1.2 FederalismAP USGOPOMr. Loomis

Federalism

• System of government in which power is divided by a written constitution between a central government and regional governments• When powers of the federal gov’t and the powers of the state govt’s

conflict, the federal government prevails• Term federalism NOT found in the US Constitution, BUT clearly

defined in delegated (Fed), concurrent (shared), and reserved (state) powers

“The Cardinal Question”

• Woodrow Wilson believed that the relationship between the national government and the states “is the cardinal question of our constitution system”

• Wilson further observed that the relationship “cannot 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 question”

Three Systems of Government?

• Unitary

• Centralized system of gov’t in which all power is vested in the central gov’t• Most nations in the world today!• Examples Great Britain, France, China

Three Systems of Government?

• Confederate

• a decentralized system of gov’t in which a weak central gov’t has limited power over the states• US began as a confederation under the Articles of Confederation• Example United Nations

Three Systems of Government?

• Federal

• System of gov’t in which power is divided between a central gov’t and regional gov’ts• As a result, two or more levels of gov’t have formal authority over the

same area and people• Examples US, Mexico, Canada, Germany, India

The Framers Choose Federalism

• The Framers… • …agreed that the confederate system of government under the

Articles of Confederation proved to be too weak to deal with the new nation’s myriad problems• …ruled out unitary system because the Revolution had been fought

against a distant central gov’t in London• …chose to balance order and freedom by creating a federal system

that assigned powers to the national gov’t while reserving other powers to the states

National Powers(Expressed, Delegated, Enumerated, Implies,

Inherent)

• Regulate interstate commerce• Coin and print money• Declare war• Establish federal courts below the Supreme Court• Conduct foreign relations• Make all laws “necessary and proper”• Acquire and govern US territories and admit new states• Regulates immigration and naturalization

National and State Powers(Concurrent)

• Levy taxes• Borrow money• Spend for general welfare• Establish courts• Enact and enforce laws• Charter banks

State Powers(Reserved)

• Regulate interstate commerce• Establish local governments• Establish public school systems• Administer elections• Protect the public’s health, welfare, and morals• Regulate corporations• Establish licensing requirements for certain regulated professions

Expressed Powers

• aka Delegated / Enumerated• Specifically granted to the federal gov’t by the Constitution

• Article I, Section 8 enumerates 27 powers to Congress• Article II, Section 2 assigned the Pres several expressed powers• Article III grants “judicial power of the United States” to the

Supreme Court• Several amendments contain expressed powers example (16th –

Congress the power to levy an income tax)

Expressed Powers

• Key powers

• …to regulate interstate and foreign commerce• …to tax and spend• …war power

Implied Powers

• NOT expressly stated in the Constitution, but can be inferred

• Derived from Article I, section 8, clause 18 Elastic Clause (aka Necessary and Proper Clause• Gives Congress power “to make all Laws which shall be necessary and proper

for carrying into Execution the forgoing Powers and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.”

Implied Powers

• Enables the national government to meet problems the Framers could not anticipate

• Insured the growth of national power by enabling the federal government to extend its powers beyond those enumerated in the Constitution

Inherent Powers

• Derive from the fact that the US is a sovereign nation

• Under international law all nation-states have the right to make treaties, wage war, and acquire territory

Reserved Powers

• Held solely by the States (from Article IV and Amendment 10)

• 10th Amendment “The power 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.”• Neither delegated to national gov’t nor denied to states

• Reserve powers include licensing doctors, establishing public schools, and establishing local governments• Also include police power the authority of a state to protect and promote

the public morals, health, safety, and general welfare

Concurrent Powers

• Powers that belong to both the national and state governments

• Include the power to tax, borrow money, and establish courts

Prohibited Powers

• Powers that are denied to the national government, state governments, or both (Article I, sections 9 and 10 and Amendments)

• Examples • BOTH no ex post facto law (after the fact) or bill of attainder (guilty without

trial) or suspended a writ of habeas corpus (holding in custody)• Federal Gov’t cannot tax exports• States cannot make treaties with foreign nations

Interstate Relations

• Article IV addresses the issue of relationships between the states

• 1. full faith and credit clause states are required to recognize the laws and legal documents of other states (Ex – birth certificates, marriage licenses, driver’s license, wills)

• 2. privileges and immunities clause states are prohibited from unreasonably discriminating against residents of other states. Nonresidents may travel through other states; buy, sell, and hold property; and enter into contracts• Does NOT extend to political rights such as the right to vote or run for political

office, or the right to practice certain regulated professions such as teaching

Interstate Relations

• 3. extradition states may return fugitives to a state from which they have fled to avoid criminal persecution at the request of the governor of the state

• 4. interstate compacts states may make agreements, sometimes requiring congressional approval, to work together to solve regional problems• Examples - “hot-pursuit agreements”, parole and probation agreements• Port Authority of New York and New Jersey regulate the common use

of shared natural resources

Guarantees to the States

• Article IV… provides national guarantees to the states

• Republican form of government• Protections against foreign invasion• Protections against domestic violence• Respect for the geographic integrity of the states

National Supremacy

• Article VI Supremacy Clause• Helps to resolve conflicts between national and state laws

• Because two levels of gov’t are operating within the same territory and over the same people, conflicts are bound to arise

• Supremacy Clause state that the Constitution, its laws and treaties shall be the “supreme law of the land”• McCulloch v. Maryland (1819) SC upheld supremacy• Gibbons v. Ogden (1824) SC expanded the powers of Congress over

interstate commerce

Milestones in Establishing National Supremacy…

• McCulloch v. Maryland• http://www.oyez.org/cases/1792-1850/1819/1819_0

• Gibbons v. Ogden reading• http://www.oyez.org/cases/1792-1850/1824/1824_0

• *both are part of the top 30 Supreme Court Cases!*

McCulloch v. Maryland (1819)

• Topic Implied Powers

• Background • Congress chartered the Second National Bank of the US in 1816• In 1818, the Maryland legislature passed a law imposing a substantial tax on

the operation of the Baltimore branch of the bank• James McCulloch, a cashier of the Baltimore branch, refused to pay the tax• When the Maryland state courts ruled against him, McCulloch appealed to

the US Supreme Court

McCulloch v. Maryland (1819)• Constitutional Questions

• Does the Constitution permit Congress to charter a bank?• Does a state have a constitutional right to tax an agency of the US government?

• Courts Decision• Led by Chief Justice John Marshall, the SC ruled that creating a national bank was

within the implied powers of Congress. Marshall acknowledged that the word bank is NOT in the Constitution. However, the Constitution does specifically grant Congress the power to impose taxes, issue currency, and borrow money. Although the Constitution does not specifically enumerate creating a bank, if does grant Congress the power to “make all laws necessary and proper for carrying into execution the foregoing powers”. Congress may thus reasonably decide that chartering a national bank is a “necessary and proper” way to carry out its expressed power.

McCulloch v. Maryland (1819)• The Court’s decision cont.• The court also held that the Maryland law was unconstitutional because it

violated the principle of the supremacy of the national government over the states. Marshall ruled that “the government of the United States, though limited in its power, it supreme within its sphere of action.”

• Significance• Confirmed the rights of Congress to utilize implied powers to carry out its

expressed powers.• Federal programs to build interstate highways, regulate labor-management

relations, and inspect food and drugs are all justified as implied powers of Congress• Decision validated the supremacy of the national government over the states

by declaring that states cannot interfere with or tax the legitimate activities of the federal government

Gibbons v. Ogden (1824)

• Topic The Commerce Clause

• Background• The New York legislature granted Aaron Ogden an “exclusive license” to run a

ferry service on the Hudson River between New York and New Jersey• Thomas Gibbons obtained a license from the federal government to operate a

competing New York-New Jersey ferry service• Ogden claimed that Gibbons infringed on the monopoly rights granted to him

by the New York legislature• When the New York courts ruled against him, Gibbons appealed to the United

States Supreme Court

Gibbons v. Ogden (1824)

• Constitutional Questions• Did the New York law violate the Constitution by attempting to regulate interstate

commerce?• Does Congress have the exclusive rights to regulate interstate commerce?

• The Court’s decision• Led by Chief Justice John Marshall• The Supreme Court defined commerce as all commercial business dealing. Thus

commerce includes the production, buying, selling, renting, and transporting of goods, services, and properties

• Because Congress regulates all interstate commerce, the Court upheld Gibbons’ right to operate a ferry service in competition with Ogden

Gibbons vs. Ogden (1824)

• Significance• Marshall’s brad definition of commerce enabled Congress to promote

economic growth by supporting the construction of roads, canals, and RR lines• Strengthened the power of the federal government to regulate interstate

commerce• Today, the national government uses the commerce clause to justify the

regulation of numerous areas of economic activity and expansion of federal power

Milestones in National Supremacy:Nullification and the Civil War

• John C. Calhoun of South Carolina argued that a state can nullify or refuse to recognize an act of Congress that it considers unconstitutional • The Civil War was both a conflict over slavery and a dispute over the

relationship between the Southern states and the national government• The Civil War forcibly refuted the doctrine of nullification while also

confirming that the federal union is indissoluble

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Milestones in National Supremacy:The Expansion of the Commerce

Clause• The commerce clause had played a key role in the expansion of

federal power• The national government now regulates a wide variety of commercial

activities, including radio signals, telephone messages, and financial transactions• The Supreme Court upheld the 1964 Civil Rights Act forbidding

discrimination in places of public accommodation such as restaurants and hotels on the basis of its power to regulate interstate commerce• 1964 Civil Rights Act outlawed discrimination based on race, color, religion,

sex, or national origin

The Civil Rights Act of 1964

• Enforced the 14th Amendment• Ended Jim Crow segregation in hotels, motels, restaurants, and other places

of public accommodation• Prohibited discrimination in employment on the basis of race, color, national

origin, religion, or gender• Create the Equal Employment Opportunity Commission to monitor and

enforce protections against job discrimination• Prohibited the discrimination in employment on grounds of race, color,

religion, national origin, or sex• Upheld by the Supreme Court on the grounds that segregation affected

interstate commerce• *one of the top 10 acts of Congress!*

Milestones in National Supremacy:The Struggle Over School

Desegregation

• In Brown v. Board of Education (1954), the Supreme Court unanimously held that school segregation was unconstitutional• President Eisenhower sent federal troops to Little Rock’s Central High

School to enforce court ordered desegregation• Despite initial resistance, national standards of racial equality

ultimately prevailed

Brown v. Board of Education of Topeka (1954)

• I - http://www.oyez.org/cases/1950-1959/1952/1952_1 • II - http://www.oyez.org/cases/1950-1959/1954/1954_1

• Ruled that racially segregated schools violated the Equal Protection Clause of the 14th Amendment• Reversed the principle of “separate but equal” established by Plessy v.

Ferguson (1896)• http://www.oyez.org/cases/1851-1900/1895/1895_210

• *one of the top 30 Supreme Court cases!*

Intergovernmental Relations and Federalism Today

• Since the founding of the United States, society has changed, and federalism has evolved to meet the changes and challenges

Intergovernmental Relations and Federalism Today

• Dual Federalism• Earliest (1789-1932) interpretation of federalism• A system of government in which the national and state governments

remain supreme within their own spheres.• For example the national government is responsible for foreign policy, while the

states have exclusive responsibility for the public schools

• Dual federalism is often called “layer cake” federalism.• It characterized the relationship between the nation and the state governments until

the advent of the New Deal during the 1930s• New Deal FDRs program to help us out of Great Depression (Relief, Recovery, Reform)

• National government has authority over national matters and states governments over state manners

• Example states had sole responsibility of educating their citizens and the national government had the sole responsibility for foreign policy

Intergovernmental Relations and Federalism Today

• Cooperative Federalism• In the 1930s the interpretation of federalism shifted to that of the national and

state governments sharing policymaking that grew from policies of the New Deal era • A system of government in which the national and state governments work

together to complete projects.• For example the interstate highways program features a partnership in which

national and state governments share costs and administrative duties• Cooperative Federalism is often called “marble cake” federalism because of the

blurred distinction between the levels of government• Expanded during Lyndon B. Johnson’s Great Society that required greater

cooperation from the states in return for federal grants• Great Society set of domestic programs in the mid 1960s where the main goal was the

elimination of poverty and racial injustice.

Intergovernmental Relations and Federalism Today

• New Federalism – Devolution• During the administrations of Richard Nixon (implemented), Ronald

Reagan, and George H.W. Bush the national government attempted to implement a reversal of cooperative federalism and place more responsibility on the states and local governments• Devolution – a transfer of power to political subunits (goal of new

federalism) RETURNING POWER TO THE STATES!• For example Welfare Reform Act of 1996

• Gave the states the money to run their own welfare programs• States had wide discretion in implementing the federal goal of transferring

people form welfare to work

Welfare Reform Act (1996)

• Increased the power of the states relative to the federal government• Replaced the Aid to Families with Dependent Children program with

block grants to the states• Illustrated the process of devolution by giving state greater discretion

to determine how to implement the federal goal of transferring people from welfare to work• * One of the top 10 acts of Congress!*

Intergovernmental Relations and Federalism Today

• Fiscal Federalism• Refers to the pattern of spending, taxing, and providing grants to

influence state and local governments• The national government uses fiscal policy to influence the states

through granting or withholding money to pay for programs• In 2010, state and local governments received about $480 billion in

federal grants. These grants accounted for about 21 percent of all funds spent by state and local governments.

Federal Grants – Grants-in-aide programs

• Money and resources to be used for specific projects or programs provided to state and local gov’ts• Historical examples (public works projects)• Building canals, roads and railroads• Land grants for colleges

Types of Federal GrantsCategorical Grants

• Made for specific, carefully defined purposes (increased power of federal gov’t because states must comply with regulations)

• Example money spent to build interstate highways, wastewater plants, school lunch programs• May require matching funds (state,local)

• Project Grants – basis of competitive application (Ex. university research grant)

• Formula Grants – basis of established formula (Ex. Medicaid)• Medicaid - social health care program for

families and individuals with low income and limited resources.

Block Grants• Made for a broadly defined

purposes (fewer strings attached than categorical)• Give the states broad discretion in

how money will be spent• More power for the states in making

decisions on how to implement a program

• Examples money given to the states for homeland security and community development, education, health care• States prefer these over categorical

Federal Grants - Revenue Sharing

• Proposed under the Johnson administration and popular under the Nixon administration• A “no strings attached” form of aid to state and local governments• Could be used for virtually and project, but never exceeded more than

two percent of revenues• Eliminated during the Reagan administration

Federal Grants - Mandates

• Mandate – a rule telling states what they must do to comply with federal guidelines• Civil rights and environmental protection are the most common mandates• For example state programs may not discriminate against people because

of their race, sex, age, or ethnicity• An unfunded mandate requires state and local governments to provide

services without providing resources for these services• For example the 1986 Handicapped Children’s Protection Act required public

schools to build access ramps and provide special buses, but the act did not provide federal funds to pay for these additions

• 1994 – Congress passed the Unfunded Mandate Reform Act (imposed limitations on Congress’s ability to pass unfunded mandate legislation

No Child Left Behind Act (2001)

• Required states to set standards and measurable goals that can improve individual outcomes in education• Requires the states to develop assessments in basic skills to be given

to all students in certain grades• Represents a dramatic expansion of the federal role in education• *One of the top 10 acts of Congress!*

FederalismAdvantages

• Ideally suited to large geographic area because it encourages diversity in local gov’t• Avoids concentration of political

power• Accommodates already existing

state gov’ts• States serve as training grounds

for national leaders• Keeps gov’t close to the people

Disadvantages• Inflexibility inherent in a written

constitution• Complex, with many gov’ts to

deal with• Duplication of offices and

functions• Conflicts of authority may arise

Federalism

Advantages• Promotes diverse policies that

encourage experimentation and creative ideas• Provide multiple power centers,

thus making it difficult for any one faction (interest group) to dominate gov’t policies• Keeps the gov’t close to the people

by increasing opportunities for political participation

Disadvantages• Promotes inequality because states

differ in the resources they can devote to providing services• Enables local interests to delay or

even thwart majority support for a policy• Creates confusion because the

different levels of gov’t make it difficult for citizens to know what different governments are doing