FEDERALISM:
The relationship between state
and federal power
How has federal power
expanded over time?
Who has power?
Me
Me and My Parents
My Parents
Create this chart:
State Powers
(Reserved)
10th Amendment
Shared Powers
(Concurrent)
Federal Powers
(Expressed or
Enumerated)
Article I, Section 8 in
the Constitution
Place the powers below on your chart.







Collect Taxes
Regulate Marriages
Regulate Interstate
Commerce
Coin Money
Charter Local
Governments
Lend and Borrow
Money
Registration and
Voting






Raise an Army
Enforce Criminal
Codes
Regulate
Professional
Standards
Declare War
Administer Drivers’
Licenses
Establish Courts
Reserved Powers
Derived from the Tenth Amendment
Regulate Marriage
 Enforce Criminal Codes
 Charter Local Governments
 Registration and voting
 Regulate Professional Standards
 Administer Drivers’ Licenses
 Are there more?
 Absolutely!

Expressed Federal Powers
Article I, Section 8 of the Constitution

Regulate Interstate Commerce (the
commerce clause)
Coin Money
 Raise an Army
 Declare War

Article I, Section 10: prohibits the states from certain
things (making treaties, raising armies, etc.)
Article VI: Supremacy clause (laws of the national
government shall be the supreme law of the land)
Concurrent Powers Are Shared

Collecting taxes

Lend and Borrow money

Establish Courts
State Powers
(Reserved)
Shared Powers
(Concurrent)
These come from the 10th
Amendment
Regulate Marriage
Enforce Criminal Codes
Charter Local Governments
Registration and Voting
Drivers’ Licenses
Regulate Professional
Standards
Federal Powers
(Expressed or
Enumerated)
Article I, Section 8 in the
Constitution
Collecting Taxes
Lend and Borrow Money
Establish Courts
Regulate Interstate
Commerce
Coin Money
Raise an Army
Declare war
Elastic Clause: Implied Powers
Article I, Section 8, clause 18
Congress shall have the power . . . to make all
Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers
and all other Powers vested by this Constitution
in the Government of the United States, or in
any Department or Officer thereof.”
Does this clause expand or reduce federal
power?
Expands!
Because it’s elastic!
Using an expressed power, justify
the implied power of Congress to:
See Implied Powers sheet
 Working in small groups, decide what
expressed power gives Congress the
implied power listed on your sheet.

The Supreme Court interprets . . .
. . .THE ELASTIC CLAUSE
McCulloch v. Maryland (1819)
 Hamilton
proposed establishing a national
bank (essential for the country’s economic
development)
 Jefferson opposed the bank (b/c favored
elites)
 Does Congress have the power to
establish a national bank?
 If so, could a state tax the bank?
 Yes, and No. Says the Marshall Court
Marshall’s Decision:

We the people (not we the states)


The N & P clause allows for any legislation
where “the ends are legitimate and the
means not prohibited”

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Argument for national sovereignty
Therefore, the bank is constitutional
The power to tax is the power to destroy

Therefore, Maryland’s tax is unconstitutional
Why it matters:

McCulloch paved the way for a broad
interpretation of the necessary and
proper clause.
 It’s so stretchy it’s “elastic”
 This grants the federal government a
tremendous amount of power
The Supreme Court interprets:
THE COMMERCE CLAUSE
Gibbons v. Ogden (1824)
New York law granted a monopoly to
Ogden for operating a ferry between
New York and New Jersey
 But Gibbons had a steamboat license
granted by Congress
 Marshall Court said that the Congress
had power to regulate commerce
among the states and federal rules
trump state

Trend:

For the most part, the Commerce
Clause has greatly expanded Congress’
power.
Modern Interpretation:
Congress may regulate channels of
interstate commerce – including
highways, waterways and air
 Congress can regulate people,
machines, and things used in carrying
out commerce
 Congress can regulate commercial
activities that have a large effect on
commerce

US v. Lopez (1995)
Congress passes a law making it a
federal crime to carry guns in a school
zone
 Lopez was convicted of just that, and
challenged the law
 Supreme Court, for the first time in
decades, ruled that Congress had
exceeded it’s commerce clause
authority b/c carrying a gun is not an
economic activity

Dred Scott v. Sanford (1857)
Northern slave Dred Scott applied for
freedom when his master died, citing a
federal law (MO Compromise)
 Court ruled against Scott, claiming that
persons of African descent were barred
from citizenship and could not sue in
federal court
 Did not expand national power; was a
state’s rights outcome

Cake Metaphors
Dual Federalism
Until 1937
 Like a layer cake
 National government has enumerated
powers only; states have reserved only
 Each government has own sphere of
sovereignty
 More tension than cooperation
 Proved inadequate in a industrialized
society

Cooperative Federalism
After 1937
 Like a marble cake
 Rejects the idea of “spheres”
 Government action is jointly taken
 Nation and states routinely share
power (Medicaid)
 Power is fragmented enough; it cannot
be concentrated at any level

So what’s the critical difference?
It’s all in how we interpret two sections
of the Constitution . . .
 The elastic clause
 The Tenth Amendment
Dual: Narrow interpretation of the elastic
clause
Cooperative: Broad interpretation of the
elastic clause
Which makes a “big” government?
Federalism in Practice

Long term expansion of national power
National Crises/Demands
 Judicial Interpretations
 Grants-in-Aid (Fiscal Federalism)

National Crises and Demands
Civil War
 Both World Wars
 Great Depression
 9/11, Katrina, Irene, etc.

All of these involved problems that were
too extensive for states to handle alone
 National relief funds spent on states are
often attached to federal stipulations

Katrina and Federalism
Judicial Interpretation

Gibbons v. Ogden, Marbury v. Madison,
and Korematsu v. US all increased the
power of the federal government
 Since 1937, the Supreme Court has
almost always supported the national
government in power contests
Grants-in-Aid
Financial incentives influence state
behavior (because the money comes
with “strings”)
Two forms:
Categorical
 Block

Categorical Grants
For a specific purpose
 Little discretion by recipient
government

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Formula: very specific rules such as

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Per capita income
Number of school age children
Project: competitive applications

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Health (HIV-AIDS programs)
Natural Resources (Radon, asbestos, energy)
Block Grants
Recipient governments have more
discretion over funds
 Welfare Reform Act of 1996

States were given power and money to
run their own welfare program
 States were given discretion to determine
how to implement the goal of getting
people to work

States have obligations to one
another

Full Faith and Credit Clause
Article IV, Section I
 States must honor the “public Acts,
Records, and judicial Proceedings” of other
states

 Marriage,
Divorce, Custody and Adoption

Defense of Marriage Act

Loving v. Virginia
More obligations . . .

Comity Clause
Article IV, Section 2
 Citizens of states enjoy “privileges and
immunities” in other states

 AZ
can’t pass a law prohibiting NM residents
from traveling, owning property, or working in
AZ
And more . . .

Interstate Commerce Clause
Article I, Section 10
 “No state shall, without the consent of the
Congress . . . enter into any Agreement or
Compact with another other State . . . ”
 Water Rights
 Has, more than any other clause,
increased the power of the federal
government

Unfunded Mandates

Setting National Standards – but not
paying for them
New Federalism and Devolution

New Federalism
Reagan, Nixon, and Clinton
 Return more discretion to the states


Devolution

Giving the states more power over policy
Simulation

http://www.wwnorton.com/lowi8/chapt
ers/ch03/simulation.asp