The Fourteenth Amendment represented a significant shift of power in the nation's federal system. Until the passage of the Fourteenth Amendment, the Constitution was limited to establishing the powers and limitations of the federal government.
However, the amendments passed immediately after the Civil War the Thirteenth, 82 Fourteenth, and Fifteenth 83 Amendments , dramatically altered this regime. Passage of these amendments subjected a state's control over its own citizens to oversight by either the federal judiciary or Congress. The most significant impact of the Fourteenth Amendment has been its implementation by the federal courts, as state legislation came under scrutiny for having violated due process or equal protection.
However, Congress has also seen fit to exercise its power under the Fourteenth Amendment to address issues such as voting rights and police brutality. The scope of Congress's power under Section 5 of the Fourteenth Amendment, however, has been in flux over the years. In Katzenbach v. Morgan , 84 the Court held that Section 5 of the Fourteenth Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment as defined by the courts, but to help define its scope.
In Katzenbach , the Court upheld a portion of the Voting Rights Act of that barred the application of English literacy requirements to persons who had reached 6 th grade in a Puerto Rican school taught in Spanish. In upholding the statute, the Court rejected the argument that Congress's power to legislate under the Fourteenth Amendment was limited to enforcing that which the Supreme Court found to be a violation of that amendment.
Rather, the Court held that Congress could enforce the Fourteenth Amendment by "appropriate" legislation consistent with the "letter and spirit of the constitution. The rationale for this holding appears to be that Congress has the ability to evaluate and address factual situations that it determines may lead to degradation of rights protected under the Fourteenth Amendment.
This is true even if a court would not find a constitutional violation to have occurred. In fact, what the Court appeared to have done was to require only that Congress establish a rational basis for why the legislation was necessary to protect a Fourteenth Amendment right.
Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. Mitchell , 85 the Court struck down a requirement that the voting age be lowered to 18 for state elections.
In prohibiting Congress from dictating the voting age for state elections, a splintered Court appears to have supported Congress's power to pass laws that protect Fourteenth Amendment rights against state intrusions, but rejected the ability of Congress to extend the substantive content of those rights.
As year-olds are not a protected class under the Fourteenth Amendment, the Court found that Congress was attempting to create, rather than protect, Fourteenth Amendment rights.
More recently, in the case of Flores v. For many years prior to the passage of RFRA, a law of general applicability restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of the First Amendment, had to be justified by a compelling governmental interest. However, in the case of Oregon v. Smith , 87 the Court had lowered this standard.
The Smith case involved members of the Native American Church who were denied unemployment benefits when they lost their jobs for having used peyote during a religious ceremony. The Smith case held that neutral generally applicable laws may be applied to religious practices even if the law is not supported by a compelling governmental interest. RFRA, in response, was an attempt by Congress to overturn the Smith case, and to require a compelling governmental interest when a state applied a generally applied law to religion.
The City of Boerne case arose when the City of Boerne denied a church a building permit to expand, because the church was in a designated historical district. The church challenged the zoning decision under RFRA. The Supreme Court reiterated that Section 5 of the Fourteenth Amendment gave Congress the power to enforce existing constitutional protections, but found that this did not automatically include the power to pass any legislation to protect these rights.
Instead, the Court held that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end.
For instance, the Court's decision in Katzenbach v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of minorities being denied suffrage in this country. In contrast, the Court found no similar pattern of the use of neutral laws of general applicability disguising religious bigotry and animus against religion. The law focused on no one area of alleged harm to religion, but rather just broadly inhibited state and local regulations of all types.
The scope of the enforcement power under Section 5 of the Fourteenth Amendment also has become important in cases where the Court has found that Congress has overreached its power under other provision of the Constitution, or is limited by some provision thereof. For instance, as discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state sovereign immunity generally prohibit individuals from suing states for damages under federal law.
For instance, a significant amount of federal legislation is clearly supported by the commerce clause, but it might not be supported under Section 5. Recently, the Court decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority for such legislation. In College Savings Bank v. The New Jersey savings bank had developed a patented program where individuals could use a certificate of deposit contract to save for college.
The state of Florida set up a similar program, and the College Savings Bank sued Florida for false and misleading advertising under a provision of the Trademark Act of Lanham Act , 91 alleging that Florida had made misleading representations about its own product.
The Court first noted that under Seminole Tribe of Florida v. Florida , Article I, powers such as the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity. Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of Congress's power under Section 5 of the Fourteenth Amendment.
Although the Fourteenth Amendment provides that no state shall "deprive a person of As the Court found that Congress had not established an authority under the Fourteenth Amendment to abrogate the state's immunity, the College Savings Bank could not proceed against the state of Florida for unfair trade practices.
Even if a property interest is established, it would still need to be determined that Congress had the authority to protect that property interest under the Fourteenth Amendment. College Savings Bank , 92 the Court, in a decision concerning the same parties as the case discussed above, considered whether the College Savings Bank could sue the state of Florida for patent infringement. Congress had passed a law specifically providing that states could be sued for patent violations, 93 citing three sources of constitutional authority: the Article I Patent Clause, 94 the Article I Interstate Commerce Clause, 95 and Section 5 of the Fourteenth Amendment.
As the Court had previously precluded abrogation of sovereign immunity through the exercise of Article I powers, the question became whether Congress had the authority to pass patent legislation under Section 5 of the Fourteenth Amendment. Unlike the previous case, the Court found that, under a long line of precedents, patents were considered property rights. However, the Court had to further consider whether the protection of such a property right under Section 5 of the Fourteenth Amendment was "appropriate" under its ruling in City of Boerne.
Consequently, the Court evaluated whether a federal right to enforce patents against states was appropriate remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners. Specifically, the Court sought to evaluate whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment violation that Congress could redress.
The Court noted that Congress had failed to identify a pattern of patent infringement by the states, and that only a handful of patent infringement cases had been brought against states in the last years. The Court also noted that Congress had failed to establish that state remedies for patent infringement were inadequate for citizens to seek compensation for injury.
In fact, the state of Florida argued that no constitutionally based violation had occurred, as it had procedures in place that would provide the necessary due process for patent infringement by the state to be challenged.
Consequently, the Court found that the exercise of Section 5 of the Fourteenth Amendment in this context would be out of proportion to the remedial objective. The Court engaged in a similar analysis, with like results, in evaluating the application of age discrimination laws to the states.
In Kimel v. Florida Board of Regents , 96 the Court noted that the Age Discrimination in Employment Act of , while a valid exercise of Congress's commerce power, could not be applied to the states unless Congress also had the power to enact it under Section 5 of the Fourteenth Amendment.
The Kimel Court held, however, that age is not a suspect class, and that the provisions of the ADEA far surpassed the kind of protections that would be afforded such a class under the Fourteenth Amendment.
Further, the Court found that an analysis of Congress's ability to legislate prophylactically under Section 5 required an examination of the legislative record to determine whether the remedies provided were proportional and congruent to the problem.
A review by the Court of the ADEA legislative record found no evidence of a pattern of state governments discriminating against employees on the basis of age. Garrett , 97 again with similar result. In Garrett, the Court evaluated whether two plaintiffs could bring claims for money damages against a state university for failing to make reasonable employment accommodations for their disabilities; one plaintiff was under treatment for cancer, the other for asthma and sleep apnea.
Although disability is not a suspect class and thus discrimination is evaluated under a rational basis test, the Court had previously shown a heightened sensitivity to arbitrary discrimination against the disabled. However, the Supreme Court declined to consider evidence of discrimination by either the private sector or local government, and dismissed the examples that did relate to the states as unlikely to rise to the level of constitutionally "irrational" discrimination.
Ultimately, the Court found that no pattern of unconstitutional state discrimination against the disabled had been established, and that the application of the ADA was not a proportionate response to any pattern that might exist.
However, the Court reached a different conclusion in the case of Nevada Department of Human Resources v. The FMLA requires employers to provide employees up to 12 weeks of unpaid leave to care for a close relative with a "serious health condition. The Court found that Congress had established significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the states, and that history was sufficient to justify the enactment of the legislation under Section 5.
The standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational-basis test, such was at issue in Kimel and Garrett , so it was easier for Congress to show a pattern of state constitutional violations.
Even where the Eleventh Amendment and state sovereign immunity are not at issue, the Court may be asked to consider whether the Fourteenth Amendment establishes a sufficient basis for a federal law that does not appear to have a constitutional basis elsewhere in the Constitution.
For instance, in United States v. Morrison , discussed previously, the Court found that Congress, in creating a federal private right of action for victims of gender-motivated violence, had exceeded its authority under the Commerce Clause. Consequently, the plaintiff in that case made the alternate argument that the federal private right of action could be sustained under Section 5 of the Fourteenth Amendment. This argument, however, suffered from two major defects.
First, the Court has long held that the Fourteenth Amendment provides Congress with the authority to regulate states but not individuals. The plaintiff attempted to avoid this problem by arguing that there is pervasive bias in various state justice systems against victims of gender-motivated violence, and that providing a federal private right of action was an appropriate means to remedy this "state action.
However, the Court rejected this argument, finding that the remedy did not meet the City of Boerne test of "congruence and proportionality to the injury to be prevented or remedied and the means adopted to that end. Similar to its holdings in the Garrett and Hibbs cases, the Court found that Congress had established sufficient evidence of the sustained denial of persons with disabilities of access to the courts.
In applying the Boerne congruence and proportionality test, the Court in Lane distinguished the rights Congress intended to protect in Title II access to public services, programs, and activities from the Title I employment rights that had been struck down in Garrett.
While both Titles I and II were intended to address unequal treatment of the disabled which is only a constitutional violation when it is irrational , the Court held that Title II was also intended to reach the more rigorously protected rights of the Due Process Clause of the Fourteenth Amendment, such as the right of access to the courts.
Congress's authority under Section 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity appears strongest when the focus of the prophylactic measure at issue is conduct that actually violates a constitutional right. Georgia , a disabled state prison inmate who used a wheelchair for mobility alleged that the state of Georgia violated Title II of the ADA in relation to his conditions of confinement.
It went on to state that Title II was valid as applied to the plaintiff's cause of action, because he alleged independent violations under Section 1 of the Fourteenth Amendment concerning his prison treatment. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive content, so that certain "core" state functions would be beyond the authority of the federal government to regulate.
Thus, in National League of Cities v. Usery , the Court struck down federal wage and price controls on state employees as involving the regulation of core state functions. San Antonio Metropolitan Transit Authority.
The Court soon turned, however, to the question of how the Constitution limits the process by which the federal government regulates the states. In New York v. United States , Congress had attempted to regulate in the area of low-level radioactive waste. In a statute, Congress provided that states must either develop legislation on how to dispose of all low-level radioactive waste generated within the state, or the state would be forced to take title to such waste, which would mean that it became the state's responsibility.
The Court found that although Congress had the authority under the Commerce Clause to regulate low-level radioactive waste, it only had the power to regulate the waste directly. Here, Congress had attempted to require the states to perform the regulation, and decreed that the failure to do so would require the state to deal with the financial consequences of owning large quantities of radioactive waste. In effect, Congress sought to "commandeer" the legislative process of the states.
In the New York case, the Court found that this power was not found in the text or structure of the Constitution, and it was thus a violation of the Tenth Amendment.
A later case presented the question of the extent to which Congress could regulate through a state's executive branch officers. This case, Printz v. United States , involved the Brady Handgun Act. The Brady Handgun Act required state and local law-enforcement officers to conduct background checks on prospective handgun purchasers within five business days of an attempted purchase.
This portion of the act was challenged under the Tenth Amendment, under the theory that Congress was without authority to "commandeer" state executive branch officials. After a historical study of federal commandeering of state officials, the Court concluded that commandeering of state executive branch officials was, like commandeering of the legislature, outside of Congress's power, and consequently a violation of the Tenth Amendment.
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Burwell , the First Circuit also considered the equal sovereignty doctrine's application outside the VRA context. Marbury v. Madison, 5 U. See U. X "The powers not delegated to the United States by the Constitution. See Federalism , Black's Law Dictionary 10th ed. See, e. Lopez, U. See also infra " Commerce Clause. United States, U. See also infra " The "Anti-Commandeering" Doctrine. See Christopher P.
Blakeman, The U. One commentator has suggested that there may also exist a third category of limitations on Congress's powers: "process limits," wherein requirements such as "the bicameral legislature, the requirement of presidential presentment, and frequent democratic elections" constrain the process—but not the substantive outcome—of congressional action.
See Laurence H. Tribe, American Constitutional Law 3d ed. See , e. Dewitt, 76 U. But this express grant of power to regulate commerce among the States has always been understood as limited by its terms. Comstock, U. Maryland, 17 U. Roe, U. Primus, supra note 14 , at "External limits, in contrast, are affirmative prohibitions that prevent Congress from doing things that would otherwise be permissible exercises of its powers.
Thus, the Fifteenth Amendment prevents Congress from conducting whites-only elections in the District of Columbia, despite Congress's power to govern the District. See David J. See Chemerinsky, supra note 27 , at describing the shifting views on the Court concerning federalism. Congress's power to tax may be limited by other provisions of the Constitution that are not directly related to principles of federalism.
See United States v. Kahriger, U. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity.
Alexander Hamilton, Report on Manufacturers Dec. The Butler Court, while embracing a broad view of the spending power, struck down the challenged law the Agricultural Adjustment Act of on Tenth Amendment grounds, concluding that permitting Congress to regulate state police powers indirectly through the Spending Clause would undesirably allow Congress to "become the instrument for total subversion of the governmental powers reserved to the individual states.
The following year, however, the Court reversed course on Butler 's Tenth Amendment holding, concluding that Congress, when properly exercising its broad power under the Spending Clause, could apply that power to matters that the states historically controlled.
See Helvering v. Davis, U. See Helvering , U. See also John C. Spending had to be for the 'general,' or national welfare, not for regional or local welfare. Indeed, in Buckley v. Valeo , the Court went so far as to describe the view that the General Welfare Clause serves as a limitation on congressional power as being "erroneous[]," noting that the concept of general welfare is a "a grant of power, the scope of which is quite expansive.
South Dakota v. Dole, U. Nat'l Fed'n of Indep. Sebelius, U. Pol'y , "Th[e] authority to regulate interstate commerce. See Hammer v. Dagenhart, U. Darby, U. See Boudreaux, supra note 65 , at "Th[e] authority to regulate interstate commerce. United States v. Glover, F. See Stephen R. Morrison, U. See also Pierce Cty. Guillen, U. See Mitchell v. Zachry Co. See also S. See Patton , F. Lopez , U. See Gonzales v. Raich, U. Such a law cannot be sustained under a clause authorizing Congress to 'regulate Commerce.
In so viewing the individual mandate, Chief Justice Roberts rejected the argument that there is no distinction between activity and inactivity for purposes of determining whether an individual is having a substantial effect on interstate commerce, as the commerce power concerns the power to regulate classes of activities, not individuals. Filburn, U. We have said that Congress can anticipate the effects on commerce of an economic activity. But we have never permitted Congress to anticipate that activity itself to regulate individuals not currently engaged in commerce.
See id. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. Robbins, F. Henry, F. McLean, F. App'x 81, 3d Cir. App'x 50, 53 3d Cir. This report periodically references decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this report e.
Court of Appeals for that particular circuit. For other unsuccessful challenges to 18 U. Bron, F. App'x , 11th Cir. Alcantar, F. In addition, the Second Circuit noted that SORNA was properly applied to the defendant in Robbins , as the registration requirement "Robbins himself failed to meet was triggered by activity: his change of residence and travel across state lines. App'x at ; United States v. Sullivan, F.
White, F. Howell, F. App'x , 7th Cir. Anderson, F. Another federal statute that has been the subject of several unsuccessful Commerce Clause challenges based on NFIB 's inactivity principle is 18 U. S ee, e. Humphrey, F. Parton, F. Since Holland , reviewing courts have deemed a number of federal statutes implementing treaty requirements constitutionally permissible under the Necessary and Proper Clause.
Ferreira, F. Wang Kun Lue, F. See also United States v. Lara, U. See generally Edward T. For criticism of the Supreme Court's decision in Missouri v. Holland , and arguments that the treaty power may not expand Congress's legislative power, see Nicholas Quinn Rosenkranz, Executing the Treaty Power , Harv.
In the aftermath of Bond , the Ninth Circuit rejected a constitutional challenge to the CWCIA, finding that the statute, when applied to a crime that was not "purely local" in nature,was "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power.
Fries, F. Mikhel, F. We are thus bound by our prior cases. This shorthand reflects the fact that the three amendments were ratified between and in the wake of the Union's victory in the Civil War. Bitzer, U. Mitchell, U. Austin Mun. Holder, U. It should be noted, however, that these three amendments were neither drafted nor enacted as a package. See generally John E. See Ex parte Virginia, U. See Seminole Tribe of Fla. Florida, U. Croson Co. One such fundamental change is that, prior to the Civil War Amendments, the Supreme Court had held that the protections in the Bill of Rights did not apply to the actions of the states.
Tiernan v. Mayor of Baltimore, 32 U. Following the enactment of the Fourteenth Amendment, however, the Court has held that many of the protections of the Bill of Rights are applicable to the states. See McDonald v. City of Chicago, U. Ex parte Virginia , U. See also id. See Jones v. Alfred H. Mayer Co. See Oregon v. Morgan, U. See Lassiter v. Northampton Cty. City of Boerne , U. Likely because of its broad, general guarantee of "due process" and "equal protection of the laws," see U.
Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. The Fifteenth Amendment, too, is also generally understood to require state action.
Allwright, U. Notably, the Thirteenth Amendment lacks a state action requirement. See Griffin v. Breckenridge, U. See City of Boerne , U. In addition, when legislating under the Fourteenth and Fifteenth Amendments, Congress may not violate "the fundamental principle of equal sovereignty" by treating states unequally without sufficient reason.
See Shelby Cty. This equal sovereignty limit is explained in more detail in a separate section of this report. See infra "Equal Sovereignty Doctrine. Coleman v. Court of Appeals of Md. Prepaid Postsecondary Educ. Expense Bd. Bank, U. As a result of the state action limit on its Fourteenth Amendment powers, Congress has instead relied on its Commerce Clause powers to prohibit discrimination in public accommodations.
McClung, U. See generally supra "Commerce Clause. Brentwood Acad. Secondary Sch. Athletic Ass'n, U. Edison Co. Raines, U. It contrasts with a unitary government, in which a central authority holds the power, and a confederation, in which states, for example, are clearly dominant.
Federalism is a dynamic concept of sharing power among a central government which may be strong or weak and states which may be powerful or weak. Federalism is a political concept. Democracy is a form of government that will only work in a tribe , city state, or states with sub-organized agents such as landholders.
The lack of federal grants would be a problem, but only after about half a year or so. Federalism is also the best system we have worked out to peacefully unify various nations while giving many of their powers and sovereignty to a larger entity.
There are certainly other nations with a federalist government, however, these are some of the largest and most well recognized. Ultimately, the federal government becomes the Leviathan, and the sovereigns that created it become client states. So federalism is important because it is exactly the way that the federal government of the United States became the dominant governmental force not only in America, but in the whole world.
The framers of the United States Constitution based our federal government on federalism. Federalism has evolved over the course of American history. Some important events have shaped the balance between the national and state governments so that federalism best suits the needs of the country at that time.
Federalism is a system of government in which power is divided between a national federal government and various state governments. In the United States , the U. Constitution gives certain powers to the federal government, other powers to the state governments, and yet other powers to both. The New Deal that emerged during the Great Depression marked a profound shift in the role of the federal government in domestic policy.
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