Chapter 4 - Federalism. Why Federalism? Division of government between the Federal Government &...

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Transcript of Chapter 4 - Federalism. Why Federalism? Division of government between the Federal Government &...

  • Chapter 4 - Federalism

  • Why Federalism?Division of government between the Federal Government & States governmentsFederal Government needed to be strong but still preserve the idea of state rightsFramers believed that too strong of a government threatened individual liberties, so it needed to be restrained = division was the key!

  • The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). Federalism is a system in which the power to govern is shared between national and central (state) governments, creating what is often called a federation.

  • Federalism StrengthsFederal Government National issuesState Government State issuesLocal Government Local issues

  • 10th AmendmentThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  • Examples of Federalism (countless)Utah, Texasstate liquor lawsOregon & N.J. no self-serve gasOregon assisted suicideN.D. no voter registration requiredAlaska, Del., N.H., Mont., Oregon no general sales taxMany other examples.

  • Powers of the National Government1. Expressed Powers

    2. Implied Powers

    3. Inherent Powers

    * the government is a government of delegated powers (based on the Constitution)

  • The Expressed PowersDelegated to the national government in written wordsAlso known as the enumerated powersMost found Art. I, Sec. 8, Clause 18 27 powersArt. II, Sec. 2Art. IIIVarious amendments

  • Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

  • To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

  • To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

  • Implied PowersNot expressly stated in the ConstitutionBasis found in Art. I, Sec. 8, Cl. 18"Implied powers" are powers not given to the government directly through the constitution, but are implied. These powers fall under the Elastic Clause in Section 8 of Article 1 of the U.S. Constitution. This document lets the government create necessary and proper programs/laws and retain them, such as creating the Air Force. The Air Force is an implied power because the constitution did not give the power of the Air Force to the federal government, because airplanes didnt even exist.

  • Hamilton produced what has now become the classic statement for implied powers. Hamilton argued that the sovereign duties of a government implied the right to use means adequate to its ends. Although the United States government was sovereign only as to certain objects, it was impossible to define all the means which it should use, because it was impossible for the founders to anticipate all future exigencies. Hamilton noted that the "general welfare clause" and the "necessary and proper" clause gave elasticity to the constitution.

  • The Necessary and Proper Clause (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause) is the provision in Article One of the United States Constitution, section 8, clause 18: The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

  • Elastic Clause Examples 1,000sAlmost every law ever passed by Congress is an exampleEx. what does interstate commerce mean?

  • The Inherent PowersSovereign stateFew in number:Regulate immigrationDeport aliens (undocumented)Acquire territoryGrant diplomatic recognitionProtection of rebellion (Lincoln)

  • Powers Denied to Federal GovernmentArticle 1, Section 9, U.S. Constitution:Cant prohibit states from importing persons prior to 1808.Cant suspend the privilege of Habeas Corpus unless in war or invasion and safety requires it.No Bill of Attainder No Ex Post Facto lawsNo taxes on exports from the statesNo preferences of ports in one state over those in another.No money to be spent without an appropriation by law.Expenditures of public money must be made public.No titles of nobility.Public officeholders may not accept presents, office, title or emolument from any foreign state or king or prince. (Or leader, by interpretation.)

  • Limits on StatesCant enter into Treaties, alliances, or confederations.No letters of Marque or Reprisal (official warrant or commission from a government authorizing the designated agent to search, seize, or destroy specified assets or personnel belonging )Cant coin money, emit bills of credit, control gold/silver standard for currencyNo bill of attainder (declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial. No ex post facto law (criminalize actions that were once legal)No law impairing the obligation of contractsNo title of nobilityNo taxes on imports & exports without consent of congress, and, if any IS allowed, all will be paid to the U.S. Gov.Cant keep troops in time of peaceCant engage in war unless invaded.No Agreements or compacts with another state or foreign power unless actually invaded or in imminent danger of such.

  • Limitations on Government: Bill of Rights: Passed on 9/25/1789; Ratified on 12/15/17911st AmendmentReligion: Establishment ClauseFree Exercise ClauseFreedom of SpeechFreedom of the PressRight to peaceably AssembleRight to petition for redress of grievances2nd AmendmentRight of the people to keep and bear arms

  • Limitations on Government: Bill of Rights: cont.3rd AmendmentNo quartering of soldiers in homes without consent of the Owner in time of peace. In time of war, only as prescribed by law.4th AmendmentProtection against unreasonable search and seizureWarrants have to have probable cause5th AmendmentGrand Jury Indictment for capitol offensesException: military cases in time of serviceDouble JeopardyRight against self-incriminationDue Process of law regarding life, liberty and property interestsJust compensation for the taking of private property for the public interest (eminent domain)

  • Limitations on Government: Bill of Rights: cont.6th AmendmentSpeedy trialPublic trial Right to be tried in the State and district where the crime was committedRight to be informed of the nature of the offenseRight to confront witnessesRight to subpoena witnessesRight to counsel7th AmendmentRight to jury trial in civil cases where value is more than $208th AmendmentProtection against excessive bail (right to reasonable bond)Protection against excessive fines (right to reasonable fine)Prohibition of cruel and unusual punishment9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.10th Amendment: Powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  • In the United States, each state has the power to regulateReligionMarriageThe PressPostal ServiceImmigration

  • The Supremacy Clause is a clause in the United States Constitution, article VI, paragraph 2. The clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land". The text establishes these as the highest form of law in the American legal system, mandating that state judges uphold them, even if state laws or constitutions conflict.

  • The Supremacy Clause HierarchyUnited States ConstitutionActs of Congress & TreatiesState ConstitutionsState StatutesCity & County Charters & Ordinances

  • McCulloch v. Maryland - 1819McCulloch v. Maryland, (1819), was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable, the U.S. Bank was the only out-of-state bank then existing in Maryland, and the law is generally recognized as having specifically targeted the U.S. Bank.

  • The Court invoked the Necessary and Proper Clause in the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution's list of express powers as long as those laws are in useful furtherance of the express powers.This fundamental case established the following two principles:The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government. State action may not impede valid constitutional exercises of power by the Federal government.

  • The National Government & the 50 States

  • Republican Form of GovernmentArt. IV, Sec. 4 guarantee to every State in this Union a republican Form of Government.Never been legally definedGenerally understood to mean a representative governmentOnly extensive use was after the Civil War refused to admit Southern States into the Union if they did not recognize the 13th, 14th and 15th Amendments

  • Leading Case: Luther v. Borden, 1849Luther v. Borden, (1849), was a case in which the Supreme Court of the United States established the political question doctrine in controversies arising under the Guarantee Clause of Art. IV, Sec. 4.

  • Martin Luther was part of the Dorr Rebellion, an attempt to overthrow the charter government of Rhode Island, which had stymied the efforts of those who wished to broaden the voting rights of state residents. The rebellion began as a political effort but turned violent. Luther was arrested by Borden, a state official, who searched his home and allegedly damaged his property. Luther contended that the charter government was not "republican" in nature because it restricted the electorate to only the most propertied classes; because Article Four states that "the United States shall guarantee to every State in this Union a Republican Form of Government," Luther argued that the Supreme Court should find that Borden acted without proper authority. In doing so, the Court would necessarily find that the "Dorrite" alternative republican government was the lawful government of Rhode Island, superseding the charter government.

  • Invasion & Internal DisorderArticle IV, Sec. 4, Clause 2: Protection from invasion and domestic violence

    [...] and [The United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

  • Invasion & Internal Disorder examplesAny State gets attackedStates will keep peace within their bordersUse of federal force to restore peaceNatural disasters

  • Respect for Territorial IntegrityNational government must recognize and respect legal and existing boundariesArticle V no State can be deprived of its equal representation in the United States without its consent

  • Admitting a New Sate to the Union1. Desiring States asks Congress for admission2. Congress passes Enabling Act3. Territory frames a constitution voted 4. Submitted to Congress for approval5. Congress passes Act of Admission6. President sign Act

  • Congress has admitted 37 States since the original 13Five from existing borders Vermont, Kentucky, Tennessee, Maine, West VirginiaTexas was an independent republic before admissionCalifornia was admitted shortly after it was ceded to the United States from Mexico

  • Conditions for Admissions1896 Utah polygamy1959 Alaska prohibited taking lands legally held by Native Americans1907 Oklahoma capital Guthrie Oklahoma City (Coyle v. Smith 1911)1911 Arizona remove judges by popular vote

  • Cooperative Federalism 3 major1. Grants-in-Aid:

    Grant (financial) aid from the Federal gov.Examples (since 1787) Northwest Ordinance, Morrill Act 1862 (build public schools), New DealToday over 500 in place education, mass transit, highway construction, health care, HUD, ports,25% of state budgetsMakes it possible for the Federal Gov. to intrude a bit on State rights

  • 2. Revenue Sharing:

    1972 1987shared revenues of huge annual federal tax revenueVirtually no strings attached

  • 3. Block Grants:

    Broad definition of use health care, social services, welfareFewer strings attachedInclude project grants (more strings attached)

    Categorical Grants

    - use federal monies for specific project- State matches monies- oversight agency set up- follow federal guidelines

    Other Federal Aid to States:

    CensusLaw enforcementEducationHousingLulu payments payments made in lieu of property taxes

  • Interstate CompactsNo state can enter into any treaty, alliance, or confederationStates can enter into interstate compactsBy 1920, only 26 state compacts were createdToday more than 200 compacts existExample: Port of New York Authority, conservation, oil, water, fire, pollution, tax collections, vehicle safetyAll 50 states have compacts for Supervision of Parolees and Juveniles

  • Full Faith & CreditFull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

  • What is a public act? Judicial proceedings?Birth records, death records, licenses (all), deeds to property, registrations

    Outcome of court actions, damage awards, probating of wills, divorce, marriage

  • Williams v. North Carolina, 1945Interstate quickie divorceQuick divorce in Nevada lived in Las Vegas for 6 weeks, divorced and married then returned to N. CarolinaN. Carolina refused to recognize divorce & marriageConvicted couple of bigamous cohabitationS.C. upheld N. Carolina why? Couple did not show bona fide (good faith) residence

  • Mills v. Duryee - 1813The United States Supreme Court ruled that the merits of the case, as determined by courts of one state, had to be recognized by the courts of other states. It was ruled, then, that state courts may not reopen cases whose merits have been conclusively determined by courts of other states.

  • Privileges and Immunities The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

    * The ambiguity of the clause has given rise to a number of different interpretations. Some contended that the clause requires Congress to equally treat all citizens. Others suggested that citizens of states carry forward the rights accorded by their home states when traveling in other states. Neither of these theories has been endorsed by the Supreme Court, which has instead held that the clause means that states may not discriminate against citizens of other states in favor of its own citizens.

  • The Supreme Court held that privileges and immunities in respect of which discrimination is barred include "protection by the Government; the enjoyment of life and liberty ... the right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State!

  • Extradition of Fugitives A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

  • Clause Two requires that fugitives from Justice may be extradited on the demand of executive authorities the states from which they flee. The Supreme Court has held that it is not compulsory for the fugitive to have fled after an indictment was found but only that the fugitive have fled after having committed the crime. The Constitution provides for the extradition of fugitives who have committed "treason, felony or other crime." It has been held that such a phrase incorporates all acts prohibited by the laws of a state, including misdemeanors and petty offenses.

  • In Kentucky v. Dennison, 1861, the Supreme Court held that the federal courts may not, through the issue of writs of mandamus, compel state Governors to surrender fugitives. The decision was, however, overruled by Puerto Rico v. Branstad, 1987; now, the federal courts may require the extradition of fugitives. Alleged fugitives generally may not challenge extradition proceedings. The motives of the governor demanding the extradition may not be questioned. The accused cannot defend himself against the charges in the extraditing state; he must do so in the courts of the state receiving him. It has, however, been determined that the accused may prevent extradition by offering clear evidence that he was not in the state he allegedly fled from at the time of the crime. There is no constitutional requirement that extradited fugitives be tried only for the crimes named in the extradition proceedings.