>>Really? What is the theoretical basis?
Ninth Amendment, Tenth Amendment, Eleventh Amendment, the body of the Constitution itself, the Federalist Papers, English Common Law, American Common Law.
>>Has it ever been invoked?
Absolutely. All the time. Probably every year the SCOTUS addresses some issue involving federal-state relations, and the lower courts certainly do.
As one example, the US Congress could not tell the states to raise the drinking age to 21, and could not pass a national law raising the drinking age to 21, but what they COULD do is tell the states that if they didn't raise the drinking age to 21, no state highway money.
This is what I call the carrot rather than stick approach.
Whenever the US Congress oversteps its bounds using the stick approach, the states sue them. But the litigation isn't easy to follow, and doesn't get reported except in national papers like the NYTimes, Washington Post, Wall Street Journal, and it's always reported on a really abstract level, so you probably don't pay attention. The keyword is usually preemption.
One issue you just read about was about suing HMOs, whether ERISA preempts state personal injury laws. Bet you didn't realize that was about federalism. |
