Federal/State Powers
 Concurrent = held jointly (tax, borrow,
make and enforce laws, establish courts, etc.)
 Prohibited = national government  taxing
exports; states  entering into treaties with
another country
 Supremacy clause (Article VI, clause 2,
369) = Constitution and federal laws superior
to all conflicting state and local laws



federal law takes precedence over state law
Constitution, congressional laws, national treaties, and
rules/regulations issued by executive are “Supreme Law
of the Land”
states cannot use reserved or concurrent powers to
thwart national policies
Select Constitutional Powers
National
EXPRESSED
 coin money
 conduct foreign relations
 regulate interstate commerce
 levy and collect taxes
 declare war
 raise and support the military
 establish post offices
 establish courts inferior to the
Supreme Court
 admit new states
IMPLIED
Elastic/Necessary and Proper
(Article 1, Section 8, Clause 18)
INHERENT
Grounded in international law
Both
CONCURRENT
 levy and collect
taxes
 borrow money
 make and enforce
laws
 establish courts
 provide for the
general welfare
 charter banks and
corporations
State
RESERVED
 regulate intrastate
commerce
 conduct elections
 provide for public
health, safety, and
morals
 establish local
governments
 ratify amendments
to the federal
constitution
 establish a state
militia
Select Powers Denied by the
Constitution
National
Both
State
 tax articles exported
from any state
 violate the Bill of
Rights
 change state
boundaries
 suspend the right of
habeas corpus
 make ex post facto
laws
 subject officeholders
to a religious test
 grant titles of
nobility
 permit slavery
 deny citizens
the right to vote
because of race,
color, or previous
servitude
 deny citizens
the right to vote
because of gender
 tax imports or
exports
 coin money
 enter into treaties
 impair obligations
of contracts
 abridge the
privileges or
immunities of
citizens or deny due
process and equal
protection of the
laws
Vertical Checks and Balances
 Separation of powers/checks and balances at
national level  preventing national
government from becoming too powerful
 Federalism = “vertical” checks and balances
between states and national government
 States’ checks = reserved powers;
representation in Congress; vote for president;
amendment process; administration of national
programs
 National government’s checks = expressed
and implied powers; Supremacy clause;
commerce clause; federal grants
Interstate Relations
 A.k.a. “horizontal federalism”
(Article IV, 368-9)
 Full Faith and Credit = all states
required to respect one another’s laws
 Privileges and Immunities = citizen
of a state has all rights as citizen of
another state where they happen to be
 Extradition = person accused of
crime who flees to another state must
be returned if requested
Expanding Powers of
National Government
 Landmark Supreme Court cases under Chief
Justice John Marshall increased power of
national government
 McCulloch v. Maryland (1819) – enhanced
implied powers of national government through
expansive interpretation of necessary and
proper clause (Article I, Section 8, Clause 18,
365)
 Gibbons v. Ogden (1824) – broad
interpretation of commerce clause (Article I,
Section 8, Clause 3, 364) expanded regulatory
powers of federal government; regulation of
interstate commerce exclusive national power
Reassertion of States’ Rights
and Civil War
 Civil War – ultimate dispute over power
of national and state governments;
national government supremacy and
rights of states
 Nullification – idea states could declare
national law null and void
 Secession – withdrawal of state from
union
 Civil War ends idea state can secede
and leads to increase in national
government power
Growth of National Government
 Defeat of South ends idea states can secede
from Union
 Civil War results in expansion of powers of
national government (opposite of what
South was fighting for)
 New governments employees hired to
conduct war effort and Reconstruction
 Billion dollar budget passed
 Temporary income tax imposed on citizens
 Civil liberties curtailed because of war effort
 National government provided pensions to
veterans and widows
Continuing Dispute over
division of power
 Post-Civil War – two major phases in
Federal-State government relations
 Dual Federalism – national and state
governments equal sovereign powers within
own spheres
 e.g., states control intrastate commerce; federal
government interstate commerce
 Cooperative Federalism (post-depression
era) – states and national government
cooperate to solve common problems
Federal Aid to States




Transportation improved, trade expanded, national
government began to regulate national economy and
construct infrastructure through federal grants
Categorical grants-in-aid = federal grants targeted for
specific programs/projects (Medicaid, highway
construction, unemployment, housing, welfare); enables
Congress to effect policy change in states
Block grants = federal grants provided for general
functional areas (criminal justice, mental health);
preferred by states because it gives them greater
flexibility in spending
Federal mandates = rules/regulations handed down by
federal government (environmental protection, civil
rights), often unfunded and expensive, that force states
and municipalities to comply with certain rules
Supreme Court and Federalism
 Key role in determining line between
state and federal powers
 Over last decade, conservative
Rehnquist/Roberts courts have
lessened federal government powers
under commerce clause
 Emphasized state powers granted by
10th and 11th Amendments
Federalism, Supreme Court,
and Commerce Clause
 United States v. Lopez – court rules
Congress exceeded authority under
commerce clause in passing Gun-Free
School Zone Act of 1990
 United States v. Morrison – court rules
Congress exceeded authority under
commerce clause in passing Violence
Against Women Act of 1994
Federalism, Supreme Court
and Eleventh Amendment
 Decisions bolstered authority of state
governments:
 Alden v. Maine (1999) – state employees can’t
sue state for violating federal overtime pay law
 Kimel v. Florida Board of Regents (2000) – state
university employees can’t sue state for
violating federal age discrimination law
 Yet, in Nevada v. Holmes (2003) – court ruled
state employers must abide by federal Family
Medical Leave Act, which seeks to outlaw gender
bias
State Governments Today
 Provide highly visible functions (e.g., education,
health, police, fire, roads, welfare, etc.); funded by
sales taxes and income taxes
 Local government services funded by property taxes
 Mirrored on national government
 Most executives have line item veto power (unlike
President)
 Legislatures often criticized as unprofessional,
ineffective; limited resources; limited meeting times;
low pay; responsible for drawing electoral district
lines
 Each maintains a court system
 Crises in state finances vitally important (as we know
all too well in CA)
Why Federalism is Important
 No uniform body of national laws (unlike under
Unitary governments)
 Differences in criminal sanctions and
sentencing from state to state; county to
county
 Differences in welfare and education spending
 Allows for diversity and inequalities
 Gives citizens option to “vote with their feet”
and go to state conducive to their interests
Discussion Questions
 Is there a proper balance between
states’ rights and the powers of the
federal government?
 Would we be better off with increased
federal powers?
 Has federalism “worked” for the U.S.?
 Do you think unfunded federal mandates
are fair?