Federalism
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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.
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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.
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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.?
© 2013 The McGraw-Hill Companies, Inc. All Rights Reserved.
Core
Questions:
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
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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?
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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?
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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
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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?
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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.
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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.
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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
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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.
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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?
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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
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Competing Interpretations of Federalism
DUAL FEDERALISM
COOPERATIVE 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
• 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
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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.
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• 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.
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Early Precedents: National Supremacy
Prevails
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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
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Rise & Fall of National Power in the
Wake of the Civil War
• Civil War Amendments:
• 13th (1865) – Prohibited slavery
• 14th (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
• 15th (1870) - right to vote regardless of race
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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 14th 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
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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.
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New Deal & Rise of Cooperative Federalism
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• 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.
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Implementing Cooperative Federalism
• 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
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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
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• 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?
© 2013 The McGraw-Hill Companies, Inc. All Rights Reserved.
Federalism in the 21st Century
• 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?
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