The Constitution Authorizes Federal Powers

Federalist system of dual sovereignty necessarily requires that federal power is limited to only that which the Constitution allows

• Federal power comes from the U.S. Constitution

  • Specifically: maritime, bankruptcy, patents, power to make treaties, taxation, coinage

  • Impliedly: regulate commerce

• If the language and phrases of the US Constitution cannot (by the US Supreme Court) be interpreted to give federal government power over a certain subject matter, such power over that subject matter is reserved to the states via the 10th Amendment

• If Court decides that US Const. does not confer a certain power, the exercise of such power (i.e. legislation or executive action (order)) is deemed “unconstitutional”

  • SCOTUS decides, under judicial review, what do the words mean?  Do they grant such power to federal government?

• In turn, Bill of Rights (Am. 1-9) as applied by the 14th Am., are a restriction on state power over individuals

Legislative Power (Article I)

• Federal

  • Vested in Congress (U.S. Const. art. I, § 1)

    • Limited in Article 1, § 9 (e.g. no ex post facto)

    • Limited by what the interpreted words of the Constitution allow

  • Subject to Presidential veto (U.S. Const. art. I, § 7, cl. 2.)

  • Override (U.S. Const. art. I, § 7, cl. 3.)

• North Carolina Constitution largely mirrors US Constitution

  • Provides the authority for the state government to legislate those matters reserved to it by 10th Amendment or not specifically pre-empted by the US Constitution of federal legislation

Constitutional Sources of Federal Environmental Law

• “Environment” not mentioned in U.S. Constitution

  • Foreign powers on American continent were the greater threat

  • The Commerce Clause: :  “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (U.S. Const. art. I, § 8, cl. 3.)

• The Property Clause: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” (U.S. Const. art. IV, § 3, cl. 2.)

  • Example:  Regulation of public lands

• Taxing Power: The Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises… (U.S. Const. art I, § 8, cl. 1.)

  • “… shall be uniform throughout the United States”

  • Example:  pollution control taxes

• Treaty Power: “No State shall enter into any Treaty, Alliance, or Confederation….” (U.S. Const. art. 4, § 10, cl. 1)

  • Example: Migratory Bird Treaty Act of 1918 (16 U.S.C. §§ 703–712)

Executive Power (Article II) – Federal and State

President (federal)

• Issue Executive Orders

  • Source of power is not entirely clear (not mentioned in Const.)

  • “The executive Power shall be vested in a President of the United States of America” (U.S. Const. art. 2, § 1, cl. 1)

• All executive functions:  “he shall take Care that the Laws be faithfully executed” (U.S. Const. art. 2, § 3)

• Governor (state)

  • Executive function limited by elected agency heads

    • Examples:  NCDA&CS, State Auditor, Secretary of State

  • Power to issue executive orders

The Bureaucracy

• Federal Agencies created by Congress

  • Execute and administer (and enforce) laws passed by Congress

  • President may reorganize

    • Environmental Protection Agency (created by President Richard M. Nixon (1970)

    • Example:  USDA and FDA proposed reorganization

• Types of Agencies

  • Cabinet -  Fifteen that serve at pleasure of President (Ex. USDA, DOI, Energy)

  • Independent – head serves for fixed term (example: EPA, Federal Reserve)

  • Congressional – created by Congress (examples:  CBO, USPTO, LOC)

  • Judicial – Examples:  Tax Court, Bankruptcy

  • Government Corporations (examples:  Amtrak, USPS, Commodity Credit Corp)

• State agencies generally created by General Assembly

• Governed by federal Administrative Procedures Act (1947)

Judicial Power (Article III)

Supreme Court of the United States (SCOTUS)

• Only court named in U.S. Constitution (U.S. Const. art. 3, § 1)

• SCOTUS Jurisdiction:  appellate jurisdiction over laws of the United States, citizen of a state v. another state, etc. (U.S. Const. art. 3, § 2, cl. 1)

  • Grant of appellate jurisdiction is discretionary by court, called Certiorari

• SCOTUS Original Jurisdiction:  Court may hear case first (involving Ambassadors and ministers, where state is a party, etc.) (U.S. Const. art. 3, § 2, cl. 2)

  • Example: Virginia v. Tennessee, 148 U.S. 503 (1893) (boundary dispute)

“Lower” Federal Courts

• Created by Congress (Judiciary Act of 1789, ch. 20, 1 Stat. 73)

  • Appeals Circuit (map) (11 Circuits + DC Circuit)

  • District Courts (94 trial courts)

    • NC has 3 districts (Eastern – Middle – Western)

  • Bankruptcy Courts (attached to districts)

  • Tax Court, Veterans Claims, DC Appeals, Court of Claims

• Judicial Review*.  Marbury vs. Madison*, 5 U.S. (1 Cranch) 137 (1803):  Chief Justice John Marshall decides that Courts have power of Judicial Review (to review and strike down – not change – legislation)

  • Is statute unconstitutional in its making?

  • Does the statute infringe on protected liberties?

  • Does implementation of the statute violate its purpose, exceed its authority, or violate due process?

State Government Power

State Constitution (somewhat mirrors U.S. Constitution)

• North Carolina

  • Article I:  Declaration of Rights

  • Articles II, III, IV:  Legislative, Executive, and Judiciary respectively

• Under federal system, states must enact laws at least as restrictive as federal law (if the state law is not pre-empted by the federal law)

  • States can enact stricter laws (cannot infringe on rights guarantees)

  • North Carolina has limited itself from passing stricter-than-federal Environmental laws

    • N.C. Gen. Stat. § 150B-19.3 (Limitation on certain environmental rules)

• State Agencies (Art III):  parallel jurisdiction and enforcement of federal environmental laws

• State Courts (Article IV) are organized by the state and implemented in each county in uniform fashion

Local Government

Created by North Carolina General Assembly (per NC Constitution)

• “The General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable (N.C. Const. art. VII, § 1)

• May not pass laws more restrictive than state law

  • Dillon’s Rule

  • N.C.G.S. § 160A-4 (Giving local government broad construction to enforce)

• Zoning power (land use control)

• Revenue power (raise taxes)

• The North Carolina Constitution distinguishes laws of local applicability (a law that applies to fewer than 15 counties), which does not require the Governor’s signature to become law.

• Concept of Home Rule

  • New England