Federal vs. States; Who decides

Transcription

1 Federal vs. States; Who decides The historical and current issues involving the Federalism debate John Barnes

2 The Federalism debate has played a significant part of American history, centered on defining which level of government, the Federal or the State, has political authority. The law of the land, the US Constitution, does give the federal government supremacy in regards to particular areas of law, but has also been vague in other areas. It is this grey area of the constitution in which both the state and the federal government have attempted to assert their authority. The constant power shift that is a result of the federalist debate has encouraged the democratic process. The grey areas of the constitution ensure a constant political dialogue between the states and the federal government. Federalism has been part of political power structures dating back to Ancient Greece, Switzerland (1291), Northern Europe (1300 s), and the Dutch. 1 In America, federalism took form following the Revolutionary War. As the nation reconnected after achieving independence the federalism debate commenced. John Marshall, James Madison, Alexander Hamilton and other political leaders believed that the formation of a strong federal government would increase nation security and stabilize the economy. 1 They believed that a national government should be given strong powers and the states would then be given minor powers and considered counties of the republic subject to one common law. 1 This legal structure would ensure that the fleeting and irrational decisions of the states would not comprise the union. 2 Prior to the constitution, states were known to often make decisions that would benefit themselves at the expense of other states and the nation. 2 They solved economic slumps by liberally print(ing) money and would go as 1 Robertson, David Brian. "Federalism and the making of America." 2011.Web. /zwcorg/. 2 "The Supreme Court. For Educators. Lesson Plans PBS "Web. 5/15/2013 < Page 1 of 9

3 far as punish creditors who rejected the use of these funds to pay off debts. 1 Other states applied strict economic policies regarding debt collection and would foreclose on farmers who could not pay their bill. 1 This created instability and anger among those losing their livelihoods. 1 Opponents of federalism such as Thomas Jefferson, an outspoken proponent of states rights during his time as Secretary of State, believed that a strong federal government favored monetary advancements for the upper class. 18 They believed in protecting state political autonomy. 1 They assumed limiting the federal government authority would be best for the nation. 1 Though federalism and the separation of powers between the federal and state government is not specifically identified in the constitution, there are specific articles and amendments which reveal that it is the intent of the constitution to execute this power separation. The supremacy clause (Article IV) validates federal laws and allows legal authority as it related to areas identified in the constitution to override state laws and constitutions. 3 The constitution also identifies the authority of the states. The tenth amendment expresses any authorities that are not specifically delegated to the federal government or specifically prohibited to the states subsequently becomes the responsibility of the states. 3 Other portions of the constitution are extremely vague about what level of government has the legal authority to administer. As a result the Supreme Court has had to step in order to determine these legal issues. McCulloch v. Maryland 17 U.S. 316 (1819) was one of the first Supreme Court cases which focused on interpreting the separation of powers in the constitution. 4,5 The State of 3 "U.S. Constitution U.S. Constitution LII / Legal Information Institute "Web. 5/15/2013 < Page 2 of 9

4 Maryland brought suit against James McCulloch who worked as a cashier for the Baltimore branch of the United States Bank. 4 While working at the bank McCulloch did not observe a Maryland State law which required banks to be taxed. 4,5 Both the Baltimore County Court and Maryland Appellate Court ruled against McCulloch. Upon appeal to the Supreme Court, reversed the decision of the State Court. 4,5 In the courts opinion, Chief justice John Marshall, who was an advocate for federal power after having firsthand experience (in the revolutionary war) how decisions by the state could potentially doom the union, recognized the magnitude the case regarding the conflicting powers of the Government of the Unions and its members. 4,5 The counsel for Maryland argued the powers of General Government are delegated by the States, who alone are truly sovereign. 4 The weaknesses of this argument, identified in the constitution Marshall points out, bounds the state sovereignty capacity and allows for the Government of the Union to be supreme within its sphere of action 4 Therefore the Necessary and Proper Clause of the constitution enables the ability to make all laws which shall be necessary and proper for carrying into execution the forgoing powers and all powers vested by this constitution and permits congress the ability to establish the United States Bank. 4,5, heritage 6 ) Therefore the supremacy associated with the federal bank does not allow the states the ability to tax an entity of the federal government who has authority of taxation. (16 amendment) Therefore, an attempt by the State of Maryland to impose a tax on the Bank of the United States is unconstitutional and void. 4 4 "McCulloch v. Maryland "Web. 5/15/2013 < 5 "The Supreme Court. The First Hundred Years. Landmark Cases. McCulloch v. Maryland (1819) PBS "Web. 5/15/2013 < 6 Meese, Edwin, Matthew Spalding, and David F. Forte. The Heritage Guide to the Constitution. Regnery PublishingBooks. Web. Page 3 of 9

5 Other historical Supreme Court decisions that have highlighted the authority of the federal government, Gibbons v. Ogden (1824), the court established the commerce clause which gives congress the ability to regulate intrastate commerce and established the authority of the federal government as it pertains to state commerce. 7,8 The court ruled that the State of New York violated a federal licensing act when they issued Aaron Ogden an exclusive license to operate a ferry between New York and New Jersey. 7,8 The States have not been silenced by these decisions and continually challenge the federal government and it constitutional authority. Advocates of the State s rights believe that nullification by the States is an appropriate way to uphold their power. 8,9,10 An idea proposed by Thomas Jefferson and James Madison, believed that states have a right to void or nullify any federal law which oversteps its limits of jurisprudence. 9,10 Nullification was also promoted by John Calhoun (vice president of the Jackson administration who would later resign and accept a congressional seat in South Carolina) as a way to avoid cession by the southern states who had become restless about tariffs placed on products produced by foreign manufactures (in order to protect manufactures of Northern States). 10 President Jackson did not agree and viewed nullification as treason. 8,9,10 Nullification has reemerged as states such as South Carolina, Idaho, Texas, Montana, Wyoming, Oregon and Maine look to challenge Obamacare the Affordable Care Act (ACA). 10,11 7 "Federalism - Historic Supreme Court Cases - LawGuides at Santa Clara University School of Law "Web. 5/15/2013 < 8 The Supreme Court. The First Hundred Years. Landmark Cases. Gibbons v. Ogden (1824) PBS "Web. 5/15/2013 < 9 "Nullification "Web. 5/15/2013 < 10 Woods, Thomas E.,Jr. Nullification: How to Resist Federal Tyranny in the 21st Century. Regnery PressBooks. Web. Page 4 of 9

6 These states believe that because the constitution does not specifically address health care it becomes a state matter outlined in the Tenth Amendment. 10 They also do not believe that the commerce clause allows federal government to implement a health care mandate. The Supreme Court has repudiated the use of the commerce clause as it is meant to regulate commerce not to create which ACA essential would do. 11 However, the court determines that congress does have the constitutional authority to lay and collect taxes which can be applied to ACA. 11 A tax increase can be identified as individuals have an option to not purchase healthcare and instead makes a payment to the IRS. 11 This payment is not unconstitutional as it takes the form of another thing the government can tax like buying gasoline or earning income. 11 Personally, I believe that the federal government should create a National Healthcare system and the constitution gives this authority as it is fundamental in promoting the general welfare of the union and supersedes the tenth amendment. 3 There are far too many hardworking people in this country who cannot afford to see a doctor to determine their basic health and obtain preventative care. 12 These people are often forced to wait until they have a serious health problem which the only option to them is an emergency room visit that not only puts tremendous financial burden on them the patient but also raises the cost of health care for others who have to pay inflated hospital costs as hospitals attempt to collect lost revenues that are associated with treatment of these people that are in need but often cannot pay their hospital bills "Supreme Court Rejects Obama's Commerce Clause Arguments, Upholds ObamaCare Anyway Under Tax and Spend Clause - Hit & Run : Reason.com "Web. 5/15/2013 < 12 "PBS- Healthcare Crisis: The Uninsured "Web. 5/15/2013 < Page 5 of 9

7 Federal Gun control has become another key issue in which some states using nullification to stop federal policies; at the same time there are other states which are creating tougher gun control laws. 10 The principle argument by those who oppose the federal gun argument is focused on the constitutional necessity of the security of a free state to keep and bear arms. 3 However at the time this amendment was written, 1791, arms constituted single shot muzzle loaders not the multi round military grade arms that are available today. 13 The constitution allows the congress the ability to provide for the common defense and general welfare of the United States. 3(section 9) I feel that this allows congress the ability to limit the type of arms in order to ensure and defend the general welfare of the United States particularly those who are vulnerable and defenseless, the children of this country, who have a voice but do not have a legal capacity to weigh in on this issue. The School shooting tragedies that have become more prevalent in our society have been accomplished not only by small arms but more often involve high-powered military assault style weapons that contain multiple rounds. How many lives could have been saved if the people who have undertaken such an evil act only had access to something that could not accomplish such large scale assaults? These types of military weapons are built for war and should only be available for governmental militias and not for the general public. States that allow citizens to have access to these military weapons are allowing them to engage in war against their fellow citizens. 3(Section 10) 13 "Look, Can We Please At Least Agree On One Thing About The 'Right To Bear Arms'? - Business Insider "Web. 5/15/2013 < Page 6 of 9

8 In the 80 s and 90 s the federal government engaged in a war on drugs which has included marijuana. 14,16 Though marijuana is still illegal by federal standards many states have legalized the use of marijuana for medical purposes and two Colorado and Washington have legalized it for recreational use. Although the Obama administration declared the war on drugs an utter failure 15 the federal government continues to ignore the wishes of these states and are federally prosecuting those, who under state law, are legally dealing pot. A large portion of economic resources at the state and federal level have gone into the search, seizure and prosecution of pot users and suppliers. 15,16 Though cracking down on those who bring drugs in to this country is a good thing states in particular are starting to recognize that a better way to control this flow is to cut off the source of revenue. If you can buy pot at a local store legally what is the motivation from buying it black market style? This motivation was used by pot legalization advocates during a Washington State election campaign which led to a voter approval of pot legalization. 17 It seems that the federal government is failing to recognize the adeptness on how states are starting to better handle the drug regulation. The federal government s approach is not working and as a result they need to let the states exercise their constitutional authority there is nothing necessary or proper about how the feds are handling this issue and this is not an issue 14 "Marijuana Prohibition Loses Ground to Modern Federalism "Web. 5/15/2013 < 15 "Derek Rosenfeld: President Obama Is the Last Person Who Should Joke About Marijuana "Web. 5/15/2013 < 16 "Cost of Marijuana Prohibition: Economic Analysis "Web. 5/15/2013 < 17 "Washington's 1st Legalize Marijuana Commercial - YouTube "Web. 5/15/2013 < 18 "The American Experience The Duel People & Events The Federalist Party "Web. 5/15/2013 < Page 7 of 9

9 of intrastate commerce. The voters of the states have weighed in on this matter and the federal government needs to listen to the will of the union. Immigration has become a hot button issue of federalism. Immigration debates have occurred at the state and federal levels. Currently the US congress is attempting to pass immigration reform legislation. This bill would create the criteria that would allow over 11 million illegal immigrants the opportunity to become legal citizens. 18 There who oppose federal immigration reform believe that it is the states have the right to control immigration and that these rights are given to them through the Ninth and Tenth Amendment. 19,20 They argue the states are forced to deal with the economics and social costs associated with illegal immigrants. 20 Consequently it should be the states right to deal with issues regarding illegal immigrants. Some states have preempted the federal government in creating legal conditions less restrictive for illegal immigrants. Washington, New Mexico, Oregon and Maryland have allowed illegal immigrants the ability to obtain a driver s license. 21 Arizona has decided to increase legal restrictions particularly in regards to the requiring employers to perform checks for immigration status; businesses who hire illegal immigrant run a risk of losing their business license. 22 I think that the federal government does need to step in and control the debate. It was the federal government that created the open door policy that allowed a large influx of 19 "Details of US Immigration Bill Prioritize Work Skills "Web. 5/15/2013 < 20 "Federalism Guarantees States Key Role in Controlling Immigration The Foundry: Conservative Policy News Blog from The Heritage Foundation "Web. 5/15/2013 < 21 "Other states join New Mexico in granting driver's licenses to illegal immigrants - Las Cruces Sun-News "Web. 5/15/2013 < 22 Arizona s Immigration Policies are an Economic Disaster» Immigration Impact "Web. 5/15/2013 < Page 8 of 9

10 immigrants to come to this country, which the main reason why most of us are here. It is the federal government who closed the door on this policy which has put restrictions on a policy that has had favorable impacts in forming the American culture. Providing an avenue for immigrants to gain legal status in this country not only has economic benefits but cultural and social benefits as well. Ultimately, though sometimes it has been difficult, the constant struggles and debates associated with state v federal debate has allowed the formation of the civil liberties, expression, civil and social rights and freedoms that America is known for and a reason why people from other countries want to live here. Though sometimes the federal government does act like a parent and takes (legal) control away from the states ultimately that is what they are supposed to do to ensure a more perfect union. The states and federal government do not always agree but it is the ability to have disagreement that ensures that neither the federal government nor the states are able to gain complete governing power. Page 9 of 9

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