FEDERALISM

Chapter 3

Forms of Government:

Unitary Government

• All powers are held by a single, central agency.

ConfederateGovernment:• An alliance of

independent states

Federal Government• The powers of government are

divided by a written Constitution between a central (federal) government and regional (state, constituent) gov’ts.

More Definitions: • Two or more levels of government

have formal authority over the same area and people…another system of checks & balances!

• A decentralization or DEVOLUTION of government; a “sharing of the wealth” and gov’t power.

FEDERALISM:FEDERALISM:

Do state gov’ts influence the federal gov’t?Does the federal gov’t influence state gov’ts?What obligation does the federal gov’t have to state

governments?protect the states against violence and invasion

Why was federalism the only real choice for the framers?

• Citizens too spread out to have a unitary gov’t• No other practical choice since transportation &

communication systems too primitive to allow governing from a central location

• The Confederation had clearly failed.• American’s loyalty to state gov’ts was stronger

than it was to the U.S. government• If they tried to abolish state governments, the

Constitution would not have been ratified.

Types of Powers• EXPRESSED (delegated,

enumerated):– Powers exclusive to federal

government, stated specifically in Constitution

– Only Congress makes law, declares war, establishes Army & Navy, regulates commerce, coins money, grants copyrights & patents, admits new states, Post Office, etc.

Implied Powers• Additional powers of federal

gov’t that are implied to make Congress’ expressed powers work

• Source: Elastic Clause– Congress may pass any law

“necessary and proper” for carrying out its expressed powers

– IRS is a good example– Explain – what expressed power does

it reflect?

Article I, Section. 8. 

The Congress shall have Power 1-To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;  2-To borrow Money on the credit of the United States; 3-To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;  4-To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; 5- To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;  6- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;  7-To establish Post Offices and post Roads; 8-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;9-To constitute Tribunals inferior to the supreme Court;10--To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;  11-To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;  12-To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;  13-To provide and maintain a Navy; 14- To make Rules for the Government and Regulation of the land and naval Forces; 15-To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;  16-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; 17-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, dock-Yards, and other needful Buildings;--And 

18-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. 

Inherent Powers• a special category of national

powers – not implied – that simply derive from fact that U.S. is a sovereign nation

• So… only federal gov’t makes treaties with other nations, wages war, acquires territory, determines citizenship laws

Reserved Powers

• RESERVED- states rule!– Powers not delegated to federal

government in Constitution nor prohibited to the states are reserved to the states

• 10TH AMENDMENT– if power is not stated in Constitution,

STATES get the power• States have power to regulate intrastate

commerce,, provide for the public safety, establish local governments, conduct elections and establish rules for elections, and originally even determined voter qualifications

Concurrent Powers

• Powers that are shared by federal and state governments– Tax– Borrow Money– Create Banks– Establish courts– Education?

Are the activities below powers of the federal gov’t, state governments, or both?

• Issue driver’s licenses• Determine length of the school year• Maintain the Air Force & Coast Guard• Clean up water pollution in rivers & lakes• Tax individual & corporate income• Set up the process early voting in

presidential elections• Establish a lottery system

Denied Powers

• States cannot– Enter into treaties– Coin money– Impair obligation of

contracts– Cannot enter into

compacts with other states without congressional approval

– Denied the authority to take arbitrary actions affecting constitutional rights and liberties

– Cannot pass a bill of attainder

– No ex post facto laws

• Congress cannot• Favor one state over

another in regulating commerce

• Cannot lay duties on items exported from any state

• Cannot pass a bill of attainder

• No ex post facto laws

SupremacyWho rules in a conflict?

• Art VI- Supremacy Clause• Provides that supreme law

of the land is made up of:1.THE CONSTITUTION2.Laws of the federal government

3.Treaties of the U.S.

Four historical events have settled the issue of federal/state supremacy:

1. Doctrine of implied powers (McCulloch)

2. Definition of the commerce clause (Gibbons)

3. The Civil War4. The Civil Rights Movement

Federalism and the Marshall Court

• 3 rulings in the early 1800s had a major impact on the balance of power between national and state governments.– McCulloch v. Maryland (1819)

• Upheld power of national government and denied the right of state to tax national bank

– Gibbons v. Ogden (1824)• Upheld broad congressional power to regulate

interstate commerce– Barron V Baltimore (1833)

• 5th Amendment (due process) doesn’t apply to actions by states, limited Bill of Rights actions to Congress

McCulloch v. Maryland, 1819

• Supremacy clause & implied powers of national government upheld

– State of Maryland tried to tax the Baltimore branch of the newly-rechartered Bank of the U.S.

– McCulloch (cashier at Bank) refused to pay the tax

• States may not tax a federal agency• “Elastic clause” gives Congress the

Necessary and Proper powers (implied powers) to enact policies to run the country (the Bank!)

“The power to tax is the power to destroy.”

More implied power…• Commerce power:• Gibbons v. Ogden

– John Marshall again– If interstate or international commerce

is involved, Congress – not the states - rules!

– Commerce defined VERY broadly•Waterways, airwaves, airspace, the

internet, etc.

Gibbons v. Ogden,The Steamboat Case

• NY granted a monopoly to steamboat operator Ogden; monopoly was extended across the Hudson River to NJ

• The issue of the case is whether a state’s power can extend across state lines

• Marshall said NO:– ANYTHING that crosses state lines

(such as the steamboat in this case) becomes “interstate commerce” which is controlled by the federal government. NY cannot control commerce in NJ.

Civil War• A struggle between power of

national and state governments• Militarily settles the issue that the

federal government is supreme

Civil Rights• A struggle of national/state power

over the issue of equal rights.• Decided in favor of the national

government.

Article IV:Obligations of States to

Each Other• FULL FAITH & CREDIT

– States must recognize each other’s public Acts, records and judicial proceedings

• Contracts……marriage licenses?

• EXTRADITION• PRIVILEGES & IMMUNITIES

– Citizens entitled to same in all states– For ex., same police protection, pay same rate of

sales tax, etc.– But…..what about college tuition?

• RETURN OF ESCAPED SLAVES

Federal

State

Dual or Cooperative Federalism?

FEDERAL

From Dual to Cooperative Federalism:

• Was the federal / state relationship initially one of dual or cooperative federalism?

• Before 1930 – Dual – distinct roles/powers of each level…although they argued over powers

• Power of national government more clearly defined by early Marshall decisions such as ….?

• Then states began to assert their powers -- Dred Scott case, 1857 ; States rights, Civil War

• Civil War, 1860’s– national power supreme• 1913 - 16th & 17th amendments also increase d

national power at expense of states - How?

From Dual to Cooperative Federalism:

• Great Depression – 1930s … demise of dual federalism– New Deal programs forced all levels of gov’t

(national/state/local) to work cooperatively• The “Republican Revolution” of 1995

– led by Newt Gingrich – caused Congress to pass legislation that reduced the overall power of the national government in favor of the states. (such as social/welfare & environmental programs)

• Rehnquist Court – 80’s/90’s … pro-states• Roberts Court – immigration & healthcare / pro-

national• Education – excellent example of cooperative

federalism

1. What symbols are used & what do they represent?

2. What point of view is the cartoonist expressing?

Three standard operating procedures for cooperative federalism:

1. Shared costs - states and cities can get federal funds for projects if they share some of the costs

2. Federal guidelines – Most federal $ come with strings attached (drinking age & federal $ for highways)

3. Shared administration – education?

• Grant programs have been around for 200+ years. This money is the major method used by Feds to influence states.

• TWO TYPES OF FEDERAL AID – categorical & block grants

• #1 Categorical grants – MAIN source of federal aid. States have to apply for them. Specific $$ for specific purpose (category) with strings attached. (A common “string” is a non-discrimination provision in hiring, promotions, etc.)– Money allocated by precise formula (pop for ex.)– Frequently require matching funds from states

FISCAL FEDERALISMFederal pattern of spending, taxing, and providing grants

• #2 - BLOCK GRANTS• NEW FEDERALISM AT WORK!• Less restrictive guidelines than cat grants• Large amounts of money to states with only

general guidelines; states have more power over how to spend $

• Many for social welfare programs such as education, community development, health services. Money for general areas of social welfare, rather than for a specific program.

• Prime Example: TANF (Gingrich/Clinton)– Administrative power for welfare programs

returned to states …DEVOLUTION!

• Mandates = Feds dictate specific guidelines – if states/l0cals don’t comply, penalized or lose the $. . .….Medicaid

• Unfunded Mandates = Federal gov’t passed laws requiring action by states but provided no funding• Clean Air Act, Disabilities Act, Desegregation

• Unfunded Mandates Reform Act of 1995– Congress can no longer issue mandates without

addressing how to fund them BUT…..– Hard to enforce / No Child Left Behind?

Obamacare?

MANDATES & THE MANDATE BLUES!

THE KEY 4 COURT CASES

1. Marbury v. Madison (1803)2. McCulloch v. Maryland (1819)3. Gibbons v. Ogden (1824)4. Barron v Baltimore

Federalist John Marshall expands the power of the Federal Judiciary and the Federal Government

REVIEW:

MAKE SURE TO UNDERSTAND the difference between

Federalism & Separation of Powers:

POWER OF GOVERNMENT

FEDERALISM: division between LEVELS of

government: national & state

POWER OF GOVERNMENT

POWER OF GOVERNMENT

-NATIONAL

-STATE

POWER OF GOVERNMENT

SEPARATION OF POWERS(done by each level):

-NATIONAL

-STATE

Legislative Executive Judicial

Legislative Executive Judicial