Our nation divides power among the federal government and the states. As Justice Anthony Kennedy famously put it, “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”
This division of power raises a host of complicated questions, often litigated by state attorney general offices. The examples below reflect just a few areas of federalism law, which is very complex.
Example 1:
Congress’s powers are broad but are limited to those enumerated in the Constitution. Courts sometimes must resolve whether a federal law falls within one of those enumerated powers. For example, a group of states contended that the individual mandate in the Affordable Care Act exceeded Congress’s powers.
Example 2:
Congress may remedy constitutional violations by the states through its power under section 5 of the Fourteenth Amendment. The Supreme Court has often been asked to resolve whether states’ past actions justified federal legislation under section 5.
Example 3:
Under the “anti-commandeering” doctrine, Congress cannot compel state legislatures to enact specific legislation or conscript state officers to enforce federal laws.
Example 4:
Under its Spending Clause power, Congress can attach conditions to the states’ receipt of federal funds. Litigation has sometimes arisen over the validity of those conditions, such as, for example, whether they are unduly coercive.
Example 5:
States retain sovereign immunity from lawsuits, but Congress may abrogate that immunity in limited circumstances. The Supreme Court has heard many cases addressing whether Congress validly abrogated the states’ immunity.
Example 6:
When state and federal law conflict, federal law prevails under the Supremacy Clause and is said to “preempt” the state law. The doctrine of preemption is complicated and frequently litigated.
Example 7:
State laws sometimes arguably regulate what takes place in other states. Such laws have been challenged under the so-called “dormant” Commerce Clause.
Example 8:
Many federal laws, most notably 42 U.S.C. § 1983, create a federal cause of action to sue state officials for violating federal law. Lawsuits under § 1983 have raised a host of issues, including which federal statutes create rights enforceable through § 1983 and when state officials have qualified immunity from § 1983 damages actions.
State attorney general offices often challenge federal actions based on federalism principles, and they sometimes must defend state laws and enforcement actions against claims that they overstep the states’ role in our federal system. Federalism will continue to be a major issue for the attorneys general in the years ahead.
