Federalism Outline

FEDERALISM

1. Federalism assured decentralized government, increased opportunity for involvement in the democratic process, innovation and experimentation in government, and greater government responsiveness to the people.

2. Article I, Section 8 (plus other clauses dispersed throughout the Constitution) confers power on Congress.

   1. The Tenth Amendment codifies expression unius in regard to Congress’ power.

   2. Though the list of enumerated powers is limited, the Necessary and Proper Clause (Art. I, §8) confers implied powers (McCulloch).

3. Congress’ power in regard to the states.

   1. Congress may regulate private citizens directly in limited fields.

   2. Congress can regulate states as states.

   3. Congress can regulate the state’s proprietary activities to the same extent that it can regulate private activities.

      1. The idea is that states don’t get special immunity when it is acting in a proprietary capacity.

   4. Congress can regulate states in a way that requires them to regulate its employees/officials, but only if there is a private party counterpart and only to the extent that it can regulate those private parties.

      1. Such laws are considered to be generally applicable.

   5. Congress cannot regulate states in a way that requires them to regulate private citizens.

      1. This would be Congress commandeering the state’s regulatory process and violating state autonomy.

   6. Congress cannot directly use/regulate a state government’s personnel, property, or revenue.

4. Courts don’t enforce federalism norms strictly/aggressively and frequently under-enforce the Constitution.

   1. Courts heavily defer to Congress’ judgment regarding the necessity of its exercise of implied power.

      1. Frequently upholds laws that are not necessary and improper—and therefore, in the purest sense, unconstitutional!

   2. In many cases, when the Court upholds laws that are being challenged as violations of federalism, it is not indicating that something is necessary and proper. Rather, it is saying that the Court is not the appropriate body to make determinations of what is necessary and proper (Congress is the appropriate body—thus, rational basis scrutiny).

      1. This rational basis standard is even more deferential than McCulloch because at least the Marshall proscribed pretextual legislation in the latter.

      2. Court isn’t saying their aren’t limits; it is just saying that it doesn’t want to enforce the limits.

   3. Sometimes the Court is not indicating that something isn’t unconstitutional or non-constitutional. Rather it is saying that it refuses to address the issue because it is a political question, better reserved for the political branches.

      1. When the Court refuses to address something that it deems a political question, that does not mean it is not a constitutional issue.

5. PLAIN STATEMENT RULE

   1. Indirect method of enforcing federalism—instead of automatically striking down laws that seem to violate federalism (which it refuses to do because of deference), the Court construes them in a way so they wont violate federalism.

   2. It forces Congress to clearly indicate that it wishes to displace state law.

   3. To get to the plain statement rule, you need a potential constitutional problem and ambiguity.

      1. This is what differentiates it from the avoidance canon, which requires an actual constitutional problem.

      2. Some applications of statutes will raise serious constitutional questions that are not unconstitutional—so avoidance canon does not apply.

   4. If there are two constructions of a statute and one may raise serious constitutional (federalism) issues, and the other has none, do not go with the first construction unless there is explicit language that says to.

      1. Courts will carve out large areas of statutes to avoid what are only potential serious constitutional issues.

      2. Serious constitutional issues are those that are toward the boundaries of what Congress is supposed to be regulating and unanswered by the Court.

   5. This canon kicks in quickly (sooner than lenity) and requires only minimal ambiguity.

      1. However, if the statute is perfectly clear, you can’t implicate the PSR because there’s already a plain statement.

      2. There need not be two equally good interpretations to establish ambiguity for the purposes of the plain statement rule.

         1. Lots of statutes will be ambiguous under this rule.

   6. Example

      1. A statute says that anyone who sets fire to a building is guilty of a federal crime—vandalizing a building in interstate commerce. If the burned down his ex’s residential house out of spite, the Court might say, “this is not an economic interest,” and construe the statute to require that the building be used in interstate commerce, like an office building. The Court would require a plain statement that Congress intended to regulate purely residential buildings.

   7. Gregory v. Ashcroft

      1. Facts: A group of MI judges filed suit against the governor, challenging the validity of the state’s mandatory retirement provision.

      2. Applicable Statutory Language:

         1. The MI Constitution provided, “all judges other than municipal judges shall retire at the age of 70.”

         2. The ADEA makes it unlawful for an employer, including “a state or political subdivision of a state,” to “discharge any individual [who is at least 40] because of such individual’s age.”

      3. Issue: Whether the MI mandatory retirement provision violates the ADEA.

      4. Holding: If Congress intends to alter the usual constitutional balance between the states and the federal government, it must make its intention to do so unmistakably clear in the language of the statute (plain statement rule).

      5. Plain Meaning

         1. Based on the text alone, it would be hard to argue that judges were excluded from protection under the ADEA but there is some ambiguity because it is not obvious either way.

         2. There were four explicit exceptions, including “appointees on the policymaking level.”

            1. It is difficult to argue that trial judges, who have to enforce precedent, are policy makers.

      6. Plain Statement Rule

         1. Constitution establishes a system of dual sovereignty between the states and the federal government; and the states retain substantial sovereign authority under this system.

         2. The Supremacy Clause mandates that, as long as it is acting within its constitutionally granted powers, Congress can impose its will on the states and legislate in areas traditionally regulated by the states, but the MI provision goes beyond traditional—it is a decision of the most fundamental sort for a sovereign entity.

         3. Congressional interference in this decision would upset the constitutional balance of federal and state power and thus, it is incumbent on the courts that before finding that federal law overrides this balance, they be sure that such was Congress’ design.

         4. The plain statement rule does not require that the Act mention judges specifically, but it must be plain to anyone reading the Act that it covers judges—the ADEA doesn’t satisfy this requirement.

6. PREEMPTION

   1. All preemption issues involve the same inquiry: What is the purpose of the federal law excluding the state.

      1. Sometimes this inquiry takes a textual form—like when there is express preemption.

         1. Even a textualist analysis of preemption must, to some degree, consider purpose because it is difficult to figure out “related to” without looking to some purpose—express preemption clauses are often vague.

            1. In Morales, the Court held that deceptive trade practices state law “related to rates routes or services of any air craft carrier,” and was therefore preempted.

               1. To come to this conclusion, one might have to engage in a purposivist analysis and conclude that the special purpose of the ADA/FAAA was the deregulation of fares to further competition.

      2. Sometimes this inquiry takes a purposivist form—like when there is not express preemption.

   2. Express Preemption

      1. Preemption clause written in the text of the statute.

         1. Preemption clauses include (1) a noun describing state law (“regulation, requirement, law”), connected by (2) prepositional phrase (“related to, based on, respecting”), to (3) a second noun describing federally protected activities or things (“employee benefit plan, medical device, advertising and...

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