Framing the Issue of Federal Supremacy: A Journey From the Articles of Confederation to Obamacare

Posted By: Connor Maag, Dane Lystrup, Erik Knapp, Dikranouhi Krikorian, Olen Lenets, Evan Malady, Derick Lysene, Alexander Lindvall

Articles of ConfederationIntroduction

The United States government consists of two separate systems of government: the federal government and the state governments. The Articles of Confederation was the nation’s first attempt at defining the relationship between these two systems, but the Articles led to numerous problems caused by a lack of federal power over the states—a lack of “federal supremacy.” The difficulty of enforcing federal supremacy under the Articles of Confederation was one of the main reasons for calling the 1787 Constitutional Convention, because certain barriers existed in the Articles that made enforcing federal supremacy difficult. The framers of the Constitution thought they found a few solutions to this problem. However, the combined effects of the Supreme Court’s decisions since 1986 on the Tenth Amendment, the Eleventh Amendment, and the ability to use the spending “carrot” discussed in the Medicaid expansion section of National Federation of Independent Business v. Sebelius (The “Obamacare Opinion”)  have narrowed the federal government’s power over the states.

Barriers to Federal Supremacy in the Articles of Confederation

After declaring independence from Great Britain, the United States struggled to create a governing document for their young nation. The States had declared their independence, but were left with the task of functioning on their own, independent of their former King. The States’ first attempt at a governing document was the Articles of Confederation, which governed this new nation from 1781 until the United States Constitution was ratified in 1789. The Articles declared each state an independent sovereign, but there would also be an independent federal government with a limited role in the affairs of these sovereign states. The Articles had to address the balance of power between these two co-existing government structures: the national federal government and the state governments.

Fearing government tyranny, like that exercised by Great Britain’s King George III, from which the States had recently departed, Article II of the Articles of Confederation states that “each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled” (emphasis added). The inclusion of the word “expressly” limited the federal government’s power to act only when the Articles expressly designated a power to the national government.

Constitutional ConventionUnlike the modern United States government, the federal government under the Articles operated entirely by the votes of state representatives. The Articles established a single branch of government: The Congress of Confederation. Perhaps with too much focus on states’ independence from the national government, the Articles contained no mechanism for enforcing national supremacy when these Congressmen acted contrary to the will or goals of the federal government. Also, under the Articles, there was no independent judicial branch and no national court to solve problems amongst the states to enforce federal supremacy. The Court of Appeals was the only national court established by the Articles, but it was limited to hearing cases about the capture of enemy ships and had no power to impose their decisions on the independent states. The national government therefore could not force the states to abide by federal law, and could not punish the States’ representatives or compel their obedience to unify. The lack of enforcement power essentially rendered the federal government useless for the purpose of mobilizing national goals.

The Articles are similar to the subsequent, current United States Constitution in that the national government had the power to unite the States in times of war, but differed in significant aspects. For example, under the Articles of Confederation the federal government did not have the power to raise revenue (could not tax), yet had the power to pay debts to foreign nations. Most significantly, the national government did not have the power to enforce uniform national laws, such as the power to regulate the national economy to benefit the citizens of all states. In addition, a small minority of state representatives could easily vote to defeat acts of Congress; so when the national government did act, its authority was easily extinguished.

In sum, the Articles of Confederation established a government where the states acted individually at times when they needed to act collectively. This dilemma gave rise to the idea of federal supremacy: a solution to the problems of disunity under the Articles of Confederation, where the national government’s power would be decidedly superior to the states’ power in certain circumstances.

Solutions Instituted by the Framers

Finding solutions to the shortcomings that caused a lack of federal supremacy that had become so apparent to the people of the early United States was part of the charge given to the Framers when they met at the Constitutional Convention in Philadelphia. The shortcomings inherent in the Articles were numerous: no independent judicial branch, no federal courts to uphold federal law, no executive branch to enforce federal law, no power to tax, no power to regulate commerce between the states, and the Article II requirement of the Articles of Confederation that all federal actions be authorized by a specific, enumerated power expressed somewhere within the four corners of the Articles of Confederation.

  1. No Independent Judicial Branch; No Federal Courts to Uphold Federal Law; No Executive Branch to Enforce the Law

Creating and enforcing federal law was one of the biggest issues the Framers had to deal with in addressing the lack of federal supremacy. This was caused by the combination of no independent judicial branch, no power to create federal courts, and no enforcement of those decisions by an executive.

In addressing the independence required in a judicial branch, Alexander Hamilton wrote in Federalist no. 78 that there is no better barrier “to the despotism of the . . . representative body” than that of a judicial branch that stands independent of it. The Framers enacted this independence in a couple of ways through the Constitution. First, the Framers provided in Article III Section 1 that judges “shall hold their Offices during good Behaviour”. This provided federal judges and Justices insulation from the other branches that would be necessary in order for them to hear cases in a neutral, unbiased way by freeing them from the pressures of the political realm, such as having to seek re-election, or having their continued employment be subject to the approval of another branch. Second, the Framers provided that the judges and Justices would receive “a Compensation [for their Services], which shall not be diminished during their Continuance in Office,” thus providing them further insulation, relieving them of the worry that an unpopular decision would threaten their very livelihood. In these ways the Framers made important changes to the nation, creating a judiciary that could uphold federal law.

After securing an independent judiciary, the Framers turned to the lack of Congressional power to create federal courts. The Framers took special notice of the lack of forums within which claims arising under federal law could be heard, and thus provided a remedy in Article III Section 1, stating that the judicial power “shall be vested . . . in such inferior Courts as the Congress may from time to time ordain and establish.” This created the power for Congress to create lower courts for the express purpose of hearing cases arising under federal law, which carried legitimacy for federal law throughout the nation by providing a forum for such laws to have effect in the lives of the people.

A judicial branch is nothing if there is not executive to enforce the laws. This reality led the Framers to create an executive branch, independent of the Congress or Judiciary. The Executive Branch is, in Article II of the Constitution of the United States, vested with the “executive Power.” According to Black’s Law Dictionary, executive power is the “power to see that the laws are duly executed and enforced.” Therefore, the Executive Branch was created by the Framers to fix the problem of non-enforcement of federal laws under the Articles of Confederation.

  1. No Power to Tax

Another substantial problem under the Articles was the lack of the ability to directly tax, instead relying on levies on the several states, which were impossible to enforce. This led to some of the federal supremacy problems by requiring the federal government to work only with the money that the states elected to give the federal government of their own accord. Alexander Hamilton argued in Federalist no. 33 that the power to tax was inherently and necessarily an act of supremacy because of its nature of being a law, which, at the federal level, is also supreme. Based on arguments such as this and the practical experience that comes with not having an explicit power to tax, the Framers established Congress’s power to tax in Article I Section 8 Clause 1.

  1. No Power to Regulate Commerce

Under the Articles of Confederation, the States were left to control trade through their borders. This created conflicts between the states. One such case was Delaware’s taxation of ships passing through the Delaware River. At that point Delaware controlled both banks at a narrow point and the river was (and still is) heavily used as a trade route into and out of Pennsylvania. These types of tariffs, which took advantage of other states, put the states at odds with one another, something that the Federal Government under the Articles was powerless to prevent. This led the Frames to create the Commerce Clause, which enabled the Congress to create laws regulating commerce, but more importantly created the presumption that regulating commerce between states was a power that the several States no longer had. This prevented further destruction of unity caused by taxes such as the Delaware River tax, and enabled more freedom of trade pursuant to the federal supremacy established in commerce regulation.

  1. Federal Actions Limited to Expressed Powers

Under the Articles of Confederation, each power exercised by the Federal Government was required to be expressed explicitly in the Articles. Absent an expressed power, the Federal Government was unable to act. To remedy this situation, the Framers included the “Necessary and Proper Clause” in Article I Section 8 Clause 18, which provides Congress latitude and discretion in the means by which it carries out its other, enumerated powers.

  1. The Supremacy Clause

Finally, in their attempt to clarify the supremacy of the Federal Government, the Framers crafted Article VI Clause 2, which states, “This Constitution, and the Laws of the United States . . . shall be the supreme law of the land.” In Federalist no. 44, James Madison defends the Supremacy Clause by telling the people of New York that without it, the Constitution and the Federal Government would be as “impotent” (his words) as the government it was attempting to replace. This is how the Framers clarified the power of the Federal Government over the power of the state. The Framers had to prevent the powers of the Federal Government from atrophying completely when challenged by state constitutions, which occurred under the Articles of Confederation.

Impact of Supreme Court on the Taxing and Spending Powers

Even though the Constitution established boundaries in order to balance state and federal power, this does not mean that the Framers intended for that balance remain permanently fixed. Instead, they meant for it to fluctuate. Over the last few decades, this fluctuation between state and federal powers has manifested itself through critical Supreme Court decisions concerning Congress’ taxing and spending powers, the 10th Amendment, and the 11th Amendment. Since the mid-1980’s, these significant Supreme Court decisions have revealed that the power of the federal government over the states is becoming narrower.

In the 1987 case South Dakota v. Dole, the Supreme Court considered the National Minimum Drinking Age Act which enables the federal government to withhold a percentage of federal highway funds from states that allow persons under the age of twenty-one to purchase alcohol. South Dakota argued that this was Congress’ attempt to set a national drinking age, and not Congress’ constitutional exercise of the power to spend. In determining the constitutionality of the conditional attachment, the Supreme Court issued a four-part test, which required that: (1) spending be for the general welfare, (2) grant conditions must be clearly stated and unambiguous, (3) the conditions must be related to the particular federal program, and (4) the spending power cannot be used to make states do things that are unconstitutional. In this case, the federal government would only withhold approximately five percent of the highway funds from non-conforming states. The Supreme Court held that because the withholding of funds was such a small amount it was not a coercive measure, but rather a proper exercise of Congress’ spending power. This suggests that the standard for determining whether the Constitution limits conditional funding is less strict than the standard for determining what congress can directly do. Even though Congress does not have the power to actively set a federal drinking age, the decision in Dole suggested at the time that it was possible for Congress to indirectly achieve the same results using conditional spending powers. Did the Supreme Court make the right decision in this case given that underage alcohol consumption is not really related to federal highway construction? Justice O’Connor brings up this very point in her dissent to show that the federal government is encroaching upon the state of South Dakota by regulating, rather than using its spending power. This Supreme Court decision also led to the question of how much the court has to withhold to constitute a coercive measure.

In 2012 the federal government’s indirect conditional spending power was again brought to the table in National Federation of Independent Business v. Sebelius, also known as the “Obamacare Case.” This case attempts to distinguish between what is considered a reasonable incentive and what becomes unduly coercive, or, as the text of the opinion reads, where “pressure turns into compulsion.” The States were concerned that Congress would withhold all Medicaid funding if they failed to expand coverage. Section 1396c of the Affordable Care Act gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding. In his opinion, Chief Justice Roberts employed a different test than that used in Dole to determine whether Congress would improperly coerce the states by their employment of conditional spending.  The test considered (1) the significance of the original federal grant and the state’s reliance on it, and (2) the independence of the existing federal grant from the new condition that must be adopted in order to continue receiving the original federal grant. The majority in the Obamacare Case held that the federal government’s furtherance of its supremacy over the states, with coercive legislation, had gone too far. In stark contrast to the loss of funds in Dole, which would amount to less than 5% of the total South Dakota highway funds, the States in the Obamacare Case were faced with the threat of the loss of a Medicaid program which, in some states, covered 100% of the state’s share of the Medicaid funds and nearly 20% of the state’s total budget. For all states, taking the federal government’s dangling “carrot” and expanding Medicaid was not a condition, but an irresistible coercion, according to the Court.

Impact of Supreme Court on the 10th Amendment

The Tenth Amendment says that any powers not delegated to the federal government are to be reserved to the states.  In other words, the text of the Constitution directly limits the federal government’s power by giving the states residual powers.  A second, more complex, limitation is not derived directly from the text of the Constitution.  This limitation is referred to as the “anti-commandeering” principle and is introduced in modern Supreme Court decisions.

The Articles of Confederation intended to limit the federal government’s power by saying its authority to act must be “expressly” stated.  The Tenth Amendment does more than reiterate that the federal government’s powers are those “delegated to the United States by the Constitution.”  It articulates independent constraints put on Congress’s exercise of its enumerated powers.  These constraints do not all derive from the text of the Constitution.  For example, in New York v. United States, Congress attempted to compel states to enact and enforce a federal regulatory waste program by giving states two choices: (1) to enact legislation or (2) take title of radioactive waste.  The Court held both options Congress provided to the states, when standing alone, commandeered state government into the service desired by the federal government, which was an unconstitutional use of federal power.  In writing the Court’s opinion, Justice O’Connor discussed the diminished electoral accountability of both state and federal officials when states are commandeered into enforcing federal regulations.  In New York, the Court elaborated by saying Congress crossed the line in distinguishing encouragement from coercion.  This case provides an example of the Tenth Amendment limiting the federal government’s power by restraining the power of Congress, in contrast with the court’s holding in Dole.

The anti-commandeering principle from New York is based on (1) political accountability and (2) convention history that Justice O’Connor interpreted as suggesting that the federal government cannot coerce the states.  Although there is no constitutional evidence of an anti-commandeering provision, this principle was expanded just a few years later in Printz v. United States.  Here, The Brady Act required the Attorney General to implement a systematic background check for weapon purchases by November 1998.  Until The Brady Act was in effect, gun dealers were to contact local chief law enforcement officers identifying a prospective buyer.  The Supreme Court struck down that interim provision of the Brady Act, holding that it was unconstitutional.  The Court reasoned that this “compelled enlistment of state executive officers” was an extension of the commandeering that took place in New York.  Congress, by enacting the Brady Act, attempted to order state officials to enforce federal regulations.  In its conclusion, the Court stated, “the Brady Act was not a proper method of implementing a delegated power.”

In sum, the modern Tenth Amendment Supreme Court cases have put additional limitations on the federal government’s power by enforcing anti-commandeering rules.  Congress cannot commandeer the states, through the legislative process or by ordering state officials, to enforce federal regulatory programs or regulations.

Impact of Supreme Court on 11th Amendment

The powers of the judicial branch given in Article 3, Section 1 as well as the power to regulate commerce given to Congress in Article 1 were intended to give the national government the means to enforce federal law in the states.  However, because of the addition of the Eleventh Amendment and the Supreme Court cases heard since its ratification, these powers have been significantly reduced.  The Eleventh Amendment was ratified in 1795 in order to overrule the Supreme Court’s decision in Chisholm v. Georgia and to give the states sovereign immunity from suits brought by citizens of another state or of a foreign state.  The Supreme Court cases heard since ratification of the eleventh amendment have shaped the powers of Congress to abrogate, or revoke, the sovereign immunity of the states.

  1. Article III Powers and the Commerce Clause

In Pennsylvania v. Union Gas Co., the court allowed Congress to subject the state to a suit under the Superfund Amendments and Reauthorization Act of 1986. In this case, because the language of the statute clearly rendered states liable, Congress was allowed to use its Article I powers to regulate interstate commerce to abrogate the states’ sovereign immunity.  The reasoning of the court was that principles of sovereign immunity found in the eleventh amendment did not stop Congress, under the Commerce Clause, from passing legislation that allowed suits for monetary damages against a state in federal court.  Five justices voted to allow this congressional power, however there was disagreement on the reasoning behind the votes.  While this was a large expansion of legislative powers over the states, it was short-lived.

Only a few years later, in 1996, another case was brought before the Supreme Court involving the ability of Congress to abrogate state sovereign immunity.  In Seminole Tribe of Florida v. Florida, the Seminole Nation brought a suit against the state of Florida and its governor under the Indian Gaming Regulatory Act.  The Act says that certain types of gaming will only be allowed if the State and the Tribe have entered into a compact that permits it, and it requires both sides to bargain in good faith over these agreements.  The Court expressly rejected the decisions in Pennsylvania v. Union Gas Co. and overruled the case.  While Congress clearly stated its intent to abrogate state sovereign immunity in the statute, its actions were outside the scope of Congress’ powers given by the Constitution.  According to the court, even when the Constitution gives Congress law-making authority, the Eleventh Amendment does not allow for congressional authorization of suits by private parties against states that do not consent.  Since this decision, the Court has consistently reaffirmed this holding and has limited the ability of Congress to pass bills allowing states to be sued in federal court.

The Supreme Court further limited the ability of Congress to take away state sovereign immunity in Alden v. Maine in 1999.  A group of probation officers sued the State of Maine over violations of the Fair Labor Standards Act.  Using the holding from Seminole Tribe v. Florida, the suit was dismissed in federal court, so the plaintiffs brought the case again in Maine State Court.  The Court ruled that Congress could not require state courts to hear suits by individuals seeking damages for violation of a federal statute under its Article I powers.  Both this case and the Seminole Tribe case raise the issue of whether the text of the Eleventh Amendment itself applies to the legislative branch, as the amendment only references the judicial power.  Despite no mention of limiting congressional powers in the Eleventh Amendment, the Supreme Court reasoned that the adoption of the amendment showed its intent to stop the national government from eliminating state sovereign immunity.  Because of their interpretation of the motive behind the actual language of the amendment, the Supreme Court expanded its power to affect not only the judicial branch, but also Congress, giving the states more power to exert their immunity than was expressly stated in the Constitution.  Together, these rulings give the states sovereign immunity in state as well as federal court against suits seeking damages for violations of federal law.

To combat the lack of forums in which violations of federal law could be heard, the Framers adopted Article III of the Constitution, giving judicial power to the Supreme Court and to inferior courts that may be created.  The ruling in Seminole Tribe reduces the power of these inferior federal courts to enforce federal law, as they leave it to the states to decide whether to hear cases in federal court brought by private citizens.  Despite the attempts by the Framers to expand the federal judicial power over the states, the subsequent rulings on the eleventh amendment have created limits on the types of cases that can be brought against states for violation of federal law.

Under the now-overruled holding in Pennsylvania v. Union Gas, the Court said that Congress could waive state sovereign immunity under the Interstate Commerce Clause.  The  Commerce Clause provided a way for the federal government to pass and enforce laws concerning commerce between the states, and a way to take lawmaking powers of interstate commerce away from the states.  In Seminole Tribe, the Court reversed on this issue, reasoning that Article I could not expand the exclusive catalog of jurisdiction for the federal courts.  Because of this, Congress cannot use its Article I powers to abrogate state sovereign immunity, reducing the power of both Congress and the judiciary branch to allow suits against a state.

  1. Exceptions

A number of cases after Seminole Tribe and Alden have further shaped the federal government’s ability to abrogate state sovereign immunity.  In Board of Trustees v. Garrett, the court held that a suit against a state in federal court was barred by the Eleventh Amendment unless there was a pattern of discrimination by the state that violated the Fourteenth Amendment, and if so, that the remedy must be proportional to the violation.  In Nevada Department of Human Resources v. Hibbs, the Court allowed Congress to abrogate state sovereign immunity under the Family and Leave Medical Act, saying there was sufficient evidence to show a violation of the equal protection clause of the fourteenth amendment.  However, violation of the fourteenth amendment is not the only way for a state to hear a private claim for damages.  States can also consent to hear cases, and many have enacted statutes consenting to a wide variety of suits.  Furthermore, suits may still be brought by other states as well as by the United States itself against states for violation of federal law.  Also, while there is a substantial limit on a private claim against the state, a state officer may still be sued. This often leads to the state defending the officer, and paying any adverse judgment, making it similar to a suit against the state itself.  These alternatives do offer some remedies, but they are typically not a complete substitute to private damages.  The types of cases that can be brought against states are severely lessened by these limitations, and may not provide deterrence for states to violate federal laws unless it is sued.  The federal government may be hesitant to bring claims against states due to cost concerns, leading to underenforcement.

Supreme Court decisions on the Eleventh Amendment have expanded the sovereign immunity of the states in a number of ways, limiting the power of the federal government to abrogate their immunity.  The states have immunity from private suits in both state and federal court for violation of federal statutes, increasing the power of the states and lessening the supremacy of federal law.  Congress can only abrogate state immunity in certain cases, such as those violating the Fourteenth Amendment.  There are exceptions to state immunity, including suits against a state officer or suits brought by another state or the federal government itself, but these are typically not a complete replacement of the damages that could be sought from suing a state directly.  The Framer’s solutions to the problem of national supremacy, especially the Article III judiciary powers and the Commerce Clause, are significantly limited by the holdings in the modern cases that have been discussed.  The Eleventh Amendment is a limit on the federal government’s control over state sovereignty, and a key part of understanding how and when a state can be forced to follow federal statutes.



The 1787 Constitutional Convention was called largely due to the failure of the Articles of Confederation to explicitly enforce and solidify federal supremacy in the American political system. The Framers had envisioned a nation that would function far more efficiently and equitably than the British system that had been endured prior to independence. However, their initial compact, the Articles of Confederation, left many of their issues unresolved or susceptible to problems. Namely, the federal government lacked express powers to ensure its supremacy over the states; prior to the ratification of the Constitution there was no independent judicial branch, no federal court to evaluate and uphold federal law, no executive branch to enforce federal law upheld by the federal court, and no power to tax or regulate interstate commerce, just to name a few. The drafting of the Constitution would serve to address the issues and questions left as to the relationship between the federal and state government, and as the Supremacy Clause expresses, leave no question that the laws of the United States would be the supreme law of the land. The Framers feared offering too much power to the states, and the relationship between federal and state governments has been modified and adapted based on this principle. The Tenth Amendment, the final amendment offered in the Bill of Rights, reserved any non-enumerated or prohibited power under the Constitution to the states themselves, or to the people. While this delegation of power can be construed as a potential expansion of state powers, it also reaffirms the supremacy of the federal government. However, the Eleventh Amendment then limits both the power of the federal judiciary and congressional power by reversing the decision in Chisholm, which the states felt undermined the basic principle of federalism, as it reallocated too many state powers to the national government.

The impact that the aforementioned constitutional changes and consequent Supreme Court cases remains, and can be seen reevaluated once again since the latter part of the twentieth century. Two common trends have been exhibited by the various holdings of cases from 1986 which show the delicate balancing act between maintaining constitutionality while also remaining true to the intentions of the Framers in their desires for a strong federal government. First, there has been a limitation of the federal government’s ability to maintain and expand supremacy, by attempting to use larger sums of money and stronger coercion tactics against states — this is seen most vividly in the fiscal impacts of the legislation in question in the Dole (1987) and Obamacare (2012) cases (0.5% to 20% of the total state budgets). Second, there appears to be a pattern of insulation that occurs between the federal government and the states. Namely, from the Seminole case, wherein it was decided that Congress has no constitutional power to abrogate state sovereign immunity protected by the Eleventh Amendment, to San Antonio Metropolitan Transit Authority, where state liability to follow federal law was highly limited, to Garrett, where states could not be held liable for money damages in suits arising from ADA Equal Protection questions. In other words, the federal government seems to have adopted a policy of paternalism in regulating and maintaining supremacy over the states. It is in the state’s best interests to have insulation from legal disputes arising from the laws and rights expressed in the Constitution, and it is up to the federal government to protect or defend the constitutionality of the issues in question. As is expressed in the San Antonio Metropolitan Transit Authority opinion, Congress’ authority in regulating the activities of the states is a matter of structure, rather than substance, and the recourse for the States from regulation by Congress lies not in the judiciary, but in the national political process.

Framing the Issue of Federal Supremacy: A Journey From the Articles of Confederation to Obamacare