Chapter 3Federalism

Theories and MetaphorsFederalism: the division of power between a

central government and regional governmentsCitizens’ fears that majorities with different

interests and values would rule them were calmed by the creation of federalism

Two or more governments exercise power and authority over the same people and the same territory

Federal SystemFramers of the Constitution created

a system where national AND state governments derive authority from people.

Made state and federal government accountable to the people

Systems of GovernmentFederal: Central and state/local governments

share power in governmentUnitary: State/local governments derive all

authority from a strong national government Central government is superior

Confederation: National government derives its powers from the states State/local governments are superior

Enumerated PowersExclusive powers of the national

governmentCoin moneyDeclare warCommerce clause

Enumerated/Delegated PowersExclusive powers of the national

governmentPower of Congress to taxRegulate interstate commerceProvide for a national defenseNecessary and Proper Clause

Reserved PowersArticle I: set the “Times, Places, and

Manner for holding elections.”Article IV also provides each state a

“Republican Form of GovernmentIssue licenses Tenth Amendment

Reserve or Police Powers

Concurrent PowersPowers shared by national and state

governmentsBorrow money, establish courts,

make laws, collect taxes

Denied Powers under the ConstitutionBill of attainders: Laws declaring an act

illegal without a judicial trialEx Post Facto laws: laws that punish for

actions that occurred before such actions were made criminal

Cannot suspend the writ of habeas corpus: protects against illegal imprisonment

State cannot enter into compacts with other states

Necessary and Proper ClauseArticle I, Section 8Gives Congress the authority to pass all laws

“necessary and proper” to carry out the enumerated powers specified in the Constitution. (a.k.a. elastic clause)

Expanded powers to national government and Congress

Implied powers: powers derived from enumerated powers and the necessary and proper clause but not found in the Constitution. *McCulloch v. Maryland

Commerce ClauseListed in Article I, Section 8Enumerated power giving Congress the

power to regulate commerce between states, foreign countries, and Native American tribes

Has resulted in a growth of the national government’s power Regulation of segregation (Heart of Atlanta

Motel v. U.S.)Regulation of navigation (Gibbons v. Ogden)

Supremacy ClauseRequires conflicts between federal

and state law to be resolved in favor of federal law

Increased power of national government over time

National government can invalidate state constitutions and laws which violate the U.S. Constitution

Metaphors for Federalism

Dual Federalism Dual Federalism (layer-cake

federalism): a view that holds the Constitution is a compact among sovereign states, so that the powers of the national governments and the states are clearly differentiatedThe national government rules by

enumerated powers onlyThe national government has a limited set

of constitutional purposesStates tend to have more power

More dual federalismThe layer-cake approach (dual federalism)

Developed under the leadership of Chief Justice Roger B. Taney (1835-1863) and lasted until the New Deal

Dred Scott v. Sandford (1857): Congress lacked the authority to ban slavery in territories

Came to an end with the Great Depression, leading to an increase in federal power, programs to combat unemployment, and a new ideology of government.

Federal vs. State PowersThe following have been used to increase the

power of the state government relative to the nation:Welfare Reform Act of 1996

States were given federal grants to run their own welfare programs

States given discretion on transferring people from welfare to work

Block Grants: targeted money for general purpose “Few strings attached”

Tenth Amendment Reserves power to the states and people

Cooperative FederalismCooperative Federalism (marble-cake

federalism): a view that holds that the Constitution is an agreement among people who are citizens of both state and nationTends to favor national government

(supremacy clause)The components are cooperative

federalism include:National and state agencies typically

undertake government functions jointly rather than exclusively

The nation and states routinely share power

New DealFDR creation of government

programs to stimulate economyMany programs overturned by

Supreme Court“Court-packing”: FDR threatened to

increase SC justices from 9 to 13.

FDR

Cooperative FederalismThe marble cake approach

(cooperative federalism) Sees relations between levels of

government in more fluid termsIs willing to override state standards for

national onesA stronger, more influential national

government

Cooperative FederalismThe following are features of the Constitution

which have led to a growth in the power of the national government:Necessary and Proper ClauseSupremacy ClauseCommerce Clause Power to tax

Federal vs. State PowersThe following have been used to increase the

power of the federal government relative to the states:Categorical Grants: States must spend money in

accord with the national government’s wishesFederal Mandates: Command from the national

government to the states which requires the state undertake a national government function Tells states what policies to implement

Selective Incorporation: The incorporation of some Bill of Rights freedoms to the states Federal courts can overturn state and local practices

Federalism’s DynamicsJudicial Interpretation

Supreme Court settles disagreements over federalism by deciding whether the actions of either are unconstitutional

Federalism’s DynamicsGrants-in-Aid

Grant-in-Aid: money provided to be spent for a given purposeCategorical Grants: Congress appropriates

funds to states for a specific purposeBlock Grants: Congress appropriates funds

to the states for a general purpose

Block Grants Aid from the national government that gives

the states broad discretion in spending the money

“few strings attached”EducationHealth services/WelfareIncome securityTransportation

Trends in National GovernmentGrants to States and Localities

New and Fiscal FederalismFiscal Federalism

Fiscal means $Q – How do you get the states to do things they

normally wouldn’t do?A – MoneyQ – What is the answer to any question ever

asked?A – Money

New FederalismRonald Reagan is elected president under his

promise to return power to the states

Key Federalism Court CasesMcCulloch v. Maryland (1819)

Denied the right of the state to tax the Second National Bank of the United States (exception to the rule)

Marbury v. Madison (1803) Established Judicial Review

Gibbons v. Ogden (1824) Ruled in favor of Congressional licenses to sail on the Hudson

River. Congress’s power to regulate interstate commerce included the

power to regulate commercial activity as well. Dred Scot v. Sandford (1857)

Congress lacked the constitutional authority to ban slavery in the territories

U.S. v. Lopez (1995) Gun Free School Zone Act 1990 was unconstitutional, commerce

clause did NOT apply to guns