VOLUME I: SOURCES OF POWER AND RESTRAINT
CHAPTER 5:
THE DYNAMICS OF THE FEDERAL SYSTEM
Chapter Overview
Notes on Excerpted Cases
Questions for Thought and Discussion
Multiple Choice Questions
Essay Questions
Hypothetical Problem (for Classroom Discussion or Essay Examination)
Introduction of Topic in Lecture
Questions for Website
CHAPTER OVERVIEW:
Development of the Federal System
Nation-Centered Federalism
The Resurgence of States’ Rights
The Commerce Clause and State Regulatory Authority
State Taxing Power
NOTES ON EXCERPTED CASES:
Chisholm v. Georgia (1793). Two South Carolina citizens who, as executors of the estate
of a British decedent, brought an original action in the Supreme Court sought to recover
property confiscated by the state of Georgia during the Revolution. Georgia refused to
appear in the case but filed a strong protest denying the Court’s jurisdiction. In addition, a
resolution was introduced in the Georgia legislature asserting that federal judicial
authority to entertain such suits “would effectually destroy the retained sovereignty of the
states.” By a four–to–one majority the Supreme Court rejected Georgia’s argument,
strongly endorsing the authority of the federal judiciary in relation to the states. This
decision drew an intense reaction from states’ rights advocates. The result was adoption
of the Eleventh Amendment in 1798, in effect barring a citizen from suing a state
government in a federal court without the state’s consent.
United States v. Darby (1941). The Fair Labor Standards Act of 1938 established
minimum wages and maximum working hours for employees of industries whose
products were shipped in interstate commerce. Fred Darby, owner of the Darby Lumber
Company in Statesboro, Georgia, was indicted for violating the statute. Darby demurred
to the indictment on the ground that in passing the law Congress had exceeded its powers
National League of Cities v. Usery (1976). Here the Supreme Court struck down a 1974
amendment to the Fair Labor Standards Act that extended the federal minimum wage to
state and local government employees. Writing for the Court, Justice William Rehnquist
Garcia v. San Antonio Metropolitan Transit Authority (1985). Justice Brennan’s dissent
in National League of Cities was vindicated in 1985, when a sharply divided Supreme
Court overruled that decision in this case. With the Garcia decision, many assumed that
the revitalization of the Tenth Amendment had ended. Quite possibly, the Court has not
spoken its final word on this subject.
Printz v. United States (1997). The Court struck a blow to congressional power by
invalidating a provision of the Brady handgun control law. The offending provision
required local law-enforcement officials to perform background checks on prospective
Tennessee v. Lane (2004). In this case the Supreme Court held that Congress could
abrogate state sovereign immunity in order to allow lawsuits under Title II of the
Americans with Disabilities Act. Title II provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs or activities of a public entity, or be
Cooley v. Board of Port Wardens (1852). At issue here was the constitutionality of a
Pennsylvania law requiring ships entering or leaving the port of Philadelphia to hire local
harbor pilots. This was admittedly a regulation of both interstate and foreign commerce.
Nevertheless, it was upheld by the Supreme Court because it dealt with a “subject” of
commerce “imperatively demanding that diversity, which alone can meet the local
necessities of navigation.” Writing for the Court, Justice Curtis reasoned that the term
commerce covered a multitude of subjects, some requiring national uniformity in their
Oregon Waste Systems v. Department of Environmental Quality (1994). Here the Court
voted 7-2 to strike down a state law imposing an extra fee on solid waste imported from
out of state. The Court found the fee to be a form of economic protectionism forbidden
by the Commerce Clause. This issue did not divide the Court along traditional ideological
lines, as both Justice Blackmun and Chief Justice Rehnquist dissented.
Granholm v. Heald (2005). Here the Court, divided 5-to-4, held that Michigan and New
York laws that permitted in-state wineries to sell wine directly to in-state consumers
while barring out-of-state wineries from doing so violated the Commerce Clause.
Writing for the majority, Justice Kennedy stated “Laws of the type at issue in the instant
cases . . . deprive citizens of their right to have access to the markets of other States on
QUESTIONS FOR THOUGHT AND DISCUSSION:
1. If they were suddenly brought back to life, would the Framers of the Constitution
recognize, and would they approve of, the contemporary federal system?
2. Has the Supreme Court gone too far in its interpretation of the Eleventh Amendment?
3. Would you support an amendment to the Constitution to repeal the Eleventh
Amendment?
4. Why shouldn’t the state courts and legislatures be left free to determine their own
policies on abortion?
5. How did Congress persuade the states to raise their legal drinking ages to 21? Was
this a legitimate use of federal authority?
6. Should a governor in a state where there is no prohibition against casino gambling
allow extradition of a man who is sought by another state for operating an illegal
casino?
7. Must a small, principally rural state accept toxic waste produced in other states, or
may it restrict its disposal sites to the small amount of toxic waste produced within its
borders?
8. Can you think of any circumstances under which a state governor would be justified
in refusing to abide by an Act of Congress?
9. Under current judicial interpretation, does the Tenth Amendment represent a
meaningful guarantee of states’ rights?
10. Can Congress require that state agencies implement federal legislation, even where
Congress does not provide funds for this purpose?
11. Can one state be forced to recognize same-sex marriages of another state given the
Full Faith and Credit Clause of Article IV, Section I in the United States
Constitution? If you were on the Supreme Court how would you interpret the Full
Faith and Credit Clause in this context?
12. In the area of interstate commerce, which perspective is more appealing: the nation as
an economic unit or state individuality? Explain your position.
13. Consider the recent immigration legislation enacted by the Arizona state legislature.
If challenged on preemption grounds, would the legislation survive judicial review?
MULTIPLE CHOICE QUESTIONS:
and a set of regional governments.
a. unitary
b. federal
c. democratic
d. constitutional
to protect the public safety, health and welfare.
a. plenary power
b. sovereignty
c. parens patriae
d. police power
Hamilton, John Marshall and _________, favored a strong national government.
a. John Adams
b. John Hancock
c. George Mason
d. Thomas Jefferson
went so far as to argue that the “sovereign and independent states” had the right to
nullify acts of Congress that they deemed to be unconstitutional.
a. James Madison
b. Thomas Jefferson
c. Patrick Henry
d. John Jay
the writings of the statesman and political theorist ___________________.
a. John C. Calhoun
b. Henry Clay
c. Daniel Webster
d. Henry David Thoreau
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, or by
citizens or subjects of any foreign State.”
a. Tenth
b. Eleventh
c. Twelfth
d. Thirteenth
________ Clause of Article I, Sec. 8 as conferring on Congress the implied power
to establish a national bank.
a. Commerce
b. General Welfare
c. Full Faith and Credit
d. Necessary and Proper
states’ rights by invalidating a state law imposing a tax on the Baltimore branch of
the _______.
a. Bank of the United States
b. Library of Congress
c. Smithsonian Institution
d. U.S. Postal Service
police powers of the states continued to expand.
a. Melville Fuller
b. Morrison Waite
b. Benjamin Curtis
d. Roger Taney
Lee’s surrender at Appomattox, the Supreme Court held that a state could not
withdraw from the Union.
a. Texas v. White
b. Ex Parte Milligan
c. Ex Parte McCardle
d. Tennessee v. Grant
1865, 1868 and _____, respectively, had a significant impact on federalism.
a. 1870
b. 1875
c. 1880
d. 1885
disappeared as a limitation on the powers of the national government in the wake
of the constitutional revolution of 1937.
a. Ninth
b. Tenth
c. Fourteenth
d. Seventeenth
amendment to the Fair Labor Standards Act that extended the federal minimum
wage to ______________.
a. children
b. illegal aliens
c. state and local government employees
d. none of the above
of state immunity from national taxation gained support.
a. cooperative
b. coercive
c. dual
d. complex
that each state recognize and enforce the “public acts, records, and judicial
proceedings of every other state.”
a. Rendition
b. Full Faith and Credit
c. Privileges and Immunities
d. Interstate Compacts
Supreme Court’s decision in __________________.
a. Chisholm v. Georgia (1793)
b. Fletcher v. Peck (1810)
c. Eakin v. Raub (1825)
d. Dred Scott v. Sandford (1957)
established its authority to overrule decisions of the highest state appellate courts
on questions of _________ law.
a. state
b. federal
c. constitutional
d. common
decisions recognizing broader individual rights than those afforded by the federal
Constitution as long as such decisions are based on ______________.
a. federal statutes
b. the common law
c. settled principles of law
d. independent state grounds
the Supreme Court’s decision in ____________.
a. The Prize Cases
b. Martin v. Hunter’s Lessee
c. Pollock v. Farmer’s Loan and Trust Co.
d. United States v. E.C. Knight Co.
commerce is _____.
a. a matter of exclusive national concern
b. a subject reserved to the states
c. a national unit
d. none of the above
absence of federal legislation regulating the length of trains as ____________.
a. authorizing the states to act on this subject
b. requiring the states to act on this subject
c. an invitation to the states to act on this subject
d. none of the above
a. virtually disappeared as a meaningful limit on state or federal taxing power
b. expanded in recent years as a limitation on state and federal taxing power
c. has been formally abolished by the Supreme Court
d. none of the above
Supreme Court _____________ a surcharge placed on the importation out-of-state
waste by the State of Oregon.
a. refused to review
b. invalidated
c. upheld
d. postponed a decision on
law exempting ________ from taxation.
a. locally produced alcoholic beverages
b. pineapples grown within the state
c. goods produced by Native Hawaiians
d. none of the above
federal highway grants to the states as a means of persuading the states to ______.
a. lower the voting age to 18
b. raise the driving age to 16
c. establish regular driving tests for motorists over 65
d. raise the drinking age to 21
Amendment “was intended to confirm the understanding of the people at the time
the Constitution was adopted, that powers not granted to the [federal government]
were reserved to the States or to the people.”
a. United States v. Sprague (1931)
b. Fry v. United States (1975)
c. Chisholm v. Georgia (1793)
d. none of the above
authority in areas of national activity.
a. Full Faith and Credit
b. Supremacy
c. Presentment
d. none of the above
Commerce Clause as justifications for restricting the police power of the states.
a. due process clause of the Fifth Amendment
b. due process clause of the Fourteenth Amendment
c. equal protection clause of the Fourteenth Amendment
d. none of the above
national police power by invoking the _____________ and the Due Process
Clause of the Fifth Amendment.
a. Eighth Amendment
b. Ninth Amendment
c. Tenth Amendment
d. Eleventh Amendment
replaced by __________, which emphasizes the expansion of regulatory authority
at all levels of government.
a. duel federalism; cooperative federalism
b. cooperative federalism; duel federalism
c. duel federalism; coercive federalism
d. coercive federalism; cooperative federalism
from the limitation on federal authority inherent in the delegated nature of
Congress’ Article I powers, the principal means chosen by the Framers to ensure
the role of the States in the federal system lies in the structure of the Federal
Government itself. It is no novelty to observe that the composition of the Federal
Government was designed in large part to protect the States from overreaching by
Congress.”
a. William R. Day
b. John McLean
c. Salmon P. Chase
d. Harry Blackmun
abatement ordinance was preempted by the federal Noise Control Act of 1972,
even though the Act contained no specific preemptive language and there was no
evidence that the ordinance placed a heavy burden on interstate commerce.
a. Burbank v. Lockheed Air Terminal (1973)
b. Nantahala Power and Light Company v. Thornburg (1986)
c. Pennsylvania v. Nelson (1956)
d. California v. Federal Energy Regulatory Commission (1990)
unregistered state and local bonds, and concluded that protections afforded by the
Tenth Amendment are “structural, not substantive.”
a. Garcia v. San Antonio Metropolitan Transit Authority (1985)
b. South Carolina v. Baker (1988)
c. New York v. United States (1992)
d. none of the above
5 of the ____________ Amendment to authorize private lawsuits against states in
federal courts.
a. Thirteenth
b. Fourteenth
c. Fifteenth
d. Sixteenth
Supreme Court sustained a South Carolina statute prescribing maximum weights
and widths of trucks using the highways of the state because ________________.
a. there was no heavy burden placed on interstate commerce
b. the federal government has not regulated highways at this time
c. the safety considerations were more important than the burden placed on
interstate commerce
d. none of the above
down an Iowa statute prohibiting the use of 65-foot-long double-trailer trucks on
its highways because it violated the ____________.
a. Commerce Clause
b. Full Faith and Credit Clause
c. Supremacy Clause
d. none of the above
York administrative decision that denied Hood and Sons, a Massachusetts
corporation, permission to increase from three to four the number of milk
processing plants it operated in New York on the grounds of the ____________
Commerce Clause.
a. isolated
b. dormant
c. interactive
d. active
law prohibiting the importation of most solid and liquid waste materials from
other states.
a. upheld
b. invalidated
c. denied certiorari
d. none of the above
required private haulers of solid waste to use local government-operated landfills
and recycling facilities instead of using cheaper out-of-state facilities.
a. Oregon Waste Systems v. Department of Environmental Quality (1994)
b. Chemical Waste Management, Inc. v. Hunt (1992)
c. Philadelphia v. New Jersey (1978)
d. United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management
Authority (2007)
price affirmation” statute as a violation of the Commerce Clause.
a. Healy v. Beer Institute (1989)
b. Bacchus Imports, Ltd. v. Dias (1984)
c. Brown–Forman Distillers Corporation v. New York State Liquor Authority
(1986)
d. Granholm v. Heald (2005)
has upheld state regulations designed to promote noneconomic objectives, even
when such regulations inhibit economic competition, as long as the state is a
__________________.
a. market observer
b. market regulator
c. market participant
d. none of the above
Forestry Service employees whose houses were rented from the government.
a. New York v. United States (1946)
b. United States v. County of Fresno (1977)
c. Massachusetts v. United States (1978)
d. United States v. City of Detroit (1958)
without the Consent of the Congress, lay any Imposts or Duties on Imports or
Exports, except what may be absolutely necessary for executing its inspection
Laws,” and be found in _____________________.
a. Article I, Section 10
b. Article I, Section 8
c. Article II, Section 1
d. Article II, Section 3
upheld a nondiscriminatory tax on tires and tubes imported from France and
Canada.
a. Brown v. Maryland (1827)
b. Michelin Tire Corporation v. Wages (1976)
c. Estin v. Estin (1948)
d. none of the above
public Acts, Records, and judicial Proceedings of every other State,” and can be
found in _____________.
a. Article II, Section 1
b. Article III, Section 1
c. Article IV, Section 1
d. Article V, Section 1
ESSAY QUESTIONS:
1. Discuss the ascendancy, decline and possible reemergence of the doctrine of dual
federalism.
2. Citing appropriate cases, explain the approach taken by the Supreme Court in
reviewing a state law that impinges on interstate commerce.
3. Discuss the doctrine of preemption. Explain how, and under what circumstances, a
state law may be struck down by a federal court on the basis of this doctrine, even
where there is no explicit conflict with federal law.
4. Recount and assess the Rehnquist Court’s decisions with respect to the Eleventh
Amendment and the sovereign immunity of the states.
5. Explain how and why the Full Faith and Credit Clause figures into the constitutional
controversy involving same-sex marriage.
6. Citing appropriate cases, discuss how the Civil War Amendments to the Constitution
impacted our system of federalism.
HYPOTHETICAL PROBLEM (FOR CLASSROOM DISCUSSION OR ESSAY EXAMINATION):
On January 15, 2007, the North Tadoka state legislature passed the “Open Plains Pure Air
Restoration Act” (“OPPARA”), citing public health concerns potentially affecting all
state residents. The Governor signed this measure into law on February 1, 2007.
Implementation of this statute was scheduled to begin on July 4, 2007. OPPARA banned
the advertisement, importation, and sale of cigarettes within North Tadoka, with the
exception of marijuana cigarettes medically prescribed for the alleviation of pain
experienced by terminally ill patients. OPPARA also required that all members of pro–
smoking organizations residing in North Tadoka register with the newly-created Tobacco
Control Board, a state agency with limited law enforcement powers. The ban also applied
to smokeless tobacco, but did not extend to cigars or pipe tobacco. Under OPPARA,
cigarette smoking and the use of smokeless tobacco was banned in “all public places,
including restaurants, hotels, public conveyances, state and local government facilities,
public streets and sidewalks, parks, and other recreational facilities.” Any individual
violating these restrictions was subject to a fine of not less than $100 or more than $500.
INTRODUCTION OF TOPIC IN LECTURE:
Introducing Students to the Concept of Federalism:
One important aspect of federalism jurisprudence is the varying perspectives Supreme
Court justices have taken over time regarding the appropriate relationship between the
federal government and the states. Some justices have adhered to a state’s rights
perspective, while others have supported a national power supremacy perspective. One
way to illustrate this point to the students is to use the following website:
QUESTIONS FOR WEBSITE:
1. Briefly Discuss the Marshall Court’s jurisprudence in the area of federalism and the
Court’s impact in this area of constitutional law.
2. Briefly discuss the Taney Court’s jurisprudence in the area of national and state
power.
Sample Answer: During the time Marshall’s successor, Roger B. Taney, served as
chief justice (1836–1864), the police powers of the states continued to expand. In
addition to protecting public health and safety, the police power was also used as a
justification for safeguarding the morals and general welfare of the community.
3. Briefly discuss how Congress and the Supreme Court were able to utilize national
power to further civil rights and liberties.
Sample Answer: The national government established clear dominance over the
states is civil rights and civil liberties. The most notable development in this realm has
4. Discuss the Supreme Court’s view on state attempts to conserve their natural resources
within the context of interstate commerce.
Sample Answer: The Supreme Court is unlikely even to permit a state to conserve
its privately controlled natural resources if the conservation effort affords preferential
5. Discuss the importance of the Compacts Clause in Article I, Section 10 of the
Constitution.
