Dodie Kasper and Mel Haileyare pleased to participate in the

Law Related Education Conferenceat

The George W. Bush Presidential Center

Dallas, TexasFebruary 7, 2014

Federalism Over Time

1. How does the Constitution provide for federalism?

How many examples can you list?

4

Features of Federalism

• Article 1, Section 8 – list of powers of the U. S. Congress; Section 10—no state can enter into an agreement/compact with another state without the consent of Congress

• Article 4– horizontal federalism

• Article 6—supremacy clause

• Amendment 10 – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.” (1791)

5

Article I, section 8

The enumerated powers of the central government consist of the power to:

• lay and collect taxes, duties, and imposts

• provide for the common defense and general welfare of the United States

• regulate commerce with foreign nations, and among the states, and with Indian tribes

• coin money and regulate the value thereof

• declare war

A Founder on Federalism

Did you know?

Only Switzerland had some type of federal system at the time of the framing of the Constitution.

Approximately 40 papers of The Federalist deal with Federalism in some way.

7

Implied Powers

• The central government may make all laws which shall be necessary and proper for carrying into execution the enumerated powers.

• The necessary and proper clause has often been used to expand the powers of the national government.

2. Review your list…

Look at your original list… circle the one’s that match what you wrote in your notes…

How will you remember the additional ones?

McCulloch v. Maryland (1819)

• McCulloch was the first major decision by the Supreme Court under Chief Justice John Marshall about the relationship between the states and the national government.

• The Court upheld the power of the national government and denied the right of a state to tax the bank.

• The Court’s broad interpretation of the necessary and proper clause paved the way for later rulings upholding expansive federal powers.

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 forms part of the border between New York and New Jersey and the U.S. Congress also licensed a ship to sail the Hudson.

• The main constitutional question in Gibbons was about the scope of Congress' authority under the Commerce Clause.

• In Gibbons, the Court upheld broad congressional power over interstate commerce.

Dred Scott v. Sandford (1857)

• The Supreme Court articulated the idea of concurrent powers and dual federalism in which separate but equally powerful levels of government is preferable, and the national government should not exceed its enumerated powers.

• The Taney Court held that Mr. Scott was not a U.S. citizen and therefore not entitled to sue in federal court.

• The case was dismissed and Scott remained a slave.

• Taney further wrote that Congress had no power to abolish slavery in the territories and slaves were private property protected by the Constitution.

3. Review the cases

Which of these cases had the greatest effect on federalism?

Rank them 1-3 and be prepared to defend your answer.

Federalism: Dynamic or Dead?

V.

Theory

Dual Cooperative

Dual Federalism

Definition: The national government and the state governments have sovereign power in their respective spheres of authority.

History Trivia Fun with Dual Federalism

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled

Articles of Confederation, Article 2

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

United States Constitution, Amendment 10

“Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people," thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument.”

McCulloch v. Maryland4 Wheat. (17 United States) 316 (1819)

Chief Justice John Marshall

In interpreting the Constitution, it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people the powers not expresslydelegated to the National Government are reserved.

Hammer v. Dagenhart247 U.S. 251 (1918)

Justice William R. DayServed 1903-1922

Kind of interesting note: Hammer v. Dagenhart was a 5-4 decision

The conclusion is inescapable that Hammer v. Dagenhart was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision, and that such vitality, as a precedent, as it then had, has long since been exhausted. It should be, and now is, overruled.

United States v. Darby312 U.S. 100 (1941)

Harlan Fiske StoneServed 1925-1946C.J. 1941-1946

The big shift in federalism is underway. Vote was unanimous.

4. Why were the rulings different?

Why do you think the court changed its mind?

Federalism: Not a Piece of Your Mother’s Cake Anymore.

Equal Partners or are the States Being Squeezed by a Growing National Government?

What type of federalism is there today?

• Dual Federalism (Layer Cake)

• Cooperative Federalism (Marble Cake)

– FDR and the New Deal

-- LBJ and the Great Society (Categorical Grants)

• New Federalism

– Reagan and the New Federalism (Devolution and Block Grants)

• Pre-emptive Federalism

– George W. Bush and the No Child Left Behind (NCLB) (2001)

• Progressive Federalism

– Obama and the Affordable Care Act (2010)

Permissive federalism may be the more accurate descriptor of federalism today. It is defined as “a sharing of power and authority between the national and state governments with the state’s share resting upon the permission and permissiveness of the national government.”

The Supreme Court: A Return to State’s Rights?

• From New Deal to 1980s: Court has generally expanded national authority at the expense of the states.

• Beginning in 1980s: Court interpretations altered– Willingness to allow Congress to regulate in a variety of areas

waned

– Webster v. Reproductive Health Services (1989)

– Planned Parenthood of Southeastern Pennsylvania v. Casey(1992)

– U.S. v. Lopez (1995)

– Bush v. Gore (2000)

The Future of Federalism

• Power will continue to shift to the national government because of

– the nature of the Presidency.

– the Supremacy clause

– Amendments to the Constitution

• Particularly 14, 16, and 17

(from Professor Hailey’s Crystal Ball given to him by Atlanta’s chief meteorologist a couple of weeks ago)

Create a timeline.

Review your notes and create a timeline of events that reflect federalism over time.

If the event gave the federal government more power then place it above the line and if the

power went to the states, place the event below the line.