Federalism

Another key element of federalism is the principle of SEPARATION OF POWERS. The Constitution's definition of separation of powers is not specific, and the Supreme Court has struggled to interpret it. Separation of powers is based on the premise that there are three branches of federal government, each with its own enumerated powers. For example, the EXECUTIVE BRANCH, which includes the president, has VETO power; the Senate and Congress make up the legislative branch and have the power of advice and consent over the appointment of executive and judicial officers; and the courts make up the judicial branch and have the power of judicial review.

The SEPARATION-OF-POWERS principle has had two interpretations. The first, formalism, is rooted in the idea that the Constitution's goal was to divide the new federal government into three defined categories, each with its own set of powers. The second interpretation, functionalism, is based on the belief that the three branches of government are not clearly delineated. Functionalists believe that the goal of separation of powers is to ensure that each branch retains only as much power as is necessary for it to act as a check on the other branches.

Although the interpretations appear similar, they differ in terms of what constitutes a breach of the separation of powers. A breach under formalism would be a breach under functionalism only if the power in question either infringed on the core function of another branch or increased another branch's power.

In Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991), Justice SANDRA DAY O'CONNOR wrote that the Constitution establishes a system of dual sovereignty that balances the power between the states and the federal government. At the same time, however, the Supremacy Clause (U.S. Const. art. VI, § 2) gives the federal government "a decided advantage in this delicate balance" by guaranteeing that Congress can make the states do what it wants if it acts within its constitutional delegation of power. O'Connor also said that the Court must assume that Congress does not "exercise lightly" this "extraordinary power" to legislate, even in areas traditionally regulated by the states. The people of a state establish the structure of their government and the qualifications of those who exercise governmental authority. Such decisions are of the most "fundamental sort for a sovereign entity."

The Court in Gregory also applied the plain statement rule, requiring Congress to state clearly its intent when creating laws that may interfere with state government functions. The plain statement rule, under Gregory, serves as a check against federal regulation of the states. This rule has two tiers of inquiry: (1) Congress must clearly intend to extend a law to the states as states, and (2) Congress must outline which state activities and functions it is targeting within the sweep of federal law.