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EVALUATE THE EXTENT TO WHICH THE CONSTITUTION PROTECTS STATE POWER.Introduction
- the constitution protects state power, as it gives states the right to prevent any
amendments which would deny them power, codi es their rights through the 10th
amendment and through the supreme court and allows them to take initiative in policy
making
Paragraph 1
- the constitution protects state power as it codi es rights of states and provides limitations on
Congress
- The 10th amendment states that any powers not reserved for the federal government should be
considered a state power
- Makes them ‘policy labs’ eg California passed pollution permits for corporations, and
Colorado and other states have legalised Marijuana
- Di erent drinking ages / driving ages / environmental policy etc etc
- Could be argued that the constitution doesn’t protect state power due to interstate commerce
clause / necessary and proper clause which has allowed the federal government to infringe on
state power
- Interstate commerce clause used to in theory ban marijuana in Gonzalez v Raich and also
force motels to accept customers of any racial background
- this arguably shows the constitution has not protected state power
- However this is a less convincing argument as the supreme court has shown itself to in most
cases rule in favour of constitutions state protection
- States have successfully taken up many cases to overturn federally imposed policy
- Eg Printz v United States- overturned the requirement for required background checks when
buying guns, as it’s a state, not federal policy
- US v Lopez
- Murphy v. NCAA (2018) struck down a federal law that prohibited states from authorizing
sports betting
- Make their own decisions on key policy: Dobbs v Jackson
- This shows that the constitution has protected state power
P2
- could be argued that the constitution does not protect state power
- Federal mandates impose national standards on states. They limit state power power by
imposing laws
- they’ve been increasing since Roosevelt in the 1930s
- Not only do they create policy restrictions, they can limit nancial freedom of states, as in
some cases they have to pay to implement the policy
- Eg, Obama’s A ordable Care Act- forces everyone to have health insurance, limiting state
choice in health care, as they all have to set up health exchanges/allow citizens to use
federal health exchanges in which they can purchase health insurance- National Federation
of Independent Business v. Sebelius
- Trump attempted to use executive power to infringe on state power by forcing the lift of
lockdown and mask mandates
- Therefore it could be argued that the constitution does not protect state power
- However Eg Obama created Obamacare (a ordable care act) which forced all states to
participate in it by establishing health insurance exchanges / purchase a plan on the federal
insurance marketplace
- Similarly Trump tried to expand federal government power through policies eg immigration,
where he threatened to take funding from ‘sanctuary cities’ (cities that limit their cooperation
with immigration law) through an executive order, and attempting to end state lockdowns
(claiming he has ‘total authority’)
- However, this argument is less convincing this executive expansion of power has not
interceded on state power which remains protected by the constitution
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, - Obamacare, although it set out to provide insurance to anyone, has been heavily watered
down in many states, with only 28 states participating in Medicaid expansion as the supreme
court deemed this couldn’t be forced onto states
- Furthermore trump did not succeed in many of his attempts for the fed gov to dominate state
power. Eg he didn’t succeed in forcing states to end lockdowns
- This shows that the constitution does largely protect state powers
-
P3
- The constitution protects state power through the amendment process
- Impossible to reduce the power of states without their consent
- Can also block any amendments they’re ideologically opposed to, as proposed amendments
need 3/4 of states to agree
- The failure to remove the electoral college through a constitutional amendment proves this,
as the electoral college bene ts smaller states by giving them large political in uence, as it
over represents smaller states like Wyoming and Alaska, who obviously won’t vote to
decrease their own power
- Also gives smaller states equal powers through the 2 senators tule
- This argument is key as it stops extreme erasing of state power
- however could be argued constitution does not protect state power as federal government scal
power has created limits on state power
- with the creation of the 16th amendment, expanding the fed govs role and allowing federal
income tax, Fiscal power of the federal government means states are reliant on it for funding,
reducing their power
- Central gov provides states with 1/4 of their total expenditure in the form of federal grants/aid
- These have conditions, so if states want access to this money they have to stick to the
requirements, eg Idaho voted down a $40 million grant for covid testing in schools
- However could be argued its not a restriction on power if they adhere to the conditions,
rather an advantage
Conclusion
The constitution protects state powers, mostly through the amendment process and restricting
congress.
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