Federalism

Why Federalism?Would correct the defects of the

ArticlesProtect Liberty:

◦Framers argued that it was part of the system of checks and balances Hamilton Federalist No. 28 Madison Federalist No. 46

Limited government◦Assigning powers to the national

government and reserving others to the states Madison Federalist No. 10

Three Systems of Government

Unitary◦National government alone has sovereign

authority

Federal◦Authority is divided between two

sovereign levels of government: national and regional

Confederate◦Sovereignty is vested entirely in

subnational (state) governments

Lines of Power in the Federal System of Government

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Lines of Power in the Federal System of Government

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Figure 3.1 Lines of Power in the Federal System of Government

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Federalism as a Governing System

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The Founding

A Bold New Plan: A “federal republic” for which there was no precedent

Elastic Language

Congress shall have the power to “make alllaws which shall be necessary and proper forcarrying into execution the foregoing powers.”-from Article I

National Powers

Expressed (Enumerated) PowersArticle I, section 8 17 enumerated

(expressed) powers specifically granted to the federal government by the Constitution

Article 1, section 10 – prohibited encroachment by states on national powers

Article II, section 2 – assigns president powers

Article III – Judicial powers

Implied PowersArticle I, Section 8, Clause 18

◦“necessary and proper clause” or elastic clause

◦Powers not listed in the Constitution but are related to the exercise of the powers that are listed

Inherent Powers◦US is a sovereign nation◦Under international law, all nation

states have right to make treaties, wage war, acquire territory

◦President derives these from Article II Curtiss Wright Export v US

National and State Powers

Concurrent PowersConcurrent Powers

◦Exercised by both national and state Power to tax, borrow money, establish

courts

State Powers

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Reserved Powers10th Amendment (1791)

◦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. Licensing doctors, teachers Establishing public schools Police Marriage Safety and general welfare

Other PowersProhibited Powers

◦Powers denied to the national government, state, or both Fed cannot tax exports, states cannot make

treaties with foreign countries

War PowerRegulate interstate and foreign

commerce◦Commerce clause (Article I, sect.

8,clause 1)Power to Tax and Spend

Establishing National Supremacy

Supremacy ClauseArticle VI Section 2Implied Powers

◦McCulloch v Maryland (1819)

Nullification & Civil WarStates’-Rights View:

◦Nullification Crisis◦Dred Scott (1857)

Commerce ClauseCommerce Clause

◦Gibbons v Ogden (1824)Expansion of the Commerce

Clause◦Heart of Atlanta Motel v US (1964)◦Katzenbach v McClung (1964)◦US v Lopez (1995)◦United States v Morrison (2000)◦Gonzales v Raich (2005)

U.S. History of Federalism

Dual Federalism 1860s-1930s System of government which the national and state

governments remain supreme in their own spheres. Know as the “layer cake” federalism The Fourteenth Amendment and State Discretion

◦ Intended to protect newly freed slaves from state governments discriminatory action

◦ Plessy v Ferguson sanctioned government-based racial segregation in the south

Judicial Protection of Business◦ Business corporations protected under 14th amendment◦ Narrowed interpretation of the commerce clause

interstate commerce= “transportation” of goods Intrastate commerce= “manufacturing” of goods Supreme court restricted national power

National Authority Prevails◦ FDR’s polices with the Great Depression

Cooperative federalism1930s-1970sSystem of government which the

national and state governments work together to complete projects.◦Ex. Interstate highway program

Known as “marble cake” federalism◦Shared policy responsibilities

National, state, and local levels work together Medicaid: health insurance for the poor Education Law enforcement Transportation

Devolution1969 with NixonMovement to transfer

responsibilities of governing the federal government to state and local governments

The Republican Revolution◦Welfare Reform Act 1996

States run their own welfare program

JudicialUS v Lopez

Competitive Federalism

Fiscal Federalism Expenditure of federal funds on programs run through state

and local governments Grants-in-aid

◦ Money and resources provided by the federal government to state and local governments

Roads, railroads, canal building Categorical Grants

◦ only for specific projects Block Grants

◦ education, health care, public services◦ greater freedom, state prefer over other grants

Mandates◦ Requirements imposed by the national government on

state and local governments ADA NCLB is a “unfunded mandate”