How the circle and the squares get along
Terms you need to know after this
presentation…
Federalism
Federalist #51
Delegated powers
Reserved powers
Concurrent powers
Prohibited powers
Elastic clause
McCulloch v. Maryland
(1819)
Commerce clause
Gibbons v. Ogden (1824)
• Dual Federalism
• Cooperative Federalism
• Grants-in-aid
• Categorical grant
• Block grant
• Mandate
• Devolution
• Pros and cons of
federalism
Disaster Relief
Who’s job was it to clean up New
Orleans and the rest of the coast
after Katrina?
No Child Left Behind
Should the national gov’t step in to regulate school
performance?
Federalist #51
Defends the Constitution
Explains why a strong gov’t is necessary
• “If men were angels, no government
would be necessary. If angels were
to govern men, neither external nor
internal controls on government
would be necessary.”
Defends separation of powers between
state and national gov’t
What is Federalism?
Federalism – Two or more governments exercise
power and authority over the same people in the
same territory
OR… the relationship between the federal
government (circle) and the state governments
(squares)
2 Federalisms?
OLD SCHOOL – Dual Federalism
• Federal and state governments remain dominant in their separate
spheres of influence
• Gibbons v. Ogden proved life is not that simple
NEW SCHOOL – Cooperative Federalism
• State and Federal governments work together to solve complex
problems
2 Federalisms
Dual Federalism – Layer Cake: Constitution has given
limited list of powers to the national gov’t and the rest
belongs to the states
Federal
State
• Cooperative Federalism – Marble Cake: Mixed set of
responsibilities in which all levels of government are
engaged in a variety of issues
Other Forms
Competitive: National government, States, and
localities all trying to compete with each other over
ways to hand out goods/services packages
Permissive: Even though powers are to be shared the
States’ powers rest with the National gov’t’s
permission
New federalism: Nixon and Reagan were good with
this. Power of the fed. Gov’t is limited in favor of the
wider powers reserved to the states
Advantages
1. Checks the Growth of Tyranny
2. Unity without Uniformity
3. Experimentation
4. Training for Future Leaders
5. Government close to the People
Disadvantages
1. Slow response time to national
problems
2. Difficult to know who is responsible
3. Lack of uniformity can lead to conflict
4. So many policies can lead to
inefficiency
Powers of National Government
-Delegated Powers (enumerated
powers) – powers given to Fed
gov’t by Constitution
- Implied: Inferred from express
powers that allow Congress to
function
-Concurrent Powers – shared
-Prohibited Powers – denied from
both
- Ex. Neither gov’t can tax exports
Delegated Powers
•Regulate interstate and international trade
•Coin money
•Declare war
•Maintain an armed forces
•Establish a postal system
•Enforce copyrights
•Sign treaties
Reserved Powers of the States
• Regulate intrastate trade
• Establish schools
• Establish local governments
• Pass statewide laws
• safety belt laws
• gun laws, etc.
• Run elections
Concurrent Powers
•Power to tax
•Maintain courts
•Borrow money
Elastic Clause
Aka – “Necessary and Proper Clause”
Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power - 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."
Impossible to predict all powers Congress will need to
function, sometimes we might have to allow
Congress extra powers to fulfill their delegated
powers
4 Pillars of Authority
1. National Supremacy Article
•
Article IV … This Constitution under the Authority of the
United States, shall be SUPREME law of the Land
2. War Power
3. Commerce Clause (Article I, Section 8, Clause I)
•
•
Wide range of activity
Gibbons v. Ogden
4. Power to Tax and Spend
Commerce clause
Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power To regulate commerce with foreign nations, and
among the several states, and with the Indian tribes.”
Congress has used the elastic clause to stretch this
power
What is commerce? “Buying and selling of goods and
services.”
Congress given the power to regulate commerce
between foreign countries and US as well as state to
state… they control business law.
Gibbons v. Ogden (1824)
1824 – aka “The Steamboat Case”
Ogden received a state licensed monopoly to run a ferry
across the Hudson River
Gibbons also saw the potential of the traffic between NJ and
NY and obtained a federal license.
Ogden sued saying he had the valid state license, even though
Gibbons had US license
Gibbons v. Ogden (1824)
Result – Gibbons wins
Marshall Court says only national gov’t can regulate
interstate commerce, not individual states per Art I,
sect. 8 commerce clause.
Fed Gov’t gets STRONGER
All trade today is primarily controlled by national law
Commerce Clause
Who cares? Why is it important?
Gibbons v. Ogden ruling makes a loop
hole giving Congress power to take
control over any issue involving the
movement of people, or things
Fed gov’t power increased
Supremacy Clause
The Courts as the Umpire of Federalism
McCulloch v. Maryland (1819)
Background
Bank of the US operated in Maryland
Maryland did not want BoUS to operate in state,
competition unwanted, unfair
Maryland taxed the bank to put it out of business
McCulloch, BoUS employee, refused to pay the state tax
McCulloch v. Maryland (1819)
Is a Bank of the US Constitutional?
YES. The national gov’t has certain implied powers that
go beyond delegated powers. US needs a national bank
for borrowing, lending, holding minted money, etc. All of
which are delegated powers.
McCulloch v. Maryland (1819)
Can a state tax the federal gov’t?
-NO. The federal gov’t is supreme. Since the BoUS is constitutional,
only the feds may tax it.
-John Marshall reaffirmed Supremacy Clause and Elastic Clause
-National (Federal) Gov gets STRONGER
United States v. Lopez (1995)
Commerce clause quiz!!!
1995 – “Gun Free School Zone” law banned possession of a firearm within
1000 feet of a school, 12 year old Lopez carried a gun on to the property
Declared law unconstitutional – “nothing to do with commerce” – carrying
a weapon through a school zone is too much of a stretch for “commerce”
LIMITED National government power
Gonzalez v. Raich (2005)
Commerce clause quiz!!! Medicinal Marijuana
Controlled Substance Act (1970) – US gov regulates
the manufacture, importation, possession, and
distribution of certain drugs
Medicinal marijuana was legalized in California, but
illegal to US government. Raich argued commerce
clause should not take effect because 1) there was no
business transactions and 2) there were no state
border issues.
Supreme Court ruled 6-3 against Raich saying that
the federal government could trump state laws that
permitted medicinal marijuana
Powers of the States
•Reserve Powers- Not delegated to the national gov’t
(10th Amendment)
•Create schools and local governments
Interstate Relationships
Full Faith and Credit Clause
• State courts must enforce the civil judgments of the
courts in other states
• Must accept their public records and acts as valid
Article IV Section 2
• States must extend same privileges and immunities they
grant to their own citizens
• Extradition to other states
Marbury v. Madison (1803)
•Established judicial review - affirms the Court’s position
as a coequal branch of government having considerable
influence on the politics of government and direction of
public policy.
•John Marshall Supreme Court Justice
•Marshall ruled against Marbury stating that it wasn’t
under the Supreme Court’s original jurisdiction
Fiscal Federalism
Fiscal means $
Q – How do you get the states to do things they normally wouldn’t do?
A – Money
Q – What is the answer to any question ever asked?
A – Money
Grants-in-Aid
Money paid from one level of government to another to be
spent for a specific purpose
Categorical Grants - target specific purposes and “strings
attached.” (States receive funds if state raised age to 21 and
lowered BAC to .08)
Block Grants (or flexible grants) – given for broad, general
purposes and allow more discretion on how the money is spent
(ex. Welfare reform)
Project Grants – Scientific research, highway construction, and
job training. Fixed amount of time and strict guidelines
Mandates
A requirement that a state undertake an activity or
provide a service
Most apply to Civil Rights and the Environment
Often times the states or local gov’ts have to pay the bill
of the mandate set by Congress
Mandates
1986 – Asbestos Emergency Response Act,
Handicapped Children’s Protection Act
1988 – Drug-free Workplace Acts, Ocean Dumping
Ban Act
1990 – Clean Air Act
EX – Columbus, OH spends 23% of the city budget
trying to meet environmental mandates
(including testing for pesticides used on rice and
pineapple)
EX – Public schools have to use Internet filtering
or schools lose e-rate subsidies
Change in Spending
Shift towards Federal Gov’t Spending
Federal
State
Local
(City)
1929 17% 23% 60%
1939 47% 23% 30%
1960 64% 17% 19%
1997 66% 19% 15%
Devolution
Devolution is the return of power to the state gov
Idea is fueled by distrust of the federal gov and the desire to save money by
reducing the size of the “bloated federal government”
Devolution Example
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996
Eliminated welfare and transferred the money to
states as block grants
• States received wide latitude on how to administer “workfare” but
with the knowledge that Congress was counting on anti-poverty
spending”
• Strings attached: head of family must work or lose benefit; lifetime
benefits limited to 5 years; unmarried mother < 18 only receive $ if
stay in school and live with adult; immigrants ineligible for 5 years
Federalism is good
Living under 2 governments is great…
Built on compromise, promotes unity
Gov’t duties can be split up
Brings gov’t closer to people
Allows for state gov’t to address issues in unique regions of the country
Allows states to experiment with policy before enacting it at the federal level – Ex.
Vermont’s free health care for children
Federalism is bad
Living under 2 governments is bad…
States can impede progress of Nation
States are unequal
States have different policy
Easier for states to be dominated by interest groups