Powers of the Federal Government

Powers of the Federal Government

Constitution sets for the source and scope of the national government's power and does so for the judicial, legislative, and executive branches. The Constitution sets up a form of government based on federalism in which the states are afforded the general authority to govern while the national government is granted only enumerated powers. Over the course of time, however, the national government's powers have been expanded through judicial interpretation and the use of implied powers. The expressed powers include the right to collect taxes, the power to declare war, and the right to regulate interstate and foreign trade. The judicial branch has the power to rule in any case involving the application of a federal law, where the United States is a party, or in cases where there is established diversity between the parties. The Constitution grants the federal legislature the right to legislate in specific areas and in any area that is necessary and proper to effectuate any enumerated power. Only the U.S. Congress has the authority to regulate foreign affairs. The President is the nation's chief executive and responsible for administering executive affairs.

II. The Federal System -- Intergovernmental Relations

The Constitution determines the interrelationship between the various states and the federal government. The Tenth Amendment assigns all powers not delegated to the federal government to be reserved to the states but with the expansion of the federal powers through legislation and court interpretation these powers are far more limited. Note that the Supremacy Clause prohibits the states from enacting any legislation that interferes with any form of federal legislation. States are also prohibited from discriminating against residents of other states and this concept is strengthened through the enactment and enforcement of the Fourteenth Amendment which, in essence, creates a national citizenship. Through the Fourteenth Amendment, the full application of the Constitution and the various Amendments are applied to all United States citizens.

III. Regulation and Taxation of Commerce

The federal government has the exclusive power to regulate the relations of the national government with foreign governments and also the regulation of all foreign commerce. This provision authorizes the federal government to negotiate all treaties, regardless of their nature, with all foreign governmental entities and prohibits any individual state from engaging in such activities. Similarly, although the states retain the right to regulate trade within its own borders, this provision restricts states from regulating any commerce with foreign governments. As to interstate commerce, the federal and state governments possess concurrent power. This power has been used extensively by the U.S. Supreme Court to expand the power and authority of the federal government and was, in effect, the basis of the first decision by the Court to interpret the inherent powers of the federal government in the case of Marbury v. Madison. The issue of taxation is a sensitive one and one that the states have battled strongly to retain and the Commerce Clause determines how and when taxation can be applied by the states and the federal government. Taxation can be applied at both the federal and state levels but the right of the states to tax is limited. States are permitted to assess taxes on sales consummated within the state and to goods purchased outside the state but used within the state. All taxation is subject to be determined to be reasonable and non-oppressive and must be applied equally between citizens and non-citizens alike and in order for the states to apply their taxation they must be able to establish a nexus between the goods or services and the interest of the state. This has been the subject of much debate and the source of considerable litigation.

IV. Protection of Individual Rights

The protection of individual rights was originally created through the enactment of the Bill of Rights. This protection was extended to the citizens of the individual states through the passage of the Fourteenth Amendment but not all provisions of the Bill of Rights apply to the states. It has been held that all fundamental rights are applied through the Fourteenth Amendment and the Courts have held this as the standard in determining whether a particle provision of the Bill of Rights should be applied to the individual states. On a specific basis, the full provisions of the Due Process Clause of the Fourteenth Amendment have been applied to the states while the Equal Protection Clause has only been applied when state action is present. The Courts have set forth extensive guidelines as to what constitutes proper Due Process and have also identified a long list of fundamental rights that are recognized by the Courts. These fundamental rights include, but are not limited to, the right to privacy, the right to vote, and the right to interstate travel. The Constitution also prohibits the federal government from passing any ex post facto laws and applies this prohibition to the states through the Fourteenth Amendment

V. Freedom of Speech, Press, and Association

The First Amendment of the Bill or Rights governs the rights of American citizens to hold beliefs, the right to speak and to remain quiet, and the right to associate with whomever they wish. The full extend to these rights have been determined to be fundamental and applied to the individual states through the provisions of the Fourteenth Amendment. These Rights have been provided strict protection by the Courts but they are not without restriction but all such restrictions are examined under strict scrutiny. This Amendment sets the parameters for all statutory restrictions that are directed toward what constitutes treason, defamation, or obscenity. The Amendment also addresses the issue of Freedom of the Press, both print and communication media. This provision has been subject to extensive interpretation over the course of time as the composition of the Press has changed. The First Amendment also establishes the parameters of the right of association. This right is largely unbridled unless the association is with a group or individual that has been deemed to be illegal. Groups are immune from disclosing their membership unless the government can establish a substantial government interest in such disclosure.

VI. Freedom of Religion

The First Amendment also governs the practice of religion in the United States and has been applied to the individual states through the passage of the Fourteenth Amendment. There are two primary clauses that established the application of the Freedom of Religion. The first clause is the Establishment Clause which prohibits government from either participating in the establishment of religion or to participate in any action that results in a benefit to religion. Such actions include sponsorship, financial support, or any form of active participation by the government. The second clause is the Free Exercise Clause. This clause prohibits the government from singling out any particular religion for special treatment, either good or bad, or to discriminate in any fashion against any religion. On occasion, the government may be forced to become involved in disputes involving religious bodies but must limit itself to deciding the issues on grounds other than religious doctrine. These grounds would include such areas of the law such as property, contract, or tort law. Under no circumstances can the Courts address any aspect of religious doctrine in rendering a decision. Through the years the line between Church and State has sometimes been blurred but the separation of Church and State remains a significant feature of the national government.

VII. Equal Protection

The Equal Protection Clause is applied to the states through the terms of the Fourteenth Amendment and to the Federal government through the Fifth Amendment. The Clause does not necessarily prohibit discriminatory treatment and one of three tests must be applied to determine whether the Clause should apply. The three tests are: 1) the rational basis test; 2) the strict scrutiny test; or, 3) the intermediate level of scrutiny. The most commonly applied test is the rational basis test. Most of the nation's economic and social regulations are based on this test and, in its simplest form, it can be stated that such regulations must be rationally related to a legitimate state interest. The Courts have developed an approach that has created certain suspect classes in regard to potential discrimination cases. These suspect classes, involving race and ethnicity, require that any governmental legislation that promotes discrimination against the suspect classes must satisfy a compelling state interest in order to be enforceable. Beneath the suspect class there is an additional level of review requiring intermediate scrutiny. This level of review is directed toward discrimination in matters concerning gender. In these type cases the standard of review is whether the legislation or practice being reviewed is substantially related to important governmental objectives. In most discrimination cases the standard is based on the traditional test. Examples of the type of cases where the traditional test is applied include cases and laws that pertain to the poor, the elderly, and the mentally retarded. In cases involving what the Courts have already recognized as fundamental rights, the strict scrutiny test is applied as well.

VIII. The "State Action" Requirement

In the provisions of the Constitution that protect individual rights, primarily the application of the Fourteenth Amendment and the Bill of Rights, the acts that are prohibited require governmental involvement in some form and thus the Courts have fashioned a concept identified as state action. State action is distinguished from private action and the protection of the rights guaranteed in the Bill of Rights and applied to the states through the Fourteenth Amendment only applies when the government is involved in some fashion. Without government involvement there can be no state action and thus the rights are not afforded protection. This involvement by the Government might be minimal or only tangential but it must be demonstrated conclusively in order for the Courts to consider the aggrieved party's complaint.

IX. Congressional Power to Enforce Constitutional Rights

The Constitution in the form of the Necessary and Proper Clause and the Enabling Clause is granted the power and authority to legislate in order to prevent any act that might violate a constitutional right and to fashion a remedy for any such violation. These clauses are found in the text of the Thirteenth, Fourteenth, and Fifteenth Amendments. The purpose of the Thirteenth Amendment is to prohibit discrimination in regard to blacks, and in a minor regard, toward whites as well. The Fourteenth Amendment has been used widely by the Courts to protect the Constitutional Rights of individuals through the application of the Equal Protection and Due Process Clauses. Finally, the Fifteenth Amendment addresses the issue of discrimination in the area of voting rights. This Amendment in conjunction with the provisions of the Enabling Clause provides Congress with considerable remedial powers regarding voting rights violations. Congress has also been afforded additional enforcement powers in regard to discrimination as the result of the passage of the Civil Rights Act of 1964, interpretations of the Commerce Clause by the Courts, and the taxing and spending powers contained in the body of the Constitution.

X. Safeguards in the Administration of Criminal Justice

The federal government's involvement in the administration of the country's criminal justice system has increased in recent years as federal legislation in regard to criminal conduct has become more extensive and the rights of the criminally accused has expanded. The Supreme Court has extended the rights guaranteed the accused in the Constitution to the individual states through the Fourteenth Amendment. These rights include the prohibition against the use of involuntary confessions, the privilege against self-incrimination, and the use of evidence obtained through illegal search and seizure. The language regarding involuntary confessions and self-incrimination are found in the Fifth Amendment while the language regarding illegal search and seizure is found in the Fourth Amendment. The Constitution guarantees the right to trial by jury in all serious cases and this right has been extended to the states through the Fourteenth Amendment. Each state retains the right to determine the precise procedure involved but the right to trial by jury is guaranteed in each state. The large measure of enforcement in the area of criminal justice remains in the hands of the state governments subject to the protections that have been guaranteed by the Bill of Rights. In most criminal cases, there is no involvement by the federal government, however, the federal criminal code has increased substantially particularly in the area of drug enforcement and, as a result, considerable overlapping has occurred between the state and federal courts in this area. The Federal government is involved in criminal justice administration through the issuance of Executive Orders and the establishment of an extensive system of administrative agencies and commissions. As the court of last resort, the Supreme Court may only review cases involving federal questions.

The United States Constitution

The United States Constitution is the essential defining document for all power and authority for the various governments operating within the borders of the United States. It defines the powers on the federal government and establishes the basic rule of law operating throughout all the states. It provides a framework for establishing a consistent and predictable operation of government. In doing so the Constitution must be rigid enough to accomplish these goals yet still be open to interpretation as conditions in society change. In this regard, the U.S. Constitution has demonstrated remarkable resilience having been amended only 27 times since its enactment and only 17 times since the original ten amendments, known as the Bill of Rights, were enacted shortly after the original ratification of the Constitution.

The first three Articles to the Constitution set forth the form of the federal government. Article I establishes the framework of the legislative branch of the government and divides said branch into two separate Houses: the Senate and the House of Representatives. This article also set forth the various responsibilities of each branch and how the differing bodies interact in regard to the passage of legislation.

Article II of the Constitution sets for the power and authority of the Executive branch of the government and establishes the position of the President of the United States. The article demonstrates the resilience of the Constitution in that the power and authority of this branch of the government has expanded far more broadly than any other branch in response to changes in society. The Article, however, does set forth the powers of the Executive in broad enough terms to justify this expansion.

The federal judicial system is established and administered through the provisions of Article III. This Article sets forth the procedure for the appointment of federal judges, the basis for judicial review, and the jurisdiction of the federal judiciary. The powers of the federal judiciary, like those of the executive branch, have expanded as the nation has grown older demonstrating again the wisdom of the original drafters of the Constitution.