Requirement for Consent

Ashton, 33 U.S. (8 Peters), 148, 148-49, 8 L.Ed. 898 (1834); Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379, 28 L.Ed. 462, 4 S.Ct. 510 (1884). The limited jurisdiction of the federal courts and the need to respect the boundaries of federalism underlie the rule. In the instant case, however, the subject matter, patents, is exclusively one of federal law. The Supreme Court has explicitly held that Congress may "confer upon federal courts jurisdiction conditioned upon a defendant's consent." Williams v. Austrian, 331 U.S. 642, 652, 91 L.Ed. 1718, 67 S.Ct. 1443 (1947); see Harris v. Avery Brundage Co., 305 U.S. 160, 83 L.Ed. 100, 59 S.Ct. 131 (1938). The litigant waiver in this case is similar to waiver of a defect in jurisdiction over the person, a waiver federal courts permit. Hoffman v. Blaski, 363 U.S. 335, 343, 4 L.Ed.2d. 1254, 80 S.Ct. 1084

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(1960).

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[Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d. 537 (9th Cir. 02/16/1984)]

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The best descriptions of federalism are found in presidential executive orders. Below is an example: 11

Executive Order 12612--Federalism

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Source: The provisions of Executive Order 12612 of Oct. 26, 1987, appear at 52 FR 41685, 3 CFR, 1987

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Comp., p. 252, unless otherwise noted.

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By the authority vested in me as President by the Constitution and laws of the United States of America, and in order to restore the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution and to ensure that the principles of federalism established by the Framers guide the Executive departments and agencies in the formulation and implementation of

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policies, it is hereby ordered as follows:

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Section 1. Definitions. For purposes of this Order:

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(a) "Policies that have federalism implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and

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responsibilities among the various levels of government.

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(b) "State" or "States" refer to the States of the United States of America, individually or collectively, and, where relevant, to State governments, including units of local government and other political subdivisions

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established by the States.

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Sec. 2. Fundamental Federalism Principles. In formulating and implementing policies that have federalism implications, Executive departments and agencies shall be guided by the following fundamental federalism

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principles:

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(a) Federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and

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scope of the national government.

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(b) The people of the States created the national government when they delegated to it those enumerated governmental powers relating to matters beyond the competence of the individual States. All other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States

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or to the people.

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(c) The constitutional relationship among sovereign governments, State and national, is formalized in and

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protected by the Tenth Amendment to the Constitution.

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(d) The people of the States are free, subject only to restrictions in the Constitution itself or in constitutionally authorized Acts of Congress, to define the moral, political, and legal character of their lives. (e) In most areas of governmental concern, the States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly. In Thomas Jefferson's words, the States are "the most competent administrations for our domestic concerns and the (f) The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of surest bulwarks against antirepublican tendencies."

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approaches to public issues.

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(g) Acts of the national government--whether legislative, executive, or judicial in nature--that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established

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by the Framers.

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(h) Policies of the national government should recognize the responsibility of--and should encourage opportunities for--individuals, families, neighborhoods, local governments, and private associations to

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achieve their personal, social, and economic objectives through cooperative effort.

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(i) In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States. Uncertainties regarding the legitimate authority of the national government

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should be resolved against regulation at the national level.

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Sec. 3. Federalism Policymaking Criteria. In addition to the fundamental federalism principles set forth in section 2, Executive departments and agencies shall adhere, to the extent permitted by law, to the following

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criteria when formulating and implementing policies that have federalism implications:

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(a) There should be strict adherence to constitutional principles. Executive departments and agencies should closely examine the constitutional and statutory authority supporting any Federal action that would limit

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Requirement for Consent

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Copyright Sovereignty Education and Defense Ministry, http://sedm.org Form 05.003, Rev. 7-23-2013

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