Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P41 ppt

FEDERAL SUPPLEMENT ® A set of legal reference books containing decisions of federal courts in chronological order. The first volume of the Federal Supplement was published in 1933, and successive volumes have been numbered consecutively. Volume 900 was published in 1994. A citation to an opinion printed in the Federal Supplement gives, first, the volume and then the page number on which the case begins. For example, 465 F.Supp. 1286 means that the case can be found in volume 465 on page 1286. The Federal Supplement was created as a reporter of trial-level decisions by federal district courts. It contains the decisions of U.S. district courts from 1932 to the present, decisions of the former U.S. COURT OF CLAIMS between 1932 and 1960, and the decisions of the U.S. Customs Court from 1949 to 1980. The U.S. Customs Court was renamed the U.S. Court of International Trade in 1980, and its decisions will now be carried under its new designation. In 1969, it started carrying rulings of the Judicial Panel on MULTIDISTRICT LITIGATION. Decisions of the U.S. COURTS OF APPEALS and of the former U.S. Court of Customs and Patent Appeals and certain other federal courts are printed in the FEDERAL REPORTER . FEDERAL TORT CLAIMS ACT Enacted in 1946 the FEDERAL TORT CLAIMS ACT (FTCA) (60 Stat. 842) removed the inherent immunity of the federal government from most tort actions brought against it and established the conditions for the commencement of such suits. The FTCA permits persons to sue the government of the United States in federal court for money damages for injury or loss of property, or PERSONAL INJURY or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (28 U.S.C.A. § 1346(b))In passing the FTCA, Congress allowed the federal government to be sued. Congress also made specific exceptions to the act, and the U.S. Supreme Court has interpreted one provision broadly, both actions resulting in the dismissal of many plaintiffs’ lawsuits. In consenting to be sued, the federal government waived the SOVEREIGN IMMUNITY it had enjoyed in the past. Justice Oliver Wendell Holmes Jr., in Kawananakoa v. Polyblank, 205 U.S. 349, 27 S. Ct. 526, 51 L. Ed. 834 (1907), explained that a “sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no LEGAL RIGHT as against the authority that makes the law on which the right depends.” As early as the 1821 case of Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257, the Supreme Court recognized the sovereign immunity of the United States. Nevertheless, during the nineteenth century, Congress consented to let the federal government be sued in several causes of action. Congress established the COURT OF CLAIMS in 1855 (28 U.S.C.A. § 171) to entertain contract actions against the United States. The passage of the TUCKER ACT (28 U.S.C.A. § 1346[a][2], 1491) in 1887 broadened that court’s jurisdiction to include designated nontort actions, including EMINENT DOMAIN cases. But until 1946 there was no readily accessible remedy for tort actions brought by citizens of the United States. The routine recours e was for members of Congress to introdu ce private bills for constituents who had be en injured by government NEGLIGENCE. Congress eventually recognized that the PRIVATE BILL method was not an effective way to deal with the problem and passed the FTCA. Now a person who alleges that an employee of the federal government has caused injury must commence a lawsuit pursuant to the FTCA. Once filed, the FTCA lawsuit becomes the plaintiff’s exclusive remedy, regardless of any statute that expressly or impliedly permits actions against a designated agency. A federal judge hears the case without a jury. Congress did not cate gorically waive sovereign immunity in the FTCA. The act contains 13 exceptions, which release the federal government from any liability for, among other things, enforcing unconstitutional statutes, los ing let- ters in the post office, actions of the military in time of war, damages caused by the fiscal operations of the TREASURY DEPARTMENT or regulation of the monetary system, collecting custom duties, claims arising in a foreign country, and most intentional torts (28 U.S.C. A. § 2680). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEDERAL TORT CLAIMS ACT 389 The most important and troublesome exception has been the FTCA discretionary function exception. Under this provision, the waiver of immunity does not apply to any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or no t the discretion involved be abused” (28 U.S.C. § 2680 [a]). In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the U.S. Supreme Court broadly interp reted the discretionary function exception to include all situa- tions involving the formulation or execution of plans that were drawn at a high level of government and that entailed exercise of judgment. In Dalehite, federal government workers in Texas were negligent in packing and shipping explosive material, and their negligence resulted in the death of 536 people. The Court ruled that the workers were following specifications pre- pared by superio rs in Washington, D.C., who were exercising their discretion. Therefore, the discretionary function exception applied and the government was immune from suit. The Court distinguished between decisions made at the planning and policy stage and those conducted at the lower, or “opera tional,” levels that implement the policy decisions, even if some judgment or discretion is exercised in carrying out such decisions. The Dalehite decision has limited the effectiveness of the FTCA for persons injured by the government. Some commentators have criticized the Court for allowing the discretionary function exception to swallow the FTCA. Many cases center on whether the alleged TORTIOUS conduct involved the exercise of discretion or was merely ministerial (carrying out a design ated act), although virtually any act by a government employee is either directly or indirectly the outcome of an exercise of discretion. The Supreme Court has placed other limitations on the scope of the FTCA. In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Court interpreted the FTCA to bar claims by members of the armed forces and their families for injuries arising out of or in the course of activity related to military service. In Laird v. Nelms, 406 U.S. 797, 92 S. Ct. 1899, 32 L. Ed. 2d 499 (1972), the Court held that the requirement of a “wrongful” act means the United States is not liable under any state rule imposing STRICT LIABILITY. The FTCA’s exception for intentional torts, such as ASSAULT, battery, false imprisonment, FALSE ARREST , and libel, was modified in 1974, in response to the Supreme Court’s ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Bivens the Court held that federal law enforcement officers could be sued personally for violation of a person’sconstitutionalrights. The FTCA was subsequently amended to make actionable conduct “of investigative or law enforcement officers of the United States Govern- ment” involving assault, battery, false IMPRISON- MENT ,falsearrest,ABUSE OF PROCESS,orMALICIOUS PROSECUTION . This inclusion does not repeal the personal liability of the officers themselves, but it does make it more likely that a PLAINTIFF will seek to sue the government, because the government has more money than its employees. The government is also liable for torts such as TRESPASS and invasion of privacy. In 1988 the Supreme Court significantly altered the balance between the PUBLIC INTEREST in granting federal employees immunity from personal suits and the right to sue those employees personally for damages caused by their conduct. In Westfa ll v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), the Court ruled that a federal employee is not absolutely immune for official actions “unless the challenged conduct is within the outer perimeter of an official’s duties and is discretionary in nature.” Westfall denied most rank- and-file federal employees immunity from lawsuits against them personally for common-law torts committed in the SCOPE OF EMPLOYMENT. In response, Congress quickly passed the Federal Employees Reform and Tort Compen- sation Act of 1988 (102 Stat. 4563) as an amendment to the FTCA. The act overruled Westfall by broadening the class of activities given immunity. Originally limited to the operation of motor vehicles, the act gave immunity to any wrongful or negligent act that an employee commits while acting within the scope of his or her office or employment. Congress required the government to accept sole responsibility for its employees’ actions in the scope of employment, leaving those employees free to administer government policies without fear of personal liability. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 390 FEDERAL TORT CLAIMS ACT FURTHER READINGS Hill, Barry T. 2000. Federal Tort Claims Act: Issues Affecting Coverage for Tribal Self-Determination Contracts. Testi- mony before the Committee on Indian Affairs, U.S. Senate. Washington, D.C.: U.S. Government Account- ing Office. Morris, Daniel A. 1991. “Federal Employees’ Liability Since the Federal Employees Liability Reform & Tort Compensation Act of 1988 (The Westfall Act).” Creighton Law Review 25. Niles, Mark C. 2002. “‘Nothing But Mischief ’: The Federal Tort Claims Act and the Scope of Discretionary Immunity.” Administrative Law Review 54 (fall). Reynolds, Osborne M., Jr. 1989. “The Discretionary Function Exception of the Federal Tort Claims Act: Time for Reconsideration.” Oklahoma Law Review 42. Zabel, Matthew L. 2003. “Advisory Juries and their Use and Misuse in Federal Tort Claims Act Cases.” Brigham Young Univ. Law Review (winter). CROSS REFERENCE Feres Doctrine. FEDERAL TRADE COMMISSION The Federal Trade Commission (FTC) is an independent federal regulatory agency charged with the responsibility of promoting fair competition among rivals in the marketplace by preventing unfair and deceptive trade practices and restraining the growth of monop- olies that tend to lessen free trade. The Federal Trade Commission was established on September 26, 1914, by the Federal Trade Commission Act (15 U.S.C. 41 et seq). Created by Congress at the urging of President Woodrow Wilson, the FTC was designed to regulate trusts and prevent UNFAIR COMPETITION in interstate commerce. The FTC succeeded the Bureau of Corporations as the federal agency in charge of regulating unfair and non-competitive trade practices. The FTC’s creation was supported both by anti-monopolists seeking to halt “unfair competition” that resulted from the trust building actions of larger corporations and by business- men seeking “fairness” as a basis for greater order and stability in the marketplace. The FTC is composed of five commissioners appointed by the PRESIDENT OF THE UNITED STATES, with the ADVICE AND CONSENT of the Senate, for a term of seven years. Not more than three of the commissioners may be members of the same political party. One commissioner is designated by the president as chairman of the commission and is responsible for its administrative management. Generally speaking, the FTC is bestowed with the power to oversee, issue, and enforce federal rules, regulations, and laws governing unfair competition among businesses in the United States. Under the Sherman Antitrust Act (15 U.S.C. § 1) and Clayton Antitrust Act (15 U.S.C. § 18), the FTC is charged with the duty of applying the so-called “Rule of Reason” to disputes of unfair competition. Under this rule, restraints of trade are deemed unlawful only to the extent they are “unreasonable.” Specifically, the FTC’s functions include: (1) promoting compet ition through the preven- tion of general trade restraints such as PRICE- FIXING agreements, boycotts, illegal combinations of competitors, and other unfair methods of competition; (2) stopping corporate mergers, acquisitions, or joint ventures that substantially lessen competition or tend to create a MONOPOLY; (3) preventing interlocking directorates (an interlocking director is a director who simula- neously serves on the boards of two or more corporations that deal with each other or have allied interests.) that may restrain competition; (4) preventing the dissemination of false or deceptive advertisements of consumer products and services; (5) ensuring the truthful labeling of products; (6) promoting ELECTRONIC COMMERCE by stopping FRAUD on the INTERNET and developing policies to safeguard online privacy of personal information; (7) stopping FRAUDULENT telemar- keting schemes and protecting consumers from abusive and deceptive telephone tactics; (8) requiring creditors to disclose in writing certain cost information, such as the ANNUAL PERCENTAGE RATE , before consumers enter into credit transactions; (9) protecting consumers against circulation of inaccurate or obsolete credit reports and ensuring tha t credit bureaus, consumer reporting agencies, credit grantors, and bill collect ors exercise their responsibilities i n a manner that is fair and equitable; (10) educating consumers and businesses about their rights and responsibilities under FTC rules and regulations; and (11) gathering factual data concerning economic and business conditions and making it available t o t he Congr ess, the president, and the public. The FTC discharges many of these responsibilities by holding hearings, soliciting public and expert feedback, and conducting investigations in areas of concern to consumers. Based on the formal testimony and other informal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEDERAL TRADE COMMISSION 391 information provided at these hearings and gathered during investigations, the FTC will issue a temporary or proposed rule, after which it will normally solicit more feedback either in writing or again through additional hearings. If a significant portion of the public disapproves of the temporary or proposed rule, the FTC may modify the rule to accommodate the public’s concerns. Otherwise, the FTC will issue a subsequent order making the temporary or proposed rule a final regulation. The commission ensures compliance with its rules and regulations by systematic and continuous review of business practices in the marketplace and by issuing cease-and-desist orders when violations are discovered. All respondents against whom such orders have been issued are required to file reports with the FTC to substantiate their compliance. In the event compliance is not obtained, or the order is subsequently violated, civil penalty proceedings may be instituted. Compliance is also ensured through volun- tary and cooperative actio n by private compa- nies in response to miscellaneous FTC guidance procedures, including non-binding staff advice, formal advisory opinions, and policy statements delineating legal requirements as to particular business practices. Through these procedures, business and industry may obtain authoritative direction and a substantial measure of certainty as to what they may do under the laws administered by the FTC. As a result, smart businesses can plan ahead to prevent being found in violation of federal trade laws. FTC investigations may originate through complaints made by a consumer or a competi- tor, the Congress, or from a federal, state, or municipal agency. The commission itself may also initiate an investigation into possible violations of the laws it administers. No formality is required in submitting a complaint. A letter giving the facts in detail, accompanied by all supporting evidence in possession of the complaining party, is sufficient. As a last resort, the FTC will commence formal litigation. Formal litigation is instituted either by issuing an administrative complaint or by filing a federal district co urt complaint charging a person, partnership, or corporation with violating one or more of the laws administered by the commission. If the charges leveled in an administrative complaint are not contested or are found to be true after a contested case, the FTC may issue an order requiring discontinuance of the unlawful practices. In addition to or IN LIEU OF an administrative proceeding initiated by a formal complaint, the FTC may request that a U.S. district court issue a preliminary or permanent injunction to halt the use of allegedly unfair or deceptive practices, to prevent an anticompetitive merger from taking place or to prevent violations of any statute enforced by the commission. As with actions taken by most other federal agencies acting pursuant to federal administrative law, parties aggrieved by an FTC action may seek review in a U.S. district court. In evaluating the lawfulness of action taken by the FTC, federal district courts have alternatively applied various standards of review, including the abuse of discretion, arbitrary and capricious, and substantial evidence standards. FURTHER READINGS Federal Trade Commission Web site. Available online at http://www.ftc.gov (accessed July 23, 2009). Unemployment Rate During the Great Depression (1929–1940) Unemployment Rate Percent Year 1930 1929 1931 1932 1933 1934 1935 1936 1937 193 8 1939 1940 SOURCE: U.S. Department of Labor, Bureau of Labor Statistics. 0 5 10 15 20 25 3.2% 8.7% 15.9% 23.6% 24.9% 21.7% 20.1% 16.9% 14.3% 19.0% 17.2% 14.6% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 392 FEDERAL TRADE COMMISSION U.S. Government Manual Web site. Available online at http://www.gpoaccess.gov/gmanual/index (accessed Ju- ly 21, 2009). Young, Stephanie J. 2003. “Federal Trade Commission Resources and Information.” Legal Reference Services Quarterly 22 (winter). CROSS REFERENCES Interstate Commerce Act; Interstate Commerce Commis- sion; Monopoly; Sherman Anti-Trust Act; Trust. FEDERAL UNEMPLOYMENT COMPENSATION ACT The Federal Unemployment Compensation Act (FUCA) was enacted by Congress to care for workers who in times of economic hardship and through NO FAULT of their own lose their job and are unable to find new employment. FUCA was first enacted in 1939, underwent substantial revision in 1954, and has been amended over the years, most recently in 1988 (42 U.S.C.A. §§ 501–504, 1101–1105). The act, originally titled the Federal Unemployment Tax Act, is designed to encourage and aid the establish- ment of state unemployment funds and pay- ments to those funds. The act provides that an employer pay an annual excise tax in the amount of a designated percentage of the total wages paid during that year. Employers with fewer than eight employees, or operating in the field of agricultural labor or domestic service, are exempt from this requirement. The unemployment insurance system in the United States and FUCA had their origins in the Great Depression of the 1930s, when high unemployment occurred. The unemployment system has three principal objectives. The first is to enhance employment opportunities through a network of employme nt services where job seekers and job openings can be matched efficiently. The second is to stabilize employment by encouraging employers to retain employees during short periods of economic downturn. The third is to minimize the economic loss of unemployment by paying benefits to persons who are unemployed. UNEMPLOYMENT COMPENSATION is a joint federal- state program. In 1995, the federal statute imposed a tax of 6.2 percent on payrolls. That tax was reduced to less than one percent if the employer was covered by a state unemployment compensation law that met standards set out in FUCA. These standards address both substan- tive matters, such as what should be the conditions of eligibility for benefits, and the procedures by which benefits are to be paid. The typical tax rates paid under state law in 1995 were lower than five percent for most employers, thus creating a substantial incentive for states to participate. An argument that this type of incentive is an unconstitutional COERCION of the states by the federal government was rejected by the U.S. Supreme Court in Chas. C. Steward Machine Co. v. Dav is, 301 U.S. 548, 57 S. Ct. 883, 81 L. Ed. 1279 (1937). This federal-state sharing of responsibility has generally worked well, but it has made it necessary to work out a number of multistate agreements to handle certain administrative problems. FEDERALISM Federalism is a principle of government that defines the relationship between the central government at the national level and its constituent units at the regional, state, or local levels. Under this principle of government, power and authority is allocated between the national and local governmental units, such that each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared. The term federalism is derived from the Latin root foedus, which means “formal Unemployment Rate in the United States, 1950–2009 a a 2009 rate represents the average as of June 2009. SOURCE: U.S. De p artment of Labor, Bureau of Labor Statistics. 5.8 9.5 4.0 5.6 7.1 4.9 5.5 5.3 0 1 2 3 4 5 6 7 8 9 10 1950 1960 1970 1980 1990 2000 2008 2009 Year Unemployment rate (percent) ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FEDERALISM 393 agreement or covenant.” It includes the inter- relationships between the states as well as between the states and the federal government. Governance in the United States takes place at various levels and branches of government, which all take part in the decision-making process. From the U.S. Supreme Court to the smallest local government, a distribution of power allows all the entities of the system to work separately while still working together as a nation. Supreme Court Justice Hugo L. Black wrote that federalism meant a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways (Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 [1971]). The Constitution lists the legislative powers of the federal government. The TENTH AMEND- MENT protects the residual powers of the states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Checks and Balances In Texas v. White, 74 U.S. (7 Wall.) 700, 19 L. Ed. 227 (1868), Justice Salmon Chase explained the necessity for the constitutional limitations that preven t concentration of power on either the state or national level: “[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” The Federalist Papers: The History of Federalism The strongest arguments for federalism were written during the RATIFICATION of the U.S. Constitution. The Federalist Papers, a set of 85 essays written by ALEXANDER HAMILTON, JAMES MADISON , and JOHN JAY, were originally published in 1787 in New York under the pen name Publius. They were meant to explain the advantages of the Constitution and to persuade New York citizens to ratify it. The essays pointed out that the Constitution would allow the principle of popular sovereignty to continue and would help prevent internal dissolution and uneven distribution of power, problems that contributed to the failure of the ARTICLES OF CONFEDERATION . The key to the endurance of the Constitu- tion, according to Madison, was that even in a democracy, the majority must not be allowed too much power; it needs to be held in check so that individual and state freedoms will be preserved. Indeed, English writer EDMUND BURKE said that in a “democracy, the majority of citizens is capable of exercising the most cruel oppression on the minority.” One check in the political process supported by the Constitution is provided by the Supreme Court, which is political ly insulate d. This check, as explai ned by Madison, “guarantee[s] the right of individuals, even the most obnoxious, to vote, speak and to be treated fairly and with respect and dignity.” The function of the judicial branch, then, was to preserve the liberty of the citizens and the states. The principle of federalism states that the greatest danger to liberty is the majority. These rights were decided “according to the rules of justice and the rights of the minor party, [not] by the superior force of an interested and overbearing majority” (The Federalist, no. 10, p. 77). Although the Supreme Court is part of the federal government, it is separate from the legislative and executive branches, and it functions as a check on the federal and state governments. The Constitution was influenced by two major philosophies: federalism and nationalism. The federalists believed in a noncentralized government. They supported the idea of a strong national government that shared authority and power with strong state and local governments. The nationalists, or neofederal- ists, believed there should be a strong central government with absolute authority over the states. When the Framers were developing the Constitution, they had four goals. First, they wanted the government to be responsive to the citizens. Second, they wanted the political system to enhance, not discourage, interaction between the government and the governed. Third, they wanted the system to allow for the coexistence of political order and liberty. And finally, they wanted the system to provide a fair GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 394 FEDERALISM way of ensuri ng that civil justice and morality would flo urish. The Constitution as eventually ratified w as labeled a bundle of compromises because it allowed for a strong central government but still conceded powers to the individua l states. In The Federalist, no. 45, Madison said, “The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The constitutional role of the states in the federal government is determined by four factors: (1) the provisions in the federal and state constitutions that either limit or guarantee the powers of the states in relation to the federal government; (2) the provisions in the Constitu- tion that give the states a role in the makeup of the government; (3) the subsequent interpretation of both sets of provisions by the courts, especially the Supreme Court; and (4) the unwritten constitutional trad itions that have informally evolved and have only recently been recognized by the federal or state constitutions or the courts. Judicial Review In the early 1990s and early 2000s, the U.S. Supreme Court continued to revisit and reshape the concept of federalism in cases pitting the powers and prerogatives of the state and federal government against each other. Perhaps the biggest changes had occurred in the judicial branch, with its power of JUDICIAL REVIEW. Judicial review allows the courts to invalidate acts of the legislative or executive branches if the courts determine that the acts are unconstitutional. The Supreme Court first exercised judicial review of national legislation in the landmark case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). The decision, written by Chief Justice JOHN MARSHALL, followed the principles of Publius in The Federalist, no. 78. The Federalist Papers were based on the principle that the Articles of CONFEDERATION were inadequate. The ideas set forth in The Federalist Papers challenged those articles and proposed a new governmental style for the Union. Judges have five sources of guidance for interpreting the Constitution: the original intention of the Framers; arguments based on the theory of the Constitution; arguments based on the Constitution’s structure; arguments based on judicial precedent; and arguments based on moral, social, and political values. Across the centuries, several justices have attempted to interpret the original, often vague intention of a document written in the late 1700s. Justice BENJAMIN N. CARDOZO said, “The great generalities of the constitution have a content and a sig- nificance that vary from age to age.” Justice JOSEPH MCKENNA wrote, “Time works changes, brings into existe nce new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the MISCHIEF which gave it birth. This is peculiarly true of constitutions” (Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 [1910]). Although it may seem unlikely that a federal body would favor states’ rights over federal, it is not uncommon. For example, in the 1991 case of Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640, the Supreme Court chose not to interfere with a state’s jurisdiction. Roger Keith Coleman had received a death sen tence, which he challenged in the Virginia state and federal courts on the basis that he was an innocent man being executed for a crime he did not commit. The case reached the U.S. Supreme Court, where the majority said, “This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus.” The Court ruled that because the state court’s decision against Coleman was based on independent and adequate state grounds, it would not review the determination. This deference to state laws is based on the idea that states are separate sovereigns with autono- my that must be taken into consideration. Federalism and the Commerce Clause Article 1, Section 8, Clause 3 of the U.S. Constitution provides that “Congress shall have power To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Known as the COMMERCE CLAUSE , this provision was originally aimed at preventing the states from enacting discrimina- tory legislation against each other. However, in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), the Supreme Court ruled that not only does the commerce clause confer upon Congress the power to regulate interstate commerce, but that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEDERALISM 395 power “may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.” The federal government’s expansive view of its own powers during the early to mid-1800s is often cited as a major reason that eleven Southern states seceded from the Union and formed the CONFEDERACY as a prelude to the American Civil War (1861–1865). But not even the Union’s victory in that conflict could resolve the constitutional debate over federalism and the limitations on congressional power under the commerce clause. The Supreme Court rendered one its most highly criticized co mmerce clause decisions in the case of Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942). The Court ruled that Congress has authority to regulate a farmer’s production of wheat even though the wheat never enters in terstate commerce but is instead consumed entirely by the farmer and his family. Whereas the production of wheat by this one farmer may not have had much impact on interstate commerce, the Court reasoned, in the aggregate, all farmers producing food solely for home consumption will have a tremendous impact on the economy by reducing demand for the food that has been sent to market. Wickard v. Filburn and its seemingly limit- less view of federal power represented the state of commerce clause jurisprudence for the next 50 years. But the Court shook surprised legal observers in U.S. v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). Lopez involved a challenge to the Gun-Free School Zones Act of 1990, which made it a crime “knowingly to possess a firearm” in a school zone, defined as “a distance of 1,000 feet from the grounds of a public, parochial or private school.” The Court struck down the law because Congress had made no findings that the private, non-commercial possession of a handgun near a public school had any impact on interstate commerce. Moreover, the Court suggested, any such finding would need to demonstrate that the regulated activity had a “substantial” impact on interstate commerce before the activity would be an appropriate one for congressional oversight. In United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), the Supreme Court applied Lopez to strike down a section of the VIOLENCE AGAINST WOMEN ACT OF 1994 (42 U.S.C.A . § 13981), which provided a civil remedy to “victims of gender-motivated violence.” The victim of an alleged RAPE by two college fo otball players had brought suit under the act against the school and the players. As in Lopez, the Court noted that the statute had “nothing to do with commerce or any sort of economic enterprise.” Nor did the statute contain, the Court emphasized, any language that would limit its application to crimes that “have an explicit connection with or effect on interstate commerce.” Finally, the Court found that the LEGISLATIVE HISTORY of the statute contained no “express congressional findings regarding the effects” of the regulated activity on inters tate commerce. The revolution in commerce clause jurisprudence started by Lopez and Morrison was slowed down by G onzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). Gonzales v. Raich involved a challenge to a section of the Controlled Substances Act (CSA), 21 U.S.C.A. §§ 841(a)(1), which prohibits the manufacture, distribution, or possession of a controlled substance, including marijuana. California law generally prohibits the possession and use of marijuana, but the state’s Compassionate Use Act of 1996 (West’s Ann. Cal. Health & Safety Code § 11362.5) permitted its use for medicinal purposes by “seriously ill” residents with the approval of a physician. Two seriously ill California residents used locally grown marijuana for medicinal purposes on their physi- cians’ recommendations. Relying on Lopez and Morrison, they argued that the CSA could no t constitutionally apply to the intrastate possession and use of marijuana for medicinal purposes in accordance with state law. The Supreme Court disagreed. The Court relied on Wickard v. Filburn in striking down the California law. As in Wickard v. Filburn, the Court in Gonzales v. Raich said that Congress had made a finding that local production and consumption of the regulated activity was still likely to have a broader economic impact. Specifically, the Court observed, Con- gress found that marijuana produced and consumed by seriously ill patients under a doctor’s supervision was still likely to enter the broader interstate market for illegal drugs and that was the market Congress was trying to eliminate via the CSA. Thus, Congress was well within its authority to prohibit states from GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 396 FEDERALISM enacting laws that authorized marijuana production and consumption under these circumstances. Given the conflicting nature of Lopez, Morrison,,andGonzales v. Raich th e legal community in the early 2000s continues to be unclear about the direction of federalism in the context of commerce clause jurisprudence. Separation of Powers and the Plain Statement Rule Another key element of federalism is the principle of SEPARATION OF POWERS. The Consti- tution’s definition of separation of powers is not specific, and the Supreme Court has struggled to interpret it. Separation of powers is based on the premise that there are three branches of federal government, each with its own enumerated power s. For example, the EXECUTIVE BRANCH , which includes the president, has veto power; the Senate and Congress, which make up the legislative branch, have the power of ADVICE AND CONSENT over the appointment of executive and judicial officers; and the courts, which make up the judicial branch, have the power of judicial review. The separation-of-powers principle has had two interpretations. The first, formalism, is rooted in the idea that the Constitution’s goal was to divide the new federal government into three defined categories, each with its own set of powers. The second interpretation, functional- ism, is based on the belief that the three branches of government are not clearly delin- eated. Functionalists believe that the goal of separation of powers is to ensure that each branch retains only as much power as is necessary for it to act as a check on the other branches. Although the interpretations appear similar, they differ in terms of what constitutes a breach of the separation of powers. A breach under formalism would be a breach under functional- ism only if the power in question either infringed on the core function of another branch or increased another branch’s power. In Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991), Justice Sandra Day O’Connor wrote that the Constitu- tion establishes a system of dual sovereignty that balances the power between the states and the federal government. At the same time, however, the SUPREMACY CLAUSE (U.S. Const. art. VI, § 2) gives the federal government “a decided advantage in this delicate balance” by guaran- teeing that Congress can make the states do what it wants if it acts within its constitutional delegation of power. O’Connor also said that the Court must assume that Congress does not “exercise lightly” this “extraordinary power” to legislate, even in areas traditionally regulated by the states. The people of a state establish the structure of their government and the qualifica- tions of those who exercise governmental authority. Such decisions are of the most “fundamental sort for a sovereign entity.” The Court in Gregory also applied the plain statement rule, requiring Congress to state clearly its intent when creating laws that may interfere with state government functions. The plain statement rule, under Gregory, serves as a check against federal regulation of the states. This rule has two tiers of inquiry: (1) Congress must clearly intend to extend a law to the states as states, and (2) Congress must outline which state activities and functions it is targeting within the sweep of federal law. Conclusion Federalism is one of the defining characteri- stics of the American form of government. The timelessness of the Constitution and the strength of the arguments presented by The Federalist Papers offer a clue to its endurance: The Framers wrote the Constitution so that it would always remain open to interpretation. Federalism’s AMBIGUITY has contributed to its longevity. FURTHER READINGS Boyer, Paul S. 2001. Oxford Companion to United States History. New York: Oxford Univ. Press_. Burke, Edmund. 1989. Reflections on the Revolution in France. Garden City, NY: Doubleday. Cardozo, Benjamin N. 1921. The Nation of the Judicial Process. New Haven, CT: Yale Univ. Press. Corpus Juris Secundum. 2002. St. Paul, MN: West. Dorsen, Norman. 1994. “How American Judges Interpret the Bill of Rights.” Constitutional Commentary 11 (fall). “Federalism—Clear Congressional Mandate Required to Preempt State Law: Gregory v. Ashcroft.” 1991. Harvard Law Review 105 (November). Gerston, Larry N. 2007. American Federalism: A Concise Introduction. Armonk, NY: M.E. Sharpe. McManamon, Mary Brigid. 1993. “Felix Frankfurter: The Architect of ‘Our Federalism.’” Georgia Law Review 27 (spring). Oxford Companion to American Law. 2002. New York: Oxford Univ. Press Savage, David G. 1995. “The Supreme Court Goes Back to Work.” American Bar Association Journal 81 (October). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEDERALISM 397 Supreme Court Tilting Toward States’ Rights? Introduction The U.S. Constitution establishes a system of federalism that allocates power, authority, and sovereignty between the federal government at the national level and its constituent units at the state and local levels. However, nowhere in the Constitution does the word federalism appear, so the term remained undefined. Nonetheless, Articles I through III expressly delegate certain powers to the three branches of the federal government, whereas the TENTH AMENDMENT expressly reserves to the states those powers not delegated to the federal government. The EQUAL PRO- TECTION and due process clauses of the FOURTEENTH AMENDMENT have been interpreted to make most of the BILL OF RIGHTS applicable to the states, whereas the NINTH AMENDMENT preserves for “the people” those rights not enumerated in the Constitution. So while the term federalism is nowhere to be found in the text of the U.S. Constitution, the principles under- lying this theory of government are deeply embedded throughout the national charter. The Framers left it for subsequent generations of Americans to work out the details, allowing them, in effect, to provide their own definition of federalism in what best can be described as an ongoing national dialogue. Over the subsequent 200 plus years, Americans carried out this dialogue by speaking to each other through their state and federal institutions and by amending the Con- stitution as a last resort. The most visible federal institutions participating in this national dialogue have been the U.S. Supreme Court and Congress. Typically, cases involving federalism-related issues have come before the Supreme Court after Con- gress has enacted a law that a state believes encroaches on its sovereignty. Until the late twentieth century, the Supreme Court leaned heavily in favor of allocating power to Congress at the expense of state sovereignty, and not surprisingly the states often took issue. But from 1993 to 2003, the jurispru- dential pendulum of the Supreme Court took a very noticeable swing back in favor of states’ rights. To understand just how pronounced this swing has been, it is important to place certain Supreme Court cases in historical context. The First 200 Years of Federalism in the United States In CHISHOLM V. GEORGIA (2 U.S. 419, 2 Dall. 419, 1 L. Ed. 440 [U.S. 1793]), the Supreme Court ruled that Article III of the federal Constitution gives the Court ORIGINAL JURISDICTION over lawsuits between a state government and the citizens of another state, even if the state being sued does not consent. The decision generated immediate opposition from 12 states and led to the RATIFICATION of the ELEVENTH AMENDMENT, which gives states SOVEREIGN IMMUNITY from being sued in federal court by citizens of other states without the consent of the state being sued. Thirty-eight years later, the Court again overstepped its bounds when it invalidated a Georgia state law regulating Cherokee Indian lands on the grounds that the law violated several U.S. treaties. Georgia ignored the Supreme Court’s decision, and President ANDREW JACKSON, an ardent states ’ rights proponent, re- fused to deploy federal troops to enforce the Court’s order (Cherokee Nation v. Georgia, 30 U.S. 1, 5 Pet. 1, 8 L. Ed. 25 [U.S. 1831]). Allocation of power to the federal government probably reached its zenith under the Supreme Court’s expansive interpretation of congressional lawmak- ing power exercised pursuant to the COMMERCE CLAUSE, which gives Congress authority to regulate matters affecting interstate commerce. In GIBBONS V. OGDEN (22 U.S. 1, 6 L. Ed. 23, 9 Wheat. 1 [U.S. 1824]), the Supreme Court ruled that the commerce clause power of Congress is “supreme, unlimited, and plenary,” ac- knowledging “no limitations, other than those prescribed in the Constitution.” More than a hundred years later, Con- gress applied this plenary power to regulate a farmer’s personal consumption of his own privately grown wheat because Congress had found that the effects of such use, when aggregated with that of other farmers, would have a substantial effect on prices in the national wheat market. The Supreme Court ruled that Congress had not exceeded the bounds of its authority under the commerce clause (Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 [U.S. 1942]). The Supreme Court deviated from its pattern of enlarging the powers of the federal government in decisions involving race relations. In DRED SCOTT V. SANDFORD ( 60 U.S. 393, 19 How. 393, 15 L. Ed. 691 [U.S. 1856]), the Court invalidated the Missouri Compromise, a federal law that outlawed SLAVERY in the northern Louisiana Territory, on the grounds that under the Constitution Congress was intended “to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from [it].” This decision exacerbated the antagonism between the slaveholding states, the free states, and the territories, antagonism that eventually culminated in the U.S. CIVIL WAR. Similarly, the Supreme Court deferred to local lawmakers in PLESSY V . FERGUSON (163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 [U.S. 1896]), which upheld the constitutionality of JIM CROW LAWS that had created a legal regime of racial SEGREGATION in the South. Federalism since 1990 Beginning in the 1990s, however, the Supreme GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 398 FEDERALISM . Statistics. 0 5 10 15 20 25 3.2% 8.7% 15.9% 23.6% 24. 9% 21.7% 20.1% 16.9% 14. 3% 19.0% 17.2% 14. 6% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD. for the coexistence of political order and liberty. And finally, they wanted the system to provide a fair GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 3 94 FEDERALISM way of ensuri ng that civil. (percent) ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FEDERALISM 393 agreement or covenant.” It includes

Định dạng
Số trang	10
Dung lượng	209,04 KB