Enduring Struggle:
Who’s got the power!!!!!
What is federalism?
 Founders:

 Don’t want unitary gov
 Confederal gov wasn’t working
What is Federalism?

 The division of powers and functions between the
national and state governments
 Each have a large measure of sovereignty
 Power to restrain each other
 Goal: protection of liberty
 “ambition must be made to counteract ambition”
So how is power divided? How do
we know who is in charge of what?!?

 Expressed (Enumerated): powers granted to the National
Government that are explicitly written into the Constitution
 Reserved: (guaranteed by 10th amendment): powers granted to
the state governments
 “The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people”
 Concurrent: powers that both states and the National
government share
 Art. I, secs 8
 Art. IV, sec 4

 Implied power:
 Necessary and proper / Elastic clause Article 1 Section
8 Clause 18
 Equation: Congress has the implied power to
__________________ because it is “necessary and
proper” in order to carry out its expressed power (s) to
______________________________________.
 Example: Congress has the implied power to impose
regulations on drugs because it is “necessary and
proper” in order to carry out its expressed power (s) to
regulate interstate commerce.

 Inherent power: powers given to all sovereign
nations under international law
 Wage war, make peace, acquire land
Federalism as established in
Constitution

Who’s got the power?!? : This debate ensued during ratification
process
 Many assumed that the Federal government would only have
the powers given to it by the Constitution.
 Govern such different areas of policy that there is no need to
spell out the powers
 Madison: Federalist 46
 “ both state and federal governments are in fact different agents
and trustees of the people, constituted with different powers
 Anti-Feds disagree: 10th amendment
 “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people”
Who’s got the power?

Madison v. Hamilton
 M: The power comes from “the people” they have the
ultimate authority, not the national gov
 “ The powers delegated by the proposed Constitution to
the Federal government are few and defined. Those
which are to remain in the State governments are
numerous and indefinite”
 Originally favored strong national gov
 H: Supremacy clause = national gov is top dog
Dual Federalism: Classic Constitutional
Federalism (1789-1932)

Supremacy Clause
Expressed Powers
Concurrent powers
10th amendment
Reserved powers
Each sphere has it’s own distinct powers: Federal (PFDA) States (regulate their own meat inspection)
What about the relationship
between states?

 Article IV
 Full faith and credit clause
 1996: Congress passed DOMA: states don’t have to
recognize same sex marriage
 SCOTUS currently discussing constitutionality of this
 Privileges and immunities clause (comity clause)
 Extradition
Enduring Struggle: States’ rights v.
National Supremacy (Who’s got the
power?)

“ The question of the relation of the States to the
National government is the cardinal question of our
constitutional system. At every turn of our national
developments we have been brought face to face with
it, and no definition either of statesmen or judges has
ever quieted or decided it. It cannot, indeed, be settled
by one generation because it is a question of growth,
and every successive stage of our political and
economic development gives it a new aspect, makes it a
new question”
Woodrow Wilson
What happens when the states and
national gov can’t agree? Necessary
and proper clause

 McCulloch v. Maryland (1819) case background
 1) Congress establishes the Bank of the United States
 2) Maryland passes a new state law which….
 3) McCulloch is fed up!!!
What did the Supreme
Court determine?

 1) Does Congress have the power to establish a national bank?
 2) Do the states have the power to tax federal institution?
 A) Intent of the Maryland is….
 B) “This Constitution, and the Laws of the United States which shall
be made in pursuance thereof………shall be the supreme Law of the
Land.”
 Necessary and proper clause strengthened
Congress has the implied power to create a bank because it is
“necessary and proper” in order to carry out its expressed
power (s) to tax, borrow money, pay debts, and print and coin
money.
 Supremacy Clause establishes a hierarchy!!
Expansion of Federal powers:
Commerce Clause

 Gibbons v. Ogden:
 Background of case
 NY state grants Ogden exclusive rights to shipping on a NY
waterway, this allows him to ship good between NY and NJ
 Gibbons sues, violates commerce clause…
 Did NY violate the commerce clause by attempting to regulate
interstate trade?
 What does the court decide?
 How does this expand federal powers?
 Commerce Clause – broad definition of what can be
considered commerce
 Allows gov to get SUPER involved in economic activity
SCOTUS : Who’s got the
power?

 These rulings indicated that the national government was
entitled to expansive powers under
 Supremacy Clause
 Fed gov top dog
 Necessary and proper clause
 Grants implied powers; think equation
 Commerce Clause
 Power to regulate interstate trade: almost EVERY type of
commercial activity is considered interstate trade today
By in large, Congress neglected to act on their ability to expand
their powers until the 1930s…
Questions to ponder

 Should states always obey federal laws? (Supremacy
Clause)
 When have states challenged fed law?
 Compact theory, Calhoun and nullification, Little Rock
 What was the outcome?
 How far should the elastic / necessary and proper clause
stretch?
 Commerce Clause: how much regulation?
 When doe intrastate commerce end and interstate
commerce begin?
 Is there still such a thing as intrastate commerce in 2013?
History of US
Federalism

1789-1933
1933-Today
Fed
Fed
States
States
National
Gov
History of US Federalism:
Dual Federalism /Layer Cake…
State govs
 1789 to New Deal =
Layer Cake / Dual
Federalism
 Powers clearly
divided, states
actually do most of the
governing, but
national gov top dog
Cooperative Federalism / Marble
Cake Federalism

 1930s to present day = Marble Cake Federalism
(cooperative federalism)
 Cooperating on policy together
 Interstate highway system
 Initial $ from fed, state implements and maintains program
 Federal gov’s role is expanding
 Courts generally rule in favor of Supremacy Clause and
Necessary and proper clause and against the 10th
amendment
 Basically in favor of Federal intervention
 This slowed down from 1981-2001 = devolution revolution
 Post 9/11 = more federal intervention
Devolution Revolution
(1981-2001)

 Sometimes referred to as New Federalism
 Argued that Federal gov needs to give power back to the states
 States’ rights
 Dev Rev in action
 US v. Lopez 1995
 Fed gov can’t make laws concerning handguns in school zones, this does not concern
interstate commerce


Congress changed law to state laws bought out of state can’t be in a school zone
States may make their own laws concerning this issue
 US v. Morrison 2000
 Challenged 1994 Violence Against Women Act, violence against women is not an
economic issue

Congress passed this act citing the Commerce Clause, amended act to include violence that
crossed state lines
 Welfare Reform Act 1996
 Fed gov gives block grants to states and they decide who qualifies, how much people
receive
 No more than 2 years of assistance without working
 Can’t get assistance for more than 5 years
Many claim this era ended with the attacks on 9/11/01 ,
Fiscal Federalism
: The Carrot

Grants in aid = $ given to state and local gov
 key feature of cooperative / marble cake federalism
 Allows federal gov to influence what happens at the state level
 Types of grants in aid
 Categorical Grants: federal grants that can be used for specific
purposes; allow Federal gov to get involved in areas they can’t due to
the lack of an expressed power
 To build an airport
 Block Grants: federal grants to support broad programs, generally a
block (group) of categorical grants; gives states more freedom
 To aid with law enforcement
 Community development
 Begin to be used during Reagan’s presidency (part of devolution revolution)
Fiscal Federalism

 $460 billion in grants every year
 Grant distribution follows universalism—a little something
for everybody.
 I scratch your back, you scratch my back
 Can lead to disproportionate share of the pie
 Homeland Security funding Wyoming gets 17x more funding
per person than NY
Fiscal Federalism

 http://www.pewstates.org/research/datavisualizations/fiscal-federalism-by-the-numbers85899427055
Types of grants

 http://www.neh.gov/grants/education/enduringquestions
 http://portal.hud.gov/hudportal/HUD?src=/progr
am_offices/comm_planning/communitydevelopme
nt/programs/entitlement#intro
Sequestration and fiscal
federalism

 http://www.pewstates.org/research/datavisualizations/the-impact-of-the-fiscal-cliff-on-thestates-sequestration-85899435504
 Congress has set the amount of $ to be cut
 Basically 9% cuts across the board – no discretion
 EVERY program gets cut by 9%
 All grant programs will be effected
 $85 billion cut between March and September of this
year
Fiscal Federalism: The
Stick

Mandates
 Laws that states/ local gov must comply with, must come
from an expressed power!!!!
 Basically financial obligations placed on states, may be
funded but not always…
 Mandates are MANDATORY (as the name implies )
 Unfunded mandates: must do this, no money to fund it…
1995 unfunded mandate act…
 Civil Rights Act 1964 ( no money)
 Commerce clause
 Americans with Disabilities Act (some money given but not
enough)
 Commerce clause
 No Child Left behind Act (some money given but not enough)
 Power to tax, borrow money… (if you can raise $ you can spend $)
Grants v. Mandates

Grants: The Carrot
(Optional)
 Categorical grants: fed power
 Often have strings attached to
give Fed gov more control over
states


TANF (food stamps)
Head Start
 Block Grants: state power
 States, local governments,
citizens request grants
 Want to do it, usually little to
no strings
 Power to solve problem
without federal intervention
Mandates: The Stick
(Mandatory)
 Federal government imposes
regulation on states / local
governments
 Got to do it or there will be
penalties

21 drinking age = highway
dollars
 Sometimes money is given to
states if they comply with all
of the rules
 No Child Left Behind
 Sometimes mandates are
issued and no money is
rewarded
 Civil Rights Act 1964
th
10
amendment as a
source of State power

 Can give states power to solve problems in a unique
way, as long as it doesn’t contradict federal law
 Problem: NJ needed to raise more revenue
 Solution: Legalize gambling and tax it
 Problem: Citizens of NJ want more options when it
comes to treating chronic pain and other medical
conditions
 Solution: Legalize the use of Medical Marijuana
Selective incorporation
as a limit on state power

Selective incorporation: the 14th amendment has been used by the courts in a
haphazard way to apply several of the first 10 amendments to the states as
well as the federal gov
 14th : “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”
 Currently on the 3rd and 7th not incorporated
 Initially the Bill of Rights ONLY applied to the Federal Gov
 Examples:





Gitlow v. NY: 1st-freedom of speech (1925)
Mapp v. Ohio: 4th-search and seizure ( 1961)
Gideon v. Wainwright: 6th -right to counsel in all felony cases (1963)
Benton v. Maryland: 5th- No double jeopardy (1968)
Argersinger v. Hamlin: 6th- right to counsel imprisonable misdemeanor (1972)
 How would this limit the power of the states?
Federalism

Enduring question: who’s got the power?
“ The question of the relation of the States
to the National government is the cardinal
question of our constitutional system. At
every turn of our national developments
we have been brought face to face with it,
and no definition either of statesmen or
judges has ever quieted or decided it. It
cannot, indeed, be settled by one
generation because it is a question of
growth, and every successive stage of our
political and economic development gives
it a new aspect, makes it a new question”
Woodrow Wilson
Pros and Cons of
Federalism

 Pros:
 promotes diverse policies – “labs of democracy”
 division of power: no one faction can dominate
 multiple avenues for political participation
 Cons:
 states have different resources (unequal access)
 local interests can delay policy that is good for
majority
 confusion/ difficult to know what different levels of
government are doing
Physician assisted
suicide and Federalism

 Gonzales v. Oregon (2006)
 Attorney Gen. Gonzales, on behalf of the Fed gov,
brought suit against Oregon stating their legalization
of physician assisted suicide violated the CDS Act
 The process includes the use of Schedule II drugs
(deemed to have medicinal value)
 Problem?: Treatment designed to cause death is not a
proper medical use of a CDS
Currently legal in Oregon,
Washington, and Montana

Federalism: A Review



What: a division of power between the national and state governments
Be able to identify expressed / reserved/ and concurrent powers (when the Constitution was written)

Dual federalism / layer cake


1796-New Deal
Cooperative Federalism / marble cake



New Deal to today
Grants
Mandates






Americans with Disabilities Act
Civil Rights Act 1964
Devolution Revolution?!?
Why: to protect liberty
Pros / Cons of federalism
Who’s go the power?

Limits on the power of the states






Supremacy Clause
Necessary and proper clause / commerce clause : McCulloch & Gibbons
Categorical grants
Mandates
Selective Incorporation
Power given to the states

10th amendment


Block grants
Devolution: examples?


US v. Lopez, US v. Morrison
Lopez. Morrison, and Welfare reform
FRQ

 The Framers of the Constitution created a federal system.
 A) define federalism
 B) select two of the following and explain how each has been
used to increase the power of the federal government relative
to the states.
 Categorical grants
 Federal mandates
 Selective incorporation
 C) Select two of the following and explain how each has been
used to increase the power of states relative to the federal
government
 Welfare reform act of 1996
 Block grants
 10th amendment