• System of rule where power is divided and shared among
federal and state governments
• Federal Gov has some powers only to itself
• State Govs have some powers only to themselves
• Federal gov and state govs share some powers
A Unitary System
• The central government has power over subnational governments
• Local governments = only pws granted to them
by the central government, rather than any
reserved powers
• Majority of countries operate under Unitary
System
• EX. Colonies under England’s rule
A Confederal System
• League of independent states
• Power is retained by local or regional
governments
• Nat’l Govt = only pwrs expressly delegated to it
and can handle only the matters its member
states set out for it to handle
• Where have we seen this example already?
• Example: Switzerland
A Federal System
• Divides power between the national
and lower-level governments
• Each level of government has distinct
powers that the other levels cannot
override
• Examples: Australia, Brazil, Canada,
Germany, India, Mexico, and the United
States
The Flow of Power in
Three Systems of Government
Why Federalism??
Liberty
Order
Federalism – Advantages/Disadvantages
• Combines strong states with a
central government strong
enough to maintain order
• Accommodates the large
geographical size of the
country
• Allows state governments to
train national politicians and
test new ideas
• Allows for many political
subcultures
• May let state interests
block national plans
• May perpetuate
inequalities across states
• May fuel overactive
federal expansion
1.
2.
3.
4.
5.
Legislative Powers
Executive Powers
Judicial Powers
States Powers
How to make
amendment
6. National Debt
validation, Supremacy
of National Law, Oath
to Constitution
7. Ratification of
Constitution
Inherent Powers=
-powers derive from fact that US is sovereign nation
and so national govt must be the only one the deals
with other nations
-Also thought of as those powers that Congress &
President need to get the job done right
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
create and collect taxes, duties, imposts and excises
pay debts
provide defense and general welfare
borrow money
regulate commerce
create rules for naturalization…
create rules for bankruptcies
coin money
establish post offices
post roads
granting patents and copyrights
DECLARE WAR
TO RAISE AND SUPPORT ARMIES
TO PROVIDE AND MAINTAIN A NAVY
to call militias (national guard) to uphold the Constitution
use the national guard to suppress insurrections and invasions
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
17. 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
• In 1787, the US gov & its powers
were SMALL…
• Is it today?
• Elastic Clause leads to MANY
debates in US1…
• Bank of the United States
• Roads debate
• And US2…
• FDR and New Deal
• And Philsosophically
• Loose vs Strict
1. create and collect taxes, duties, imposts
and excises
2. pay debts
3. provide defense and general welfare
4. borrow money
5. regulate commerce
6. create rules for naturalization…
7. create rules for bankruptcies
8. coin money
9. establish post offices
10.post roads
11.granting patents and copyrights
12.declare war
13.to raise and support armies $$$
14.to provide and maintain a navy
15.to call militias (national guard) to uphold
the Constitution
16.use the national guard to suppress
insurrections and invasions
• How have each of the
following been used to
expand federal power: pwr
to tax & spend, NP clause
& commerce clause:
• How have each increased
pwr of fed govt relative to
the states?
• American with Disabilities
Act
• Civil Rights Act of 1964 and
• Clean Air Act
• Is it  or  to have this in
the Constitution? Why?
How to answer?
• Tax and spend pwr
• Who can exercise the pwr?
• Response must describe both the pwr to tax and the pwr to spend
• NP Clause
• Who can exercise this pwr?
• Response must include what the pwr is
• Commerce clause
• Who can exercise this pwr?
• Response must include what the pwr is
• For each law: include at least one provision of the law and explain
how the provision increased the federal pwr over the states
• Should we feel safe or threatened to know the Fed Gov has
the Elastic Clause that allows them to add powers to their
enumerated powers?
• How was the Constitution designed to make sure the Fed
Gov could not grow out of control?
• To talk to foreign
leaders or establish
foreign policy?
…to tax?
To build and
maintain roads?
Concurrent and Prohibited Powers
– Concurrent powers: those, like the power to tax, held
by both national and state governments
 They are mostly implied rather than enumerated
 A state’s ability to exercise them is generally limited to
that state’s geographic area
– Prohibited powers: those denied to the national
government, the states, or both
 Examples: national government cannot tax exports,
state governments are prohibited from coining money
• Section 9…Powers denied to
Congress
• Habeas Corpus shall not be
suspended unless in cases of
Rebellion or Invasion and
the public safety is in
question
• no ex post facto Law shall be
passed
• no title of nobility will be
granted by the USA
• Section 10…Powers Denied to
states
• Fixes articles of confed.
• First paragraph protections
national powers from state
incursions (ie No coining
money)
• Paragraph 2 – States may
not interfere with
international trade of US
• Section 1
• Each state required to recognize
the laws and records of other
states and to enforce rights in its
own courts that would be enforced
in other state courts. Give full faith
and credit to every other state’s
laws. = FF& C Clause
• Section 2
• Extradition between states
• Extend to every other state’s
citizens the privileges and
immunities of its own citizens
SUPREMACY CLAUSE: This
Constitution, and the laws in it, will
be the Supreme law of the land,
and states must follow these laws,
even if other parts of Constitution
or States laws are contrary to it
Vertical Checks
• Federalism can be seen as an additional way to
prevent government from growing too strong
• Mechanisms like 10th Amendment and reserved
powers serve as check on national govt
• History of Federalism can be seen through the Marshall
Court, Civil War, New Deal, civil rights and federal grant
making
Defining Constitutional Powers – The Early
Years
• McCulloch v. Maryland (1819)
• Gibbons v. Ogden (1824)
• The 2nd BUS was created, and BUS branches spread out
throughout the USA (like  today)
• States & state banks felt threatened by these new national
banks
• Maryland tried to tax any non-Maryland bank…
• James McCulloch was the manager of the Baltimore branch
of the 2nd BUS
• He refused to pay the tax
• Who is this? What are his
views?
• Who has the power to tax?
• What does Marshall say?
Explain his reasoning.
• What does Marshall say can
happen if Maryland is
correct and can tax the BUS?
• Who is this?
• What are his views on
the Federalism Tug of
War?
• Empower the Federal
Gov over the states
• What are his views on
the Separation of Powers
Tug of War?
• Empower the Judicial
Branch
• Congress had the power to
create the 2nd BUS and
have branches…NP Clause
• States have the power of
taxation, but not of the
Federal
Government…(relies on
Supremacy Clause)
• So who wins…
• McCulloch
• Federal Government!!!
Gibbons v. Ogden
• Issues? What were they?
• Holdings? What did Marshall
say?
• Commerce=includes all
commercial interaction & business
dealings (broadens definition)
• Congress could regulate
commerce within a state, unless
exclusively intrastate
• Pwr to regulate commerce
exclusive pwr, NOT concurrent
• Significance?
States’ Rights and the Resort to Civil War
•The Shift Back to States’ Rights
•Jacksonian era (1829-1837)
•Regulation of commerce major issue
•1861: Confederate States of America form
States
Rights!!
Result?
Increase in
fed pwr
13. Neither slavery nor involuntary servitude, except as a
punishment for crime where of the party shall have been
duly convicted, shall exist within the United States, or any
place subject to their jurisdiction
14. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
the laws
15. The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State
on account of race, color, or previous condition of
servitude
• Doctrine that emphasizes a
distinction btwn federal and
state spheres of authority
• Federal govt top layer of cake,
state govt bottom layer
• Constitutional basis?
• 10th Amendment
Cooperative Federalism
• What is it?
• State and fed govt cooperate in solving problems
•
•
•
•
Great Depression –
Hoover’s approach?
Roosevelt’s approach and the New Deal?
What did the New Deal provide? Why/how
was this a change?
• Shifted federalism toward nationalism by
regulating and financing state action and
programs
• How did SC respond?
• Johnson’s war on poverty – another example
shifting fed toward nationalism
Implementing Cooperative Federalism
• Block Grants
• Fed programs that provide funds to states or local govts for
general areas.
• Categorical Grants
• Fed grants to states or local govt for specific programs or
projects
• Federal Mandates
• Requirements in federal legislation that force states to
comply with certain rules
• Unfunded vs. Funded -- problems with unfunded?
Implementing Cooperative Federalism
• Federal Mandates
• Requirements in federal legislation that force states to
comply with certain rules
• Unfunded vs. Funded -- problems with unfunded?
• Federal policies are attached to mandates that states may
have to fund entirely
• States are forced to administer policies to which they might
object
• States often have no choice but to accept rules the mandates
impose
• They reduce state authority
• How can cooperative federalism cause issues?
• Think back to debate at Con Convention with AOC and
Constitution. Do the tensions between decentralized and
centralized power continue to exist? Is it the same fight?
“New Federalism”
• Devolution of pwr:
• Transfer of pwr from national govt
to state or local govt
• Nixon’s New Federalism• Categorical grants to block grantshow did this increase power of
states?
The Politics of Federalism
• Federalism in the Twenty-First Century
• Welfare reform
• Education reform
• Affordable Care Act
Federalism and the
Supreme Court Today
•Reining In the Commerce Power
•United States v. Lopez
•United States v. Morrison
•Affordable Care Act
Federalism and the
Supreme Court Today
• State Sovereignty and the Eleventh Amendment
• The Tenth Amendment Issues
• Other Federalism Cases
• Supreme Court not consistent in support of states’ rights
• Legalization of marijuana, right to life issues, immigration
Federalism & SC
• Plays big role in determining state v. fed power
• Marshall Court approach? Who won – state or fed? Examples? The
Supreme Court interpreted Congress’ powers under the __________
broadly which resulted in an increase in fed powers
• SC since 1990 – gradually tailoring national government’s powers
under the commerce clause. Court also given increased emphasis to
state powers under the ____________ and _______ Amendments.
• Point?? Has sent mixed messages, at time seems to favor states rights
at times federal pwr
United States v. Lopez
• Gun-Free School Zones Actbanned possession of guns
within 1000 feet of any school
• SC held unconstitutional bc
attempted to regulate an area
that had “nothing to do with
commerce or any sort of
economic enterprise”
• SC limited Congress’ pwr under
commerce clause
United States v. Morrison
Violence Against Women Act
1994-provided a federal remedy
for gender-motivated violence like
rape
Court said aggregate effect on
interstate commerce is not
enough to justify national
regulation of noneconomic,
violent criminal activity
Affordable Care Act (Obama Care)
Requires individuals to have
health insurance through an
employer or by purchasing it,
if they don’t they are fined
Govt argued constitutional
under its pwr to regulate
commerce
SC found constitutional, but
under pwrs to tax
State Sovereignty & the 11th Amendment
11th Amendment ?
• One state cant be sued in federal court by a citizen of a different
state, or by a foreigner, without consent!
• Interpreted more broadly
• States enjoy immunity from being sued for violations of federal laws, unless the
states consent to be sued
State Sovereignty under the
• 10th Amendment says?
• NY v. United States – requirements
imposed on NJ under a federal law
regulating radioactive waste was
unconstitutional and inconsistent
with 10th Amendment
• Printz v. US – Court struck down
provisions of the federal Brady
Handgun Violence Protection Act
that required state employees to
perform background checks on
handgun purchasers
th
10
Amendment
Gonzales v. Oregon
• SC upheld Oregon’s
controversial “death
with dignity” law
which allows patients
with terminal illness to
choose to end their
lives early
What would you do?
Federalism & State Immigration Policy