Federalism

ObjectivesObjectives• Define federalism and explore the roots and functions,

strengths and weaknesses, of the U.S. federal system.• Differentiate between powers allocated to the national

government and to the states as outlined by the U.S. Constitution.• Compare two divergent ways of interpreting the U.S.

Constitution, and discuss how each affects the balance of power between the national government and the states.

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ObjectivesObjectives• Explain how two landmark cases under the Marshall

Court helped to establish a balance of power between the federal and state governments.• Analyze the resurgence of states’ rights in the period

leading up to the Civil War. • Discuss the evolution of federalism during the New

Deal era. • Understand the continuing evolution of federalism

during the last half of the twentieth century and into the twenty-first century.

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Understanding Federalism

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• Federal system• a system in which power is formally divided

between the national government and regional entities such as states.

• Founders: sharing power means to limit power• Confederal system• Power rests primarily with regional entities;

league of independent governments• First U.S. government under the Articles of

Confederation:• Unitary system: National government has

ultimate control over all areas of policy.• Found in majority of countries, England & France

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Strengths & Weakness of a Federal SystemStrengths & Weakness of a Federal System

Strengths•Federalism used to divided power vertically• In addition to horizontal

separation of powers and checks and balances

•Autonomy to states over certain policy areas• Makes concentration of

power difficult• Allows diversity of

approaches to solving problems

• Creates laboratories of ideas

Weaknesses•Provides more veto points to stifle action•States may remain inactive and unresponsive to policy problems.•Variations in approaches to policy may lead to inconsistencies in the way citizens are treated in different states.•Can you think of some examples?

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The Constitutional Allocation of the Powers of GovernmentThe Constitutional Allocation of the Powers of Government• The debate: how to divide power between the national

government and the states?• Articles of Confederation: more to the states• U.S. Constitution: shared power BUT unclear regarding the

precise balance of power between the states and the national governments.• Compromise between the constitutional delegates who

wanted a strong national government & those who supported states’ rights.

• Today the debate continues! Can you think of some current examples?

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National PowersNational Powers• Constitution delegated certain powers to the new national

government.• Article 1, Section 8: Enumerated powers (specific

congressional powers)• Tax, borrow and coin money• Regulate interstate commerce• Declare war• Provide for an army and navy• Make uniform naturalization laws• Make uniform naturalization laws• Create a system of federal courts 9

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National PowersNational Powers• Necessary and proper clause comes at the end of Article 1, Sect. 8• Implied powers• Also called the elastic clause: allows the powers of Congress to expand

like an elastic band.• Supremacy clause• States that all “Laws of the United States which shall be made in

Pursuance thereof” and “all Treaties made…under the authority of the United States” are “the supreme Law of the Land.”

• Interpretation: Any time a state law or provision of a state constitution conflicts with national power (U.S. Constitution, act of Congress, or a Treaty) it must give way to the “supreme” law of the land.

Continuing debate: How much power can Congress derive from the necessary and proper clause? Are all of the laws generated use of the

elastic clause supreme?

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State PowersState Powers• Tenth Amendment: Powers not delegated to the

United States by the Constitution, nor prohibited to the states, are reserved to the States respectively, or to the people.• Provide for public health, safety and morality (police powers)• Regulate commerce within the state• Establish local governments• Ratify amendments to the U.S. Constitution• Determine voter qualifications• Conduct elections

Controversy: ambiguity of constitutional language creates difficulty to draw clear line between delegated and reserved powers.

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Concurrent PowersConcurrent Powers• Concurrent Powers: • Levy taxes: limits on types• Borrow money• Charter banks and corporations• Establish courts

• Precise line between exclusive and concurrent powers can change over time.• Changing interpretations of constitutional language

by the U.S. Supreme Court.

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Prohibited PowersProhibited Powers• Constitution prohibits certain specific powers to Congress:

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Prohibited PowersProhibited Powers• Constitution prohibits certain specific powers to the states:

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Relationships among the StatesRelationships among the States• Historically, bitter rivalries among states.• Articles of Confederation did not have structure to resolve state

disputes effectively.• Constitution added important provisions to do this:• Full Faith and Credit Clause (Article IV, Section 1)• Purpose: to protect commerce and trade• Ensures that contracts and judicial decrees from one state

are recognized and honored in every other state.• But today, does every state recognize “contracts” made in

other states? Can you think of a controversial example?

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Relationships among the StatesRelationships among the States• Privileges and immunities• Forbids states from denying citizens of other states the rights

it gives its own citizens.• Extradition clause• Requires states to return a criminal who flees to their state

from the state where the crime originated.• Interstate compacts• Contracts between two or more states that create an

agreement on a particular policy issues (e.g., conservation, resource management, transportation)• Border compacts• Advisory compacts• Regulatory compacts

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Competing Interpretations of FederalismCompeting Interpretations of Federalism

DUAL FEDERALISM

• Favors states’ rights• Views Constitution as contact

among preexisting states• States retain all powers not

specifically delegated• Sees Constitution as a “fixed”

document• Embrace the Tenth Amendment• Dual sovereigns supreme in their

own spheres• Supreme Court is the umpire

between two equals

COOPERATIVE FEDERALISM

• Favors national supremacy • Assumes states will accept federal

regulations; cooperate• Associated with New Deal, but

existed in early 1800s• Contact among the people rather

than the states• “Organic”/living Constitution• Wider range of implied powers • Minimize significance of the Tenth

Amendment; national government supreme

• Supreme Court is a player on the national team

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Early Precedents: National Supremacy PrevailsEarly Precedents: National Supremacy Prevails• McCulloch v. Maryland (1819)

• Did Congress have the authority to create a national bank? And if so, did the state of Maryland have the authority to tax the Baltimore branch of that bank?

• Supreme Court ruled: Yes, Congress could create such a bank through its implied powers; No, Maryland could not tax it as this would punish the bank or discourage operation within a state.

• Consequences: Necessary and proper clause important source of congressional power; limitation on states’ ability to tax the national bank but generally limited states’ ability to retaliate against or impede federal institutions.

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Early Precedents: National Supremacy PrevailsEarly Precedents: National Supremacy Prevails• Gibbons v. Ogden (1824)• Question: were navigation or transportation of people

(rather than goods) across state lines subject to regulation by Congress?• Gibbons had a license from Congress; Ogden had

one from the state of N.Y. and sued because he wanted to maintain his steamboat monopoly.• How broadly could the enumerated powers, such as

the commerce clause, be interpreted? What did that power actually mean?• Court interpreted the commerce clause broadly in

this case and set the precedent for future cases.

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Resurgence of States’ RightsResurgence of States’ Rights

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Rise & Fall of National Power in theWake of the Civil WarRise & Fall of National Power in theWake of the Civil War• Civil War Amendments: • 13th (1865) – Prohibited slavery• 14th (1868) – Due process and equal protection of

the laws; paved way for incorporation of the Bill of Rights.• Incorporation means to apply to states and not only the

federal government

• 15th (1870) - right to vote regardless of race

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Rise & Fall of National Power In TheWake of the Civil WarRise & Fall of National Power In TheWake of the Civil War• Civil War expanded role of national government in other ways as well:• Federal income tax• Pension system for veterans and widows

• BUT states’ rights won a few battles as well:• Limiting the scope of the 14th Amendment: “separate but equal”; paved

way for Jim Crow laws.• Court also took on very limited interpretation of commerce clause from

1895 to 1937• Limited ability of Congress to regulate workplace

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New Deal & Rise of Cooperative Federalism

Supreme Court: Against New Deal

• Laissez-faire economic policies

• New Deal: National Recovery Act (1933)

• Court said NO to federal government involvement in the economy; struck the law down as well as other parts of the New Deal in close votes

• FDR reelected; asked Congress to increase size of Court. Why?

Supreme Court: Cooperative Federalism

• Court-packing plan did not succeed, but in 1937 the Court shifted to a cooperative federalist majority.

• “Switch in time that saved nine”

• Overturned earlier precedents• Tenth Amendment’s power

reduced; federal government’s supremacy established.

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Implementing Cooperative Federalism

• Congress’s power to regulate increased during the New Deal and beyond with the advance of cooperative (marble cake) federalism.• But these changes required more money to implement new

requirements imposed on the states.• Categorical grants: funds from federal governments to state

and local governments used to implement a specific federal regulation. No leeway in how money is used.• Examples: Medicaid, Head Start

• Unfunded mandates: imposes legal requirement on state but does not provide funding to implement it.• Example: 1990 Americans with Disabilities Act

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New Federalism and BeyondNew Federalism and Beyond

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Federalism in the 21st Century• Medical marijuana conflict with federal Controlled Substances Act• Same-sex marriage• Obama instructed Justice Department to stop enforcing the federal 1996

Defense of Marriage Act, which he believed to be unconstitutional• 7 states have legalized same-sex marriage; do other states need to

recognize these marriages based on the full faith and credit clause of the Constitution?

• Health care• Commerce clause and the Patient Protection and Affordable Care Act of

2010• What of the individual mandate? Does Congress have the power to require it

under the commerce clause? Is health care “economic activity”?• Complex issue • Supreme Court decision?

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