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The Supreme Court has struggled for two centuries to describe the scope of congress' power to regulate commerce. But it has had far less difficulty in concluding that the grant of power to congress, by its own force, divested the states of such powers.
When congress uses its commerce power to regulate activity, federal law may preempt state laws on the same subject. However, where congress has not spoken, states are ordinarily free to enact their own laws. That is true with respect to health and safety measures, and other "police" matters. But states can't regulate commerce per se, even when congress' power lies dormant, because states lack such power in the first place. This is constitutional preclusion under the "dormant commerce clause."
Direct and Indirect State regulation
States can't directly regulate interstate commerce. This includes regulation of interstate competition, obstruction of entry and exit for businesses, goods and people, and discrimination against out-of-state commerce (e.g., higher taxes).
Nor can states indirectly regulate interstate commerce, if doing so substantially impedes the flow of goods and services. Indirect regulations are those that are based on powers states actually have (police powers), rather than a power they lack (interstate commerce). Virtually every state law, otherwise valid, can have some indirect, incidental, downstream effect on interstate commerce. Obviously, merely having such an effect can't be enough, or states couldn't regulate anything.
The difference between valid and invalid indirect regulations depends on how burdensome the state law is (on interstate commerce) and whether that burden clearly outweighs the putative local benefits. The problem with this "balancing" approach is that it compares apples and oranges, or monetary burdens on interstate commerce against non-quantifiable local benefits (like health & safety). Judges are ill-suited to do this sort of balancing, which requires the application of economic policy and social judgment.
Fortunately, "balancing" is on its way out, or at least was until the 2 recent appointments to the Supreme Court. (We don't yet know Justices Alito and Roberts' views on this). However, until the S.Ct. formally overrules the Pike test, lower courts must continue to balance benefits and burdens. They key here is "putative" local benefits; i.e., those the state legislature was trying to achieve with the law, not those actually achieved. In this sense, only laws where the local benefits are entirely "illusory" will be struck down on the force of balancing.
Was Chisholm v. Georgia correctly decided? Did Article III do more than simply confer jurisdiction on federal courts; did it also prescribe a rule of substantive law - one that nullified State defenses of "sovereign immunity"?
Justice Iridell's opinion answered that question. If States retained sovereign immunity when sued in federal courts, then the exercise of federal jurisdiction would be merely sport, nothing more than a forum for (always) entering judgment in favor of States.
Beyond that logical answer, the formation of a new government had divested States of much of their sovereignty. They may have had immunity from suit when sued in their own courts, but why would they have immunity when sued in the courts of a superior sovereign. Rather than merely preserving pre-constitutional notions of sovereign immunity, allowing States to escape liability by invoking SI in federal courts would mean they had greater sovereignty after ratification than before.
Georgia wasn't happy. Neither were the other states. So the 1st post-formation constitutional amendment overruled Chisholm.
SI: A Rule of Jurisdiction or a Rule of Substantive Law?
As you examine the text of the 11th Amendment, and compare it to the language of diversity jursidiction in Article III, ask yourself whether the Amendment simply repeals one basis for jurisdiction, or also creates (or restores) a substantive law defense to suit.
If the former interpretation is correct, then the 11th simply means that States may not be haled into federal court on the basis of diversity. If another jurisdictional basis is found, say federal question, then the 11th would be inapposite. Of course, one could ignore the literal text of the 11th Amendment and conclude that federal courts lacked juridiction to adjudicate cases against States no matter what the basis for jurisdiction was.
From Chisholm to Hans to Young to Seminole to Garrett to Alden, and Beyond
In Hans v. Louisiana, the Court said it would be anomolous to bar suits against States filed by non-residents, yet permit suits filed by the State's own citizens. Why is that anomolous? Even if it were, how do you get around the actual wording of the 11th Amendment.
The answer to that question is easy. You hold that the 11th Amendment should not be read "strictly," but should be interpreted according to broader (historical) principles. (It is usually "strict constructionists" who argue against a strict construction of the 11th Amd). And those principles are that the 11th Amd. did more than simply repeal one basis of Art. III jurisdiction; rather it restored the State's pre-constitutional sovereign right to resist suit, no matter who sues them, or on what basis.
Cool Stripping Act
If States are immune to suit in federal court (per Hans) then how can the Supreme Court enforce its laissez faire economic theories against States? Ex Parte Young provided the answer. The Attorney General of Minnesota could be sued in federal court, to enjoin a regulation of railroad prices, because his enforcement of the regulation violated the railroad's right to economic due process. The moment Young started acting unconstitutionally, he was "stripped" of his state status (and his ability to invoke the State's sovereign immunity), and laid bare as a private citizen who had no immunity in federal court.
Slight problem. If Young is a private citizen, and not the State, for purposes of the 11th Amd., how is he even subject to the restrictions of the 14th Amd (which only limits state action)? Easy. Just compound the fiction of "stripping," by holding it applies only to some constitutional rights (in fact, just 1 - the 11th), and none other. How hard can that be?
Turns out to be hard, because now the railroads, whose constitutional rights had been violated, want damages for their injuries. Edelman v. Jordan says no dice. While we can pretend that a suit against a state officer isn't really a suit against the State, that fiction works only for prospective relief (injunction, declaratory relief). Suits for retrospective relief (damages, restitution, etc.) are really suits against the State, because the money judgment would come out of the state treasury.
Exceptions and Exceptions to the Exceptions
It turns out that the 11th Amendment isn't like other jurisdictional provisions, since the State defendant can waive it's immunity (parties can't ordinarily consent to confer jurisdiction - since it goes to the power of the court in the first place). Sovereign immunity can also be "abrogated" (overriden) by congress in some cases. In Union Gas v. Pennsylvania, the Court ruled that wherever congress has enumerated power, States had ceded their sovereignty to that extent. The constitutional history that underlay Union Gas was discovered to be wrong in Seminole Tribe of Florida v. Florida. The new history (don't you just love it) indicated that the 11th undid this relinquishment of sovereignty (what does that amendment say again?). Abrogation is still allowed when congress acts pursuant to its 14th Amendment, Section 5 powers. After all, the 14th was passed after the 11th, and undid the undoing the 11th had done to the original text, which had undone the notion of state sovereignty found in the Articles of Confederation. Are you dizzy yet?
So, if congress can abrogate pursuant to Section 5 (but not pursuant to Section 8), then what safeguard is there for State immunity? Simple, narrow congress' Section 5 powers. Several cases do that, including City of Boerne v. Flores and Garrett v. Alabama. Those cases hold that congress cannot create "new" rights under Section 5, unless they are "congruent and proportional" to the rights found in Section 1 of the 14th Amd (or the risk of a Section 1 violation occuring).
Completing the Transition of the 11th Amendment from Jurisdictional to Substantive Rule
Thus far in the story, the 11th has been a rule of jurisdiction; telling us when a State can be sued in federal court. Alden v. Maine tells us that this is too narrow a reading of the 11th Amendment (or rather too narrow a reading of history, since the text of the 11th had been abandoned a long time ago). States enjoy immunity, not merely from federal jurisdiction, but from federal law itself. Thus, they cannot be sued in any forum (e.g., state court) for violating federal law, unless one of the exceptions apply (such as stripping, waiver, abrogation). In other words, the 11th (or its ethereal disembodiment in history) declares States the true sovereigns in the US, who are above (much of) the law. The King can do no wrong.
Alden was followed by FMC v. S.Carolina, holding that States cannot be "sued" (complained against) in a federal agency, even where that complaint is predicate to the US bringing suit itself against the State (another exception to the 11th Amd). Because federal agencies were unknown and uncontemplated in 1787, the framers/delegates/ratifiers/voters must have (would have had they known) wanted State sovereign immunity to extend to all new forms of dispute resolution. This is not rewriting history; this is creating it.
Other stuff
There's a lot more to the 11th Amendment than contained in this post (and a lot more than meets the eye). Much of the nuances were covered in class. Since you took such good notes, there's no need for me to go on. One final word - I haven't actually counted to see if the 11th Amendment had 11 lives (it surely had 9; it simply won't die). But it was such a good title for this post.
American Federalism is embodied in the constitution in many places. The first is the notion of enumerated powers; the federal government enjoys only those powers specified in the text, plus such incidental (or implied) powers as are "Necessary & Proper" to effectuate the enumerated powers.
The second embodiment of federalism is found in the Tenth Amendment. However, this provision is merely "declaratory" of the doctrine of enumerated powers. In other words, it doesn't resolve the question of whether congress has a particular power; it only tells us what happens if it doesn't. In this way, the Tenth Amendment "states but a truism;" that all powers not vested in the federal government are reserved to the States, or to the people. During the era of "Dual Federalism" the Tenth Amendment was given an active role in limiting congress' power. Even so, the amendment was viewed as simply the flip side of "enumerated powers." It wasn't until the mid 1970s, and the re-emergence of a conservative Supreme Court, that the 10th Amd. was given a further role (see below the fold).
The third textual embodiment of federalism is found in the Eleventh Amendment, which confers (or restores) State sovereign immunity. This most controversial issue is explored in the next post.
Finding Federalism
The fourth place to find federalism in the constitution (more accurately, a re-working of federalism) is in the Civil War Amendments (13th, 14th, 15th). These radically changed the relationship between the States and the federal government.
There are other textual provisions, such as the 17th Amendment, which removed the selection of U.S. Senators from State legislatures and vested it directly in the people.
Beyond constitutional text, federalism (qua States Rights) is also found in "pre-constitutional understandings;" i.e., the relationship between congress and the States that existed under the Articles of Confederation, and even earlier - during the Revolutionary period. Much of the current expansion of States Rights is based on these historical relationships, rather than on the actual text of the constitution. In approaching the issue in this manner, the Supreme Court treats the autonomy of the States prior to 1789 as the baseline. The "quasi-sovereignty" that existed then is preserved, according to this theory, except to the extent the constitution explicitly alters that relationship. In other words, relying on history to define federalism treats the constitution as a minimalist restructuring of the pre-existing order, rather than viewing the constitution as a fresh start, one that created a new government and polity from the ground up.
The debate over federalism reduces to a single principle - where sovereignty is located in the United States. States Rights proponents believe that the States (in their corporate sense) are sovereign, and the central government merely the recipient of limited authority. Much of the legal dispute over secession of southern States from the Union can be understood in these terms.
On the other hand, proponents of a strong federal government (the original "federalists") see the formation of the constitution as a rejection of the previous regime. While power still remains divided between central and State governments in some respects, the federal government has plenary power within its sphere of authority, even if that results in insults to State autonomy.
2nd Use of the Tenth Amendment
In National League of Cities v. Usery (1975), the Supreme Court found a new use for the 10th Amendment. Even where Congress had enumerated power, it could not use that power to regulate the States themselves. This decision recast the 10th Amendment from one that described the scope of federal "powers," to one that created "rights."
In other words, the 10th Amendment did not simply reduce congress' powers (as it had done during "Dual Federalism"), it also operated as a specific restriction on the exercise of powers Congress genuinely had, much like the Bill of Rights prevents congress from using its enumerated powers to regulate particular things (e.g., press, speech). So that even where congress had power to regulate wages as part of Interstate Commerce, it could not use its power to regulate wages that States paid.
This vision of the 10th Amendment was short lived. NLC was overturned 9 years later in Garcia v. SAMTA, which held that State protection from federal excesses lay in the political composition of the federal government, rather than in judicial determination of when congress could and could not invade State sovereignty.
Tenth Amendment, Act III
Enter New York v. United States, stage right. When Chief Justice Warren Burger retired and President Reagan elevated William Rehnquist to Chief (also having appointed Sandra Day O'Conner, Antonin Scalia, and David Souter), the Court took yet another conservative turn. The 1st use of the 10th Amendment had been reduced to a "trusim;" the 2d use had been discredited, but a 3rd use was discovered. In this reincarnation, the 10th Amd. prevents congress from using its enumerated powers to "commandeer" States. While congress may regulate Interstate Commerce, and even regulate the States (in the sense that States would have to comply with federal law, just as private parties would), it could not require States to enforce federal law against others.
There is much merit to the political theory underlying NY v. US. If congress can pass the buck, so to speak, by requiring States to enforce federal law, it reduces congress' own accountability. And "commandeering" further erodes state autonomy, by treating States as mere instruments of federal regulation. Indeed, the States' representatives in the House and Senate ought to seriously consider the political ramifications of any federal "commandeering" legislatiion.
But this political theory is just that, political theory. How does it become constitutional law? The answer is - the same way the whole genre of States Rights has been resurrected in recent years, by re-envisioning the pre-constitutional relationship between States and federal government.
There are several problems with "originalism" (converting history into constitutional law). One is that the historical record is ambiguous, for every example cited by States Rights proponents, a counter-example can be found. Another is - who's history do we look at? The drafters of the constitution, the delegates to the state ratifying conventions, the people of the states, the propagandists who editorialized for or against ratification, 18th century voters (limited in most states to white men of property)? In his book, A Matter of Interpretation, Justice Scalia argues for a particular version of "originalism" - what the educated political class of 1787 thought a provision meant - (and distinguishes is from "intentionalism"), but ultimately fails to convincingly defend the theory.
A third, and perhaps most profound, problem with "originalism," is that it locks constitutional law into 18th century customs and policies. The country has changed in the intervening 2+ centuries, embraced new technologies, new markets, new peoples, new cultures. Is the answer to this that we need a constitutional amendment every time we need to recast an 18th century rule? Even if that is right, the Supreme Court seems to have overlooded the biggest change of all - the 14th Amendment, and its attendant thorough transformation of American federalism.
Long live 1787.
This is the easiest of all the federalism issues. Even during Dual Federalism, it was well recognized that States lacked power over international relations, including diplomatic and military matters. Since the American States were never sovereign in an international sense (notice that all instruments of diplomacy and war were conducted at the collective, rather than individual State, level; including the Declaration of Independence and the Treaty of Paris (concluding the War of Independence and transfering sovereignty to Congress)), there are no war or treaty powers "reserved" to them by the 10th Amendment. On this score, the grants of federal power in Art. I, Section 8, and the prohibitions on State power in Art. I, Section 10, are mostly besides the point. Had the Constitution remained silent on these matters, the result would be the same: plenary power in the federal government over international affairs and no power in States.
A somewhat more difficult issue arises when Treaties are used to provide an independent source of power for Congress.
Effect of Treaties
Treaties have both external and internal effects. The former refers to the international relations of the United States and foreign countries. The latter refers to the domestic law implications of a treaty. Most treaties are "self-executing" with respect to their external/international effects, but require implementing legislation to have any internal/domestic effect. That means a nation can enforce a treaty as is, in a proper forum (such as The UN Security Council or The World Court). For a current example, consider the Nuclear Non-Proliferation Treaty, and how it might be enforced against Iran if that nation develops nuclear weapons. For the most part, treaties operate as contracts among nations; thus, an offended nation, not individuals, must seek redress for violation of sovereign interests.
Treaties can also be "self-executing" as a matter of internal/domestic law, but are not usually. Treaties such as the Geneva Convention on the Treatment of Prisoners of War, and the International Covenant on Civil and Political Rights, bind the United States as a matter of international law, but are not enforceable by individuals in American courts. The trety must be followed by Implementing legislation enacted by Congress for them to have domestic effect.
The Migratory Bird Treaty of 1916 (39 Stat. 1702) bound the US and Great Britain to undertake measures to protect certain birds migrating between the US and Canada. The US fulfilled its obligations under the Treaty by enacting the Migratory Bird Treaty Act of 1918 (40 Stat. 755), which created domestic law. The Supreme Court held in Missouri v. Holland (1920) that a valid treaty would provide an independent source of legislative power to congress.
The Validity of Treaties
Treaties have to be valid both procedurally and substantively. To be procedurally valid, a treaty must be made in accordance with Art. II, Section 2, Par. 2 (President "shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur"). Are there substantive limits on the treaty-making powers of the President and Senate?
One substantive limit is that a treaty cannot contravene express prohibitory language in the Constitution (see Reid v. Covert; treaty cannot dispense with criminal procedue safeguards of Bill of Rights). Does the 10th amendment provide another limit? In other words, does the federal government's treaty making powers extend only to those subjects over which it has enumerated legislative power?
Justice Holms answered that question in the negative. So long as a treaty is the proper subject of international relations, it is valid (as a substantive matter) and can serve as a separate source of federal regualtory power. And, the only way to know if it is valid in that sense is if another country will entreaty with the US on the matter. Thus, the mere existence of an international treaty conclusively answers the substantive question.
The more difficult question, when it comes to the diplomatic and military relations of the US, is whether the President must comply with the formalities of treaty- and war-making, or whether he can act unilaterally. These issues will be taken up in a few weeks, under the topic of Separation of Powers.
No, that's not the motto of the Republican party. It's the first mentioned power granted to Congress by Art. I, Section 8. Despite some hiccups during the era of Dual Federalism, it is also one of Congress' most potent powers.
The powers to tax and spend are independent of Congress' other powers. That means even where Congress lacks power to regulate a particular area, say local crime (lacking a connection to interstate commerce), it can accomplish very similar objectives through its taxing & spending powers. Here's how.
Conditional Spending
Government benefits, including money, are seldom free; they usually come with strings attached. For instance, in order to qualify for federal education assistance, schools must agree not to discriminate on the basis of race. Title VI of the Civil Rights Act of 1964 (42 USC 2000d) provides:
The first of these is properly seen as a condition on the receipt of federal funds. The S.Ct. no longer evaluates whether such a condition is "coercive" or regulatory in effect. So long as the condition is substantially related to the purpose of the grant, the only limitation on Congress is that the expenditure must be for the "general welfare." That, in turn is a quintessentially legislative matter, one that the Court will not second guess.
Incidental Regulation Pursuant to the Neccesary & Proper clause
To protect or effectuate federal spending, it may be appropriate for Congress to regulate activities that threaten spending objectives. Thus, in Sabri v. United States, Congress made it a federal crime to bribe a local official where the municipality was in receipt of federal monies. The Court upheld this regulation under the N&P clause (which augments all federal powers, including the spending power).
Does this mean that even where Congress lacks direct regulatory power, it may indirectly regulate as a necessary and proper means to promote funding objectives? Could Congress have required states to enact Gun-Free School Zones acts, or gender violence laws, as a condition for receiving federal education funds? Or does it mean that as the Court narrows the scope of federal regulatory power, it will return once again to the restrictive tests of Dual Federalism for taxing and spending measures?
Bottom line: Will Justice John Roberts resurrect his namesake, Justice Owen Roberts?