Legislative Powers

The landmark case which essentially determined whether Congress would have constitutional authority to govern the various states of the union was McCulloch v. Maryland (1819). On the surface the Court was to determine whether Maryland had the power to tax a national bank. However, Chief Justice Marshall, who is to the Supreme Court what George Washington is to the presidency, chose to address the broader issue of legislative versus state power in his historic opinion. Marshall's opinion would set the precedent for defining the range of the "necessary and proper" clause of Article I, Section 8 of the Constitution. In effect, Marshall ruled that when state and federal laws conflicted, states must defer to the federal statute. "The government of the United States, though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land" (McCulloch). This ruling served to clarify what had been presumed to be the implied range of legislative power vis-a-vis the states outlined in the Constitution.

The Court has elsewhere upheld congressional rule over state law in South Carolina v. Katzenbach (1966). Here Southern states headed by South Carolina challenged the power of Congress to enforce provisions of the Voting Rights Act of 1965 which was designed to eliminate discrimination against black voters. In the Civil War, amendments to the Constitution authorized Congress to enforce the amendments "by appropriate legislation." In this case the Voting Rights Act was an "appropriate" means of enforcing the prohibition of discrimination against voting qualifications on the basis of race provided by the Fifteenth Amendment. South Carolina requested that Nicholas Katzenbach, the United States Attorney General at the time, be prohibited from enforcing sections of the Voting Rights Act on the grounds that it violated the Tenth Amendment. The Tenth Amendment states that the powers not delegated to the federal government "are reserved to the states." South Carolina claimed that Congress had legislated in an area, election laws, that had been reserved to the states. The Supreme Court ruled that the Voting Rights Act was an "appropriate" means of enforcing the provisions of the Fifteenth Amendment. This decision made it clear that the legislature's power to enforce Constitutional Amendments would take precedent over state's rights.

The balance of power between the federal and state governments has also been affected by policies made "outside" the Constitution. The arrangements that Congress makes with other countries through treaties can significantly impose upon state power. The question of whether this is constitutionally justified has been a subject of legal controversy. Congressional authority over arrangements made with foreign nations through treaties with regards to state authority was addressed by the Court in Missouri v. Holland (1920). In 1916 the United States had entered into a treaty with Great Britain designed to save certain species of birds from extinction. The subsequent Migratory Bird Treaty of 1918 authorized the regulation of killing, capturing, and selling of birds specified in the treaty. The state of Missouri challenged the act on the ground that it violated its Tenth Amendment rights. Justice Oliver Wendell Holmes wrote the opinion of the Court which held that the treaty did not violate the constitutional balance of power between the federal and state governments. However, the states had justifiable fears that the United States was granted the jurisdiction by this case to enter into treaties that would violate states' rights. To calm these fears a Constitutional Amendment was proposed by Senator John Bricker (the Bricker Amendment) the basic design of which was to protect states' rights against policies made by treaties with foreign nations. Although a revised version of the amendment failed by only one vote in the Senate, the concerns of the states were clearly acknowledged by Congress.

Recently the states have attempted to reclaim some of the power they have lost to Congress by imposing term limits on members of Congress. There seemed to be a legitimate opportunity for the states to succeed given that the members of the 104th Congress had campaigned in favor of term limits in their "Contract With America." However, Congress failed to pass a constitutional amendment enforcing term limits on its members, which forced states to take the initiative. Arkansas passed a state statute limiting the terms of members of the United States House of Representatives to six years and the terms of United States Senators to 12 years. In U.S. Term Limits v. Thornton (1995) the Court ruled that Arkansas did not have the authority to determine the qualifications for service in the United States Congress. Justice John Paul Stevens explained that the Constitution already provides the qualifications for service in Article I, Sections 2, 4, and 6 and any attempt by the states to alter these qualifications was unconstitutional. Justice Stevens held that the Arkansas petitioners' attempt to limit the terms of members of Congress "must fall because it is an indirect attempt to evade the Qualifications Clauses' requirements and trivializes the basic democratic principles underlying those Clauses" (Thornton).