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1 Federalism Customized for Political Science 180 Coastline Community College By Instructor Michael Bach Contact your Instructor at:

2 Objectives Define federalism and explore the roots and functions, strengths and weaknesses, of the U.S. federal system. Differentiate between powers allocated to the national government and to the states as outlined by the U.S. Constitution. Compare two divergent ways of interpreting the U.S. Constitution, and discuss how each affects the balance of power between the national government and the states. 2

3 Objectives Explain how two landmark cases under the Marshall Court helped to establish a balance of power between the federal and state governments. Analyze the resurgence of states rights in the period leading up to the Civil War. Discuss the evolution of federalism during the New Deal era. Understand the continuing evolution of federalism during the last half of the twentieth century and into the twenty-first century. 3

4 Core Questions: Why are we the way we are? Why does it matter to you? How can the tug-of-war between dual federalists and cooperative federalists affect the balance of power in the U.S.? Understanding Federalism Federal system a system in which power is formally divided between the national government and regional entities such as states. Founders: sharing power means to limit power Confederal system Power rests primarily with regional entities; league of independent governments First U.S. government under the Articles of Confederation: Unitary system: National government has ultimate control over all areas of policy. Found in majority of countries, England & France 4

5 The McGraw-Hill Companies, Inc. All Rights Reserved.

6 Strengths & Weakness of a Federal System Strengths Federalism used to divided power vertically In addition to horizontal separation of powers and checks and balances Autonomy to states over certain policy areas Makes concentration of power difficult Allows diversity of approaches to solving problems Creates laboratories of ideas Weaknesses Provides more veto points to stifle action States may remain inactive and unresponsive to policy problems. Variations in approaches to policy may lead to inconsistencies in the way citizens are treated in different states. Can you think of some examples? 6

7 The McGraw-Hill Companies, Inc. All Rights Reserved.

8 The Constitutional Allocation of the Powers of Government The debate: how to divide power between the national government and the states? Articles of Confederation: more to the states U.S. Constitution: shared power BUT unclear regarding the precise balance of power between the states and the national governments. Compromise between the constitutional delegates who wanted a strong national government & those who supported states rights. Today the debate continues! Can you think of some current examples? 8

9 National Powers Constitution delegated certain powers to the new national government. Article 1, Section 8: Enumerated powers (specific congressional powers) Tax, borrow and coin money Regulate interstate commerce Declare war Provide for an army and navy Make uniform naturalization laws Make uniform naturalization laws Create a system of federal courts 9

10 National Powers Necessary and proper clause comes at the end of Article 1, Sect. 8 Implied powers Also called the elastic clause: allows the powers of Congress to expand like an elastic band. Supremacy clause States that all Laws of the United States which shall be made in Pursuance thereof and all Treaties made under the authority of the United States are the supreme Law of the Land. Interpretation: Any time a state law or provision of a state constitution conflicts with national power (U.S. Constitution, act of Congress, or a Treaty) it must give way to the supreme law of the land. Continuing debate: How much power can Congress derive from the necessary and proper clause? Are all of the laws generated use of the elastic clause supreme? 10

11 State Powers Tenth Amendment: Powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved to the States respectively, or to the people. Provide for public health, safety and morality (police powers) Regulate commerce within the state Establish local governments Ratify amendments to the U.S. Constitution Determine voter qualifications Conduct elections Controversy: ambiguity of constitutional language creates difficulty to draw clear line between delegated and reserved powers. 11

12 Concurrent Powers Concurrent Powers: Levy taxes: limits on types Borrow money Charter banks and corporations Establish courts Precise line between exclusive and concurrent powers can change over time. Changing interpretations of constitutional language by the U.S. Supreme Court. 12

13 Prohibited Powers Constitution prohibits certain specific powers to Congress: Cannot pass bill of attainder Cannot grant titles of nobility Cannot favor one state over another in regulating interstate commerce 13

14 Prohibited Powers Constitution prohibits certain specific powers to the states: Cannot enter into treaties, coin money Cannot alter obligations of contracts; or issue Letters of Marquee and Reprisal (authorizing piracy) Cannot pass bills of attainder, ex post facto laws, and titles of nobility. 14

15 Relationships among the States Historically, bitter rivalries among states. Articles of Confederation did not have structure to resolve state disputes effectively. Constitution added important provisions to do this: Full Faith and Credit Clause (Article IV, Section 1) Purpose: to protect commerce and trade Ensures that contracts and judicial decrees from one state are recognized and honored in every other state. But today, does every state recognize contracts made in other states? Can you think of a controversial example? 15

16 Relationships among the States Privileges and immunities Forbids states from denying citizens of other states the rights it gives its own citizens. Extradition clause Requires states to return a criminal who flees to their state from the state where the crime originated. Interstate compacts Contracts between two or more states that create an agreement on a particular policy issues (e.g., conservation, resource management, transportation) Border compacts Advisory compacts Regulatory compacts 16

17 Competing Interpretations of Federalism DUAL FEDERALISM Favors states rights Views Constitution as contact among preexisting states States retain all powers not specifically delegated Sees Constitution as a fixed document Embrace the Tenth Amendment Dual sovereigns supreme in their own spheres Supreme Court is the umpire between two equals COOPERATIVE FEDERALISM Favors national supremacy Assumes states will accept federal regulations; cooperate Associated with New Deal, but existed in early 1800s Contact among the people rather than the states Organic /living Constitution Wider range of implied powers Minimize significance of the Tenth Amendment; national government supreme Supreme Court is a player on the national team 17

18 Early Precedents: National Supremacy Prevails McCulloch v. Maryland (1819) Did Congress have the authority to create a national bank? And if so, did the state of Maryland have the authority to tax the Baltimore branch of that bank? Supreme Court ruled: Yes, Congress could create such a bank through its implied powers; No, Maryland could not tax it as this would punish the bank or discourage operation within a state. Consequences: Necessary and proper clause important source of congressional power; limitation on states ability to tax the national bank but generally limited states ability to retaliate against or impede federal institutions. 18

19 Early Precedents: National Supremacy Prevails Gibbons v. Ogden (1824) Question: were navigation or transportation of people (rather than goods) across state lines subject to regulation by Congress? Gibbons had a license from Congress; Ogden had one from the state of N.Y. and sued because he wanted to maintain his steamboat monopoly. How broadly could the enumerated powers, such as the commerce clause, be interpreted? What did that power actually mean? Court interpreted the commerce clause broadly in this case and set the precedent for future cases. 19

20 Resurgence of States Rights States invalidate federal laws they believe to be unconstitutional Dred Scott case (1857) Nullification Secession Ability to withdraw from the Union Established that states could not secede Texas v. White (1869) Civil War 20

21 Rise & Fall of National Power in the Wake of the Civil War Civil War Amendments: 13 th (1865) Prohibited slavery 14 th (1868) Due process and equal protection of the laws; paved way for incorporation of the Bill of Rights. Incorporation means to apply to states and not only the federal government 15 th (1870) - right to vote regardless of race 21

22 Rise & Fall of National Power In The Wake of the Civil War Civil War expanded role of national government in other ways as well: Federal income tax Pension system for veterans and widows BUT states rights won a few battles as well: Limiting the scope of the 14 th Amendment: separate but equal ; paved way for Jim Crow laws. Court also took on very limited interpretation of commerce clause from 1895 to 1937 Limited ability of Congress to regulate workplace 22

23 New Deal & Rise of Cooperative Federalism Supreme Court: Against New Deal Laissez-faire economic policies New Deal: National Recovery Act (1933) Court said NO to federal government involvement in the economy; struck the law down as well as other parts of the New Deal in close votes FDR reelected; asked Congress to increase size of Court. Why? Supreme Court: Cooperative Federalism Court-packing plan did not succeed, but in 1937 the Court shifted to a cooperative federalist majority. Switch in time that saved nine Overturned earlier precedents Tenth Amendment s power reduced; federal government s supremacy established. 23

24 Implementing Cooperative Federalism Congress s power to regulate increased during the New Deal and beyond with the advance of cooperative (marble cake) federalism. But these changes required more money to implement new requirements imposed on the states. Categorical grants: funds from federal governments to state and local governments used to implement a specific federal regulation. No leeway in how money is used. Examples: Medicaid, Head Start Unfunded mandates: imposes legal requirement on state but does not provide funding to implement it. Example: 1990 Americans with Disabilities Act 24

25 New Federalism and Beyond New Federalism: The shift of some power back to the states Block Grants Gives more flexibility to the states Spend in general area designated by federal government, but with more freedom Nixon, Reagan, Clinton expanded use Limits to Unfunded Mandates Clinton and Republican Congress G.W. Bush expansion of federal power Homeland Security, No Child Left Behind, Medicare Supreme Court States rights orientation with majority 25

26 Federalism in the 21 st Century Medical marijuana conflict with federal Controlled Substances Act Same-sex marriage Obama instructed Justice Department to stop enforcing the federal 1996 Defense of Marriage Act, which he believed to be unconstitutional 7 states have legalized same-sex marriage; do other states need to recognize these marriages based on the full faith and credit clause of the Constitution? Health care Commerce clause and the Patient Protection and Affordable Care Act of 2010 What of the individual mandate? Does Congress have the power to require it under the commerce clause? Is health care economic activity? Complex issue Supreme Court decision? 26

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