THE CONSTITUTIONALITY OF FEDERALISM

SUPREMACY CLAUSE: Article VI, Sec 2 states that the

Constitution, all laws passed by Congress and

treaties shall be the supreme law of the land.

Necessary & Proper/elastic clause: Article I, Sec 8

gives Congress the power to make all laws

“necessary and proper” to carry out its delegated

powers.

COMMERCE CLAUSE: Article I, Sec 8 gives congress

the power to regulate trade between states,

foreign countries, Indian tribes etc.

FULL FAITH & CREDIT CLAUSE: Article IV, Sec. I states that

the states must respect each other’s public acts,

records, and judicial proceedings

Privileges and immunities clause: Article IV, Sec. II:

Ensures that a person from one state will be treated in

the same manner as a resident of another state .

***Tenth Amendment***: Reserves all powers not

enumerated to the federal government to the states.

BENEFITS of Federalism

Protects against the tyranny of the majority

Promotes unity without uniformity

States become laboratories for new policy ideas

Encourages political participation

Original intent: ***dual/layer cake federalism

Each level has specific powers

(1790s-1930s)

Today: ***Cooperative/Marble Cake Federalism

Shared powers & responsibilities

(1930s-PRESENT)

FEDERAL

GOVERNMENT

STATE

GOVERNMENTSFederal and

State Govts.

(CONCURRENT

POWERS)

(Delegated Powers) (Reserved Powers

10th Amend.)

Regulate foreign and interstate commerce

Coin (produce) money

Provide armed forces

Declare War

Establish Federal courts below Supreme Court

Foreign Relations

Levy Taxes

Borrow Money

Spend for General Welfare

Establish Courts

Enact & Enforce Laws

Regulate intrastate (internal) commerce

Establish Local Government systems

Administer Elections

Protect public health, welfare and morals

The power of the federal government over the states has

grown primarily due to three clauses of the Constitution:

SUPREMACY CLAUSE

Necessary & Proper Clause

Commerce Clause

The states have resisted federal encroachment with the

10th Amendment

McCulloch v Maryland: Established federal supremacy

Relevant Clauses: Supremacy; Necessary & Proper

Gibbons v Ogden: Established federal supremacy over

interstate commerce.

Relevant Clauses: Commerce Clause

Heart of Atlanta Motel v U.S.: Congress may use the

commerce clause to force some private businesses to

desegregate

Relevant Clauses: Commerce Clause

U.S. v Lopez: Limited congress’ use of the commerce clause

Relevant Clauses: Commerce Clause; 10th Amendment

Grants-In-Aid

3 types

I. Formula grants ($$$ X #OF POOR PEOPLE)

II. Project Grants (States submit proposals)

III.Block Grants (States have discretion on how to

spend the $$$)

Conditions of Aid: States must follow federal

guidelines in order to receive money

Examples:

States must implement federal testing guidelines

to receive education money

States must follow USDA guidelines for school

meals.

POSITIVE INTENT

Civil RIGHTS legislation

Osha rEGULATIONS

EPA (Environmental Protection Agency) Rules

ADA

Negative Impact

Often unfunded

Federal courts Can mandate state actions

through court decisions (School busing, Prison

Reform)

Often reflect federal not state goals

CATEGORICAL GRANT

HIGHWAYCONSTRUCTION

Given for a specific purpose

BLOCK GRANT

MEDICAID

UNEMPLOYMENT

WELFARE

JOB TRAINING

Feds determine the size of the pie

State determines the size of each slice

DEVOLUTION

Transferring responsibility/power from the feds

back to the states.

WHY?

Distrust of the federal government

Federal spending seen as wasteful

Belief that state governments know better how

to meet local problems.

HOW?

Block Grants

SCOTUS 10th Amendment Rulings

EX: U.S. v. Lopez (1995)

States resemble direct democracies more-so than

republics because citizens often have direct

control over the fate of laws.

Three ways citizens can exercise their power are:

Referendum:

A proposal by citizens to repeal an unpopular law.

Example: Referendums on repealing state adoption

of Common Core standards.

INITIATIVE:

Citizens directly proposing and voting a law or state

constitutional amendment into effect.

Example: Michigan’s vote to legalize medical marijuana began

as a ballot initiative.

Recall Election:

Citizens CALLING FOR A SPECIAL ELECTION TO REPLACE A

STATE OR LOCAL OFFICIAL BEFORE THEIR TERM EXPIRES.

Example: Unions in Wisconsin recently tried to recall their

governor and failed.

All three initiated via petition.

States must respect each other’s laws and court decisions

including extradition of criminals (Full Faith & Credit

Clause)

Interstate Compacts:

must be approved by Congress

Interstate Disputes:

Settled by SCOTUS