American Politics Notes 9/2/26
Foundations of Federalism and Sovereign Power
Definition of Federalism:
At its deepest, most basic level, federalism is defined as shared sovereignty (also construed as divided sovereignty or split sovereignty).
Distinction Between Sovereignty and Power:
Sovereignty is a specific, fundamental form of authority, distinct from general power.
Unitary Systems vs. Federal Systems:
Unitary Systems: Central or national governments may choose to divide and share administrative power with regional or local bodies, but they do so strictly on terms set by the central government. The central authority retains ultimate sovereignty and can alter or revoke delegated powers at will.
Federal Systems: The division of power is constitutionally fixed. Sovereignty is shared between national and regional/state governments as an inviolable structural feature, co-equal in fundamental importance to the separation of powers. The central government cannot unilaterally dictate or abridge the sovereign parameters of state governments.
Division of Powers: Enumerated, Concurrent, and Reserved Powers
Venn Diagram Breakdown of Constitutional Authority:
Enumerated Powers (Federal Authority):
Refers to all powers granted to the federal government. The federal government possesses only enumerated powers; no non-enumerated federal powers exist by definition.
If a power is not enumerated (either explicitly or implicitly), the federal government lacks all authority to exercise it.
Enumerated powers encompass both exclusive federal powers and concurrent powers shared with the states.
Concurrent Powers (Shared Authority):
Powers possessed and exercised simultaneously by both federal and state governments.
Explicitly listed examples in Article I, Section 8 include:
Power to tax
Power to borrow money
Power to establish judicial courts inferior to the Supreme Court
Additional concurrent powers include:
Chartering banks and corporations
Spending money for the general welfare
Passing necessary and proper laws to enforce governmental authority
Reserved Powers (State-Exclusive Authority):
Powers reserved strictly to state governments that the federal government cannot exercise or infringe upon:
Conducting Elections: All elections within the United States (federal, state, and local) are administered exclusively by state governments. The federal government conducts zero elections.
Ratifying Constitutional Amendments: Reserved exclusively to state legislatures or state ratifying conventions.
Establishing Local Governments: States function internally as unitary systems. State governments hold complete legal authority to establish, alter, or dissolve internal administrative subdivisions, including counties, cities, and municipalities, and define their legal borders.
Police Powers: A blanket legal term denoting a state's broad, general, and undifferentiated authority to enact legislation protecting and promoting public health, safety, welfare, and morals.
Police power has no specific constitutional limits or concrete single definition; it represents broad discretionary governance.
Critical Distinction: States possess full police powers. The federal government famously does not possess a general police power (possessing law enforcement authority, but not broad police power).
General Tenth Amendment Residual Authority: Any power not explicitly delegated to the federal government nor prohibited to the states is reserved to the states or the people.
Commerce Clause Expansion and Aggregate Effect Doctrine
Scope of Intrastate Commerce Regulation:
Although state governments nominally control commerce within their own borders, federal authority under the Commerce Clause reaches deeply into local state activities.
Wickard v. Filburn (1942):
Case Background: Secretary of Agriculture levied statutory fines against a wheat farmer named Mr. Filburn.
Factual Circumstances: Filburn grew wheat for commercial sale, but also cultivated excess wheat strictly for private use on his own farm—feeding his livestock and nourishing his family. The excess wheat was harvested, stored, and consumed entirely on-site without ever entering the market or crossing state lines.
Legal Argument: Filburn argued the wheat was private personal property consumed entirely intrastate, placing it beyond Congress's power to regulate interstate commerce.
Supreme Court Holding: The Court ruled in favor of the federal government, upholding the fine as fully constitutional.
The Aggregate Effect Principle: Even if a single individual's home consumption of a commodity is local and non-commercial, if scaled in the aggregate across tens of thousands or millions of individuals doing the same thing, it substantially impacts interstate market supply, demand, and price stability. Therefore, Congress may regulate purely local, non-commercial production under the Commerce Clause.
Gonzales v. Raich (2005):
Case Background: California state law authorized prescription medical marijuana usage. Angel Raich and Diane Monson cultivated marijuana strictly on private property for personal, local medical use, without selling or transporting it.
Federal Action: Federal Drug Enforcement Administration (DEA) agents seized and burned their home-grown plants under federal statutory drug prohibitions.
Supreme Court Holding: Ruled in favor of the federal government.
Legal Standard: Applied the Wickard aggregate effect doctrine. Purely local cultivation and consumption of a commodity affects national interstate supply and market prices for that commodity, granting the federal government constitutional standing to prohibit local growth.
Federal-State Statutory Friction:
Starting in 2012 (pioneered by Colorado and Washington), several states legalized recreational marijuana.
Federal statutory prohibition remains active and unchanged. Under federal law, federal agents retain full authority to enforce drug bans and arrest individuals in legalizing states.
Current non-enforcement is driven by administrative policy choices and political obstacles rather than constitutional limits.
Congressional Power, Checks and Balances, and Historical Crisis
Supreme Court Resistance to the New Deal (1920s–1930s):
During the Great Depression, the Supreme Court repeatedly struck down ambitious federal economic stimulus, labor regulation, and business laws passed by New Deal Democrats.
The Court-Packing Plan:
Constitutional Basis: The U.S. Constitution does not set the number of Supreme Court justices. Congress fixed the bench at seats prior to the Civil War by statute.
FDR Proposal: In the 1930s, President Franklin D. Roosevelt proposed expanding the Supreme Court size from to justices, enabling him to appoint new New Deal-friendly justices.
The "Switch in Time That Saved Nine": Under public pressure, Justice Owen Roberts shifted his vote in West Coast Hotel Co. v. Parrish, creating a majority upholding New Deal legislation.
Outcome: The threat caused the Court to relent, leading to the collapse of the court-packing plan due to lack of remaining political necessity.
Structural Dominance of a Unified Congress:
When backing a unified agenda with supermajorities in both chambers, Congress represents the structurally most powerful branch of government.
Supermajority Capabilities:
Impeaching and removing federal judges and executive officials.
Overriding presidential vetoes.
Altering court sizes, jurisdictions, and structures.
Forcing constitutional amendments.
Historical Precedent (Reconstruction Era - 1860s):
Congress bypassed presidential opposition (impeaching President Andrew Johnson and falling short of removal by vote), subjugated state governments, and forced ratification of the Fourteenth Amendment.
Constitutional Sources of Congressional Power
Textual Sources Across the Constitution:
Article I, Section 8: Contains the primary enumeration of legislative powers.
Article III, Section 1: Authorizes Congress to establish lower federal courts inferior to the Supreme Court.
Article IV, Section 4 (Guarantee Clause / Republican Guarantee Clause):
Mandates that the federal government ensure every state maintains a "republican form of government."
Prohibits states from establishing non-republican governance systems (e.g., establishing a hereditary monarchy governed by primogeniture).
Article VI:
Contains the Supremacy Clause (establishing supremacy of federal law over conflicting state laws).
Validates all debts accrued under the Articles of Confederation.
Contains the No Religious Test Clause: Explicitly prohibits any religious test as a qualification for holding federal office. While elected officials traditionally swear oaths on Bibles out of public custom, no religious text or test is constitutionally required.
Amendment Enforcement Clauses:
Thirteenth Amendment:
Section 1: Abolishes slavery and involuntary servitude. Structural phrasing establishes that the exception ("except as punishment for a crime whereof the party shall have been duly convicted") applies strictly to involuntary servitude, not to slavery.
Section 2: Expressly grants Congress power to enforce the amendment through appropriate legislation.
Fourteenth and Fifteenth Amendments: Feature identical explicit enforcement clauses empowering congressional statutory action.
Supreme Court Precedents Overruled by Constitutional Amendments
Key Historical Reversals:
Eleventh Amendment: Overruled Chisholm v. Georgia (establishing state sovereign immunity against suits by out-of-state citizens).
Fourteenth Amendment: Overruled Dred Scott v. Sandford (establishing national citizenship by birth regardless of race).
Sixteenth Amendment: Overruled Pollock v. Farmers' Loan & Trust Co. (permitting direct federal taxation on income without apportionment among states).
Nineteenth Amendment: Overruled restrictions on female suffrage nationwide (addressing issues raised in Minor v. Happersett).
Twenty-Sixth Amendment: Overruled Oregon v. Mitchell (establishing a uniform voting age of across both federal and state elections).
Judicial Independence and Non-Justiciable Political Questions
Article III Protections:
Judges hold office during "Good Behavior" (effectively lifetime tenure) with protected compensation.
This protection prevents retaliatory removal by Congress or the Executive when the judiciary strikes down unconstitutional legislation.
Impeachment of Judges and Nixon v. United States (1993):
Impeaching judges is rare due to steep procedural requirements and political risks.
Case Background: Federal Judge Walter Nixon was impeached and convicted. Nixon appealed, arguing his trial was unconstitutional because the Senate collected evidence using a designated Senate Judiciary Committee rather than conducting a full trial before the entire Senate floor.
Supreme Court Holding: Dismissed the case under the Political Question Doctrine.
Rationale: The Constitution textually commits the power to try impeachments solely to the Senate. Senate procedural rules regarding impeachment trials are non-justiciable and beyond judicial review.
Implied Powers Doctrine and McCulloch v. Maryland
McCulloch v. Maryland (1819):
Presiding Court: Marshall Court, led by Chief Justice John Marshall.
Primary Issues:
Does Congress have constitutional authority to charter a national bank (The Second Bank of the United States)?
Does the state of Maryland have constitutional authority to tax that federal bank?
Constitutional Evaluation of the Necessary and Proper Clause:
Textual Status: The power to charter a bank or corporation is not explicitly listed in Article I, Section 8.
Nature of the Clause: The Necessary and Proper Clause (Elastic Clause) is not an independent standalone power. It attaches to explicitly enumerated powers, expanding their reach to give them full operation.
Competing Debated Standards of "Necessary":
Jeffersonian / Strict Constructionist View: Defined "necessary" as strictly, absolutely, and indispensably essential. Congress can only adopt implied actions without which an enumerated power would be entirely completely paralyzed.
Hamiltonian / Federalist View: Defined "necessary" as useful, convenient, conducive, or calculated to bring enumerated powers into full, robust effect.
Chief Justice John Marshall’s Ruling:
Adopted the Hamiltonian Federalist standard.
Defined "necessary" as useful and convenient.
Legal Rule: So long as the end is legitimate and within the scope of the Constitution, all means that are appropriate, plainly adapted to that end, and consistent with the letter and spirit of the Constitution are constitutional.
Because a national bank is useful and convenient for executing enumerated powers (taxing, borrowing, coining money, regulating commerce, spending for general welfare), the bank is constitutional. States cannot tax federal instrumentalities.