Requirement for Consent

(2) Identify any provision or element of the policy that is inconsistent with the principles, criteria, and

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requirements stated in sections 2 through 5 of this Order;

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(3) Identify the extent to which the policy imposes additional costs or burdens on the States, including the likely source of funding for the States and the ability of the States to fulfill the purposes of the policy;

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and

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(4) Identify the extent to which the policy would affect the States' ability to discharge traditional State

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governmental functions, or other aspects of State sovereignty.

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Sec. 7. Government-wide Federalism Coordination and Review.

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(a) In implementing Executive Order Nos. 12291 and 12498 and OMB Circular No. A-19, the Office of Management and Budget, to the extent permitted by law and consistent with the provisions of those authorities, shall take action to ensure that the policies of the Executive departments and agencies are consistent with the principles, criteria, and requirements stated in sections 2 through 5 of this Order. (b) In submissions to the Office of Management and Budget pursuant to Executive Order No. 12291 and OMB Circular No. A-19, Executive departments and agencies shall identify proposed regulatory and statutory provisions that have significant federalism implications and shall address any substantial federalism concerns. Where the departments or agencies deem it appropriate, substantial federalism concerns should

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also be addressed in notices of proposed rule-making and messages transmitting legislative proposals to the

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Congress.

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Sec. 8. Judicial Review.

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This Order is intended only to improve the internal management of the Executive branch, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States,

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its agencies, its officers, or any person.

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An example of the operation of Federalism to constrain the extraterritorial jurisdiction of the federal government in a 23 judicial setting is found in the U.S. Supreme Court ruling below. Note that the court is addressing a situation where 24 Congress is acting extraterritorially upon land within a state of the Union that is not within its exclusive or general 25 jurisdiction of the federal government: 26

Respondents contend that Congress is without power, in view of the immunity doctrine, thus to subject a State to suit. We disagree. Congress enacted the FELA in the exercise of its constitutional power to regulate [377 U.S. 191] interstate commerce. Second Employers’ Liability Cases, 223 U.S. 1. While a State's immunity from suit by a citizen without its consent has been said to be rooted in "the inherent nature of sovereignty," Great Northern Life Ins. Co. v. Read, supra, 322 U.S. 47, 51,{9} the States surrendered a portion of their

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sovereignty when they granted Congress the power to regulate commerce .

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This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution. . . . If, as has always been understood, the sovereignty of congress, though limited to specified objects is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the

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power as are found in the constitution of the United States.

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Gibbons v. Ogden, 9 Wheat. 1, 196-197. Thus, as the Court said in United States v. California, supra, 297 U.S.

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at 184-185, a State's operation of a railroad in interstate commerce

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must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. . . . [T]here is no such limitation upon the plenary power to regulate commerce [as there is upon the federal power to tax [377 U.S. 192] state instrumentalities]. The state can no more deny the power if its exercise has been authorized by Congress than can an

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individual.

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By empowering Congress to regulate commerce, then, the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to

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such a railroad cannot be precluded by sovereign immunity.{10}

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Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State's own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent. Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act. By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the

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Requirement for Consent

193 of 396

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

EXHIBIT:________