Federalism USA

transcript

8/18/2019 Federalism USA

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American Federalism

by

Barrister Syed Mustafa Ali


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Defining federalism

National government and state governments both have

assigned powers .

Both levels of government derive their power from the

constitution.

Two or more governments exercise power and authority

over the same people in the same territory Both must agree to constitutional changes

The division of power between the national government

and the states is protected in the Constitution.

It was a middle ground between the systems of

government that were known at the time of the writing

of the constitution: confederal and unitary systems


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What is Federalism?

Mere existence of state and

federal governments does not

make it a federal system.

Both the federal government

and the state government gettheir power from a common

source - the constitution.


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Forms of Government

Federalism

—

significant government powers aredivided between the central government and smaller

governmental units

Confederation — constituent units or states retain

ultimate authority and can veto major actions of thecentral government

Unitary — central government exercises all

governmental powers and can change its constituentunits


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Alternatives to FederalismUnitary Systems:

Puts all governmental power in the central government

Britain, France, Israel, and the Philippines.

Confederations:

Sovereign nations create a constitutional compact but

carefully limited the power of the central government

Articles of Confederation, The United Nations, EuropeanUnion


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1. The Roots of the Federal

System

The Framers worked to create a political system that washalfway between the failed confederation of the Articles

of Confederation and the tyrannical unitary system of

Great Britain.

The three major arguments for federalism are:

1. the prevention of tyranny;

2. the provision for increased participation in politics;

3. and the use of the states as testing grounds or laboratories

for new policies and programs.


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Advantages to Federalism

Suited for large geographic areas because it encouragesdiversity

Avoids concentration of political power

Accommodates already existing state govt

State serve as training grounds for national leaders

Keeps govt close to people


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Disadvantages to Federalism

Inflexibility inherent in a written constitution Complex, dealing with many governments

Duplication of offices and functions

Conflicts of authority may arise


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Key Constitutional Provisions Defining

Federalism

Article I, Section 8 sets forth the enumerated powers thatbelong to the national government.

The 10th Amendment to the constitution reserves powers

not granted to the national government to “the states or

to the people.” (These powers have not been explained,expressed, written down etc)

The “necessary and proper” clause of Article I, Section 8,

opens the door to implied powers for the national

government. Article VI includes the “supremacy clause” stipulates the

national law supersedes conflicting state laws law


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Three Lists of Subjects in the

Constitution

The constitution contains three lists of subjects: A list of what the Congress can do (Article 1 Section 8)

(The exclusive, shared and implied powers of the Congress)

A list of what the Congress cannot do (Article 1 Section 9)

(The powers denied to the Congress)

A list of what the States cannot do. ( Article 1 Section 10)

(The powers denied to the States)


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Constitutions Distribution of Powers

11


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Article I, Section 8

The enumerated powers of the central government include

the power to: lay and collect taxes on imports and exports

provide for the national defense and make

regulations for the military regulate commerce with foreign nations, among the

states, and with Indian tribes

coin money and regulate the value thereof

declare war

establish post offices

issue copyrights and patents


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Implied Powers

The central government may make all laws

which shall be necessary and proper for

carrying into execution the enumeratedpowers. (Art 1 Sec 8 (18))

The necessary and proper clause has often

been used to expand the powers of thenational government (elastic clause).


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The Elastic Clause (Article I, Section 8)

Congress shall have the power "to make all laws

which shall be necessary and proper for carrying intoexecution...powers vested by this Constitution in the

government of the United States."

The constitution empowers the Congress to

“regulate commerce with foreign nations and amongseveral states.” The Congress has derived the power

from this clause the power to control all means of

transport and communication.

From the clauses giving the Congress the power to

promote general welfare, it has derived the authority

to pass social legislation like old age insurance

schemes etc.


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State Powers

Most come from the Tenth Amendment that says: "The

powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people."

These are often referred to as reserve or police

powers (affecting health, safety, marriage, electionsand morals)

Conflict may arise with Article VI Sec 2 which is

the ‘Supremacy clause’- It states that Federal lawis supreme in the USA even over state laws.


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Concurrent/ shared powers

Concurrent powers such as the right to tax, borrow

money, establish courts, and make and enforce laws are

powers shared with national government.

However, what will happen if there is a conflict between

Federal law and State Law on the same subject.

Doctrine of federal pre-emption: As the Supreme Courtstated in Altria Group v. Good, 555 U.S. 70 (2008), a

federal law that conflicts with a state law will trump, or

"preempt", that state law.

Consistent with that command, we have long recognizedthat state laws that conflict with federal law are “without

effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981)

Article VI (2)- Supremacy clause- National law supreme

over state law.


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Denied Powers of the States

Article I, section 10 lays out the powersdenied to the states.

enter into treaties, alliances, orconfederations

Maintaining armies

Laws impairing the obligations ofcontract

Coinage


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Denied Powers of the Federal

Government

Article I Section 9 lays out powers denied tothe central government.

Suspend the writ of habeas corpus

Bills of attainder Ex post facto laws

Spend money without congressional

appropriation Granting titles of nobility

give preference to ports of one state over

another


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INTERSTATE RELATIONS

The Framers wanted a single country, not thirteen

squabbling semi-countries.

Article IV Section 1: Full faith and credit clause:“Full faith and credit shall be given in each state to

the public acts, records, and judicial proceedingsof every other state. And the Congress may bygeneral laws prescribe the manner in which suchacts, records, and proceedings shall be proved, andthe effect thereof.”

States recognize drivers’ and marriage licenses,custody rulings, etc.


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INTERSTATE RELATIONS

Privileges and immunities clause (Article IV Section 2(1):“The citizen of each state shall be entitled to all

privileges and immunities of citizens in the several

states.”

Extradition clause (Article IV Section 2(2):“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.”


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Privileges

According to California law, a “citizen” is a person thathas taken up permanent residence in the state. A family

moves from Arizona to California and is denied welfare

benefits. The state requires them to be residents for at

least 1 year.

Is this constitutional?


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3. The Evolution and

Development of Federalism

The allocation of powers in our federal system has changed

dramatically over the years.

The Supreme Court in its role as interpreter of

constitution has been a major player in the redefinition ofour Federal system.

McCulloch v. Maryland (1819) gave a liberal

interpretation of the implied powers of the national

government. Gibbons v. Ogden (1824) gave a broad interpretation to

the interstate commerce clause.


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McCulloch v. Maryland

first major decision by the Supreme Court about the

relationship between the states and the nationalgovernment.

The Constitution was silent on the power to form Banks

in the States. The State of Maryland said it was therefore a

‘reserved power’ which they could exercise. The Court upheld the power of the national government

to establish a national bank and denied the right of a state

to tax the bank. “The power to tax is the power to

destroy.”

The Court’s broad interpretation of the necessary and

proper clause paved the way for later rulings upholding

expansive federal powers.


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Gibbons v. Ogden (1824) The Gibbons case centered on the conflict between the

states and the powers of Congress. Could New York grant a monopoly concession on the

navigation of the Hudson River? The Hudson River formspart of the border between New York and New Jersey andthe U.S. Congress also licensed a ship to sail the Hudson.

The main constitutional question in Gibbons was about thescope of Congress' authority under the Commerce Clause(Article I, sec. 8: “to regulate commerce with foreignnations, and among the several states, and with the Indiantribes”)

In Gibbons, the Court upheld broad congressional powerover interstate commerce.


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The Civil War and Beyond

Dual federalism remained the SupremeCourt's framework for federalism and theprevailing notion in the Reconstruction andProgressive Eras.

Dual federalism finally ended in the 1930s,when the crisis of the Great Depression

demanded powerful actions from the nationalgovernment.


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Fiscal Federalism

Federal Government granst aid to States and local bodies.14% of the state budget comes from Federal Govt grants.

Fed. Gov. has power to review and examine state

schemes which make use of this aid.

Conditions are set by the Fed. Gov over how the moneyis spent.

Fed. Gov. has right to set forth rules and regulations of its

own on the States.

Grants can be withheld if State is non- compliant.

Hence, State sovereignty is compromised.

Federalism USA

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