What is federalism, and why was it chosen by the Framers?

What powers are delegated to and denied to the National Government, and what powers are reserved for and denied to the States?

What exclusive powers does the National Government have, and what concurrent powers does it share with the States?

What place do local governments have in the federal system?

How does the Constitution function as “the supreme Law of the Land?”

A system of government in which power is shared between the central government and state governments

The Constitution provides for a division of powers, assigning certain powers to the National Government and certain powers to the States

Different from… Confederate system Unitary system

Allows for sharing of resources

States are “closer” to the people

Unity without uniformity

Limits the power of government

States can be “labs” for policies

Encourages cooperation between the states

States can administer federal programs

The Framers were dedicated to the concept of limited government.

They were convinced

1. That governmental power poses a threat to individual liberty,

2. That therefore the exercise of governmental power must be restrained, and

3. That to divide governmental power, as federalism does, is to curb it and so prevent its abuse.

The States: The 10th amendment “The powers not delegated to the U.S. by the

Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

It allows local action in matters of local concern and national action in matters of wider concern. Example = Nevada – gambling

The National Government: The Supremacy Clause: “This Constitution, and the laws

of the United States which shall be made in pursuance thereof; and all treaties made, under the authority of the U.S., shall be the supreme law of the land.”

“Necessary and Proper Clause” (Elastic Clause) McCulloch v. Maryland

http://www.learner.org/courses/democracyinamerica/dia_3/dia_3_video.html#

ADV: Ideally suited to large geographic area because it encourages diversity in local government

Avoids concentration of political power

Accommodated already existing state governments

States serve as training grounds for national leaders

Keeps government close to the people

DIS: Inflexibility inherent in a written constitution

Complex, with many governments to deal with

Duplication of offices and functions

Conflicts of authority may arise

To provide a republican form of government

To provide protection

To respect the territory of the states

To umpire state relations

States respect the authority of the national government, assist in providing protections, help national government carryout policies, conduct national elections

What obligations does the Constitution place on the nation for the welfare of the States?

How are new States admitted to the Union?

What are the many and growing areas of cooperative federalism?

Republican Form of Government

The Constitution requires the National Government to “guarantee to every State in this Union a Republican Form of Government.”

Invasion and Internal Disorder

The National Government is also required to provide defense of the States from foreign invasion, and aid in protecting against “domestic Violence” in the States.

Respect for Territorial Integrity

The National Government is constitutionally bound to respect the territorial integrity of each of the States.

Only Congress has the power to admit new States to the Union.

Congress first passes an enabling act, and act directing the people of the territory to frame a proposed State constitution.

If Congress agrees to Statehood after reviewing the submitted State constitution, it passes an act of admission, an act creating the new State.

To be more efficient (organization, financial)

Environmental issues, water systems, crime control, forest fires, etc.

Example: Port Authority (NY-NJ)

Gibbons v. Ogden

At issue was the definition of commerce and whether the national government had exclusive power to regulate interstate commerce. The Marshall court defined commerce as including all business dealings, and the power to regulate interstates commerce belongs exclusively to the national government. Today, the national government uses the commerce clause to justify the regulation of numerous areas of economic activity.

http://historywithwoods.wikispaces.com/AP+1.2+Federalism

Defined: the practice of requesting and transferring a person accused/convicted of a crime between states

Who is responsible for this process?

Why do we have this procedure in place?

Why might a governor refuse to extradite?

Extradition is upheld through Article IV, Section 2, Clause 2 of the Constitution.

Governors are the State executives that handle the extradition process.

If a governor is unwilling to return a fugitive to a State, federal courts can intervene and order that governor to do so.

Provision in the Constitution that requires each state to treat other states’ citizens the same

Civil matters

Protection

Acquire property

Work, travel and play

Utilize court system of another state

The Privileges and Immunities Clause provides that no State can draw unreasonable distinctions between its own residents and those persons who happen to live in other States.

States cannot, for example, pay lower welfare benefits to newly arrived residents than it does to its long-term residents, Saens v. Roe, 1999.

However, States can draw reasonable distinctions between its own residents and those of other space

What is an example of reasonable discrimination by one state against a citizen of another state? Voting requirements Professional licensing College tuition

No State may enter into any treaty, alliance, or confederation.

However, the States may, with the consent of Congress, enter into interstate compacts – agreements among themselves and with foreign states.

More than 200 compacts are now in force, and range in a variety of uses from sharing law-enforcement data to resource development and conservation.

One state must recognize the validity of documents and court decisions of another state

Marriage/Divorce

Birth certificates

Adoption

Drivers’ licenses

Exceptions?\ One state can not enforce another state’s criminal laws DOMA-relieves states of the obligation to recognize same sex

marriages

Grants-in-aid programs - money and resources provided by the federal government to the state and local governments to be used for specific projects or programs. The earliest grants often covered public works projects such as building canals, roads, and railroads, and land grants for state colleges.

Mandates - requirements that are imposd by the national government on the state and local governments; for example, the Americans with Disabilities Act (1990) mandates that all public buildings be accessible to persons with disabilities. mandates often require state or local governments to meet the requirement at their own expense (unfunded mandates).

Categorical grants - grants that have a specific purpose defined by law, such as sewage treatment facilities or school lunch programs; may even require "matching funds" from the state or local governments; categorical grants may be in the form of project grants (awarded on the basis of a competitive application, such as university research grants) or formula grants (awarded on the basis of an established formula, such as Medicaid).

Block grants - general grants that can be used for a variety of purposes within a broad category, such as education, health care, or public services; fewer strings attached so state and local governments have greater freedom in how money is spent; preferred by states over categorical grants.

Dual federalism Layer cake Clear differences between state and national power and

responsibilities

Cooperative federalism Marble cake Undefined, mixed differences between the powers and

functions of the state and national government

Nationalism – 1789-1830 – expanded national powers.

Chief Justice Marshall promoted the enumerated powers. He said the national government was the creation of the people and not the states therefore Article VI made federal law the supreme law of the land.

McCulloch v. Maryland – broad interpretation for the federal government. The state of Maryland was taxing the federal bank. Marshall ruled that they couldn’t (see file)

Gibbons v. Ogden – gave Congress the right to regulate trade under the Commerce Clause. (see file)

Dual federalism I – 1830-1860 – holds that the federal government and the state governments are co-equals.

Chief Justice Taney was head of the Supreme Court. He thought it was time for a return to concurrent powers.

Parts of the Constitution were interpreted very narrowly such as the 10th Amendment, the Supremacy Clause, etc. In this narrow interpretation, the federal government only has jurisdiction if the Constitution clearly grants such.

There is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.

Dual federalism II – 1860-1930 – holds that the growth of federal power was limited.

Chief Justice Salmon Chase was head of the Supreme Court.

Plessy v. Ferguson – states could have separate but equal accommodations for blacks. Civil Rights was a state matter.

The Great Depression ended dual federalism.

States were unable to cope with the economic upheaval.

Cooperative federalism – 1930-1960 – asserts that the national government is supreme over the states. Began with FDR’s New Deal.

Instead of assigning specific functions to each level of government, FDR encouraged the national, state, and local governments to work together on specific programs.

1930s federal laws concerning labor, civil rights and civil liberties began to take on new priority.

Brown v. BOE 1954 – struck down Plessy v. Ferguson.

Creative federalism – 1960-1970 – LBJ was dominate during this time with his Great Society programs. It shifted the power relationship between governmental levels toward the national government through the expansion of grant-in-aid systems and the increasing use of regulations.

National laws and amendments to the Constitution took many powers away from the states such as restricting voting rights.

Government grants – states relied on federal money.

Most of the national government’s power came as they corrected civil rights issues.

Baker v. Carr, 1962 and Gideon v. Wainwright, 1963 were examples.

New federalism – 1970-1990 – state power comeback as Nixon started Revenue Sharing – redistributing money to states from those collected by federal government with no strings attached as to what states could decide to spend it on.

This continued from Nixon to Reagan and Bush.

Reagan was a strong advocate of states rights, and wanted to return many of the powers taken up by the federal government to the states, but created problems;

It caused a bureaucracy because the 50 states had to establish offices to handle programs the federal government handed over.

The transition was often unfunded leading to a higher tax burden on the people as states raised taxes to cover costs.

When federal taxes were cut, federal aid to the states that had existed was cut as well.

Competitive federalism – 1990-today – decrease in competition for power.

Federal mandates – any provision in legislation, statute, or regulation that would impose an enforceable duty on state, local, or tribal governments or that would reduce or eliminate the amount of funding authorized to cover the costs of existing mandates.

Failure of Clinton’s national health care initiatives is a perfect example of an area of politics that the people feel is best held more closely, in spite of some of the benefits of a national system.

In 1996, Clinton continued what the Republicans had done in 1994 as more powers were directed from federal government to states in what was called the “Devolution Revolution”.

Critics of competitive federalism say that turning power over to the states caused major reductions in programs.

The National Government is a government of delegated powers, meaning that it only has those powers delegated to it in the Constitution.

There are 3 types of delegated powers

The expressed powers are those found directly within the Constitution

The implied powers are not expressly stated in the Constitution, but are reasonably suggested, or implied by, the expressed powers.

The inherent powers belong to the National Government because it is the government of a sovereign state within the world community.

There are few inherent powers, with an example being the National Government’s ability to regulate immigration.

Powers are denied to the National Government in 3 distinct ways:

Some powers, such as the power to levy duties on exports or prohibit the freedom of religion, speech, press, or assembly, are expressly denied to the National Government in the Constitution.

Also, some powers are denied to the National Government because the Constitution is silent on the issue.

Finally, some powers are denied to the National Government because the federal system does not intend the National Government to carry out those functions.

The 10th Amendment declares that the States are governments of reserved powers.

The reserved powers are those powers that the Constitution does not grant to the National Government and does not, at the same time, deny to the States.

Just as the Constitution denies many powers to the National Government, it also denies many powers to the States.

Powers denied to the States are denied in much the same way that powers are denied to the National Government; both expressly and inherently.

Powers that can be exercised by the National Government alone are known as the exclusive powers.

Examples of the exclusive powers are the National Government’s power to coin money, to make treaties with foreign states, and to lay taxes on imports.

The concurrent powers are those powers that both the National Government and the States possess and exercise.

Some of the concurrent powers include the power to levy and collect taxes, to define crimes and set punishments for them, and to claim private property for public use.