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Congressional Retraction of Federal Court Jurisdiction to Protect the Reserved Powers of the States: the Helms Prayer Bill and a Return to First Principles
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Villanova University School of Law: Digital Repository Volume 27 Issue 5 Article 7 1982 Congressional Retraction of Federal Court Jurisdiction to Protect the Reserved Powers of the States: The Helms Prayer Bill and a Return to First Principles James McClellan Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation James McClellan, Congressional Retraction of Federal Court Jurisdiction to Protect the Reserved Powers of the States: The Helms Prayer Bill and a Return to First Principles, 27 Vill. L. Rev. 1019 (1982). Available at: https://digitalcommons.law.villanova.edu/vlr/vol27/iss5/7 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. McClellan: Congressional Retraction of Federal Court Jurisdiction to Protect 1981-82] CONGRESSIONAL RETRACTION OF FEDERAL COURT JURISDICTION TO PROTECT THE RESERVED POWERS OF THE STATES: THE HELMS PRAYER BILL AND A RETURN TO FIRST PRINCIPLES JAMES MCCLELLAN t S INCE THE EARLIEST DAYS OF THE WARREN COURT, countless bills have been introduced in Congress which would deny the federal courts jurisdiction over a great variety of subjects ranging from busing to abortion.' The exceptions clause of article III of the Constitution provides Congress with the authority to enact such bills. 2 While none of these proposed bills has been enacted into law, it is noteworthy that two have passed at least one house of Congress, and that both of these have sought to deny all federal courts, including the Supreme Court, jurisdiction over certain cases arising under the fourteenth amendment. -
Three Federalisms Randy E
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2007 Three Federalisms Randy E. Barnett Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/fwps_papers/23 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/fwps_papers THREE FEDERALISMS RANDY E. BARNETT* ABSTRACT: Debates over the importance of “federalism” are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding: Enumerated Powers Federalism in the Founding era, Fundamental Rights Federalism in the Reconstruction era, and Affirmative State Sovereignty Federalism in the post-New Deal era. In this very short essay, my objective is to reduce confusion about federalism by defining and identifying the origin of each of these different conceptions of federalism. I also suggest that, while Fundamental Rights Federalism significantly qualified Enumerated Powers Federalism, it was not until the New Deal’s expansion of federal power that Enumerated Powers Federalism was eviscerated altogether. To preserve some semblance of state discretionary power in the post-New Deal era, the Rehnquist Court developed an ahistorical Affirmative State Sovereignty Federalism that was both under- and over-inclusive of the role of federalism that is warranted by the original meaning of the Constitution as amended. In my remarks this morning, I want to explain how there are, not one, but three distinct versions of federalism that have developed since the Founding. -
Federalism in the Constitution
Federalism in the Constitution As you read each paragraph, answer the questions in the margin. The United States is one country—but it’s also a bunch of states. You When creating the Constitution, what could almost say it’s a group of states that are, well, united. When we things did we need our central created the Articles of Confederation, each state already had its own government to be able to do? government and court system, so the new Americans weren’t exactly running amok. But if the new United States was going to be able to deal with other nations, it needed one government that would speak for the entire country. It also needed one central government to do things like declare war on other countries, keep a military, and negotiate treaties with other countries. There also needed to be federal courts where citizens from different states could resolve their disputes. So, the Founders created the Constitution to do those things. Define federalism. The United States Constitution created a central government known as the federal government. The federal government deals with issues that affect the entire country. Each state also has its own state government that only handles the affairs of that state. This division of power between a central government and state governments is called federalism. The federal government gets all of its power from the Create a Venn Diagram, with labels, that shows Constitution. These federal powers are listed in the the relationship between the federal powers, Constitution. In order to keep the federal government from reserve powers, and concurrent powers. -
Constitutional Uncertainties from Presidential Tax Return Release Laws
Releasing the 1040, Not so EZ: Constitutional Uncertainties from Presidential Tax Return Release Laws# Matthew M. Ryan* Introduction ............................................................................................ 209 I. U.S. Term Limits, Inc. v. Thornton ..................................................... 211 II. What is a Qualification? ..................................................................... 212 A. Targeting a Class of Candidates .......................................... 212 B. Impermissibly Barring or Hindering Candidacy .................. 213 III. The Protection of Informational Privacy .......................................... 213 IV. Anti-Corruption Interest: Emoluments Clauses ................................ 216 V. State Power in Presidential Elections ................................................. 217 VI. Slippery Slope .................................................................................. 220 INTRODUCTION On multiple fronts, Americans are pursuing President Trump’s tax returns: a senator through legislation, a district attorney and congressional committees through investigation, and voters through protest and persuasion.1 None have succeeded. DOI: https://doi.org/10.15779/Z38KK94C89. Copyright © 2020 Matthew M. Ryan. # An extended version of this Article can be found in the Hastings Constitutional Law Quarterly. See Matthew M. Ryan, Releasing the 1040, Not so EZ: Constitutional Ambiguities Raised by State Laws Mandating Tax Return Release for Presidential Candidates, 47 HASTINGS CONST. -
Unit 2 – Chapter 4: Constitutional Authority to Regulate Business Law
Business Law 210: Unit 2 – Chapter 4: Constitutional Authority to Regulate Business Law and the Legal Environment of Business [Professor Scott Bergstedt] Slide #: 1 Slide Title: Slide 1 [Image of a comic] Audio: [No audio] Slide #: 2 Slide Title: Chapter 4: Constitutional Authority to Regulate Business Chapter 4: Constitutional Authority to Regulate Business Audio: This is Chapter 4 – constitutional law, the authority under the Constitution to regulate business. Now, there is so much that can be said about constitutional law and all we have is this one chapter and a little bit on search and seizure under the criminal section. There’s very little time to cover a whole lot, so I will give you the big picture of constitutional law so you have an idea of how it operates. Slide #: 3 Slide Title: § 1: The Constitutional Powers of Government The Constitutional Powers of Government • After the Revolutionary War the States created the Articles of Confederation with a weak national government and most power and authority resting in the States. Audio: To start with, there wasn’t a Constitution. We’ re going way back, way back, right after the Revolutionary War the states got together and they wanted to create a government. Their first attempt at the government of United States… Slide #:4 Slide Title: The Constitutional Powers of Government The Constitutional Powers of Government • Articles of Confederation failed. Audio: …was the Articles of Confederation. The Articles of Confederation basically allowed there to be a federal government. It couldn’t tax, which meant it couldn’t raise money and if it didn’t have money, you know, what could it do? Well, that’s basically it was a very weak national government with most all of the power going to the states. -
The Equal-Protection Challenge to Federal Indian Law
UNIVERSITY of PENNSYLVANIA JOURNAL of LAW & PUBLIC AFFAIRS Vol. 6 November 2020 No. 1 THE EQUAL-PROTECTION CHALLENGE TO FEDERAL INDIAN LAW Michael Doran* This article addresses a significant challenge to federal Indian law currently emerging in the federal courts. In 2013, the Supreme Court suggested that the Indian Child Welfare Act may be unconstitutional, and litigation on that question is now pending in the Fifth Circuit. The theory underlying the attack is that the statute distinguishes between Indians and non-Indians and thus uses the suspect classification of race, triggering strict scrutiny under the equal-protection component of the Due Process Clause. If the challenge to the Indian Child Welfare Act succeeds, the entirety of federal Indian law, which makes hundreds or even thousands of distinctions based on Indian descent, may be unconstitutional. This article defends the constitutionality of federal Indian law with a novel argument grounded in existing Supreme Court case law. Specifically, this article shows that the congressional plenary power over Indians and Indian tribes, which the Supreme Court has recognized for nearly a century and a half and which inevitably requires Congress to make classifications involving Indians and Indian tribes, compels the application of a rational-basis standard of review to federal Indian law. INTRODUCTION................................................................................................ 2 I. CONGRESSIONAL PLENARY POWER AND RATIONAL-BASIS REVIEW .......... 10 A. Congressional Plenary Power over Indians and Indian Tribes .......... 10 B. The Vulnerability of Morton v. Mancari .............................................. 19 * University of Virginia School of Law. For comments and criticisms, many thanks to Matthew L.M. Fletcher, Kim Forde-Mazrui, Lindsay Robertson, and George Rutherglen. -
An Example of a Concurrent Power Is
An Example Of A Concurrent Power Is Ismail claught his cryptologist ingraft immaculately or reticulately after Cass side-slip and disseminated sixthly, colonialism and heterodactyl. Superannuated Gus banes laughingly or wilts insincerely when Marcus is deadlier. Merell purges his prostatectomies nomadizes confusingly or blind after Matthaeus preoccupies and hexes between-decks, catchable and automatic. It is exclusive powers or degrees shall, that lawis exclusively to determine whether one is also define what is an example a concurrent power of many of the Sign in here to access your reading lists, saved searches and alerts. In an example, examples of education policy process in a blueprint for? Different parts of the Earth get more direct sunlight due to the tilt as the Earth rotates around the Sun. Jomtien declaration, UNCRC, MDG goals, Dakar declaration SAARC SDG charter for however which is binding on its threshold for making education a reality for many children. Do they believed that are specifically gives some countries laws forming a conditional basis; taxes as well as necessary aid of schools comes through interchange between comparableterms of. High Courts; persons entitled to remove before upcoming High Courts. The primary weakness of the Articles was beauty it did vigor give it power circuit the federal government. Concurrent Powers Historycentralcom. The concurrent powers. Tenth Amendment, one set the key questions about our federal system remains: the level of government has gotten power to regulate particular when specific policy issues to educate the needs of citizens? The marble cake. The umpire between federal bankruptcy laws? This study deals with smart important aspect of Indian federalism namely the concurrent powers of legislation visit the Constitution The following of federalism in. -
Factors Determining the Success of Congressional Efforts to Reverse Supreme Court Interpretations of the Constitution
William & Mary Law Review Volume 33 (1991-1992) Issue 2 Article 6 February 1992 Looking Down From the Hill: Factors Determining the Success of Congressional Efforts to Reverse Supreme Court Interpretations of the Constitution Mark E. Herrmann Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, and the Juvenile Law Commons Repository Citation Mark E. Herrmann, Looking Down From the Hill: Factors Determining the Success of Congressional Efforts to Reverse Supreme Court Interpretations of the Constitution, 33 Wm. & Mary L. Rev. 543 (1992), https://scholarship.law.wm.edu/wmlr/vol33/iss2/6 Copyright c 1992 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr LOOKING DOWN FROM THE HILL: FACTORS DETERMINING THE SUCCESS OF CONGRESSIONAL EFFORTS TO REVERSE SUPREME COURT INTERPRETATIONS OF THE CONSTITUTION That there ought to be one court of supreme and final juris- diction, is a proposition which is not likely to be contested.... A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases.' Throughout the 200-year history of the United States Consti- tution, frequent debate has arisen over the proper roles of the three branches of the federal government in interpreting the Constitution. The Supreme Court has, in recent years, expressed the view that the federal judiciary is supreme in the exposition of the law under the Constitution. 2 Under this view, once the Supreme Court has spoken regarding a constitutional issue, only the Court itself can alter that interpretation of the Constitution. -
Teacher's Guide
Teacher’s Guide On the Level Time Needed: Learning Objectives One Class Period Through this lesson students will be able to: Materials Needed: Compare duties of, functions of, and relationships between Student Readings & Worksheets members of legislative, executive, and judicial branches of Copy Instructions: local, state, and national government. Reading: class set, double-sided Explain how and why powers are distributed between local, Graphic organizer/Venn diagram: class state, and national governments. set, double-sided Illustrate the law making process at each level, as well as Venn diagram: transparency obligations and services of each level Powers cards: one set, single sided, Evaluate the major changes/events that have affected the cut into half sheets roles of local, state, and national government Review: class set, double-sided STEP BY STEP 1) DISTRIBUTE the reading to the class and the graphic organizer (OPTIONAL— graphic organizer can also be distributed after the reading has been completed). 2) READ through the reading pages together as a class. 3) CHECK for understanding before using the active participation activity (see teacher activity guide for instructions). 4) ASSIGN students to complete the graphic organizer individually, in pairs, or as a whole class activity. 5) REVIEW the graphic organizer together as a class. Optionally, create a transparency of the graphic organizer and allow students to approach the projector/board to fill in the graphic organizer one blank at a time. 6) PROJECT the Venn diagram and distribute “powers” cards to each student. 7) INSTRUCT students to approach the board one at a time and place the power where they think it should go. -
Legislative Department
ARTICLE I LEGISLATIVE DEPARTMENT CONTENTS Page Section 1. Legislative Powers ................................................................................................... 63 Separation of Powers and Checks and Balances ............................................................. 63 The Theory Elaborated and Implemented ................................................................ 63 Judicial Enforcement .................................................................................................. 65 Bicameralism ...................................................................................................................... 70 Enumerated, Implied, Resulting, and Inherent Powers .................................................. 71 Delegation of Legislative Power ........................................................................................ 73 Origin of the Doctrine of Nondelegability ................................................................. 73 Delegation Which Is Permissible ............................................................................... 75 Filling Up the Details .......................................................................................... 76 Contingent Legislation ........................................................................................ 76 The Effective Demise of the Nondelegation Doctrine ............................................... 78 The Regulatory State ........................................................................................... 78 -
Decentralized Forms of Government
A Practical Guide to Constitution Building: Decentralized Forms of Government Markus Böckenförde This paper appears as chapter 7 of International IDEA’s publication A Practical Guide to Constitution Building. The full Guide is available in PDF and as an e-book at <http://www.idea.int> and includes an introductory chapter (chapter 1) and chapters on principles and cross-cutting themes in constitution building (chapter 2), building a culture of human rights (chapter 3), and constitution building and the design of the executive branch, the legislature and the judiciary (chapters 4, 5 and 6). International IDEA resources on Constitution Building A Practical Guide to Constitution Building: Decentralized Forms of Government © International Institute for Democracy and Electoral Assistance (International IDEA), 2011 This publication is independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council of Member States, or those of the donors. Applications for permission to reproduce all or any part of this publication should be made to: International Institute for Democracy and Electoral Assistance (International IDEA) Strömsborg SE -103 34 Stockholm Sweden Tel: +46-8-698 37 00 Fax: +46-8-20 24 22 Email: [email protected] Website: www.idea.int Design and layout by: Turbo Design, Ramallah Printed by: Bulls Graphics, Sweden Cover design by: Turbo Design, Ramallah Cover illustration by: Sharif Sarhan ISBN: 978-91-86565-34-3 This publication is produced as part of the Constitution Building Programme implemented by International IDEA with funding from the Royal Norwegian Ministry of Foreign Affairs. -
Reading Quiz Federalism MULTIPLE CHOICE. Choose the One Alternative That Best Completes the Statement Or Answers the Question
Reading Quiz Federalism MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question. 1) Federalism refers to a A) relationship between the national and state governments. B) relationship among the state governments. C) political system in which power is vested in the state governments. D) political system in which power is vested in the national government. 2) In Federalist #51, James Madison highlights the uniques structure of governmental powers, characterizing them as, A) "[Creating] double security...to the rights of the people." B) "Subdivided among distinct and separate departments." C) "Divided between two distinct governments." D) all of the above 3) The Framers created the federal system in order to A) establish a more democratic political system that was also efficient. B) remedy problems experienced by the Framers under the Articles of Confederation. C) establish a powerful central government and minimize the authority of state and local governments. D) preserve power for the elite in society. 4) Under the Constitution, national and state governments are A) endowed with exclusively separate powers. B) totally autonomous. C) accountable to the people. D) inherently separate spheres of government. 5) The supremacy clause is found in A) the Preamble. B) the Declaration of Independence. C) Article IV. D) Article II. 6) In situations of conflict between state and national law, national law prevails due to A) full faith and credit. B) the Tenth Amendment. C) federalism. D) the supremacy clause. 7) ________ conflicts with the supremacy clause. A) The elastic clause B) Full faith and credit clause C) Federalism D) The Tenth Amendment 8) Police powers are the basis for A) interstate commerce.