Federalism: Vertical Separation of Powers

What are the two fundamental questions to ask when dividing power under the vertical separation of powers?

1. What is the appropriate divide between federal and state power?

2. Who should determine the divide between federal and state power?

What is the 10th Amendment of the United States Constitution?

The power not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the state or to the people.

Vertical Separation of Power v. Horizontal Separation?

Vertical Separation of power is the divide between State and Federal Powers.

v.

Horizontal Separation of Power is a divide between the national branches of government, not involving the states.

What is the purpose of vertical separation of powers?

The goal was to preserve the balance between the national and state powers because:

1. They were concerned about concentration of power in federal government (state power and check on national power)

2. States retaining power allows constituents real connection to teh states government.

3. Each state had different economic interests: This allowed states to tailor their policies to the need of their states.

What is an enumerated power?

An enumerated power is a power that is given to the federal government that is explicitly stated in the U.S. Constitution.

How many enumerated powers are granted to the legislature in Art. I of the US Const.?

17

Art. I Section 8: Every law Congress passes must relate to one of its 17 enumerated powers.

Exception: The 18th Power under the necessary and proper clause.

What is the Necessary and Proper Clause and what are the two interpretations?

Broad Interpretation (Federalist/Madisonian interpretation): The Clause was meant to give Congress broad ability to exercise federal power; giving Congress a choice of methods (implied powers) to carry out its enumerated ones.

Under MCCulloch: The Necessary and Proper Clause supplements the powers that are enumerated in the Constitution, although those powers are not entirely unlimited.

Narrow Interpretation (Anti-Federalist/Jeffersonian Interpretation): Clause was meant to limit federal power; Congress’s implied power under the N&P Clause must be “rationally related” to the implementation of constitutionally enumerated power.

What are the implications of McCulloch on Vertical Separation of Powers?

• The Constitution derives the ultimate sovereignty of the United States from the people of the nation, not state governments.

• The court adopts a relatively broad interpretation of the N&P Clause.

• The state governments cannot take actions taht would threaten teh sovereignty of the United States.

What are the standards of review regarding the constitutionality of government action?

• Rational Basis Test:

  • Most legislation.

  • Reasonably related to a legitimate government interest?

• Intermediate Scrutiny Test:

  • Quasi-suspect classification

  • Substantially related to an important government interest?

• Strict Scrutiny Test:

  • Suspect Classifications (Race, national origin, religion)

  • Fundamental right

  • Narrowly Tailored to address a compelling government interest?

Does Congress have powers beyond those specified in the Constitution?

Yes, Congress has implied powers beyond those enumerated in the Constitution.

Rule of Law: The Constitution specifically delegates to Congress the power to tax and spend for the general welfare and make such laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government’s exercise of its constitutional powers.