Powers of the Federal Government Constitution Sets

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…