Federalism: Chapter 3

Federalism: Chapter 3Enduring Struggle: Whos got the power!!!!!Founders:Dont want unitary govConfederal gov wasnt workingWhat is federalism?

The division of powers and functions between the national and state governmentsEach have a large measure of sovereigntyPower to restrain each otherGoal: protection of libertyambition must be made to counteract ambition

What is Federalism? Expressed (Enumerated): powers granted to the National Government that are explicitly written into the ConstitutionReserved: (guaranteed by 10th amendment): powers granted to the state governmentsThe 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

Concurrent: powers that both states and the National government share

Art. I, secs 8 Art. IV, sec 4 So how is power divided? How do we know who is in charge of what?!? Implied power:Necessary and proper / Elastic clause Article 1 Section 8 Clause 18Equation: Congress has the implied power to __________________ because it is necessary and proper in order to carry out its expressed power (s) to ______________________________________.

Example: Congress has the implied power to impose regulations on drugs because it is necessary and proper in order to carry out its expressed power (s) to regulate interstate commerce.

Inherent power: powers given to all sovereign nations under international lawWage war, make peace, acquire land

Whos got the power?!? : This debate ensued during ratification process

Many assumed that the Federal government would only have the powers given to it by the Constitution.Govern such different areas of policy that there is no need to spell out the powers Madison: Federalist 46 both state and federal governments are in fact different agents and trustees of the people, constituted with different powersAnti-Feds disagree: 10th amendmentThe 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 Federalism as established in ConstitutionMadison v. HamiltonM: The power comes from the people they have the ultimate authority, not the national gov The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite Originally favored strong national govH: Supremacy clause = national gov is top dogWhos got the power?Dual Federalism: Classic Constitutional Federalism (1789-1932)

Supremacy Clause

Expressed Powers

Concurrent powers 10th amendmentReserved powersEach sphere has its own distinct powers: Federal (PFDA) States (regulate their own meat inspection) Article IVFull faith and credit clause1996: Congress passed DOMA: states dont have to recognize same sex marriageSCOTUS currently discussing constitutionality of thisPrivileges and immunities clause (comity clause)Extradition

What about the relationship between states? The question of the relation of the States to the National government is the cardinal question of our constitutional system. At every turn of our national developments we have been brought face to face with it, and no definition either of statesmen or judges has ever quieted or decided it. It cannot, indeed, be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new questionWoodrow Wilson Enduring Struggle: States rights v. National Supremacy (Whos got the power?) McCulloch v. Maryland (1819) case background

1) Congress establishes the Bank of the United States2) Maryland passes a new state law which.3) McCulloch is fed up!!!

What happens when the states and national gov cant agree? Necessary and proper clause What did the Supreme Court determine?1) Does Congress have the power to establish a national bank?

2) Do the states have the power to tax federal institution? A) Intent of the Maryland is.

B) This Constitution, and the Laws of the United States which shall be made in pursuance thereofshall be the supreme Law of the Land.

Necessary and proper clause strengthened Congress has the implied power to create a bank because it is necessary and proper in order to carry out its expressed power (s) to tax, borrow money, pay debts, and print and coin money.

Supremacy Clause establishes a hierarchy!!

Gibbons v. Ogden:Background of caseNY state grants Ogden exclusive rights to shipping on a NY waterway, this allows him to ship good between NY and NJGibbons sues, violates commerce clauseDid NY violate the commerce clause by attempting to regulate interstate trade? What does the court decide?How does this expand federal powers?Commerce Clause broad definition of what can be considered commerceAllows gov to get SUPER involved in economic activityExpansion of Federal powers: Commerce ClauseThese rulings indicated that the national government was entitled to expansive powers underSupremacy ClauseFed gov top dogNecessary and proper clauseGrants implied powers; think equation Commerce ClausePower to regulate interstate trade: almost EVERY type of commercial activity is considered interstate trade today

By in large, Congress neglected to act on their ability to expand their powers until the 1930sSCOTUS : Whos got the power?Should states always obey federal laws? (Supremacy Clause)When have states challenged fed law?Compact theory, Calhoun and nullification, Little Rock What was the outcome?How far should the elastic / necessary and proper clause stretch?Commerce Clause: how much regulation?When doe intrastate commerce end and interstate commerce begin?Is there still such a thing as intrastate commerce in 2013?

Questions to ponderHistory of US Federalism 1789-19331933-TodayHistory of US Federalism:Dual Federalism /Layer Cake 1789 to New Deal = Layer Cake / Dual FederalismPowers clearly divided, states actually do most of the governing, but national gov top dog

National Gov

State govs

1930s to present day = Marble Cake Federalism (cooperative federalism)Cooperating on policy together Interstate highway systemInitial $ from fed, state implements and maintains program

Federal govs role is expandingCourts generally rule in favor of Supremacy Clause and Necessary and proper clause and against the 10th amendmentBasically in favor of Federal interventionThis slowed down from 1981-2001 = devolution revolutionPost 9/11 = more federal intervention

Cooperative Federalism / Marble Cake Federalism

Sometimes referred to as New FederalismArgued that Federal gov needs to give power back to the statesStates rightsDev Rev in actionUS v. Lopez 1995Fed gov cant make laws concerning handguns in school zones, this does not concern interstate commerceCongress changed law to state laws bought out of state cant be in a school zoneStates may make their own laws concerning this issueUS v. Morrison 2000Challenged 1994 Violence Against Women Act, violence against women is not an economic issueCongress passed this act citing the Commerce Clause, amended act to include violence that crossed state linesWelfare Reform Act 1996Fed gov gives block grants to states and they decide who qualifies, how much people receiveNo more than 2 years of assistance without workingCant get assistance for more than 5 years Many claim this era ended with the attacks on 9/11/01 , Devolution Revolution (1981-2001)Fiscal Federalism: The CarrotGrants in aid = $ given to state and local gov key feature of cooperative / marble cake federalismAllows federal gov to influence what happens at the state level

Types of grants in aidCategorical Grants: federal grants that can be used for specific purposes; allow Federal gov to get involved in areas they cant due to the lack of an expressed powerTo build an airport

Block Grants: federal grants to support broad programs, generally a block (group) of categorical grants; gives states more freedom To aid with law enforcementCommunity developmentBegin to be used during Reagans presidency (part of devolution revolution)

21Fiscal Federalism$460 billion in grants every yearGrant distribution follows universalisma little something for everybody.I scratch your back, you scratch my backCan lead to disproportionate share of the pie Homeland Security funding Wyoming gets 17x more funding per person than NY

22http://www.pewstates.org/research/data-visualizations/fiscal-federalism-by-the-numbers-85899427055 Fiscal Federalismhttp://www.neh.gov/grants/education/enduring-questions http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/communitydevelopment/programs/entitlement#intro Types of grantshttp://www.pewstates.org/research/data-visualizations/the-impact-of-the-fiscal-cliff-on-the-states-sequestration-85899435504 Sequestration and fiscal federalismMandatesLaws that states/ local gov must comply with, must come from an expressed power!!!!Basically financial obligations placed on states, may be funded but not alwaysMandates are MANDATORY (as the name implies ) Unfunded mandates: must do this, no money to fund itCivil Rights Act 1964Commerce clauseAmericans with Disabilities Act (some money given but not enough)Commerce clauseNo Child Left behind Act (some money given but not enough)Power to tax, borrow money (if you can raise $ you can spend $)

Fiscal Federalism: The Stick

Grants v. MandatesGrants: The CarrotCategorical grants: fed powerOften have strings attached to give Fed gov more control over statesTANF (food stamps)Head StartBlock Grants: state powerStates, local governments, citizens request grantsWant to do it, usually little to no stringsPower to solve problem without federal interventionMandates: The Stick Federal government imposes regulation on states / local governmentsGot to do it or there will be penalties21 drinking age = highway dollarsSometimes money is given to states if they comply with all of the rulesNo Child Left BehindSometimes mandates are issued and no money is rewardedAmericans with Disabilities Act

Can give states power to solve problems in a unique way, as long as it doesnt contradict federal lawProblem: NJ needed to raise more revenueSolution: Legalize gambling and tax itProblem: Citizens of NJ want more options when it comes to treating chronic pain and other medical conditions Solution: Legalize the use of Medical Marijuana10th amendment as a source of State powerSelective incorporation: the 14th amendment has been used by the courts in a haphazard way to apply several of the first 10 amendments to the states as well as the federal gov14th : nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Currently on the 3rd and 7th not incorporatedInitially the Bill of Rights ONLY applied to the Federal GovExamples: Gitlow v. NY: 1st-freedom of speech (1925)Mapp v. Ohio: 4th-search and seizure ( 1961)Gideon v. Wainwright: 6th -right to counsel in all felony cases (1963)Benton v. Maryland: 5th- No double jeopardy (1968) Argersinger v. Hamlin: 6th- right to counsel imprisonable misdemeanor (1972)

How would this limit the power of the states?Selective incorporation as a limit on state powerEnduring question: whos got the power?Federalism The question of the relation of the States to the National government is the cardinal question of our constitutional system. At every turn of our national developments we have been brought face to face with it, and no definition either of statesmen or judges has ever quieted or decided it. It cannot, indeed, be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new questionWoodrow Wilson What: a division of power between the national and state governmentsDual federalism / layer cake1796-New DealCooperative Federalism / marble cakeNew Deal to todayGrants MandatesDevolution Revolution?!?Why: to protect libertyPros: promotes diverse policies, division of power: no one faction can dominate, multiple avenues for political participationCons: states have different resources (unequal access), local interests can delay policy that is good for majority, confusion/ difficult to know what different levels of government are doingWhos go the power? Limits on the power of the statesSupremacy ClauseNecessary and proper clause / commerce clause : McCulloch & GibbonsCategorical grantsMandatesSelective Incorporation

Power given to the states10th amendmentUS v. Lopez, US v. MorrisonBlock grantsDevolution

Federalism: A ReviewThe Framers of the Constitution created a federal system.A) define federalismB) select two of the following and explain how each has been used to increase the power of the federal government relative to the states.Categorical grantsFederal mandatesSelective incorporationC) Select two of the following and explain how each has been used to increase the power of states relative to the federal governmentWelfare reform act of 1996Block grants10th amendment

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