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The Division of Powers

Appearance attorney duties

While the separation of church and state remains an important part of our political philosophy, there’s a separation could be considered even more important; and certainly more contentious. This separation, of course, is the separation of nation and state; that is to say, the division of powers between the federal government and the states. The Framers of the Constitution would likely be flabbergasted at how unclear this division has become over time; marriage law and more has been affected by decisions passed by the Supreme Court of the United States.

When examining the division of powers, it’s important to remember the history of the country; the Thirteen Colonies were all populated by diverse groups, each with their own interests in mind. Giving the states considerable power was of twofold importance for the Framers. They feared centralized power philosophically, as central powers subjugating citizens to unfair laws and taxation is what gave rise to the War of Independence to begin with. Secondly, they needed buy-in from each of the states in order to form a successful nation; without guaranteed protections for certain privileges, it’s quite likely some of the Thirteen Colonies would not have joined the new country.

Since Independence, generally speaking, the Federal government has gained more power. In theory, the States and the Federal Government both have exclusive powers; the Feds can regulate interstate and international commerce, while the States themselves are the regulators of intrastate commerce. The Federal government can coin money, while State governments run elections. Healthcare, and public welfare in general, are regulated by the states, but the Federal government has a lot of power here. Because of their much broader tax base and income, the Federal government can offer grants in order to incentivize states to behave in a particular way.

Court cases have always been instrumental in the expansion of federal government powers. McCulloch v. Maryland established the right of the Federal Government to create a national bank unimpeded by Maryland’s attempt to tax it; the invocation of the Necessary and Proper Clause created a lasting power for the feds, and was even used in a similar Australian court case as an example of the powers any federal government would need to properly run a country. For a time, even the use of the death penalty was struck down in Furman v. Georgia when the Supreme Court ruled that it’s use constituted cruel and unusual punishment; later, when methods became less cruel and unusual, it was allowed again (Gregg v. Georgia).

There’s a plethora of other examples of federal powers expanding due to Supreme Court rulings, but the most important takeaway is that what an individual state or judge will consider federal overreach is hard to say, especially if you don’t know that court particularly well. That’s why if you can’t make a court date, it’s important to have a local, experienced appearance attorney who knows the court and it’s staff.