The Federal System
Chapter 4
National and State Powers
Section 1
Pages 95 - 102
The Division of Powers
The Constitution divided power in the following ways:
1) The national government received certain specified
powers. (Article I, Section 8, Clauses 1 -18)
2) Some powers are reserved to the states.
(Amendment 10)
3) Some powers are reserved to the people.
(Amendment 9)
4) National and state governments share some
powers.
5) Some powers are specifically denied to each level of
government.
National Powers
The Constitution grants three types of
powers to the national government:
1) Expressed
2) Implied
3) Inherent
Collectively, these powers are known as
delegated powers because the
Constitution grants or delegates them to
the national government.
Expressed Powers
The expressed
powers are those
powers directly
expressed or stated in
the Constitution by
the Founders. Most
of these are found in
the first three articles
Some expressed powers include:
of the Constitution.
1) power to levy and collect taxes
2) to coin money
Expressed powers
3) to make war
are also called
4) to raise an army and navy
enumerated powers. 5) to regulate commerce between the states
Implied Powers
The powers that the
national government
requires to carry out
the powers that are
expressly defined in
the Constitution are
called implied powers.
They are not
specifically listed but
depend upon the
expressed powers.
For example, the power to draft people
into the armed forces is implied by the
expressed power of the national
government to raise an army and a
navy.
Implied Powers
The basis for the implied powers is the
necessary and proper clause (Article I,
Section 8). This clause is also called the
elastic clause because it allows the
Constitution to stretch. Implied powers
have helped the national government
strengthen and expand its authority to
meet many problems the Founders did not
foresee such as the regulation of nuclear
power plants and the development of the
space program.
Necessary and Proper Clause
aka Elastic Clause
Elastic Clause - Article I, Section 8 of the
Constitution states that Congress shall have the
power "to make all laws which shall be
necessary and proper for carrying into
execution...powers vested by this Constitution in
the government of the United States." This
clause, known as the elastic clause, was the
point of much contention between those who
favored a loose reading of the Constitution and
those who favored a strict reading.
Inherent Powers
Those powers that the
national government may
exercise simply because
they are a government
are its inherent powers.
For example, the national
government must control
immigration and establish
diplomatic relations with
other countries, even
though these powers are
not listed in the
Constitution.
Federalism: Division of Powers
The States and the Nation
Some people felt that the
Constitution granted too much power
to the national government. In The
Federalist, No. 45, James Madison
argued that in fact it granted few and
limited powers to the national
government, while the state’s powers
were many and broadly drawn. The
Constitution also reserves certain
powers strictly to the states. These
are called reserved powers.
(Amendment 10) An example of a
reserved power is the regulation of
public school systems.
The Supremacy Clause
Article VI, Section 2, of the Constitution makes
the acts and treaties of the United States
supreme. This is called the supremacy clause.
No state law or state constitution may conflict
with any form of national law. All national and
state officials and judges are bound to support
the Constitution. States may not use their
reserved powers to interfere with the
Constitution. Because all local governments
(cities and counties) are created by state
governments, they are also bound by the
Constitution.
The Supremacy Clause
Article VI, Paragraph 2 of the United States Constitution
is known as the Supremacy Clause:
"This Constitution, and the law of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the authority of the United States, shall be
Supreme Law of the land; and the Judges in every state shall be
bound thereby, any thing in the Constitution or Laws of any state
to the contrary notwithstanding."
The Supremacy Clause establishes the Constitution,
Federal Statutes, and U.S. treaties as "the supreme law
of the land." The Constitution is the highest form of law in
the American legal system. State judges are required to
uphold it, even if state laws or constitutions conflict with
it.
Concurrent Powers
Concurrent powers are those
powers that both the national
government and the states
have. Each level of government
exercises these powers
independently. Concurrently,
with the national government,
states may exercise any power
not reserved by the Constitution
for the national government.
State actions may not conflict
with any national laws.
Concurrent Powers:
1) power to tax
2) to maintain courts
3) to define crimes
4) to appropriate
private property
for public use
(eminent domain)
Denied Powers
The Constitution specifically
denies some powers to all
levels of government.
Article I, Section 9,
enumerates those things
that the national
government cannot do.
Examples of denied powers:
1) the national government cannot
tax exports
2) the national government cannot
interfere with the states to
carry out their responsibilities.
Article I, Section 10 lists the
powers denied to the states.
Among powers denied to
the states are:
1) states cannot make treaties or
alliances with other countries
2) states cannot coin money
3) states cannot make any laws
impairing the obligations of
contracts
4) states cannot grant titles of
nobility
5) States must have the
permission of Congress to
collect duties on imports or
exports or to make compacts
with other states
Guarantees to the States
The Constitution obliges the national government to do three
things for the states. These three obligations are found in
Article IV, Sections 3 and 4.
1) The national government must guarantee each state a
republican form of government.
2) The national government must protect states from
invasion and domestic violence.
3) The national government has the duty to respect the
territorial integrity of each state.
Republican Form of Government
The national government must guarantee each
state a republican form of government.
Enforcement of this guarantee has become the
responsibility of Congress. When Congress allows
senators and representatives to take their seats in
Congress, it is in effect ruling that the state have a
republican form of government. The only
extensive use of this was after the Civil War when
some Southern states refused to ratify the Civil
War amendments. (13th, 14th, & 15th ) Congress
ruled that these states did not have a republican
form of government and refused to allow the
senators and representatives to take their seats
until the state had ratified these amendments.
Protection
The national government must protect states from
invasion and domestic violence. An attack by a foreign
power on one state is considered an attack on the
United States. Congress has given the president
authority to send federal troops to put down domestic
disorders when state officials ask for help. The
president may send troops without the request of local
officials, even over local objections in the following
three circumstances:
1) national laws are violated
2) federal property is threatened
3) interference with federal responsibilities
The national government has extended its definition of
domestic violence to include natural disasters.
Territorial Integrity
The national government has the
responsibility to respect the territorial
integrity of each state. The national
government cannot use the territory of an
existing state to create a new state without
the permission of the legislature of the
state involved. The admission of West
Virginia in 1863 may be considered an
exception to this rule.
Admission of New States
The Constitution gives Congress the power to admit
new states. There are two restrictions to this power.
1) No state may be formed by taking territory from
one or more states without the consent of the
states involved or Congress.
2) Acts of admission, like all laws are
subject to presidential veto.
Admission of New States
1) Congress passes an enabling act when signed
by the President allows the people of a territory
interested in becoming a state to prepare a
constitution.
2) After the constitution is drafted and approved
by a popular vote in the area, it is submitted to
Congress
3) Congress then passes an act admitting the
territory as a state.
Conditions for Admission
The Supreme Court has ruled that
Congress and the president may impose
certain conditions before admitting a new
state including requiring changes in the
submitted constitution. Once a state is
admitted, those conditions may be
enforced only if they do not interfere with
the new state’s authority to manage its
own internal affairs.
Equality of the States
Once admitted to the Union, each state is
equal to every other state and has rights to
control its internal affairs. No state has
more privileges or fewer obligations than
any other. Each state is also legally
separate from every other state in the
Union. All states in the Union are bound
to support the Constitution.
National Governors’ Association
• Meeting of governors called by President
Theodore Roosevelt in 1908 to discuss
conservation.
• Governors began to meet regularly at the
Governors’ Conference to deal with a variety of
issues.
• In the 1960’s the governors set up a permanent
organization with an office in Washington D.C.
• Renamed the National Governors’ Association.
Role of the National Governors’
Association
• NGA supports federalism by helping governors
in state policy making and in influencing national
policy.
• NGA held seminars and published materials in
the 1970’s to improve a governor’s performance
in his or her own state.
• NGA allows states to share ideas about how to
solve common problems.
• NGA started focusing their attention on national
policy concerns in the 1980’s becoming a big
part of the national policy-making process.
Obligations of the States
1)
2)
The states perform the following two functions for
national government.
State and local governments conduct and pay for
elections of all national government officials –
senators, representatives and presidential electors.
Congress has the authority to alter state election laws
if it so desires.
States also have an important role in the addition of
amendments to the Constitution. It requires three
fourths of the states to ratify an amendment before it
can be added to the Constitution.
The Courts as Umpire
When conflicts arise between national and state
governments, the federal court system
(particularly the Supreme Court) serves as an
umpire in our federal system.
In McCulloch v. Maryland (1819) the Supreme
Court held that in a conflict between the national
and state government, the national government
is supreme. Through time this position has
shifted depending upon the mood of the nation
and the make up of the Court.
American Federalism
Marble Cake Or Layer Cake?
Marble Cake Federalism
is based on a pragmatic
mixing of authority and
programs among the
national, state, and local
governments.
Layer Cake Federalism
is based on a clear
delineation of authority
and programs among the
levels of government
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Dual Federalism
Federalism:
Which is preferred by most Americans?
Relations Among the States
SSCG5 (e)
Section 2
Pages 103 - 105
Introduction
The Constitution, in establishing the federal system, defined
not only national-state relations but also relations among
states.
One of the major reasons for drafting the Constitution in
1787 was to solve conflicts and jealousies that occurred
among the states. The Constitution dealt with this problem
in the following two ways:
1) The national government was strengthened.
2) Legal ground rules for relations among states were set.
(Article IV)
This works because each state retains much
power and independence leading to cooperation
among the states.
Interstate Relations
Article IV of the Constitution requires the states
to do the following:
1) Give “full faith and credit” to the laws, records
and court decisions of other states.
2) Give one another’s citizens all the “privileges
and immunities” of their own citizens
3) Extradite – return to a state-- criminals and
fugitives that flee across state lines to escape
justice
Full Faith and Credit
• Each state must recognize the laws and legal
proceedings of all other states.
• This clause applies only to civil law, or laws
relating to disputes between individuals, groups
or with the state. One state cannot enforce
another state’s criminal laws.
• Without this rule, states could treat each other
like foreign countries and they would become
havens for people trying to avoid legal duties
and responsibilities.
Privileges and Immunities
• This clause means that one state may not discriminate
unreasonably against citizens of another state.
• It must provide citizens of other states the same privileges
and immunities that it provides it’s own citizens.
• This includes the rights to pass through or live in any state;
use the courts; make contracts; buy, sell, and hold
property: and marry.
• States may make reasonable discrimination against
nonresidents. The privileges and immunities clause does
not apply to voting, serving on juries, or using certain
facilities.
• Some states require a residence requirement before
allowing a person to vote, become a public official or
practice a specific profession.
• Reasonable discrimination examples:
Extradition
• Because states are basically independent of each other,
there has to be a way of preventing criminals from
escaping justice by simply moving to another state.
• Article IV, Section 2 provides for the extradition of
fugitives.
• “A Person charged in any State with Treason, Felony, or
other Crime, who shall flee from Justice, and be found in
another State, shall on Demand of the executive
Authority of the State from which he fled, be delivered
up, to be removed to the State having Jurisdiction of the
Crime”
--Article IV, Section 2
• Congress has made the governor of the state to which
the fugitive has fled responsible for returning them.
• The Supreme Court has ruled that a governor does not
have to extradite a fugitive.
Extradition
• Congress has made the governor of the state to
which the fugitive has fled responsible for
returning them.
• The Supreme Court has ruled that a governor
does not have to extradite a fugitive.
• Congress has tried to close this loophole in
recent years by making it a federal crime to flee
from one state to another to avoid prosecution.
Interstate Compacts
• The Constitution requires that states settle their
differences with each other without the use of force.
• The principal way states do this is through the
negotiation of interstate compacts.
• An interstate compact is a written agreement between
two or more states. The national government or foreign
countries may also be a part of an interstate compact.
• Congress must approve interstate compacts.
• Today there are nearly 200 interstate compacts in force.
• These agreements are used to deal with matters such as
air and water pollution, pest control, toll bridges,
transportation and the development and conservation of
natural resources.
• Interstate compacts have become an important way for
states to deal with regional problems.
Georgia/Interstate Compact
• Georgia is a participant in the national Interstate
Compact. In short, the compact allows offenders
convicted in one state to be supervised in
another state to facilitate employment or family
support. As of the end of the fiscal year, there
were more than 4,000 Georgian probationers
being supervised in other states and
approximately 2,891 probationers from other
states being supervised in Georgia.
Lawsuits Between States
• Sometimes states cannot resolve their
differences and an interstate lawsuit results.
• Since 1789 more than 220 disputes between
states have wound up in court.
• Suits among two or more states are heard in the
United States Supreme Court, the only court in
which one state may sue another.
• States may bring each other to court for a variety
of reasons such as water rights or boundary
lines.
Let’s Recap
• What were the 3 requirements the
Constitution says that states must do for
each other?
• What is the purpose of an interstate
compact?
• So what is the importance of cooperation
between the states?
Developing Federalism
Section 3
Pages 106 - 110