PSC exam 2

federalism

system that provides powers to legitimate subnational institutions and governments

acts as another application of the principle of separation of powers by dividing and assigning certain powers between federal government and the states

sovereignty

the exact location of ultimate authority in the nation

federalism contending approaches

• strong central government

• states rights

comparison between a federal and unitary system

• federal: states or provinces receive authority to act in certain areas from constitution and are free from national control

• unitary: states or provinces receive authority from the central government and have powers granted to them by central authorities

characteristics of federalism

• a least 2 levels of power exist simultaneously

• implementation of a federal system is used to deal with diversity in the population

• territorial divisions assist in administration

unitary government

• English system of government

• all powers and sources of authority for lower governments came from the king and parliament

• American colonies were subject to the crown and parliament

confederation

• loose grouping of autonomous units with final authority or sovereignty resting in the individual units themselves

• central authority comes from the overall sovereignty of the states that compromise it

U.S. federalism

• constitution combines a unitary government and a confederation

• federalist: in favor of a strong national government

• anti-federalist: in favor of states’ rights/superiority

major issue: sovereignty and supreme authority

• federalism poses a unique dilemma where two or more governmental authorities exist within the same territory

James Wilson

• delegate to the constitutional convention

• argued the only sovereign in the U.S. is the people, who establish the federal and state constitution

• significantly, the people never relinquish their supremacy to either entity

• based on a division of objects, some objects concern national or state entities

  • common concern: national abilities

  • local concern: state abilities

the Hamiltonian economic program

• Hamilton argued congress could establish a national bank due to its implied powers despite the constitution’s silence on congress’ ability to establish a national bank

• James Madison and Thomas Jefferson opposed the national bank on the basis of state’s rights/anti-federalist arguments

Judiciary act of 1789

• established separate federal court systems and state court system

• no final authority regarding jurisdiction over federal law

• implied the final authority on the constitution is SCOTUS, not the states

3 instances from state court decisions that can go to SCOTUS

• state court ruling a federal treaty or law unconstitutional

• state court upheld a state law that conflicts with the constitution, treaties or federal laws

• state court ruled against a right or privilege claimed under the constitution or federal law

McCulloch v. Maryland: facts

• Maryland created a tax on all banks not established in Maryland

• Maryland state courts upheld the state tax but the national bank appealed to SCOTUS

McCulloch v. Maryland: Maryland’s argument

• there was no power in the constitution to create a national bank

• Maryland, as a sovereign state, had absolute power of taxation over all operations within its jurisdiction

McCulloch v. Maryland: response to 1 argument

• “necessary” in the case of the necessary and proper clause does not mean purely “essential”

• proper meaning of the Necessary and Proper Clause - congress has the right to choose the means that are best adapted to carrying out its other powers

McCulloch v. Maryland: response to 2 argument

• supremacy clause

• Maryland’s tax on the U.S. bank unconstitutional since “the power to tax involves the power to destroy” and a supreme national government could not allow itself to be destroyed by a state

• intergovernmental tax immunity: federal and state governments generally may not tax each other

10th amendment (anti-federalism)

• the powers not delegated to the US by the constitution are reserved to the states respectively or the people

• government power should be embodied in units closer to the people

• some argue for strict interpretation of the constitution so that the national government does not overstep its written authority or intrude upon powers reserved to the states

Whiskey rebellion

• federal whiskey tax faced violent opposition from local farmers, but federal troops crushed the insurrection

Virginia and Kentucky resolutions

• the alien act: authorized the president to deport any alien he considered dangerous to the US

• Alien enemies act: authorized the president similar control over aliens of an enemy country

• sedition act: made it illegal for anyone to defame the government, the president, or either house of congress through written, spoken, or published speech

anti-federalist resistance to Alien and Sedition act

• violates the 1st amendment

• Madison and Jefferson introduce the resolutions in the Kentucky and Virginia state legislatures

• federal government did not have the right to exercise powers not explicitly delegated to it by the constitution

• argued individual states could determine the constitutionality of federal laws and invalidate them

theory of interposition

• state government can interpose themselves between invalid national laws and the people by interpreting the Constitution

North vs South

• north more populous than south so potentially less representation in Congress, which threatened repeal of slavery in the South

• purchase of the Louisiana Territory threatening balance of anti vs pro slavery states

Missouri Compromise

• Missouri Territory applied for statehood, threatening the balance between anti vs pro slavery sates

• compromise

  • Maine admitted as a free state but Missouri admitted as a slave state

  • slavery was prohibited north of the 36 36 latitude

nullification

• state has a right to invalidate any federal laws that the state deems unconstitutional to the U.S. constitution

• states were the primary source of sovereignty since they existed before the federal government

• congress enacted the force bill that gave president Andrew Jackson the authority to dispatch troops to
  South Carolina

Secession

• inauguration of president Lincoln and his rejection of succession as a constitutional possibility

• confederate states were still part of the Union to Lincoln

reconstruction era

• congress both punished and rebuilt former confederate states

• Texas v. White: was questioned whether Texas had a legal right to sue in federal courts to recover bonds issued by the confederacy

  • main issue: whether succession had stripped texas of legal and constitutional remedies afforded to states of the union

  • SCOTUS: the constitution looks to an indestructible union, made of indestructible states

16th amendment

federal government can tax income; created a revenue imbalance between the federal state government

new deal era and the great society

• FDR enacted “new deal” welfare programs aimed at creating jobs, providing resources, and creating income to needy citizens

• these programs combined with efforts to win WWII increased the size and power of the federal government over state and local affairs

• Lyndon B. Johnson expanded the programs, enacted education and job training programs, affordable housing for lower income families, food stamp, medicare and madicaid

Nixon’s “new federalism”

increased federal power through the supplemental security income and EPA

Regan revolution and the devolution revolution

• main goal: decrease federal power and more responsibilities to the states

• cut funding for major federal programs but increased defense spending and implemented new tax cuts

• devolution revolution: republican controlled house and senate sought to return power, money, and responsibility back to the states in various ways

President Bill Clinton

• returned power to the states through the Personal Responsibility and Work Opportunity act (states can run state welfare programs using federal grants)

• ended direct federal payments to poor families that existed since the New Deal

11th amendment and sovereign immunity

• 11th amendment: prohibits federal courts from allowing suits between citizens of one state and another state or citizens of a foreign nation against one of the states

• allowed a person in one state to bring a lawsuit in federal court against another state

• states were concerned they would be subjected to federal court orders

Hans v. Louisiana

• 11th amendment prevents congress from allowing citizens to sue a state in federal court for breaching federal rights

• Congress has largely acted contradictory to this ruling (Civil rights act, voting right acts, fair labor standards act)

• sovereign immunity: states claim they hold sovereign authority to not be sued (usually protected by SCOTUS)

preemption

• congressional act removes a state or local government’s power of regulation over a specific policy area

• source: supremacy clause

• typically a state will attempt to regular something prevented by federal law

9/11 and federalism

• president George Bush established the department of homeland security and supported the passage of the patriot act in response to the 9/11 terrorist attack

contract clause

prohibits states from interfering in contract obligations

procedural due process

procedures and legal processes that ensure the fair treatment of individuals

substantive due process

specific rights or liberties that exist within the concept of due process

economic substantive due process

subclass of substantive due process that deals with economic and corporate liberties

Article 1 Sec. 10

• framers insolated matters of currency, credit, and commerce from the control of state governments

• framers were concerned over state policies that might threaten commerce and economic wellbeing

the slaughterhouse case: facts and case history

• gave a single company a monopoly in the slaughterhouse industry by requiring all other slaughterhouse operations to use its facilities on a fee basis

• butcher’s benevolent association sued and lost in a state court in 3 separate cases

• SCOTUS consolidated these cases into the slaughterhouse cases

slaughterhouse cases: butcher’s arguments

• Louisiana act violated the 13th amendment, privileges and immunities, due process, and equal protection clauses of the 14th amendment

Slaughterhouse cases: court’s ruling

• 13th and 14th amendments provide protections for free slaves from racially discriminatory state and local legislation but not butchers

• affected rights related to national citizenship; the state’s right to regulate in this area is unaffected

• narrow interpretation of these amendments preserves state power

• Louisiana act is constitutional and the butcher’s arguments are invalid

slaughterhouse cases: court’s rationale

• 13th amendment - meant to declare freedom to American slaves; it is not related to private property

• 14th amendment - privileges and immunities clause is not applied identically in reference to U.S. and state citizenship

• act did not deprive individuals of property

• equal protection clause - SCOTUS said it only applies to matters involving race

allgeyer v louisiana

• invalidated state legislation on substantive due process grounds

• SCOTUS struck down a state insurance regulation law because of the freedom of contract

• freedom of contract: liberty that gives individuals the freedom to enter into contracts, especially employment contracts and to find employment

lochner v new york: facts

• New York passed a law prohibiting bakery employees from working more than 10 hours a day or 60 hours a week

• Joseph Lochner violated the act and fined $50

Lochner v New York: court’s ruling

• overturned Lochner’s conviction and upheld the right of employers and employees to freely contract the terms of their employment

Lochner v. New York: court’s rationale

• police powers had surpassed their constitutional limits

• the NY act could not be justified as a health law to preserve the health of bakery employees

Gibbons v. Ogden: facts

• Fulton and Livingston obtained exclusive right to use steam vessels in NY’s waters from NY legislature

• Aaron Ogden was leased the right to use steam vessels in NY and NJ

• Thomas Gibbons obtained license to operate steam vessels from fed. government as required by the federal coasting act

• Ogden obtained an injunction from state courts stopping Gibbons’ operations

Gibbons v. Ogden: court’s ruling

• congress has the power to regulate commerce including commercial navigation

• 1793 federal coasting act was constitutional and superseded the NY state act since congress could legislate in that area of commerce

Roger Taney’s dual federalism

• both national and state governments were sovereign in their respective constitutional spheres of authority

United States v. E.C. knight: facts

• congress passed the sherman antitrust act, which prohibited anti-competitive business practices by making it illegal to conspire to restrict trade or form monopolies

• American sugar refining company was sued for forming a monopoly in the sugar refining business in violation of the sherman act

United States v. E.C. Knight: court’s ruling

• sherman act did not apply to monopolies such as ASRC because congress was not authorized to regulate manufacturing or production

• established the Direct-Indirect effects doctrine - if an activity affected commerce directly, it was subject to federal regulation but indirect effects were beyond federal control

• mining, agriculture, and oil production were no longer under federal control

Swift and Co. v. US: facts

• cattle stockyard conspired to fix prices that restrained this area of trade

• main issue - whether buying and selling cattle at a stockyard was a local transaction or part of interstate commerce

swift and co. v US: court’s ruling

• things being traded from one state to another state creates a current of commerce among the states that congress’ can regulate

• in other words, congress can regulate local activities if they were part of a larger, continuous flow of interstate commerce

• also, the stockyard’s fixed prices acted as a “restraint of trade”

national labor relations board v. jones & laughlin steel corp: facts

• national labor relations act guaranteed employees the rights to organize and bargain collectively

• NLRA authorized the national labor relations board to investigate and prevent unfair practices against employees

• Jones & Laughlin steel fired 10 employees for engaging in union activities

• NLRB got a court order compelling reinstatement of the fired employees

national labor relations board v. jones & laughlin steel corp: court’s ruling

• NLRA is constitutional because congress had the power to regulate labor relations in industries that significantly affect interstate commerce

• labor-management unrest threated interstate commerce, which congress was empowered to regulate and, therefore had an interest in ensuring a stable system of commerce

US v. Darby: facts

• congress passed the fair labor standards act - regulated minimum wage, a 44 hour work week, and overtime pay

• FLSA prohibited the shipment of any commodities produce in violation of the minimum wage requirements

• Darby argued the FLSA was unconstitutional because it regulated wages and hours of employees in manufacturing

• congress could not regulate local activities like manufacturing

US v. Darby: court’s ruling

• FLSA is constitutional and congress can regulate employment wages and hours for goods entering into interstate commerce

wickard v. filburn: facts

• Roscoe Filburn, a farmer, grew wheat for his own use in excess of his federal allotment

Wickard v. Filburn: court’s ruling

• congress could regulate agricultural products that were used only on the farm

• aggregation principle - personal activities can be regulated if their aggregate effect on interstate commerce is substantial

• cumulative effect of many farmers growing their own wheat would significantly impact the national wheat market

shift in the commerce clause

• originally, police powers were reserved for the states

• police powers - the government can act or legislate concerning matters of society’s health, safety, morals, and welfare

• federal government began to act like it had police powers through the commerce clause beginning in the late 19th century

champion v. ames: facts

• congress passed an 1895 law prohibiting the transportation of lottery tickets in interstate commerce

• “muckrackers” - journalist and writers who exposed societal evils and influenced public opinion to demand congress to act

• SCOTUS upheld each of these laws except the child and labor act as part of federal police powers

Civil rights and the commerce clause

• identified 4 classes of businesses termed “public accommodations” that were specifically prohibited from having discriminating or segregating practices

• inns, hotels, and motels

• restaurants and cafeterias

• motion picture houses

• any establishment located within one of these businesses

heart of Atlanta motel v. US: facts

• motel located on a busy interstate highway that advertised its business in magazines, and rented rooms primarily to out of state guests implemented racially discriminatory practices

heart of Atlanta motel v US: court’s ruling

• civil rights act of 1964 is constitutional because congress can use the commerce clause for noncommercial purposes

• racial discrimination can have a disruptive effect upon interstate commerce, and, therefore, congress can regulate racial discrimination by private businesses

Katzenbach v. McClung: facts

• ollie’s barbecue was a small, family-owned restaurant located far from major highways and did not have frequent out-of-state customers

Katzenbach v. McClung: court’s ruling

• upheld the civil rights act

• determined the restuarant’s annual purchases of more than $70000 worth of food was sufficient to impact interstate commerce and be subjected to the civil rights act as a business defined under the act

US v Lopez: facts

• the gun-free school zone act of 1990 prohibited anyone to knowingly possess a firearm to be at a place that person knows is a school zone

• Alfonso Lopez was arrested in San Antonio, at a school with a firearm in his possession

US v. Lopez: court’s ruling

• law was unconstitutional since it exceeded congressional commerce clause authority and had too tenuous connection to interstate commerce

• mere possession of a firearm in a local school zone is not an economic activity that has a substantial economic effect on interstate commerce

• commerce clause limitation - certain kinds of commerce was not in congress’ regulatory authority and others were reserved for the states

Nat. fed of ind business et Al v. Sebelius: facts

• affordable care act’s individual mandate required everyone to purchase health insurance of pay a penalty

Nat. fed of ind businesses et Al v. Sebelius: court’s ruling

• determined individual mandate was constitutional since it acted as a tax and congress had the power to tax

• although the mandate was called a penalty, the mandate functioned as a tax since it had elements of a tax

• commerce clause could not be used to determine the case as unconstitutional, but the court noted the clause allows congress to regulate commercial activity but not inactivity

congress can regulate interstate commerce

• channels of interstate commerce

• instrumentalities of interstate commerce

• activities with a substantial relation to or effect on intestate commerce

congress can regulate intrastate economic activity if

• the activity has a multi-state impact

• activity in the aggregate has a substantial impact on interstate commerce

dormant commerce clause

• prohibits state and local governments to enact laws which place an undue burden on interstate commerce in the absence of an important state interest

• not in the constitution but SCOTUS has interpreted the commerce clause to have this implication as well

• state laws that discriminate against out-of-state economic interests in favor of in-state economic interests are unduly burdensome and unconstitutional

taxing powers

• taxes must be uniform

• taxes must not be applied to exports

• direct taxes must be based on population

• it has a revenue raising purpose

• it does not constitute a penalty

joseph yang clause

• the us government becomes a dictatorship under joseph yang

10 clauses in the constitution accommodated slavery, 3 of which protected the institution of slavery

• 3/5 compromise - slaves counted as 3/5 of a person for representation purposes in the House of reps and direct taxes

• 1808 compromise - congress could not prohibit the slave trade until 1808

• fugitive slave clause - nationalized slave property and obligated free states to enforce the slave system

Dred Scott v. Sandford: facts

• dred scott, a black slave born from slave parents, sued for freedom due to his 5 year residence in Wisconsin territory when his master lived there

dred scott v. sandford: court’s ruling

• Missouri compromise was unconstitutional because congress did not have authority to restrict slavery in the territories

• this deprived slave owners of their constitutional right to property under the due process clause

post-civil war amendments

• after the civil war, congress finally began to rectify the institution of slavery in the US

• 13th amendment: declared slavery and involuntary servitude to be illegal in the US

• civil rights act of 1866: declared everyone born in the US are citizens of the US and every race has the same rights

14th amendment

• forbids the states from making laws that

  • abridge the privileges or immunities of US citizens

  • deprive anyone life, liberty, or property without due process of law

  • deny anyone within its jurisdiction the equal protection of the laws

• gives congress the power to pass laws enforcing these provisions

the civil rights cases: facts

• five cases combined into one case

• through the Civil Rights Act of 1875, congress attempted to prohibit discriminatory actions by private individuals operate services subject to public regulation

the civil rights cases: court’s ruling

• civil rights act of 1875 was unconstitutional

• why? the 14th amendment only indicates that states are prohibited from denying equal protection not individuals

Plessy v. Ferguson: facts

• compromise of 1877 transferred the authority to protect civil rights from the federal government to the states

• southern states began enacting Jim Crowe laws that returned segregation practices

• Louisiana

  • required railroads were required to provide separate but equal separate accommodations for white and “colored races”

  • Homer Plessey a light complexioned man was arrested for sitting in a white section of the train

  • Plessy argued the law violated the 14th amend. 

Plessy v. Ferguson: court’s ruling

• Louisiana law is constitutional

• established the separate but equal doctrine - allowed segregation in public facilities as long as these facilities were equal in nature

• goal of the 14th amend. was to enforce equality before the law but was not intended to

  • abolish distinction based on color

  • protect social equality

  • protect against laws prohibiting mixed race relationships

equal protection clause consideration

• SCOTUS would distinguish between public (state) vs private (individual) discrimination

• Second, SCOTUS standard of review: rational basis test

  • rational basis test - state must show that the law was rationally related to a legitimate public purpose

  • usually required that similarly situated people be treated similarly

• third, discrimination must have been purposeful by either “on the face of the law” or how the law is applied

civil rights act of 1866

• guaranteed racial minorities the same rights as white citizens to inherit, purchase, lease, sell, hold and convey real and personal property

Buchanan v. Warley

• SCOTUS declared the Louisville ordinance unconstitutional

• ordinance interfered with a property owner’s right to sell their real property as they saw fit

• ruling did not end segregation in housing

  • restrictive covenants - agreements entered into by property owners binding themselves to certain terms

  • restrict covenants were used to make property owners agree not to sell or lease property to racial minorites

Shelley v. Kramer: facts

• Shelley, a black family, purchased a house with a racially restrictive covenant

• Kramer was a resident of the neighborhood who successfully sued in the Missouri state supreme court to get the Shelleys to vacate

Shelley v. Kramer: court’s ruling

• restrictive covenants on their own are fine but the state courts were used to enforce the racially restrictive covenants and thus surmounted to state actioin

• clear violation of the equal protection clause

• restrictive covenants are constitutional but unenforceable

fair housing act 1968

• prohibited all racial and religious discrimination in the sale or rental housing

• Jones v. Alfred H. Mayer co. - SCOTUS held the civil rights act of 1866 prohibited private discrimination in the selling or renting housing

Texas dept. of Housing and Community Affairs v. Inclusive Communities project

• court’s ruling - statistic and other methods can be used to show a housing practice had a discriminatory impact

• in 2019, HUD made it harder to determine discriminatory practices by now also requires a specific policy to be discriminatory

Sweatt v. Painter: facts

• Herman Marian Sweatt (a black man) applied to the University of Texas law school but was rejected because the university was limited to whites

• Texas state legislature enacted this policy in public universities

• district court ordered the state to create a black law school or admit him

• state established a makeshift black law school but Sweatt sued again

• district court ruled against Sweatt since the black law school offered equivalent education to the white law school

Sweatt v. Painter: court’s ruling

• Sweatt must be admitted to the university of Texas law school

• the equal protection clause requirements were not because the two schools were not substantially equal in educational opportunities

• it would also disadvantage Sweatt in educational contacts in a state with an 85% white population and almost all lawyers in the state being white

Brown v. Board of education: facts

• the NAACP filed five public school segregation cases on behalf of black children seeking admission into white public schools

• NAACP main argument

  • black schools were inferior to white schools

  • educational segregation violated the equal protection clause

• defense’s main argument

  • Plessy’s ruling, white and black schools were equal, and promised to make the education in black schools to equal

brown v. board of education: court’s ruling

• segregation in public schools violates the constitution

• the court originally looked at the intent of those who ratified the 14th amendment but determined this was inconclusive and irrelevant

• court focused on sociological and psychological evidence presented

aftermath of Brown v. Board of education

• several SCOTUS cases ultimately held that school districts had a positive duty to integrate their previously segregated schools

• scotus would look at the effects of desegregation to plans to ensure the process was proceeding adequately

• two requirements to activate the equal protection clause

  • state action

  • purposeful discrimination

title VII of the civil rights act of 1964

• prohibited employers from prohibiting individuals of employment opportunities due to race, color, sex, or national origin