FEDERALISM
Chapter 3
Forms of Government:
Unitary
Government
• All powers are
held by a single,
central agency.
Confederate
Government:
• An alliance of
independent
states
Federal Government
• The powers of government are divided
by a written Constitution between a
central (federal) government and
regional (state, constituent) gov’ts.
FEDERALISM:
More Definitions:
• Two or more levels of government
have formal authority over the same
area and people…another system of
checks & balances!
• A decentralization or DEVOLUTION
of government; a “sharing of the
wealth” and gov’t power.
Do state gov’ts influence the federal gov’t?
Does the federal gov’t influence state gov’ts?
What obligation does the federal gov’t have to state
governments?
protect the states against violence and invasion
Why was federalism the only real
choice for the framers?
• Citizens too spread out to have a unitary gov’t
• No other practical choice since transportation &
communication systems too primitive to allow
governing from a central location
• The Confederation had clearly failed.
• American’s loyalty to state gov’ts was stronger
than it was to the U.S. government
• If they tried to abolish state governments, the
Constitution would not have been ratified.
Types of Powers
• EXPRESSED (delegated, enumerated):
– Powers exclusive to federal
government, stated specifically in
Constitution
– Only Congress makes law, declares
war, establishes Army & Navy,
regulates commerce, coins money,
grants copyrights & patents, admits
new states, Post Office, etc.
Implied Powers
• Additional powers of federal
gov’t that are implied to make
Congress’ expressed powers
work
• Source: Elastic Clause
– Congress may pass any law “necessary
and proper” for carrying out its
expressed powers
– IRS is a good example
– Explain – what expressed power does it
reflect?
Article I, Section. 8.
The Congress shall have Power
1-To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
2-To borrow Money on the credit of the United States;
3-To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
4-To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United
States;
5- To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
6- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
7-To establish Post Offices and post Roads;
8-To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries;
9-To constitute Tribunals inferior to the supreme Court;
10--To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11-To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12-To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13-To provide and maintain a Navy;
14- To make Rules for the Government and Regulation of the land and naval Forces;
15-To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16-To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed
in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of
training the Militia according to the discipline prescribed by Congress;
17-To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by
Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to
exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be,
for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
18-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.
Inherent Powers
• a special category of national
powers – not implied – that
simply derive from fact that
U.S. is a sovereign nation
• So… only federal gov’t makes
treaties with other nations,
wages war, acquires territory,
determines citizenship laws
Reserved Powers
• RESERVED- states rule!
– Powers not delegated to federal government
in Constitution nor prohibited to the states
are reserved to the states
• 10TH AMENDMENT
– if power is not stated in Constitution,
STATES get the power
• States have power to regulate intrastate
commerce,, provide for the public safety,
establish local governments, conduct elections
and establish rules for elections, and originally
even determined voter qualifications
Concurrent Powers
• Powers that are shared by
federal and state governments
– Tax
– Borrow Money
– Create Banks
– Establish courts
– Education?
Are the activities below
powers of the federal gov’t,
state governments, or both?
•
•
•
•
•
•
Issue driver’s licenses
Determine length of the school year
Maintain the Air Force & Coast Guard
Clean up water pollution in rivers & lakes
Tax individual & corporate income
Set up the process early voting in
presidential elections
• Establish a lottery system
Denied Powers
• Congress cannot
• States cannot
– Enter into treaties
– Coin money
– Impair obligation of
contracts
– Cannot enter into
compacts with other
states without
congressional approval
– Denied the authority to
take arbitrary actions
affecting constitutional
rights and liberties
– Cannot pass a bill of
attainder
– No ex post facto laws
• Favor one state over
another in
regulating
commerce
• Cannot lay duties on
items exported from
any state
• Cannot pass a bill of
attainder
• No ex post facto
laws
Supremacy
Who rules in a conflict?
• Art VI- Supremacy Clause
• Provides that supreme law of
the land is made up of:
1.THE CONSTITUTION
2.Laws of the federal government
3.Treaties of the U.S.
Four historical events
have settled the issue of
federal/state supremacy:
1. Doctrine of implied powers
(McCulloch)
2. Definition of the commerce
clause (Gibbons)
3. The Civil War
4. The Civil Rights Movement
Federalism
and the Marshall Court
• 3 rulings in the early 1800s had a major impact on the
balance of power between national and state
governments.
– McCulloch v. Maryland (1819)
• Upheld power of national government and denied
the right of state to tax national bank
– Gibbons v. Ogden (1824)
• Upheld broad congressional power to regulate
interstate commerce
– Barron V Baltimore (1833)
• 5th Amendment (due process) doesn’t apply to
actions by states, limited Bill of Rights actions to
Congress
“The power to tax is the
power to destroy.”
•
•
•
McCulloch v.
Maryland, 1819
Supremacy clause & implied powers
of national government upheld
– State of Maryland tried to tax the Baltimore
branch of the newly-rechartered Bank of the U.S.
– McCulloch (cashier at Bank) refused to pay the tax
States may not tax a federal agency
“Elastic clause” gives Congress the
Necessary and Proper powers
(implied powers) to enact policies to
run the country (the Bank!)
More implied power…
• Commerce power:
• Gibbons v. Ogden
– John Marshall again
– If interstate or international
commerce is involved, Congress – not
the states - rules!
– Commerce defined VERY broadly
• Waterways, airwaves, airspace, the
internet, etc.
Gibbons v. Ogden,
The Steamboat Case
• NY granted a monopoly to steamboat
operator Ogden; monopoly was extended
across the Hudson River to NJ
• The issue of the case is whether a state’s
power can extend across state lines
• Marshall said NO:
– ANYTHING that crosses state lines
(such as the steamboat in this case)
becomes “interstate commerce” which is
controlled by the federal government.
NY cannot control commerce in NJ.
Civil War
• A struggle between power of
national and state governments
• Militarily settles the issue that the
federal government is supreme
Civil Rights
• A struggle of national/state power
over the issue of equal rights.
• Decided in favor of the national
government.
Article IV:
Obligations of States to
Each Other
• FULL FAITH & CREDIT
– States must recognize each other’s public Acts,
records and judicial proceedings
• Contracts……marriage licenses?
• EXTRADITION
• PRIVILEGES & IMMUNITIES
– Citizens entitled to same in all states
– For ex., same police protection, pay same rate of sales
tax, etc.
– But…..what about college tuition?
• RETURN OF ESCAPED SLAVES
Dual or
Cooperative
Federalism?
Federal
FEDERAL
State
From Dual to
Cooperative Federalism:
• Was the federal / state relationship initially one of
dual or cooperative federalism?
• Before 1930 – Dual – distinct roles/powers of each
level…although they argued over powers
• Power of national government more clearly
defined by early Marshall decisions such as ….?
• Then states began to assert their powers -- Dred
Scott case, 1857 ; States rights, Civil War
• Civil War, 1860’s– national power supreme
• 1913 - 16th & 17th amendments also increase d
national power at expense of states - How?
From Dual to
Cooperative Federalism:
• Great Depression – 1930s … demise of dual
federalism
– New Deal programs forced all levels of gov’t
(national/state/local) to work cooperatively
• The “Republican Revolution” of 1995
– led by Newt Gingrich – caused Congress to pass legislation that
reduced the overall power of the national government in favor
of the states. (such as social/welfare & environmental
programs)
• Rehnquist Court – 80’s/90’s … pro-states
• Roberts Court – immigration & healthcare / pronational
• Education – excellent example of cooperative
federalism
1. What symbols are used & what do they
represent?
2. What point of view is the cartoonist expressing?
Three standard operating
procedures for cooperative
federalism:
1. Shared costs - states and cities can
get federal funds for projects if they
share some of the costs
2. Federal guidelines – Most federal $
come with strings attached (drinking
age & federal $ for highways)
3. Shared administration – education?
FISCAL
FEDERALISM
Federal pattern of spending, taxing, and providing grants
• Grant programs have been around for 200+
years. This money is the major method used
by Feds to influence states.
• TWO TYPES OF FEDERAL AID – categorical
& block grants
• #1 Categorical grants – MAIN source of
federal aid. States have to apply for them.
Specific $$ for specific purpose (category) with
strings attached. (A common “string” is a nondiscrimination provision in hiring, promotions, etc.)
– Money allocated by precise formula (pop for ex.)
– Frequently require matching funds from states
•
•
•
•
#2 - BLOCK GRANTS
NEW FEDERALISM AT WORK!
Less restrictive guidelines than cat grants
Large amounts of money to states with only
general guidelines; states have more power over
how to spend $
• Many for social welfare programs such as
education, community development, health
services. Money for general areas of social
welfare, rather than for a specific program.
• Prime Example: TANF (Gingrich/Clinton)
– Administrative power for welfare programs
returned to states …DEVOLUTION!
MANDATES & THE MANDATE BLUES!
• Mandates = Feds dictate specific guidelines –
if states/l0cals don’t comply, penalized or
lose the $. . .
….Medicaid
• Unfunded Mandates = Federal gov’t passed laws
requiring action by states but provided no funding
• Clean Air Act, Disabilities Act, Desegregation
• Unfunded Mandates Reform Act of 1995
– Congress can no longer issue mandates without
addressing how to fund them BUT…..
– Hard to enforce / No Child Left Behind?
Obamacare?
THE KEY 4 COURT CASES
1. Marbury v. Madison (1803)
2. McCulloch v. Maryland (1819)
3. Gibbons v. Ogden (1824)
4. Barron v Baltimore
Federalist John Marshall expands the
power of the Federal Judiciary and the
Federal Government
REVIEW:
MAKE SURE TO
UNDERSTAND the difference
between Federalism &
Separation of Powers:
POWER OF GOVERNMENT
FEDERALISM: division
between LEVELS of government:
national & state
POWER OF GOVERNMENT
POWER OF GOVERNMENT -NATIONAL
POWER OF GOVERNMENT -STATE
SEPARATION OF POWERS
(done by each level):
Legislative
Executive
Legislative
Executive
-NATIONAL
Judicial
Judicial
-STATE