Kenneth R. Thomas
Legislative Attorney
The lines of authority between states and the federal government are, to a significant extent, defined by the United States Constitution and relevant case law. In recent years, however, the Supreme Court has decided a number of cases that would seem to reevaluate this historical relationship. This report discusses state and federal legislative power generally, focusing on a number of these “federalism” cases. The report does not, however, address the larger policy issue of when it is appropriate—as opposed to constitutionally permissible—to exercise federal powers.
The U.S. Constitution provides that Congress shall have the power to regulate commerce with foreign nations and among the various states. This power has been cited as the constitutional basis for a significant portion of the laws passed by Congress over the last 50 years, and, in conjunction with the Necessary and Proper Clause, it currently represents one of the broadest bases for the exercise of congressional powers. In United States v. Lopez and subsequent cases, however, the Supreme Court did bring into question the extent to which Congress can rely on the Commerce Clause as a basis for federal jurisdiction.
Another significant source of congressional power is the Fourteenth Amendment, specifically the Equal Protection and Due Process Clauses. Section 5 of that amendment provides that Congress has the power to enforce its provisions. In the case of Flores v. City of Boerne, however, the Court imposed limits on this power, requiring that there must be a “congruence and proportionality” between the injury to be remedied and the law adopted to that end.
The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. However, in New York v. United States and Printz v. United States, the Court did find that, under the Tenth Amendment, Congress cannot “commandeer” either the legislative process of a state or the services of state executive branch officials.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” Although this text is limited to preventing citizens from bringing diversity cases against states in federal courts, the Supreme Court has expanded the concept of state sovereign immunity further to prohibit citizens generally from bringing suits against states under federal law generally. There are exceptions to this limitation, however, and Congress also has a limited ability to abrogate such state immunity.
Finally, Congress has the power under the Spending Clause to require states to undertake certain activities as a condition of receiving federal monies. Such conditions, however, must be related to the underlying grant, and the financial consequences of non-compliance cannot be coercive. Further, if the condition relates to the creation of a “new and independent” program, and if the amount to be withheld represents a significant portion of a state’s overall budget, then such condition will be found to violate federalism principles.
Date of Report: September 23, 2013
Number of Pages: 27
Order Number: RL30315
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