Federalism is weakly embedded in the US Constitution. Despite the provisions of the Tenth Amendment, the Constitution has allowed for the federal government to have substantial power relative to states. Article VI, Clause 2 — the ‘supremacy clause’ — asserts that federal laws under the Constitution and treaties under its authority constitute the supreme law of the land and take priority over any conflicting state laws. Article I, Section 8, also known as the ‘elastic clause’, gives the federal government substantive potential and actual power.
The ‘commerce clause’, which enables the federal government to regulate commerce with foreign governments and between states, has especially facilitated a shift in power and decision-making away from state legislatures and governors. In 2005, for example, the Supreme Court ruled in Gonzales v Raich that enforcement of the federal Controlled Substances Act against the production and distribution of marijuana from California was consistent with the commerce clause. This had the effect of overriding the legalisation of medicinal marijuana approved in Proposition 215 passed by Californian voters.
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