Student's Introduction to the Law of the
United States.
I am Professor Pedro A Malavet of the
Levin College of Law.
Continuing our discussion of the
Constitution of the
United States, today I will talk about
Federalism.
Federalism is shared sovereign authority,
shared sovereignty.
In the United States we speak of one
nation and the states.
This is labelled as Vertical Federalism,
the
relationship between the national
government, the federal government
of the United States and the fifty states
and sixth editorial processions to a
lesser extent.
Then, there is state to state federalism,
meaning that
the states have to have some relationship
with each
other, particularly in a country that is
as large,
but as ours, but in which mobility is
quite easy.
The important idea here, however,
is that most legal authority in the United
States is shared,
meaning that the legal authority of our
governments is concurrent,
and that means that sovereignty is
generally shared.
Subject two, what we call the power
of preemption, meaning that there are
occasions
when conflicts require that the federal
laws
displace or preempt the laws of the
states.
This concurrent authority as I presented
here in graphic form, the
fact of the matter is that the legal
authority of the United
States, the law making authority of the
United States, is generally shared
by the United States government and by
each of the state governments.
And there are relatively few areas that
exclusively belong to the federal
government on the one hand, or to the
state government on the other.
The concept of federalism at the vertical
level, the nation and the states.
Basically, the United States has two
levels of government, the federal
government
of our central national government, and
the government of the several states.
And it is really legal systems of the
United States, not just one national legal
system.
And so you have the one national federal
government, the
50 states and thus I mentioned as well,
six territorial possessions.
The
concept of federalism means that there are
within each state territory, Independent,
Federal, and State Executive.
Independent, Federal, and State
Legislatures.
Independent, Federal, and State
Judiciaries.
Now of course, the national legislature
sits in, Washington,
but it has authority over all of the
United States.
The President sits in Washington, he has
authority over all of the United States.
And the Federal Courts are found in every
one of the states.
And that means that there are parallel
systems
of government, Federal and State within
each territory.
Compare that to say, France, which is a
highly centralized country.
Where the regions into which France is
divided really have
to respond to the authority of the
national government in Paris.
That's not what we have.
We have sovereign states.
But our states are not as powerful as the
German regions, or German landers.
Because, in Germany, you have a unified
governmental system within each lander.
In the United States, you have these
parallel systems,
where the federal executive agencies are
operating in each state.
Where the federal judiciary is operating
in each state.
And, at the same time, each state has
its own governmental structures operating
within the state territory.
One important characteristic of the
American state
is that most local officials are elected.
Unlikes the executive branch in the
national government, for example,
the President and the Vice President, are
the only top executive officials.
Everybody else gets appointed by the
President,
subject to the advising consent of the
Senate.
It doesn't work that way at the state
level generally speaking.
Many state government officials not just
the governor who is
generally the chief executive of each
state is subject to election.
And indeed, it's very important to note
that
most judges at the state level are elected
officials.
Contrast that to the Article Three judge
who is appointed
into his or her job and has a lifetime
appointment.
In contrast, most state judges are elected
and I will discuss
that in my series on the structure of the
American courts.
But election of local officials has an
important effect on federalism, of course.
And in particular the vertical type of
federalism,
how each state relates to the national
government.
But it's also important in the horizontal
relationship between each one of the 50
states.
To put it in graphic terms, vertical
federalism simply means that we have one
national government which has to relate to
all of the 50 states.
As to horizontal federalism, it means that
each state within its own
territory is independent, has independent
legal
authority, certainly independent of every
other state.
And that each state is entitled to equal
power at, at least within their territory.
And that they are to be in a legal
balance, shall we say.
But of course there are sometimes
extraterritorial laws.
Let say for example that a citizen of
Alaska gets
into an accident in Florida, while
visiting Disney for example.
How do we resolve the question of choice
of law?
Should we apply the laws of Alaska?
Or should we apply the laws of Florida?
Or another classic example, somebody fires
a weapon or pollutes a river
in one jurisdiction but the bullet or the
pollution end up in another jurisdiction.
How do we deal with that?
It is those conflicts that implicate
horizontal federalism a lot of the time.
The concept of state sovereignty however,
is fundamental to the American
Constitution.
When the 13 colonies declared themselves
independent from
the British, they declared themselves
independent sovereign nations.
There were not, there was not just one
United States.
There were 13 independent states that were
now nations with sovereign legal power.
That sovereignty, that law-making
authority, that positive
law-making authority that is implicated by
the power
of sovereignty was then surrendered
partially and
involuntarily to the national government
in the Constitution.
And in some ways, to each other because
there has to be
a relationship between all the members of
what is today the United States.
This is, of course, internally significant
to lawmaking in the United
States and to the application of laws in
the United States.
Internationally it is in fact the national
laws that are most important.
However, if you are a citizen of a country
other than the United States
and you are doing business say here in the
state of Florida, you actually
have to be concerned not only about the
laws of the United States, you
also have to be concerned about complying
with the laws of the state of Florida.
The States and the Constitution.
As I said, the States have the sovereign
authority
to issue law and to enforce law within
their territory.
And generally speaking, that means they
retain the inherent positive authority
to legislate and to enforce law within
their territory in the United States.
The inherit authority means that there is
no need
for that to be expressly included in the
Constitution.
They had that power to begin with.
And they did not give it to the national
government in the Constitution.
Moreover, the tenth amendment to the
Constitution expressly reserves to
the right any power not expressly
delegated to the federal government.
And remember that the federal government
is a government of limited powers.
In terms of vertical federalism and the
exercise of the concurrent authority
that the United States Government, and the
governments of the states have.
Basically, what you have is federal and
state lawmaking, and that as long
as they are not mutually exclusive they
can occupy the same field.
James Madison, one of our founding
fathers, actually thought that
it would be better to say that lawmaking
by the
states and by the federal government had
to be mutually
exclusive, but that is not what is
enshrined in the Constitution.
It is the shared authority that is
enshrined in the Constitution.
It is the concurrent authority that is
enshrined in the Constitution.
And so you have overlapping sovereigence,
exercising legislative, law
making and law enforcement authority
within the territory of each state.
There are some exceptions to this
concurrency rule and it is preemption.
It means that there's legislative
exclusivity that only
one law making power can exist in certain
areas.
Typically, we refer to this as the federal
government occupies this field, and must
displace state law.
The authority can be express or implied.
Express Statutory Preemption means that it
has been included in the legislation
itself.
The legislation passed by the United
States Congress, expressly says that this
field will be occupied by Federal law and
that State law will be held to be
incompatible if it tries to legislate in
the same area.
The extent of this preemption is generally
a matter of statutory interpretation, and
not Constitutional interpretation because
it is
after all defined by the statute itself.
And then there is implied preemption.
Implied preemption is federal law
displacing state law without express
language.
To that effect, in any piece of
legislation.
And there are basically two types when
there is a direct conflict between state
and federal law or the state law
is an obstacle to accomplishing their
federal goals.
But the federal legislation did not
expressly occupy the field.
The second one is the Federal Law occupies
the field
without saying that they completely intend
to occupy the field.
And these are questions for the courts.
These are matters of judicial
interpretation and judicial enforcement.
Generally speaking because vertical
federalism does give
inherent authority to the states to
legislate, preemption ought to be avoided.
Fact again that the principle of
concurrency
is actually the principle that should
generally prevail,
and therefore preemption can only be an
exception, and furthermore it should
generally be avoided.
Conflicts should be avoided.
And that means that there is a legal
presumption,
which is generally applied by the courts
against preemption.
If the matter is unclear, the court will
be
generally speaking, it's the courts that
resolve these problems.
The court will be asked was Congress
intending that
this would be the only standard to occupy
the field.
Meaning that the federal legislation
passed by the United States Congress
should be the only standard to be applied
in that legal field.
Or rather, whether or not that the
Congress wanted a minimum
standard which that states could in fact
supplement and go above.
The other question that is often asked by
the courts is, is state legislation in a
particular area an obstacle to
implementing Congress's full objective.
And obviously, these are difficult
questions to answer,
which is why they are resolved by the
courts.
Horizontal federalism, the legal
relationship between the several states.
The most important expression of that that
is included in the
Constitution itself is in Article Four,
the full faith and credit clause.
It requires that states give full faith
and credit to
the judicial proceedings, records, and
public acts of other states.
What does that mean?
Well, as to public records, it simply
means that the records of one state
must be acknowledged, must be given legal
significance and legal recognition by
other states.
So that if you were born in Florida and
you have a
Florida birth certificate, that should be
recognized if you move to Arizona.
A marriage license also.
If you are married in California and move
to Florida, your
marriage has to be recognized by the state
of Florida as well.
Another expression of full faith and
credit of course,
is as to judicial decisions, and what that
means is
that the decisions of a state court in one
state must be enforced by state courts in
other states.
You might wonder why that is.
Well, the, the reason is that you may have
a judgement against
someone from one state, but their assets
may be located in another state.
So therefore, execution of that judgement
necessarily
requires the cooperation of another
sovereign court.
And the full faith and credit clause
requires that the second state give the
same
effect to the judicial decision of the
first
state as the first state would give it.
And that means that the second state is
not
allowed to say that the judgment is in
error.
Or that it is based on a law that violates
the public policy of the second state.
They simply must enforce it.
The only exception is lack of personal
jurisdiction,
meaning that the first court did not have
the legal authority to order the
individual against
whom the order was issued to do anything.
And the reason for that is the due
process clause of the Constitution of the
United States.
Which entitles people in judicial
processes to be judged by
courts that do in fact have personal
jurisdiction over them.
And I will also discuss that in my series
on consi, on the judicial structure of the
United States.
State sovereign immunity.
This is another example of horizontal
federalism, and also sometimes of vertical
federalism.
The fact is that U.S. states cannot be
sued without their consent, that's the
basic rule.
But early on, the Supreme Court of the
United States in 1791
in Chisholm vs Georgia, ruled that Article
Three in fact abolished that.
So that meant that states could in fact be
sued in the Federal Courts.
Their response by the legislature was very
quick, and by the states was very quick.
The 11th Amendment was passed and
ratified, and in fact, that returned us to
sovereign immunity, meaning that states
cannot be sued without their consent.
It's important to note that the
legislature cannot overrule just
any decision by the Supreme Court although
I think it's important to
note that if the Supreme Court interprets
a statute in a
particular way and the legislature
disagrees, they can amend the statute.
But this was a constitutional
interpretation.
This was Article Three eliminates
sovereign immunity, so
it required a constitutional amendment for
the legislature and
the states to overrule the decision by the
Supreme Court, but that is precisely what
they did.
States offering immunity, interestingly,
survived till
this day, even after the Civil War.
There were a series of amendments that
were passed after
the Civil War, expressly to impose
constitutional limitations on the states.
But that did not extend to eliminating the
power of the right of sovereign immunity.
There are some exceptions however that
basically allow federal
lawsuits in particular to be filed against
the states.
One of them is that if a government
official
acts in a way that is arguably a violation
of
the Constitution, he is deemed to be, he
or
she is deemed to be acting in an
ultra-virus way.
Meaning that they are acting beyond their
legal authority and
therefore they are stripped of their
protection of sovereign immunity.
However, the sovereign immunity rule means
that monetary damages are not awardable
against
a state on, in a judicial proceeding,
unless the state consents to suit.
And that has to be done, generally
speaking, expressly in a statute.
Another important provision in Article
Four,
is the republican form of government
provision.
The United States shall guarantee to every
state
in the Union a Republican form of
government.
However, early on, the Supreme Court ruled
that this was a political
question, meaning that it was not for the
judiciary to decide that.
So this is very much different from say,
the
eternity clause in the German Constitution
which allows the German
Constitutional Court to invalidate even
constitutional amendments that are
contrary to the basic principles of the
modern German Republic.
Supreme Court of the United States decided
that it did not wish to be involved,
or that it did not wish any federal court
to be involved in making those judgements.
However, the Supreme Court does use
other provisions to invalidate state
actions that
implicate the republican form of
government,
particularly when it comes to voting
rights.
In conclusion, let me say that federalism
is
an important constitutional concept, but
that it is adaptable.
And we have needed it to be adaptable
throughout our history.
It is a balancing, it is a balancing of
the sovereign authority of the national
government and a balancing of the
sovereign
authority of the states and the
territorial possessions.
In my next series, I will discuss a moment
of conflict that required
an expansion of federal authority at the
expense of the authority of the states.
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