US government question - is anything truly reserved to the states?
July 3, 2024 10:56 AM Subscribe
So in theory many things are reserved to the states, but what if the federal government just...passes a law saying that they are not?
Can the federal government, eg, pass a law that says, "states can't set their own minimum wage, the federal one is all you get" or "there will be no minimum wage in the United States"?
Can they pass a law that says that women can't own property without a man to guarantee the ownership? Can they pass a law that says no one can employ gay people? Can they pass a law that all government jobs are whites-only?
Can they pass a law that says that certain crimes must be punished be execution?
In short, if the GOP has Congress, the Supreme Court and the presidency, is there anything they can't do other than what is specifically prohibited in the constitution?
Can the federal government, eg, pass a law that says, "states can't set their own minimum wage, the federal one is all you get" or "there will be no minimum wage in the United States"?
Can they pass a law that says that women can't own property without a man to guarantee the ownership? Can they pass a law that says no one can employ gay people? Can they pass a law that all government jobs are whites-only?
Can they pass a law that says that certain crimes must be punished be execution?
In short, if the GOP has Congress, the Supreme Court and the presidency, is there anything they can't do other than what is specifically prohibited in the constitution?
If you're watching the attempts to pass data-privacy bills in the US, one of the sticking points is federal preemption of stronger state laws. So yes, the feds can take over state law, and it doesn't even seem to be hard.
posted by humbug at 11:29 AM on July 3 [1 favorite]
posted by humbug at 11:29 AM on July 3 [1 favorite]
Response by poster: So the federal government could, eg, pass a law saying that if you hire gay faculty, your can't have any NIH funding, or that if you let women have bank accounts your citizens don't get Medicare? Or that women's social security had to be paid to a man or it wouldn't be issued?
posted by Frowner at 11:30 AM on July 3 [1 favorite]
posted by Frowner at 11:30 AM on July 3 [1 favorite]
In theory the federal government can only do those things it is authorized to do in the Constitution. Federal laws do get overturned by the courts as exceeding their authority.
The explicit list of areas Congress has jurisdiction over isn't that long. It's listed in Article I, with additional powers added via amendment. But several phrases and jurisdictions are elastic enough to give quite broad powers. These include, for example, the ability to "regulate interstate commerce" (and almost everything hits interstate commerce), the "necessary and proper" line, the power to tax states and individuals, and the power to protect rights and ensure due protection of law that comes from the 14th amendment. The pre-emption clause means that when the federal government acts within its scope, it's laws do overrule state laws.
Even with all of this, a lot of federal-seeming rules are actually things that say "We will fund your state program, as long as you abide by these sets of rules." The states are frequently free to do something different, but would lose access to federal money. What can be done ends up being very complicated and the details are beyond me. But (for example) it's been established that the federal government usually can't co-opt state officials to enforce federal law--so a federal rule that you need to punish marijuana smoking with the death penalty couldn't force states to use their police or courts to enforce this law.
The question of what Constitutional limits there are on federal power depends on the Supreme Court. How much leeway the Court gives the federal government, and which justifications they find compelling, does shift over time. I get why people are worried with this Supreme Court. If they are willing to throw out any precedent, then any legal answer to this question is kind of meaningless.
In practical terms, the ultimate backstop for protections is the political process, meaning in a very broad sense. It's not just elections; states and communities can simply ignore a lot of unpopular rules.
Going back to the purely legal sense, and if you want to assume some adherence to precedent, most of what you list would be invalid. A lot of the specific laws you suggest don't just exceed the traditionally understood federal scope, they clearly violate the Constitution ("Only white people," for example, violates the 14th amendment.) The only one I think would be a question would be minimum wage laws--you conceivably could make an interstate commerce argument that this is something the federal government can regulate, especially with remote work.
posted by mark k at 11:33 AM on July 3 [3 favorites]
The explicit list of areas Congress has jurisdiction over isn't that long. It's listed in Article I, with additional powers added via amendment. But several phrases and jurisdictions are elastic enough to give quite broad powers. These include, for example, the ability to "regulate interstate commerce" (and almost everything hits interstate commerce), the "necessary and proper" line, the power to tax states and individuals, and the power to protect rights and ensure due protection of law that comes from the 14th amendment. The pre-emption clause means that when the federal government acts within its scope, it's laws do overrule state laws.
Even with all of this, a lot of federal-seeming rules are actually things that say "We will fund your state program, as long as you abide by these sets of rules." The states are frequently free to do something different, but would lose access to federal money. What can be done ends up being very complicated and the details are beyond me. But (for example) it's been established that the federal government usually can't co-opt state officials to enforce federal law--so a federal rule that you need to punish marijuana smoking with the death penalty couldn't force states to use their police or courts to enforce this law.
The question of what Constitutional limits there are on federal power depends on the Supreme Court. How much leeway the Court gives the federal government, and which justifications they find compelling, does shift over time. I get why people are worried with this Supreme Court. If they are willing to throw out any precedent, then any legal answer to this question is kind of meaningless.
In practical terms, the ultimate backstop for protections is the political process, meaning in a very broad sense. It's not just elections; states and communities can simply ignore a lot of unpopular rules.
Going back to the purely legal sense, and if you want to assume some adherence to precedent, most of what you list would be invalid. A lot of the specific laws you suggest don't just exceed the traditionally understood federal scope, they clearly violate the Constitution ("Only white people," for example, violates the 14th amendment.) The only one I think would be a question would be minimum wage laws--you conceivably could make an interstate commerce argument that this is something the federal government can regulate, especially with remote work.
posted by mark k at 11:33 AM on July 3 [3 favorites]
The different things you're describing have a bunch of different systems behind them. Like, if fundamentalists who believed women shouldn't have money completely captured the banking regulators, then they could prevent banks from making loans to women. I can't say it won't happen, but given the level of accounting wonkery and the layers of new oversight that would have to be put into place, I can say it's highly unlikely on both a political and a practical level.
posted by chesty_a_arthur at 11:42 AM on July 3 [1 favorite]
posted by chesty_a_arthur at 11:42 AM on July 3 [1 favorite]
I mean, an unhinged Congress could pass a law against gravity, but without enforcement mechanisms, shit is going to keep falling over.
posted by chesty_a_arthur at 11:43 AM on July 3 [3 favorites]
posted by chesty_a_arthur at 11:43 AM on July 3 [3 favorites]
Those laws would certainly be challenged in court, and as chesty_a_arthur says, there would probably be an injunction in place until the Supreme Court hears a case and makes a ruling, because those laws are out of the scope of what the constitution authorizes, (Article 1) or are obviously otherwise unconstitutional.
However, the Supreme Court decides what the constitution means, and technically has no restrictions on what reasoning they use or what decision they hand down. They don't even have to explain their reasoning.
So sort of yes. With all three branches of the government corrupt and colluding with each other, and willing to throw out all precedent and willing to violate the constitution openly, all of those things you cite would be possible. But we're well past any semblance of 'law' as we think of it at that point.
In practical terms, it would come down to what laws people and states ignore, and who can, or would, enforce them.
posted by mrgoat at 11:50 AM on July 3 [1 favorite]
However, the Supreme Court decides what the constitution means, and technically has no restrictions on what reasoning they use or what decision they hand down. They don't even have to explain their reasoning.
So sort of yes. With all three branches of the government corrupt and colluding with each other, and willing to throw out all precedent and willing to violate the constitution openly, all of those things you cite would be possible. But we're well past any semblance of 'law' as we think of it at that point.
In practical terms, it would come down to what laws people and states ignore, and who can, or would, enforce them.
posted by mrgoat at 11:50 AM on July 3 [1 favorite]
So the federal government could, eg, pass a law saying that if you hire gay faculty, your can't have any NIH funding, or that if you let women have bank accounts your citizens don't get Medicare? Or that women's social security had to be paid to a man or it wouldn't be issued?
There is some precedent that the there is a limit to this lever; it can't be too coercive. Roberts used that to shut down required Medicaid expansion under the ACA: the deal was states were told to expand medicaid or lose federal medicaid funding entirely. See here.
posted by damayanti at 12:06 PM on July 3 [3 favorites]
There is some precedent that the there is a limit to this lever; it can't be too coercive. Roberts used that to shut down required Medicaid expansion under the ACA: the deal was states were told to expand medicaid or lose federal medicaid funding entirely. See here.
posted by damayanti at 12:06 PM on July 3 [3 favorites]
The history of internet filtering in public libraries may be instructive here. Congress tried more direct censorship in libraries; the Supreme Court shut them down. So they tied filtering to E-Rate funding, which is stay-open-at-all money for a lot of US public libraries, and here we are.
posted by humbug at 12:15 PM on July 3
posted by humbug at 12:15 PM on July 3
this is one of the reasons why the Bill of Rights is important, esp. Amendments 9:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
& 10:
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.
e.g. in the text of a recent decision power is “returned to the people" [Cornell]
posted by HearHere at 12:44 PM on July 3
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
& 10:
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.
e.g. in the text of a recent decision power is “returned to the people" [Cornell]
posted by HearHere at 12:44 PM on July 3
The federal government could, to take a random example, pass a law that makes it illegal to sell or possess marijuana. And, continuing that example, 24 states can tell the feds to take a flying leap.
posted by Tell Me No Lies at 2:01 PM on July 3 [4 favorites]
posted by Tell Me No Lies at 2:01 PM on July 3 [4 favorites]
IANAL, but things like the federal minimum wage have been established under the "interstate commerce clause" power allocated to Congress in Article I of the Constitution.
In the case of federal marijuana laws, the government has chosen not to enforce federal possession and distribution laws laws. A determined executive branch could, however, send in federal agents -- likely DEA and/or FBI -- unless the Federal laws are changed.
For criminal penalties, the federal government can only pass sentencing rules for federal crimes. There are some ways to create federal offenses that overlap with state offenses to some degree, however.
In the case of some of the hypothetical laws regarding discriminatory hiring or banking practices, those laws might be read as effectively repealing the Civil Rights Act and other las, such as the Equal Credit Opportunity Act of 1974, which used the Commerce Clause power to enforce antidiscrimination practices.
This would not stop individual states from passing and enforcing stricter antidiscrimination laws, though it's possible there could be nasty court fights regarding the impact of the commerce clause.
In theory, it would be possible to essentially legalize numerous forms of discrimination at the federal level without any Congressional action. The executive branch -- which includes the Department of Justice -- could simply issue a directive to federak prosecutors and attorneys that they should not enforce parts of the Civil Rights Act and laws such as Title IX. or the aforementioned Equal Credit Opportunity Act. It's not clear that a court could force the executive branch to enforce these acts due to the separation of powers.
This is essentially how those 24 states mentioned by Tell Me No Lies have managed to legalize marijuana; the executive branch has simply gone along with not enforcing some federal drug laws (or at least selectively not enforcing some of them; there have been problems with banking access for dispensaries and growers, as banks are answerable to various federal regulations due to...you guessed it, the commerce clause).
posted by kewb at 2:42 PM on July 3
In the case of federal marijuana laws, the government has chosen not to enforce federal possession and distribution laws laws. A determined executive branch could, however, send in federal agents -- likely DEA and/or FBI -- unless the Federal laws are changed.
For criminal penalties, the federal government can only pass sentencing rules for federal crimes. There are some ways to create federal offenses that overlap with state offenses to some degree, however.
In the case of some of the hypothetical laws regarding discriminatory hiring or banking practices, those laws might be read as effectively repealing the Civil Rights Act and other las, such as the Equal Credit Opportunity Act of 1974, which used the Commerce Clause power to enforce antidiscrimination practices.
This would not stop individual states from passing and enforcing stricter antidiscrimination laws, though it's possible there could be nasty court fights regarding the impact of the commerce clause.
In theory, it would be possible to essentially legalize numerous forms of discrimination at the federal level without any Congressional action. The executive branch -- which includes the Department of Justice -- could simply issue a directive to federak prosecutors and attorneys that they should not enforce parts of the Civil Rights Act and laws such as Title IX. or the aforementioned Equal Credit Opportunity Act. It's not clear that a court could force the executive branch to enforce these acts due to the separation of powers.
This is essentially how those 24 states mentioned by Tell Me No Lies have managed to legalize marijuana; the executive branch has simply gone along with not enforcing some federal drug laws (or at least selectively not enforcing some of them; there have been problems with banking access for dispensaries and growers, as banks are answerable to various federal regulations due to...you guessed it, the commerce clause).
posted by kewb at 2:42 PM on July 3
This is where I am viking. Let's look at the minimum wage.
A key part of the Progressive Era (early 20th C) was improving workers rights so many states had passed various minimum wage laws but in 1923 the Supreme Court struck these laws down as government interference in people being able to "freely negotiate contracts". So the Supreme Court decided then that states could not have their own minimum wages (or variations).
At the start of the Great Depression the Federal government passed the National Industrial Recovery Act of 1933 which included a federal minimum wage - and again this was struck down by the Supreme Court. This is the whole 'checks and balances' process working as intended.
It wasn't until Fair Labor Standards Act of 1938 that the US saw the adoption of a federal minimum wage. And there is a couple of important factors. The most important was what changed in those five years was the end of the Lochner era. This was a period where the Supreme Court took on a very conservative activist role. The court deregulated banking and insurance (which had a role in the Great Depression), struck down federal laws prohibiting child labor, minimum wage and many other pieces of progressive legislation.
I think it's worth quoting a much later member of the Supreme Court, Chief Justice John Roberts who stated "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." Seems relevant these days, but maybe he forgot.
But the second factor, and back to your question: the federal minimum wage law is carefully constructed with major limitations. For example, the federal law ONLY applies to business that engage in interstate commerce. And that is because interstate commerce is firmly in the federal domain of power.
What that means, in 2024, is that if your business doesn't sell it's products or services across a state line you don't have to pay the federal minimum wage, or any other minimum in the following states:
And there are many other exemptions to the federal law:
So the federal law, technically, only applies to organizations that are engaged in federal level activity, and even then is not universal. The federal government cannot constitutionally pass a law that says, "states can't set their own minimum wage, the federal one is all you get". The Supreme Court can and has ruled that "there will be no minimum wage in the United States" but if the federal government tried to impose that particular rule via legislation on the states it would be challenged and likely fail. In politics generally it is easier to veto something than propose it.
posted by zenon at 2:52 PM on July 3 [6 favorites]
A key part of the Progressive Era (early 20th C) was improving workers rights so many states had passed various minimum wage laws but in 1923 the Supreme Court struck these laws down as government interference in people being able to "freely negotiate contracts". So the Supreme Court decided then that states could not have their own minimum wages (or variations).
At the start of the Great Depression the Federal government passed the National Industrial Recovery Act of 1933 which included a federal minimum wage - and again this was struck down by the Supreme Court. This is the whole 'checks and balances' process working as intended.
It wasn't until Fair Labor Standards Act of 1938 that the US saw the adoption of a federal minimum wage. And there is a couple of important factors. The most important was what changed in those five years was the end of the Lochner era. This was a period where the Supreme Court took on a very conservative activist role. The court deregulated banking and insurance (which had a role in the Great Depression), struck down federal laws prohibiting child labor, minimum wage and many other pieces of progressive legislation.
I think it's worth quoting a much later member of the Supreme Court, Chief Justice John Roberts who stated "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." Seems relevant these days, but maybe he forgot.
But the second factor, and back to your question: the federal minimum wage law is carefully constructed with major limitations. For example, the federal law ONLY applies to business that engage in interstate commerce. And that is because interstate commerce is firmly in the federal domain of power.
What that means, in 2024, is that if your business doesn't sell it's products or services across a state line you don't have to pay the federal minimum wage, or any other minimum in the following states:
- Alabama
- Louisiana
- Mississippi
- South Carolina
- Tennessee
And there are many other exemptions to the federal law:
- workers with disabilities
- prisoners
- migrant and seasonal farm workers
- tipped employees who earn a whole $30 a month in tips with the provision that if their total hourly average does not equal minimum wage the employer must make up the difference (yeaaa right)
So the federal law, technically, only applies to organizations that are engaged in federal level activity, and even then is not universal. The federal government cannot constitutionally pass a law that says, "states can't set their own minimum wage, the federal one is all you get". The Supreme Court can and has ruled that "there will be no minimum wage in the United States" but if the federal government tried to impose that particular rule via legislation on the states it would be challenged and likely fail. In politics generally it is easier to veto something than propose it.
posted by zenon at 2:52 PM on July 3 [6 favorites]
With respect to the 24 states and marijuana mentioned above, the banking issue is sort of solved based on states rights. Most growers and dispensaries don't have large safes full of cash with armed guards watching, they bank with state chartered banks rather than federally chartered banks. For example, a bank that is chartered only by NYS and has branches only in NY are not subject to the federal laws regarding taking deposits from marijuana businesses. As part of the legalization of pot in NY, the laws and regulations allowed NYS chartered banks to accept deposits and all banking functions from legal (in NY) operations.
State chartered banks cannot act as a money laundering front, by transferring money to a federally chartered bank whose account is owned by a federally illegal operator (or operation) but they can accept say a direct deposit to an individual who is working for a dispensary for wages. I am not sure if that is a strict interpretation of the law (IANAL), but it is how getting paid works in practice.
posted by JohnnyGunn at 5:43 PM on July 3
State chartered banks cannot act as a money laundering front, by transferring money to a federally chartered bank whose account is owned by a federally illegal operator (or operation) but they can accept say a direct deposit to an individual who is working for a dispensary for wages. I am not sure if that is a strict interpretation of the law (IANAL), but it is how getting paid works in practice.
posted by JohnnyGunn at 5:43 PM on July 3
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The president could sign a bill into law that said that states can't raise the minimum wage; then Massachusetts would raise it anyway. Someone would sue Massachusetts, and a court in Massachusetts might then find that the federal law is unconstitutional and put an injunction into place. Eventually either there would be a patchwork of injunctions, and either it would stay that way indefinitely or eventually the Supreme Court would hear the case and make a ruling. And that would be the law of the land until a future court saw it differently, and a case made its way onto the docket that gave it the opportunity to make a new ruling.
This also depends on nobody who was genuinely interested in states' rights standing up. So it's more likely that individual states would remove protections for previously protected classes, or limitations on gun ownership, and some states would be rootin' tootin' segregationist rodeos. Others wouldn't. I'm saying that in the conditional mood like it's not already happening.
posted by chesty_a_arthur at 11:25 AM on July 3