Federalism

1. Federalism Chapter 3

2. Figure 3.2- Systems of Government  Source: O’Connor and Sabato, American Government Roots and Reform

3. The Division of Power or “How a strong national government helps the individual states stay strong.”

4. Federalism Defined A system of government in which a written constitution divides the powers of government on a territorial basis between a central or national government and several regional governments usually called states or provinces.

5. Why Federalism? Dilemma: How would framers create a new central government that would be strong enough to meet the new country’s needs but at the same time preserve strength of the existing states?

6. Division of Powers • Each level of government has its own set of powers. • Neither level can act alone to change the basic division. • Each level acts through its own agencies, officials, and laws. • Both levels derive their powers from the people!

7. Dual System of Govt • Two basic levels of govt • Each has own authority • Each operates • over the same people • over the same territory • at the same time

8. Major Strength(s) • Allows local action in matters of local concern. • Allows for local traditions, needs, and desires vary from one State to another • Allows for national defense, foreign affairs, disaster relief

9. Powers of National Govt • Delegated Powers: Only those powers granted to the national government in the Constitution • Three types of delegated powers. • Expressed, Implied, and Inherent

10. Expressed Powers • Spelled out in the Constitution. • Sometimes called enumerated powers. • Article 1 Section 8 has 18 clauses and expressly gives 27 powers to Congress.

11. Expressed Powers2 • Article II gives powers to the President (executive) like commander-in-chief. • Article III grants “the judicial Power of the United States” to the Supreme Court and other courts in the federal judiciary. • Powers also in amendments.

12. Implied Powers • Not expressly stated in the Constitution • Article I, Section 8, Clause 18 gives Congress “necessary and proper power” • Interpreted as convenient and useful • AKA: the Elastic Clause

13. Necessary & Proper “…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.”

14. Inherent Powers • Belong to the govt because it IS the govt of a sovereign state in the world community. • Governments historically have held these powers. • Not too many, for example • Regulate immigration • Acquire territory

15. Powers Denied Fed Govt • Constitution denies some powers in writing • Levy duties on exports • Prohibit freedom of religion, speech, press, or assembly • Conduct illegal searches or seizures • Deny someone a speedy and public trial/trial by jury.

16. Powers Denied Fed Govt2 • Denied by “silence” of Constitution: nothing said • Examples: • Create public school system for the nation • Uniform marriage and divorce laws • Set up local governments

17. Powers Denied Fed Govt3 • Denied by nature of a federal government system • Example: Congress can not tax any of the States or their local units. To do so would give the Federal government the power to destroy state governments.

18. The States • Reserved Powers • 10th Amendment • Powers not given to the Federal government by the Constitution and not denied the States are reserved to the States. • The sphere of powers held by each State is huge.

19. The States2 • Most of what government does in the US is done by the States (and local govts). • Includes police power—the power of a State to protect and promote the public health, the public morals, the public safety, and general welfare.

20. Denied to the States • Explicitly stated in Constitution • Making foreign treaties, printing or coining money • Inherently denied • Can’t tax federal government • May be limitations in individual State constitutions

21. Exclusive Powers • Powers that can be exercised by the National Government alone. • Coin money • Make foreign treaties • Impose taxes on imports • Regulate interstate commerce

22. Concurrent Powers Powers possessed and exercised by both National and State governments Levy and collect taxes Define crimes and set punishments Condemn private property for public use

23. Source: O’Connor and Sabato, American Continuity and Change

24. Figure 3.3- Distribution of Power  Source: O’Connor and Sabato, American Government Roots and Reform

25. Supreme Law of the Land • The Supremacy Clause • Constitution stands above all other forms of law in the US • “Linchpin of the Constitution” • McCulloch v. Maryland

27. Figure 3.1- Governments in the U.S. Source: O’Connor and Sabato, American Government Roots and Reform

28. Relations Within the States: Local Government • Local governments’ authority not granted by the people but through state governments • States establish or charter their administrative subdivisions • Local governments carry out or execute the duties of state governments on smaller scale

29. Federalism and the Marshall Court • Two 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

30. Dual Federalism: The Taney Court, Slavery, and the Civil War • Dual Federalism • Belief that having separate and equally powerful levels of government works best • Implication: National government should not exceed its constitutionally enumerated powers. • Dred Scott v. Sandford (1857) • Declared the Missouri Compromise unconstitutional • Congress lacked the authority to ban slavery in the territories.

31. The Civil War, Its Aftermath, and the Continuation of Dual Federalism • National government grew in size and powers after Civil War. • 13th, 14th, and 15th Amendments • Prohibited slavery and granted civil and political rights to African Americans. • Supreme Court adhered to concept of dual federalism • Plessy v. Ferguson (1896) • Confusion over regulation of commerce • Inconsistent rulings on scope of national power

32. Setting the Stage for A Stronger National Government • Sixteenth Amendment • Authorized Congress to enact a national income tax • Supreme Court had found congressional legislation in this area unconstitutional. • Seventeenth Amendment • Made senators directly elected by the people; removed their selection from state legislatures.

33. Cooperative Federalism: New Deal and Growth of National Government • The New Deal (1933-1939) • intense governmental activity on the national level • response to Great Depression required the exercise of tremendous national authority • New agencies and programs • Supreme Court worried about scope of these programs in terms of regulating commerce and the economy • Court-packing plan response to anti-New Deal court decisions • New Programs required cooperation across all levels of government.

34. The Changing Nature of Federalism: Layer Cake to Marble Cake • Layer cake federalism • Each layer, national, state and local, had clearly defined powers and responsibilities. • After New Deal, the nature of the federal system changed. • Marble cake metaphor • Cooperative federalism • The relationship between the national and state governments that began with the New Deal

35. Federal Grants and National Efforts to Influence the States • Morrill Land Grant Act of 1862 • New Deal • Most grants were categorical grants • Grant for which Congress appropriates funds for a specific purpose • 1960s War on Poverty • Direct assistance to states, local governments, and citizen groups • Grants used to push national agenda rather than respond to state demands

36. New Federalism: Returning Power to the States • New Federalism • Federal/state relationship proposed by Reagan administration during the 1980 • Returned administrative powers to the state governments • Reagan Revolution • Block grants • Broad grant with few strings attached • Given to states by federal government for activity in specified area (education)

37. New Federalism: Returning Power to the States • The Devolution Revolution • Contract with America • Unfunded Mandates • National laws that direct states or local governments to comply with federal rules and regulations but contain no federal funding to help pay the cost of meeting those requirements • Personal Responsibility and Work Opportunity Reconciliation Act of 1996

38. New Federalism: Returning Power to the States • Federalism Under the Bush Administration • Budget shortfalls at federal and state level • States raised taxes and cut services; received aid from federal government • Federal government expanded post 9/11 • Department of Homeland Security • No Child Left Behind • Example of preemption

39. The Supreme Court: A Return to State’s Rights? • From New Deal to 1980s: Court has generally expanded national authority at the expense of the states. • Beginning in 1980s: Court interpretations altered • Willingness to allow Congress to regulate in a variety of areas waned • Webster v. Reproductive Health Services (1989) • Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) • U.S. v. Lopez (1995) • Sovereign immunity • Bush v. Gore (2000)

41. Figure 3.4- Supreme Court and Federalism  Source: O’Connor and Sabato, American Government Roots and Reform Back

42. The National Government and the 50 States or “What does “United States” really mean?

43. Republican Form of Govt • Constitution requires National Govt to “guarantee to every state in this Union a Republican form of government.” • Generally understood to mean a “representative government”.

44. Republican Form of Govt2 • Only time ever really big issue was after Civil War • Congress declared several southern States did not have a “republican form of govt” • States had to ratify the 13th, 14th, and 15th amendments

45. Invasion/Internal Disorder • Invasion of any one state is seen as attack on the US • Federal system assumes that each state will keep the peace within its own borders • If state can’t control some situations, then National govt provides protection against internal disorder

46. Territorial Integrity • National govt must recognize the legal existence and physical boundaries of each state. • Congress must include members from each state • Article V: equal representation in US Senate guaranteed

47. Admitting New States • Only Congress has this power • Admitted 37 states since original 13 • 5 states created from exiting states (Vermont, Kentucky, Tennessee, Maine, and West Virginia • Texas was independent first

48. Admission Procedure • Congress issues enabling act • Territory frames a State constitution which is voted on by the people of the territory • Constitution submitted to Congress for approval • Approval = Statehood

49. Conditions for Admission • Each state enters on equal footing with other states • Utah had to outlaw polygamy • Alaska had to give up claims to land held by Native Americans • Arizona had to end recall votes for Judiciary

50. Cooperative Federalism • Large and growing areas of cooperation between National government and the States • Grants-in-Aid • Grants of federal money or other resources to States or local units. • Goes back to time of Northwest Ordinance of 1787