern is shared between national and state governments. The movement arose out of the discontent with the Articles of Confederation and the creation of the Constitution.
The Federalist Papers, written by Alexander Hamilton and James Madison, examined the benefits of the new Constitution and analyzed the political theory and function behind its various articles. Anti-Federalists believed that the legislative and executive branches had too much unchecked power and that the Bill of Rights should be coupled with the Constitution to prevent a dictator from exploiting citizens.
With the Great Depression and the New Deal, America has moved from dual federalism to associative federalism. Key Terms sovereignty : The state of making laws and controlling resources without the coercion of other nations; supreme authority over all things. The basic philosophy during this time was that the U.
Both the 16th and 17th amendments bolstered the power of the national government and further divided state and federal power. The Powers of National Government The federal government is composed of three branches: executive, legislative, and judiciary, whose powers are granted by the Constitution. Learning Objectives Describe the power-sharing arrangements enshrined in the Constitution. The Constitution grants powers to Congress and any disputes are decided by the Supreme Court.
The executive power is vested in the President, although power is often delegated to the Cabinet members and other officials. The judiciary explains and applies the laws. This branch makes decisions on various legal cases. Key Terms bicameral : Having, or pertaining to, two separate legislative chambers or houses.
Congress : The U. Congress holds legislative power. The Powers of State Government State governments are republics formed by citizens in the jurisdiction as provided by the Constitution. Learning Objectives Describe the distribution of powers within individual states.
Key Takeaways Key Points State governments are structured in accordance with state laws with three branches of government: legislative, executive, and judicial. All governmental powers not granted to the federal government by the Constitution are reserved for the states or the people under the Tenth Amendment.
The legislative branch consists of state legislatures known as the Legislature of the General Assembly. The executive branch is headed by an elected Governor.
Each state is free to organize its executive departments and agencies any way it likes. The judicial branch is headed by a Supreme Court that hears appeals from lower state courts. The Powers of Local Government Powers of local governments are defined by state rather than federal law, and states have adopted a variety of systems of local government.
Learning Objectives Distinguish among the various types and levels of local government within the States. Key Takeaways Key Points Each state typically has at least two separate tiers of local governments: counties and municipalities.
The Tenth Amendment makes local government a matter of state rather than federal law, with special cases for territories and the District of Columbia. Census Bureau conducts a Census of Governments every five years to compile statistics. County governments are organized local governments authorized in state constitutions and statutes for administrative purposes. Key Terms municipal : Of or pertaining to a municipality a city or a corporation having the right of administering local government.
Interstate Relations Article Four of the United States Constitution outlines the relationship between the states, with Congress having power to admit new states. Learning Objectives Summarize the relations between the States envisioned in the Constitution. Key Takeaways Key Points States are guaranteed military and civil defense by the federal government.
Article Four of the U. Constitution, which outlines the relationship between the states, gives Congress the power to admit new states to the Union. States are prohibited from discriminating against other states with respect to their basic rights under the Privileges and Immunities Clause. A state must extradite people located there who have fled charges of treason, felony or other crimes in another state if the other state demands such action. Constitution, which prevents a state from treating citizens of other states in a discriminatory manner extradition : A formal process by which a criminal suspect held by one government is handed over to another government for trial or, if the suspect has already been tried and found guilty, to serve his or her sentence.
Concurrent Powers Concurrent powers are the powers that are shared by both the State and the federal government, exercised simultaneously. Learning Objectives Describe concurrent powers and how they are exercised in the federal system. Key Takeaways Key Points Concurrent powers may be exercised simultaneously within the same territory and in relation to the same body of citizens. Concurrent powers include regulating elections, taxing, borrowing money and establishing courts.
In the Commerce Clause, the Constitution gives the national government broad power to regulate Commerce with foreign Nations, several States and Indian tribes. In each of these cases, the Court attempted to carve out a zone of state autonomy that the federal government could not invade.
States were thus shielded from federal regulation in a fashion that private parties were not. Florida and Alden v. Maine , immunizing states from some lawsuits in federal court in order to preserve their sovereign status. Lopez and United States v. Morrison Pushing back against New Deal Federalism, the Court continued to license federal regulation of wholly intrastate economic activity that had a substantial effect on interstate commerce while drawing a line at the regulation of noneconomic intrastate activity.
The Roberts Court has now taken up the mantle. The second derives those limits internally without reference to the states. But both are efforts to cut back on the expansive view of federal power that had evolved in the wake of the New Deal and thereby preserve a zone of autonomy for the states. For a comparison of the two different strategies the Court has used to cut back on the expansive view of federal power that emerged from the New Deal, see Heather K. Gerken, Slipping the Bonds of Federalism , Harv.
Federalism Primary tabs Overview Federalism is a system of government in which the same territory is controlled by two levels of government. Article I, Section 8 Article I , Section 8 of the Constitution describes specific powers which belong to the federal government.
Tenth Amendment The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. Concurrent Powers Concurrent powers refers to powers which are shared by both the federal government and state governments. Constitution The Federalist No. A later case presented the question of the extent to which Congress could regulate through a state's executive branch officers. This case, Printz v.
United States , involved the Brady Handgun Act. The Brady Handgun Act required state and local law-enforcement officers to conduct background checks on prospective handgun purchasers within five business days of an attempted purchase.
This portion of the act was challenged under the Tenth Amendment, under the theory that Congress was without authority to "commandeer" state executive branch officials.
After a historical study of federal commandeering of state officials, the Court concluded that commandeering of state executive branch officials was, like commandeering of the legislature, outside of Congress's power, and consequently a violation of the Tenth Amendment. Although the federal government is prohibited from commandeering either the legislature or executive branch of a state, this does not appear to be the case with state judicial branches. The federal judicial system and the state judicial system were not intended to be as separate as the other branches of government, and the Supremacy Clause of the Constitution explicitly provides that state courts must follow federal law, even if it overrides state laws or constitutions.
A key distinction between constitutional "substantive regulation" and unconstitutional "commandeering" appears to be whether or not the federal mandate in question is regulating state activities or whether it is seeking to control the manner in which states regulate private parties. Thus, for instance, the Court recently held in Reno v.
Condon that the Driver's Privacy Protection Act of , which regulates the sale of personal information gathered from persons seeking driver's licenses, was substantive regulation, not commandeering. In that case, the Court found that the state was not being directed on how to regulate its citizens, but rather on how to treat information that had been elicited from those citizens.
However, because the regulation affected both state governments and private resellers of such information, the Court reserved the question as to whether a law, which only regulated state activities, would be constitutionally suspect. The Eleventh Amendment and state sovereign immunity provide an example of the complicated interaction between the powers of the federal government, the state, and the individual.
The basic issue to be addressed here is the extent to which individuals can sue a state under federal law. The starting point for such a discussion is usually the Eleventh Amendment. The Eleventh Amendment reads, in part, as follows: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State. However, the Supreme Court has expanded the concept of state sovereign immunity to reach much further than the text of the amendment.
The Eleventh Amendment, the first amendment to the Constitution after the adoption of the Bill of Rights, was passed as a response to the case of Chisholm v. One of these, Chisholm , was a diversity suit filed by two citizens of South Carolina against the State of Georgia to recover a Revolutionary War debt. In Chisholm, the Supreme Court noted that Article III of the Constitution specifically grants the federal courts diversity jurisdiction over suits "between a State and citizens of another State.
The states were outraged that such a suit could be brought in federal court, protesting that the drafters of the Constitution had promised the states they would not be sued by their debtors in federal courts. Almost immediately after the decision of the Chisholm cases, resolutions were introduced in Congress to overturn it, the end result being the Eleventh Amendment. The amendment ensured that a citizen of one state could not sue another state in federal court—in other words, a citizen could not sue under federal diversity jurisdiction without a state's permission.
However, even after the Eleventh Amendment was passed, a number of cases were filed against states by private citizens, with jurisdiction based on federal question rather than diversity.
Under this reasoning, if a citizen of a state sued his or her own state in federal court, the prohibition of the Eleventh Amendment would not apply. Consequently, for a number of years after the passage of the Eleventh Amendment, this type of case was entertained by the federal courts. However, this line of cases was ended by the case of Hans v.
In Hans v. Louisiana , the Court provided for an interpretation of the Eleventh Amendment that allowed the Court to move beyond the literal text of that amendment. Under the reasoning of the Court, the Eleventh Amendment was not so much an amendment to the original structure of the Constitution as it was an attempt to overturn a specific court decision that had misinterpreted this structure.
According to this line of reasoning, the Eleventh Amendment was not an amendment, but a restoration of the original constitutional design. Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent cases was not the Eleventh Amendment, but the issue of state sovereign immunity. State sovereign immunity means that a state must consent to be sued in its own court system. This concept is based on early English law, which provided that the Crown could not be sued in English courts without its consent.
The doctrine of sovereign immunity was in effect in the states that were in existence at the time of the drafting of the Constitution. Further, various writings by the founding fathers seemed to support the concept. Although the Hans Court answered the issue of whether adoption of Article III of the Constitution had waived state sovereign immunity in federal courts, it left a number of questions unanswered. For instance, the question as to whether there are any instances where Congress could, by statute, abrogate a state's sovereign immunity, so that a citizen could sue a state under federal law.
In Seminole Tribe of Florida v. Florida, the Court seemed to answer that in most cases, such suits would not be accepted. The Seminole case involved the Indian Gaming Regulatory Act of , which provided Indian tribes with an opportunity to establish gambling operations. However, to establish such gambling, the Indian tribes had to enter into a compact with the state in which they were located. The states, in turn, were obligated to negotiate with the Indian tribes in good faith, and this requirement was made enforceable in federal court.
Thus, the question arose as to whether the tribes could sue the states under the Eleventh Amendment. The Court in Seminole found it important to establish what constitutional authority was being exercised by the passage of the Indian Gaming Law. The Court had found previously in Pennsylvania v. Union Gas , that the Commerce Power, as a plenary power, was so broad that of necessity it required the ability to abrogate state sovereign immunity.
In Seminole , however, the Court overturned Union Gas , holding that as the Eleventh Amendment was ratified after the passage of the Constitution and Article I, it was a limitation on Congress's authority to waive a state's sovereign immunity under that Article.
The Court did indicate, however, that Congress can abrogate state sovereignty under the Fourteenth Amendment. While the logic behind this distinction is unclear, it means that in many cases, litigants suing states will try to find a Fourteenth Amendment basis for federal legislation to defeat an Eleventh Amendment defense. A question left unanswered by the Hans decision was whether the Eleventh Amendment, which prohibited Congress from abrogating a state's sovereign immunity in federal court, extended to a state's own courts.
In Alden v. Maine , the Supreme Court found that the same principles of sovereign immunity identified in Hans would prevent Congress from authorizing a state to be sued in its own courts without permission. As in Hans , the Court acknowledged that the literal text of the Eleventh Amendment does not prohibit such suits, as its language addresses only suits brought in federal courts. Consequently, the Court relied instead on the proposition that sovereign immunity is a "fundamental postulate" of the constitutional design, and is not amenable to congressional abrogation.
The same reasoning that prohibited these suits from being brought in federal court, a deference to the "respect and dignity" of state sovereignty, led the Court to conclude that it would be anomalous to allow such cases to be brought instead in state court. In Federal Maritime Comm'n v. South Carolina State Ports Authority , the Court addressed the issue of whether state sovereign immunity extended to proceedings before federal agencies. The cruise ship company, Maritime Services, filed a claim with the Federal Maritime Commission FMC arguing that South Carolina had discriminated against it in violation of the Shipping Act of and sought, among other things, damages for loss of profits.
In reviewing the case, the Court analogized between the FMC's quasi-judicial proceedings and traditional judicial proceedings, while noting that "[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. Thus, while an agency remains capable of enforcement actions against states in federal court, it cannot use its own adjudicative process to determine whether to do so, but must rely on its investigatory powers.
It should be noted that in many instances, the federal government still has the ability to influence state behavior despite the constitutional limits discussed above. Considering the large amount of funds provided to states by the federal government, this represents a significant power for Congress to exercise. Further, as the concept of grant conditioning can involve waiver by the states of Tenth Amendment rights, these grant conditions may allow Congress to indirectly achieve compliance by a state in a way that could not be achieved directly.
The question of whether a state can be required to perform or refrain from certain actions was addressed in the Supreme Court case of South Dakota v. The state of South Dakota, which permitted year-olds to purchase beer, brought suit arguing that the law was an invalid exercise of Congress's power under the Spending Clause to provide for the "general welfare. The Court noted that the grant condition did not implicate an independent constitutional bar i. Further, the court noted that the grant condition was not a violation of the Tenth Amendment, which generally prevents Congress from "commandeering" state legislatures and executive branch officials to implement federal programs.
The Court did suggest, however, that there were limits to Congress's power under the Spending Clause. First, a grant condition must be related to the particular national projects or programs to which the money was being directed.
Second, the Court suggested that, in some circumstances, the financial inducements offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion," which would suggest a violation of the Tenth Amendment. In Dole , however, the percentage of highway funds that were to be withheld from a state with a drinking age below 21 was relatively small, so that Congress's program did not coerce the states to enact higher minimum drinking ages than they would otherwise choose.
Sebelius , however, seemed to suggest that an alternative line of analysis might apply in some grant condition cases. Following the enactment of the ACA, state attorneys general and others brought several lawsuits challenging various provisions of the act on constitutional grounds. As noted in Dole , the loss of federal funds associated with a grant condition cannot be so large that the withholding of such funds is coercive.
Justice Roberts's opinion in NFIB , however, addressed the slightly different question of whether a grant condition attached to a "new and independent" program here, the Medicaid expansion that threatened the funding of an existing program here, Medicaid violated the Tenth Amendment.
It is unclear, therefore, whether the NFIB decision was an application of the Dole analysis, or whether the combination of factors presented in NFIB suggests an alternate line of reasoning.
Justice Roberts's opinion in NFIB held that, in the case of existing program funding being conditioned on the adoption of a "new and independent" program, the amount of federal funds at issue cannot represent a significant portion of a state's budget or its withdrawal will be found to be unconstitutionally coercive under the Tenth Amendment. Justice Roberts did not identify a standard to determine what level of withholding funds would be coercive, or specify what kind of distinguishing factors were necessary to such analysis.
It is not clear, however, whether the confluence of factors at issue in the NFIB case is likely to be present in future cases. Few federal programs, for instance, even approach the level of state funding as does Medicaid; nor do there appear to be significant examples of grant conditions requiring creation of "new and independent" programs in order to retain funding for a separate program.
Consequently, the NFIB case may have minimal effect on the validity of existing or future federal grant conditions. It would appear that the status of the state in the federal system has been strengthened by recent Supreme Court opinions. Although the Court has not scaled back the federal government's substantive jurisdiction significantly, it has to some extent prevented the expansion of Congress's power under the Commerce Clause and under Section 5 of the Fourteenth Amendment.
Further it has created a variety of obstacles as to how these powers can be executed, forbidding Congress under the Tenth Amendment from commandeering the authority of state legislative and executive branches, and limiting the authority of Congress to abrogate state sovereign immunity.
Ultimately, however, Congress retains significant powers to influence state behavior, such as through the Spending Clause, and, under the Supremacy Clause, Congress may require the enforcement of its laws in both state and federal court.
See, e. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. This "Full Faith and Credit Clause" gives Congress what amounts to enforcement authority over the required recognition by each state of the judgments, records, and legislation of other states.
Article I, Section 1, of the Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States. Maryland, 17 U. To establish an uniform Rule of Naturalization. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. While the Fifteenth Amendment and the other voting rights guarantees noted above protect only against state action, congressional authority under this clause includes protection of the electoral process against private interference.
A variety of enactments can be traced to this authority, including campaign finance laws and the Hatch Act insofar as it applies to federal elections. The House and the Senate act as judicial tribunals in resolving contested election cases. To exercise exclusive Legislation in all Cases whatsoever, over such District Implicit in the Fifth Amendment's requirement that just compensation be paid for private property that is taken for a public use is the existence of the government's power to take private property for public use.
Those materials which do address congressional control over commerce focus on the necessity of uniformity in matters of foreign commerce, although the drafters clearly intended domestic commerce to be regulated as well. Lerner, The Founder's Constitution Alexander Hamilton, Continentalist, No. Lerner, supra note 32 "The vesting of the power of regulating trade ought to have been a principal object of the confederation for a variety of reasons.
It is as necessary for the purposes of commerce as of revenue. United States v.
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