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Transcript of October 28, 2015October 28, 2015October 28, 2015 Introduction to American Politics 1 Government...

  • *Introduction to American Politics*Government Structure and Federalism

    Frank Brooks

  • **The Constitution as a ContractLays out key elements of governmentpurposesstructurepowerslimitsEffectiveness v. safeguardsSkeletal framework, not detailed blueprintConstitution is vague, inspired ambiguityprovides flexibility and stabilitychannels conflict into political channels

  • **Powers: Formal and EvolvedFormal, constitutional powers Congress (Article 1) President (Article 2) Supreme Court (Article 3)Informal, evolved powersCongress necessary and proper clause (elastic)Supreme Court judicial reviewPresident inherent (implied) powersMany rooted in commander in chief authorityCapacity to lead nation enhanced by technologyDevelopment of national constituencies and interests

    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. (Article I, Section 8)

  • **Limits on National GovernmentConstitutional LimitsAmendment Processchannels policy change into political channelsSeparation of Powers; Checks and BalancesDecentralize power by separating itEncourage competition between power centersFederalismAcknowledge and define role of state and local governments as counterweight

  • **Amending the ConstitutionProposalBy 2/3 vote of both houses of Congress (A)By 2/3 of state legislatures calling for a convention (B)RatificationBy of state legislatures (C)By of state ratifying conventions (D)History of amendmentOnly 27 (17 since Bill of Rights)AC route for all but oneDifficulty of amendment channels policy change to Congress, executive branch, even courts

  • **Separation of PowersThree branches; four significant partsCongressHouseSenatePresidency; Executive BranchCourtsThree kinds of separation into those four partsFunctionConstituencyTerm

  • **Separation by FunctionHouseLegislativeSpendingSenateLegislativeExecutive: approve nominations, ratify treatiesPresidentExecutiveForeign relationsCourtsJudicialInterpret Constitution

  • **Separation by ConstituencyHouseChosen by voters in Congressional districtsNarrowest representation, most accountabilitySenateChosen by states (legislatures, then voters)More heterogeneous constituency than HousePresidentNational constituency (distorted by electoral college)CourtFederal judges chosen by President and Senaterepresent the Constitution (defend it against threats)

  • **Separation by TermHouse2 years, no term limitsSenate6 years (staggered), no term limitsPresident4 years, 2 term limit (after 22nd Amendment)Courtlife term Cannot gain control of all the government all at the same timeshall hold their Offices during good Behaviour (Article 3, Section 1)

  • **Checks and BalancesConsider FDRs court-packing schemeSeparation of powers may slow down concentration of power, but cant stop itAmbition must be made to counteract ambitionAssume that office-holders need/want powerGive each part tools to interfere with other partsLet competition among parts limit overall power, or at least ensure that power used appropriatelyBroad impact of checks and balances enforce separationcompel cooperation and compromise

  • **FederalismSeparation of power between levels of government Historical context shift of power away from statesBut, left them considerable authorityComplex subject (abstract to concrete)Structure of relationship between states & federalHow the Constitution describes terms of relationshipInterpretation of Constitutional languagePolitics of relationship (especially money)

  • **Structure of Federalism Unitary Government Confederal Government Federal Government

  • **Federalism in the ConstitutionNational Supremacy Clause (Article 6)Seems to favor national governmentAnti-Federalists sought clarification/dilutionTenth AmendmentNational government has delegated powersE.g. regulate interstate commerce, raise armyOnly those explicitly mentioned in Constitution?States governments have reserved powersResidual category (after powers prohibited to states)Includes police powers, educationThis Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding 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.

  • **Interpreting FederalismNeed for InterpretationNational Supremacy clause and 10th Amendment potentially contradictorySpecific meaning of delegated and reserved unclearSupreme Court resolvesMcCulloch v. Maryland (1819)If both state and federal government exercise legitimate power, which prevails?Elastic clause + national supremacy clause = national government wins

  • **Interpretations of the Commerce ClauseHow much power was conferred by Congress power to regulate interstate commerce?Gibbons v. Ogden (1824)commerce broad; interstate narrow1830s-1930s commerce power interpreted narrowly to limit Congressional powerJones v. NLRB (1937)Virtually all commerce is interstateGreatly expanded Congressional power

  • **The Politics of FederalismDual federalismDominant until 1930sStates and national government had distinct, separate realms (depending on functions)Cooperative federalismStates and national government cooperateOften, national government funds, while states implementRegulatory federalismNational government sets conditions for funding and thus regulates state actionsUnpopular with statesNew federalism, devolution, states rights

  • **Funding FederalismCategorical and Project GrantsMoney appropriated for specific purposesLocal governments and organizations write grant proposalsStates often circumventedBlock grantsBroad purposes, e.g. economic developmentOnly about 10% of federal fundingRevenue SharingStates get proportional share of taxes collected by federal government to spend on any purpose

    *Formal, constitutional powers Congress (Article 1) President (Article 2) Supreme Court (Article 3)Informal, evolved powersCongress necessary and proper clause (elastic)gives Congress wide-ranging authority to expand on the already-significant list of powers it has in Article ISupreme Court judicial reviewnot in Constitution, but implied in making Constitution effective against internal tendencies to tyrannyquestion was not so much whether, but WHO would exercise itPresident inherent (implied) powersthis branch's power has grown most significantly over time Many rooted in commander in chief authority nuclear war (and expansion of war generally) exaggerate President's power as commander-in-chiefPresident can take advantage of greater significance of U.S. as nation Capacity to lead nation enhanced by technology, development of national constituencies and interestsState of Union (Constitutional power) and presentation of budget (20th century development) give President significant power to set legislative agenda as bureaucracy grows, President controls larger measure of political turf

    *Constitutional Limitsstructural and procedural limits on national government powermight also consider political constraints, e.g. elections, free press, public opinionAmendment Processchannels policy change into political channelsb/c so difficult to change Constitution, amendments usually deal with basic questions of rights or government structureSeparation of Powers; Checks and BalancesDecentralize power by separating itEncourage competition between power centersFederalismAcknowledge and define role of state and local governments as counterweight*ProposalBy 2/3 vote of both houses of Congress (A)most important sticking point (Congress unwilling to sanction Constitutional change takes issues out of their hands)several introduced every legislative session, e.g. balanced budget, human life, etc.By 2/3 of state legislatures calling for a convention (B)never happened because of fears of runaway convention (e.g. Philadelphia Convention of 1787)RatificationBy of state legislatures (C)By of state ratifying conventions (D)History of amendmentOnly 27 (17 since Bill of Rights)two cancel each other out, so really only 15 in 225 yearsAC route for all but onerepeal of prohibition went ADDifficulty of amendment channels policy change to Congress, executive branch, even courtsserves as limit on government power because major policy decisions must be made by accountable politicians

    *Three branches; four significant partsbasic idea is to weaken government by breaking it into piecesconcentration of power can lead to tyrannyCongressHouse and Senate have distinct functions, etc.most powerful branch itself splitHouseSenatePresidency; Executive BranchCourtsThree kinds of separation into those four partsnot just separation according to functionFunctionwhat is done by the branch? broad purposes and powersConstituencywho is represented? Who chooses? To whom is branch accountable?Termhow long do they serve? How many terms?

    *HouseLegislativeboth houses must approve of any bill for it to go to PresidentSpendingall spending legislation must originate in Houseunder original plan (before direct election of Senators), only elected branch given primary responsibility for spending (no taxation without representation)SenateLegislativeExecutive: approve nominations, ratify treatiesactually shares in Presidential power (more of a check or balance)but, this separated from House (and thus from undue popular influence)PresidentExecutiveForeign relationsaka federative includes military and diplomatic powerssubstantially checked by CongressCourtsJudicialInterpret Constitutionimplicit in Constitution, but important (e.g. through judicial review) in limiting government power grabs, especially by Congress

    *HouseChosen by voters in Congressional districtseach state has at least one Representativeadditional Representatives apportioned among states after census based on relative populationhence, importance of reapportionment and redistrictingNarrowest representation, most accountabilitysupposed to be closest to the peopleSenateChosen by states (legislatures, then voters)originally chosen by state legislatures (Art. I, Sec. 3) - constituency thus state government with 17th Amendment (1913), became directly elected - constituency shifts to "state" over-represent interests of small states (one reason electoral college still with us)More heterogeneous constituency than Housecan and do speak for broader interests (even national)PresidentNational constituency (distorted by electoral college)President claims to have the broadest interestseven with electoral college, cannot win as regional candidateCourtFederal judges chosen by President and Senateseem accountable to them, but life term designed to promote judicial independencerepresent the Constitution (defend it against threats)

    *House2 years, no term limitsintended to give voters frequent opportunities to hold Reps accountableSenate6 years (staggered), no term limitsexceptionally-long term for 18th centurystaggering means that Senate replaced on a rolling basis over six years instead of all at oncePresident4 years, 2 term limit (after 22nd Amendment)4 years long term for 18th century (at least compared to governors)average to short these days (PMs may max out at 5 or 6 years)some countries allow only one term (e.g. Mexico)Courtlife termcan be removed by impeachmentother alternatives are death (Rehnquist) or resignation (OConnor)Cannot gain control of all the government all at the same timesplit into piecesoccupants of various offices chosen in different ways and for different terms*Consider FDRs court-packing schemefrustrated with Supreme Court (with Republican hold-overs) striking down New Deal legislationproposed to increase size of Court from 9 to 15criticized as power grab threatening separationopposed in Congress (partly on partisan grounds, but also sectional and institutional)Separation of powers may slow down concentration of power, but cant stop itpower always tends to concentrateAmbition must be made to counteract ambitionFederalist #51Assume that office-holders need/want powerwhether purposes good or evil, power is necessary meansso, motive to concentrate power in one part always therecf. centrality of profit motive in theory of free marketGive each part tools to interfere with other partsgive mechanism to the motivekey is to write the rules of the game to ensure appropriate levels of competitionLet competition among parts limit overall power, or at least ensure that power used appropriatelyparts will be jealous of power and popularity of other branches and of infringements on their own power and privilegescf. controversy over Justice Department search of Congressional officeBroad impact of checks and balances enforce separationcompel cooperation and compromise

    *Separation of power between levels of governmentnational government (itself split) doesnt do everything)Historical context shift of power away from statesexpected to raise opposition in states had to defend shiftBut, left them considerable authoritysupporters of Constitution described balance of powers as federalistComplex subjectanalyze from most abstract to most concrete

    Structure of relationship between states & federalformal and abstractHow the Constitution describes terms of relationshipkey phrases and conceptsInterpretation of Constitutional languageConstitution vague, so interpretation in context of actual conflicts essentialPolitics of relationship (especially money)

    *Federalism contrasted to unitary and confederal key is direction in which authority flows actual distribution of power varies unitary governments authority rests with national government lower levels granted power by national most governments, e.g. Britain, unitary relationship in U.S. between state and local is unitary (i.e. local government powers granted by state) confederal authority rests w/ subnational government (e.g. state or province) subnational grants powers to national rare, but one example is Articles of ConfederationFederal national and state governments derive separate powers from the Constitution, not from each other this is a constitutional separation, i.e. it cannot be formally changed through ordinary legislative process of either states or national government *National Supremacy Clause (Article 6)Seems to favor national governmentAnti-Federalists sought clarification/dilutionTenth AmendmentNational government has delegated powersE.g. regulate interstate commerce, raise armymajor examples are foreign relations, external defense, regulating "interstate commerce" all have large impact on local conditions (e.g. foreign policy on Boeing and other aircraft manufacturers and the local areas they dominate Only those explicitly mentioned in Constitution?States governments have reserved powersResidual category (after powers prohibited to states) in period of "dual federalism," this was most of what government did Includes police powers, educationexample I: the "police powers" criminal law (most of this still non-national) also usually included most economic regulation (e.g. zoning laws, labor laws, licensing, etc.) both have been strongly influenced by national action, but remain "reserved" powers *Need for InterpretationNational Supremacy clause and 10th Amendment potentially contradictorySpecific meaning of delegated and reserved unclearSupreme Court resolvesMcCulloch v. Maryland (1819)If both state and federal government exercise legitimate power, which prevails? established power of Congress to "enact any legislation convenient and useful in carrying out delegated national powers" in this case, could establish a bank to carry out delegated powers of collecting taxes, borrowing money, and caring for property of national governmentbut, Maryland also had reserved (actually, concurrent) power to tax depositsElastic clause + national supremacy clause = national government winselastic: Chief Justice Marshall said "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." this national power (interpreted as legitimate) was thus supreme over even legitimate powers of the states i.e., made deduced (informal, implied), as well as enumerated (express), powers supreme denied states power to interfere with legislation designed to carry out delegated national powers*How much power was conferred by Congress power to regulate interstate commerce?Gibbons v. Ogden (1824)commerce broad; interstate narrow states couldn't interfere with powers granted to Congress by passing conflicting state legislation commerce interpreted broadly, but had to be interstate 1830s-1930s commerce power interpreted narrowly to limit Congressional powernational government could promote commerce, but not regulate it this hobbled efforts to restrict child labor, require factory inspections, etc. this happened despite the Civil War amendments reasserted national supremacy (e.g. by defining citizenship in national terms) required states to respect rights of citizens of other states gave Congress the power to enforce (earlier Amendments, e.g. Bill of Rights), limited Congressional power Jones v. NLRB (1937)Virtually all commerce is interstateGreatly expanded Congressional power Supreme Court allowed a broader interpretation of interstate Congress, and national government generally encroached on states especially the states' "police powers" (e.g. economic regulation) reinterpretation of commerce power reflected (belatedly) the integration of nation's economy *What kind of federalism? (pick an adjective)

    Dual federalismDominant until 1930sStates and national government had distinct, separate realms (depending on functions)Cooperative federalismStates and national government cooperatemany problems require coordination, cooperation across state linesOften, national government funds, while states implementcf. emergence of Aid to Families with Dependent Children out of welfare funding crisis at state and local levelRegulatory federalismNational government sets conditions for funding and thus regulates state actionse.g. lower speed limits and higher drinking age accomplished by adding strings to federal highway fundsUnpopular with statesfederal funding builds organized constituencies in states, which expect programs to continue even after federal funding dries upunfunded mandatesNew federalism, devolution, states rights