The past year helped to show the role of federalism in our country. First, the Coronavirus pandemic displayed how federal and state governments can work together towards a common goal. Then, civil unrest showed how the federal government can use their immense power to commandeer states when they fall out of line. In both instances, there are those that believe the federal government should act with swift and decisive authority, while others believe that the federal government should take a hands-off approach and let states make their own decisions. The answer to what would be best lies in the idea of federalism.
Federalism, in its simplest form, is the relationship between the federal and state governments. There are three different types of governments where federalism is at play: confederal government, national government, and federal government. Confederal government is a decentralized government with separate, autonomous, independent states. There is strong state sovereignty with a weak central government in this governmental system. National government is a centralized government with controlled, dependent states. There is a strong central government and weak states in this governmental system. Federal government is a mix between confederal and national government. In a federal government, there are separate autonomous, independent states that are subject to national supremacy. This federal system is a theoretical system, as it has never been perfectly implemented. The United States lies in between a federal and a national government in our form of federalism.
The framers of the constitution saw the problems that would arise from confederal or national government. There would be majority/minority factions (parties) at either the state or national level depending on the form of government. The framers saw factions as the biggest threat to popular government. There were two ways to deal with factions: remove its causes or control the effects. There were two ways to remove its causes: give everyone the same property or remove liberty. Giving everyone the same property would allow them to have the same interests. This would be a form of communism/socialism, which was not yet a thing, but the framers saw as impossible. They could also remove liberty, but considering they just fought a war to gain liberty this was out of consideration. The other option was to control the effects of factions. The first way is to just prevent the formation of a majority interest, which was not possible because it would remove liberty. The framers settled on the idea of rendering a majority unable to execute its will. They did this by creating an extended republic. They extended the republic in two ways: dividing power between levels of government and dividing powers between branches of government. I will go into dividing powers between the branches of government when I write about separation of powers and checks and balances. What is important is the two separations together are Madison’s dual protections against tyranny. This separation of powers between levels of government, which James Madison described in Federalist No. 10, is where we get the idea of federalism.
The constitution, in its original form, wants strong states with a weak, but solid, federal government. The framers wanted to be closer to a federal government and further from a national government. For the first 150 years of the United States existence, this was the case. The state governments yielded a large amount of power and the federal government was there when needed. Today, the opposite is true. The federal government daily exerts power over states. The United States is now closer to a national government than we are a federal government. This balance has been brought to attention when it comes to the Coronavirus and civil unrest responses. Before we dive into what is better dynamic, it would first be beneficial to examine how we got here.
The powers of both the federal and state governments can be found in the Constitution. The Commerce Clause has allowed a shift in power from the states to the federal government. The Commerce Clause allows the federal government to regulate commerce with foreign nations and other states. The Commerce Clause used to be interpreted broadly by the Supreme Court. In 1890, Congress passed the Sherman Anti-Trust Act. This was passed using the pretext of the Commerce Clause and was aimed at breaking up and stopping monopolies. The Supreme Court case US v EC Knight (1895) related to a sugar manufacturer and whether it was a monopoly. The Court ruled in favor of EC Knight, finding that although the act was constitutional, manufacturing is not considered interstate but intrastate commerce. This decision set up the Direct/Indirect test for the Commerce Clause. If there is a direct effect on interstate commerce then Congress can regulate the activity, but if there is an indirect effect then Congress cannot regulate the activity.
In 1905, another case was brought to the Supreme Court. Swift & Co v US (1905) related to a beef monopoly. The Court ruled in this case that anything in the “stream of commerce” is commerce when there is a direct effect on interstate commerce. In the decision, the Court found that the stream of commerce included inception, production, distribution, and sale. This seems to be a broad interpretation of the Commerce Clause which is not in line with the decision from the US v EC Knight (1895) decision.
Four other cases in the next thirty-two years concerning the Commerce Clause ruled in line with the US v EC Knight (1895) decision: Hammer v Dagenhart (1918), Schecter Poultry Corp v US (1935), US v Butler (1936), and Carter v Carter Coal Corp (1937). Hammer v Dagenhart (1918) concerned a law that prohibited child labor. The Court ruled that production is not commerce and that this would be an indirect effect on interstate commerce. Schecter Poultry Corp v US (1935) was a lawsuit that was brought when Congress delegated unlimited authority to the President to regulate industries in the National Industrial Recovery Act. The Court ruled that it violated the separation of powers, because it transferred legislative authority to the executive. US v Buter (1936) concerned the Agricultural Adjustment Act. There was a tax levied on farmers to provide subsidies to other struggling farmers. The Court ruled this unconstitutional in that taxes and spending must be done for the general welfare, not for specific persons or groups. Carter v Carter Coal Corp (1937) concerned minimum wages, maximum hours, and fair practices in the coal industry. The Court found these regulations unconstitutional as production is not commerce. These cases all had a narrow Commerce Clause interpretation in line with US v EC Knight (1895). After this case, the Court had ruled that the federal government cannot control manufacturing, labor, agricultural taxes, wages, or hours.
In 1937, these precedents were overturned in National Labor Relations Board (NLRB) v Jones & Laughlin Steel Corp (1937). The NLRB, under the Wagner Act determined that labor disputes had a direct effect on interstate commerce and can be regulated by Congress. The Court ruled in favor of the NLRB which allowed congress to legislate labor practices. Wickard v Filburn (1942) dealt with a farmer that harvested above his allotment permitted by the Agricultural Adjustment Act. Filburn used his excess harvest for personal use only. The Court ruled that he could not do this, because no matter how small an activity it still has an aggregate effect on interstate commerce. These two cases allowed Congress to control manufacturing, labor, agriculture, wages, and hours. These two cases were a huge blow to states powers and a swing towards a national government. This expanded all the way to civil rights when the Court ruled in Heart of Atlanta Motel v US (1964). The motel discriminated against African Americans and would not provide them service. This was in defiance of Title II of the 1964 Civil Rights Act. The Court ruled that hotels and restaurants provide accommodations and they serve out-of-state guests. This would rise to the level of interstate commerce according to the Court.
These cases were decided with a broad view of the Commerce Clause. It took power from the states and gave it to Congress. Recently, there have been two cases that have put limits on what Congress can do in relation to the Commerce Clause: US v Lopez (1995) and US v Morrison (2000). The case NFIB v Sebelius (2012) was the first case to take commerce power away from Congress. US v Lopez (1995) was about the Gun Free Zone Act. Lopez brought a gun to school and was arrested. The Act was passed based on the Commerce Clause. The Court ruled that guns were not commerce. Commerce is a channel of commerce, an instrumentality of commerce, or an activity that has a substantial effect on interstate commerce. The act was passed by piling inferences on inferences and the Court found that it would lead to an unlimited federal government. US v Morrison (2000) was about the Violence Against Women Act. The Act authorized a civil penalty for gender-motivated violence. The Act was again passed based on the Commerce Clause. The Court found that the victim is entitled to a civil penalty through state law and not federal law, because crime is not commerce. NFIB v Sebelius (2012) was the Affordable Care Act (ACA) court case. The ACA had two main parts: the individual mandate and Medicaid expansion. The Court ruled that the individual mandate was constitutional under the Taxing and Spending Clause. The Court ruled that the Medicaid expansion was unconstitutional, since if a state did not enact the expansion, they would be cut off from all Medicaid funds and this is considered fiscal coercion. The Court in this case ruled that insurance is commerce, but Congress cannot regulate it because they are regulating future activity and not current activity. This was the first case since 1937 to take power away from Congress in relation to the Commerce Clause.
The cases so far have shown us what the federal government can and cannot do in relation to the Commerce Clause. There have been two cases that have shown us what the federal government can make or not make states do: New York v US (1992) and Printz v US (1997). New York v US (1992) was brought up in relation to the Low-Level Radioactive Waste Management Act. The Act stated that states that have deposit sites must accept waste from states that did not have deposit sites, and it could be under monetary provisions, access initiatives, or take title and liability. The Court ruled that the third of these violated the 10th Amendment of the Constitution, because it forced state governments to serve the federal government. The Court believed that it would destroy the distinction between federal and state governments. Printz v US (1997) was a lawsuit concerning the Brady Bill. The Bill introduced background checks for guns, but it did not have an implementation plan. The federal government shifted the implementation to the states. The Court ruled that this was unconstitutional, in that Congress cannot compel states to enact federal programs. They Court believed, again, that this would turn states into agents of the federal government.
The first cases that were explained helped to show what the federal government and Congress can do under the Commerce Clause. The later cases show what the federal government and Congress cannot do under the Commerce Clause. They also show what the federal government can make states do and not do. We can see through more recent cases that states prevent an overbearing federal government in our system of federalism. The sovereignty that states have are the backstop against a domineering federal government.
The federal government has immense power, but state governments can make laws as well. Under federal preemption, federal laws take precedence over state law. There are three types of federal preemption: express preemption, occupy the field, and conflict or frustration. Express preemption is when federal law expressly states that states cannot regulate in an area. Occupy the field is when federal law is comprehensive and therefore presumes preemption. Conflict of frustration is when state law conflicts with federal law or frustrates its purpose. Assuming the federal governments law is constitutional, state governments cannot make any laws that would fit any of those three distinctions. In relation to the commerce clause, states can regulate commerce as well. States can regulate commerce under the condition that there is no discrimination of interstate commerce and the burden on commerce is outweighed by the states interest.
The interplay between federal and state governments should be weighed using the Constitution and all available court precedence. In relation to Coronavirus, I believe the Trump administration addressed the long past of taking away state’s powers during crisis. The federal government gave decision power to states, while at the same time providing support while necessary. President Trump understood the importance of states’ rights and steering away from an overbearing federal government. Far too often, when crisis strikes, the federal government will take power for themselves. The opposite finally happened when it comes to Coronavirus. President Trumps Attorney General, William, Barr, was even active at curbing overbearing states with it come to stay-at-home orders. I believe this is the interplay that the framers intended when they implemented our federalist system of government.
Civil unrest should be taken differently. Do I think that the President should have sent in active military to quell protests? No. Should the President be afforded that option if states are unwilling to put a stop to violent civil unrest? Yes. I think President Trump, as with Coronavirus, understood states’ rights. I think the President was more aggressive with civil unrest than with Coronavirus for the fact that people in these situations are in imminent danger. It was well within his purview to put an end to violent civil unrest and it is backed up by historical precedence.
When it comes to the Supreme Court, I think in the past thirty-years under Rehnquist and Roberts the idea curbing federal overreach is a priority. I think both have understood past decisions regarding the Commerce Clause were overbroad and they needed to be interpreted more narrowly. These two Chief Justices believe in original intent and that the Constitution says what it means. The Constitution should not be taken so broadly as to not expand governments reach.
The Supreme Court and the past administration have worked to move us closer to a federalist system and further from a national system of government. This is a pendulum swing that is much needed. In response to Coronavirus, the Trump administration did the right thing. In response to civil unrest, I also believe the Trump administration did the right thing. The original intent of federalism was portrayed in these instances. You have a federal government that provided support for states while keeping a hands-off approach. In the same administration, you had federal government that is willing to exert power to protect law-abiding citizens. We, as Americans, should all be grateful when instead of taking power our leaders gave it back.
Politics with Kegan Prentice 