Federalism: Chapter 3

Enduring Struggle: Who’s got the power!!!!!

Founders: Don’t want unitary gov Confederal gov wasn’t working

What is federalism?

The division of powers and functions between

the national and state governments Each have a large measure of sovereignty Power to restrain each other Goal: protection of liberty

“ambition must be made to counteract ambition”

What is Federalism?

Expressed (Enumerated): powers granted to the National

Government that are explicitly written into the Constitution Reserved: (guaranteed by 10th amendment): powers granted

to the state governments “The 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”

Concurrent: powers that both states and the National government share

Art. I, secs 8 Art. IV, sec 4

So how is power divided? How do we know who is in charge of

what?!?

Implied power:

Necessary and proper / Elastic clause Article 1 Section 8 Clause 18 Equation: Congress has the implied power to

__________________ because it is “necessary and proper” in order to carry out its expressed power (s) to ______________________________________.

Example: Congress has the implied power to impose regulations on drugs because it is “necessary and proper” in order to carry out its expressed power (s) to regulate interstate commerce.

Inherent power: powers given to all sovereign

nations under international law Wage war, make peace, acquire land

Who’s got the power?!? : This debate ensued during ratification process

Many assumed that the Federal government would only have the powers given to it by the Constitution.

Govern such different areas of policy that there is no need to spell out the powers Madison: Federalist 46

“ both state and federal governments are in fact different agents and trustees of the people, constituted with different powers

Anti-Feds disagree: 10th amendment “The 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”

Federalism as established in Constitution

Madison v. Hamilton M: The power comes from “the people” they

have the ultimate authority, not the national gov “ The powers delegated by the proposed

Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite”

Originally favored strong national gov H: Supremacy clause = national gov is top dog

Who’s got the power?

Dual Federalism: Classic

Constitutional Federalism (1789-1932)

Supremacy Clause

Expressed Powers

Concurrent powers

10th amendmentReserved powers

Each sphere has it’s own distinct powers: Federal (PFDA) States (regulate their own meat inspection)

Article IV

Full faith and credit clause 1996: Congress passed DOMA: states don’t have

to recognize same sex marriage SCOTUS currently discussing constitutionality of this

Privileges and immunities clause (comity clause)

Extradition

What about the relationship between states?

“ The question of the relation of the States to the National government is the cardinal question of our constitutional system. At every turn of our national developments we have been brought face to face with it, and no definition either of statesmen or judges has ever quieted or decided it. It cannot, indeed, be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question”

Woodrow Wilson

Enduring Struggle: States’ rights v. National Supremacy (Who’s got the

power?)

McCulloch v. Maryland (1819) case

background

1) Congress establishes the Bank of the United States

2) Maryland passes a new state law which…. 3) McCulloch is fed up!!!

What happens when the states and national gov can’t agree? Necessary and proper clause

What did the Supreme Court

determine? 1) Does Congress have the power to establish a national bank?

2) Do the states have the power to tax federal institution? A) Intent of the Maryland is….

B) “This Constitution, and the Laws of the United States which shall be made in pursuance thereof………shall be the supreme Law of the Land.”

Necessary and proper clause strengthened Congress has the implied power to create a bank because it is “necessary and proper” in order to carry out its expressed power (s) to tax, borrow money, pay debts, and print and coin money.

Supremacy Clause establishes a hierarchy!!

Gibbons v. Ogden:

Background of case NY state grants Ogden exclusive rights to shipping on a

NY waterway, this allows him to ship good between NY and NJ Gibbons sues, violates commerce clause… Did NY violate the commerce clause by attempting to regulate

interstate trade? What does the court decide? How does this expand federal powers?

Commerce Clause – broad definition of what can be considered commerce Allows gov to get SUPER involved in economic activity

Expansion of Federal powers: Commerce Clause

These rulings indicated that the national government

was entitled to expansive powers under Supremacy Clause

Fed gov top dog Necessary and proper clause

Grants implied powers; think equation Commerce Clause

Power to regulate interstate trade: almost EVERY type of commercial activity is considered interstate trade today

By in large, Congress neglected to act on their ability to expand their powers until the 1930s…

SCOTUS : Who’s got the power?

Should states always obey federal laws? (Supremacy

Clause) When have states challenged fed law?

Compact theory, Calhoun and nullification, Little Rock What was the outcome?

How far should the elastic / necessary and proper clause stretch? Commerce Clause: how much regulation?

When doe intrastate commerce end and interstate commerce begin?

Is there still such a thing as intrastate commerce in 2013?

Questions to ponder

Fed

History of US Federalism

FedS

tates

1789-1933 1933-Today

History of US Federalism:Dual Federalism /Layer Cake…

1789 to New Deal = Layer Cake / Dual Federalism Powers clearly

divided, states actually do most of the governing, but national gov top dog

National Gov

State govs

1930s to present day = Marble Cake Federalism

(cooperative federalism) Cooperating on policy together

Interstate highway system Initial $ from fed, state implements and maintains program

Federal gov’s role is expanding Courts generally rule in favor of Supremacy Clause and

Necessary and proper clause and against the 10th amendment Basically in favor of Federal intervention This slowed down from 1981-2001 = devolution revolution

Post 9/11 = more federal intervention

Cooperative Federalism / Marble Cake Federalism

Sometimes referred to as New Federalism

Argued that Federal gov needs to give power back to the states States’ rights

Dev Rev in action US v. Lopez 1995

Fed gov can’t make laws concerning handguns in school zones, this does not concern interstate commerce Congress changed law to state laws bought out of state can’t be in a school zone States may make their own laws concerning this issue

US v. Morrison 2000 Challenged 1994 Violence Against Women Act, violence against women is not an economic

issue Congress passed this act citing the Commerce Clause, amended act to include violence that

crossed state lines Welfare Reform Act 1996

Fed gov gives block grants to states and they decide who qualifies, how much people receive

No more than 2 years of assistance without working Can’t get assistance for more than 5 years Many claim this era ended with the attacks on 9/11/01 ,

Devolution Revolution (1981-2001)

Fiscal Federalism: The Carrot

Grants in aid = $ given to state and local gov key feature of cooperative / marble cake federalism Allows federal gov to influence what happens at the state level

Types of grants in aid Categorical Grants: federal grants that can be used for specific purposes;

allow Federal gov to get involved in areas they can’t due to the lack of an expressed power To build an airport

Block Grants: federal grants to support broad programs, generally a block (group) of categorical grants; gives states more freedom To aid with law enforcement Community development Begin to be used during Reagan’s presidency (part of devolution revolution)

Fiscal Federalism

$460 billion in grants every year Grant distribution follows universalism—a little

something for everybody. I scratch your back, you scratch my back

Can lead to disproportionate share of the pie Homeland Security funding Wyoming gets 17x more

funding per person than NY

http://

www.pewstates.org/research/data-visualizations/fiscal-federalism-by-the-numbers-85899427055

Fiscal Federalism

http://

www.neh.gov/grants/education/enduring-questions

http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/communitydevelopment/programs/entitlement#intro

Types of grants

http://

www.pewstates.org/research/data-visualizations/the-impact-of-the-fiscal-cliff-on-the-states-sequestration-85899435504

Congress has set the amount of $ to be cut Basically 9% cuts across the board – no

discretion EVERY program gets cut by 9%

All grant programs will be effected $85 billion cut between March and September

of this year

Sequestration and fiscal federalism

Mandates

Laws that states/ local gov must comply with, must come from an expressed power!!!!

Basically financial obligations placed on states, may be funded but not always…

Mandates are MANDATORY (as the name implies ) Unfunded mandates: must do this, no money to fund it…

1995 unfunded mandate act… Civil Rights Act 1964 ( no money)

Commerce clause Americans with Disabilities Act (some money given but not

enough) Commerce clause

No Child Left behind Act (some money given but not enough) Power to tax, borrow money… (if you can raise $ you can spend $)

Fiscal Federalism: The Stick

Grants v. Mandates

Grants: The Carrot (Optional)

Categorical grants: fed power Often have strings attached to

give Fed gov more control over states TANF (food stamps) Head Start

Block Grants: state power States, local governments,

citizens request grants Want to do it, usually little to no

strings Power to solve problem without

federal intervention

Mandates: The Stick (Mandatory)

Federal government imposes regulation on states / local governments Got to do it or there will be

penalties 21 drinking age = highway dollars

Sometimes money is given to states if they comply with all of the rules No Child Left Behind

Sometimes mandates are issued and no money is rewarded Civil Rights Act 1964

Can give states power to solve problems in a

unique way, as long as it doesn’t contradict federal law Problem: NJ needed to raise more revenue Solution: Legalize gambling and tax it Problem: Citizens of NJ want more options when

it comes to treating chronic pain and other medical conditions

Solution: Legalize the use of Medical Marijuana

10th amendment as a source of State

power

Selective incorporation: the 14th amendment has been used by the courts in a haphazard way to apply several of the first 10 amendments to the states as well as the federal gov 14th : “nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”

Currently on the 3rd and 7th not incorporated Initially the Bill of Rights ONLY applied to the Federal Gov Examples:

Gitlow v. NY: 1st-freedom of speech (1925) Mapp v. Ohio: 4th-search and seizure ( 1961) Gideon v. Wainwright: 6th -right to counsel in all felony cases (1963) Benton v. Maryland: 5th- No double jeopardy (1968) Argersinger v. Hamlin: 6th- right to counsel imprisonable misdemeanor (1972)

How would this limit the power of the states?

Selective incorporation as a

limit on state power

Enduring question: who’s got the

power?

Federalism

“ The question of the relation of the States to the National government is the cardinal question of our constitutional system. At every turn of our national developments we have been brought face to face with it, and no definition either of statesmen or judges has ever quieted or decided it. It cannot, indeed, be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question”

Woodrow Wilson

Pros:

promotes diverse policies – “labs of democracy” division of power: no one faction can dominate multiple avenues for political participation

Cons: states have different resources (unequal access) local interests can delay policy that is good for

majority confusion/ difficult to know what different levels

of government are doing

Pros and Cons of Federalism

Gonzales v. Oregon (2006) Attorney Gen. Gonzales, on behalf of the Fed

gov, brought suit against Oregon stating their legalization of physician assisted suicide violated the CDS Act The process includes the use of Schedule II

drugs (deemed to have medicinal value) Problem?: Treatment designed to cause death is

not a proper medical use of a CDS

Physician assisted suicide and Federalism

Currently legal in Oregon, Washington, and Montana

What: a division of power between the national and state governments Be able to identify expressed / reserved/ and concurrent powers (when the Constitution was written)

Dual federalism / layer cake 1796-New Deal

Cooperative Federalism / marble cake New Deal to today Grants Mandates

Americans with Disabilities Act Civil Rights Act 1964

Devolution Revolution?!? Why: to protect liberty Pros / Cons of federalism Who’s go the power?

Limits on the power of the states Supremacy Clause Necessary and proper clause / commerce clause : McCulloch & Gibbons Categorical grants Mandates Selective Incorporation

Power given to the states 10th amendment

US v. Lopez, US v. Morrison Block grants Devolution: examples?

Lopez. Morrison, and Welfare reform

Federalism: A Review

The Framers of the Constitution created a federal system.

A) define federalism B) select two of the following and explain how each has been

used to increase the power of the federal government relative to the states. Categorical grants Federal mandates Selective incorporation

C) Select two of the following and explain how each has been used to increase the power of states relative to the federal government Welfare reform act of 1996 Block grants 10th amendment

FRQ