Federalism

1. A union of autonomous states
2. Division of powers between Federal Government and states;
3. Direct operation of each government within its assigned sphere upon all within its territorial limits;
4. Provision of each government with the complete apparatus of law enforcement;
5. # Federal Supremacy over any conflicting assertion of state power.

See Federalism.Web Link re federalism issues in history.

Supremacy Clause.

The federal government is supreme within its sphere. But what happens when state and federal powers clash in some respect. The Court's important federalism decisions were not written in a vacuum. They must be read in an historical and political context. A good example is the leading Supremacy Clause decision, McCulloch v Maryland (1819). Central federal banking was controversial throughout much of the 19th century. And so, when the State of Maryland attempted to impose a tax upon the National Banking facilities, the prospect that the state taxation power might be used to destroy the bank was by no means theoretical.

In its decision striking down Maryland's tax, the Court wrote:

• That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confidence which is essential to all government.

• If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the customhouse; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States.

• This is not all. If the controlling power of the States be established; if their supremacy as to taxation be acknowledged; what is to restrain their exercising this control in any shape they may please to give it? Their sovereignty is not confined to taxation. That is not the only mode in which it might be displayed. The question, in truth, is a question of supremacy; and if the right of the States to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation.

Why couldn't the Court merely have held that the States could not impose discriminatory taxes against federal instrumentalities? Does McCulloch mean that states cannot regulate federal instrumentalities in any manner? Can they apply speed limit laws to postal trucks? And if so, should they be able to issue speeding tickets to the truck driver? Outside the taxation sphere, the rule seems to be that State law may apply to federal instrumentalities, unless the law requires the instrumentality or employee to take action in derogation of their validly delegated federal responsibilities. In Graves v New York ex rel O'Keefe, (1939), the Court upheld non-discriminatory income tax as applied to federal officials. In Alabama v King and Boozer,(1941), the Court upheld a sales tax imposed upon a federal contractor. Is it time to get rid of McCulloch?

Cooper v Aaron

In McCulloch v Maryland, the Court was dealing with the potential for interference with federal powers. Throughout most of American history, local politicians contended that states could nullify or contradict federal actions which they deemed unconstitutional. A more modern example of a state-federal battle over supremacy may be found in Cooper v Aaron, In Brown v Board of Education, the Court had commenced a process of school desegregation. But many states sought to prevent implementation of the court's mandate. When the local Little Rock school district eventually sought to make furtive steps towards integration, the State sought to interpose itself and prevent desegregation. As the Court wrote in Cooper v Aaron:

• Under a plan of gradual desegregation of the races in the public schools of Little Rock, Arkansas, adopted by petitioners and approved by the courts below, respondents, Negro children, were ordered admitted to a previously all-white high school at the beginning of the 1957-1958 school year. ...As this case reaches us, it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically, it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483.

• On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas, who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school "off limits" to colored students. As found by the District Court in subsequent proceedings, the Governor's action had not been requested by the school authorities, and was entirely unheralded.

• On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position, in essence, was that, because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn [358 U.S. 13] and sent to segregated schools, and that all further steps to carry out the Board's desegregation program be postponed for a period later suggested by the Board to be two and one-half years.

Here was a direct challenge to the Court's mandate. The use of the threat of violence against implementation of a federal court order as an excuse for non-compliance. The Court regarded this as a fundamental challenge to Supremacy:

• No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: If the legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery. . . .United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases. . . . Sterling v. Constantin, 287 U.S. 378, 397-398.

• The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, [358 U.S. 20] are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.