US/VA Government:Spring 2009

Chapter 4: Federalism

Objectives

The division of powers between the National Government and the States.

The National Government’s obligations to the States.

The constitutional provisions that promote cooperation between and among the States.

Chapter 4 Vocabulary1. Federalism2. Division of powers3. Delegated powers4. Expressed powers5. Implied powers6. Inherent powers7. Reserved powers8. Exclusive powers9. Concurrent powers

10.Enabling act11.Act of admission12.Grants-in-aid

program13.Block grant14.Interstate compact15.Full faith and credit16.Extradition

Chapter 4 Section 1:Federalism and the Division of Power

What is federalism?What powers are delegated to the

National Government? Reserved to the States?

What powers are denied to the National Government? Denied to the States?

Federalism DefinedFederalism: a system of government in

which a written constitution divides the powers of government on a territorial basis.

Each level operates through its own agencies and acts directly on the people.

Division of power: written in the Constitution, exists between the National and State governments.

Federalism DefinedFederalism produces a dual system of government.

Each level operates over the same people and territory at the same time.

Federalism allows local actions in matters of local concern and national actions in matters of wider concern. It encourages local choice.

Federalism allows a variety of local traditions, needs, and desires from one State to another. Ex) Gambling in Nevada, Nebraska only State with a

one-house legislature, NJ and Oregon forbids motorist to pump their own gas (do you tip?), Oregon allows physicians assisted suicide

States have been long been described as “ laboratories of government.”

What does this statement mean?

Example – Welfare Reform Act of 1996. Originally suggested by California, Wisconsin, and Michigan

The National Government Is One of Delegated PowersDelegated powers: government only has the

powers that were granted to them in the Constitution.

3 Types of delegated powers: expressed, implied, and inherent powers.

Expressed powers: powers delegated to the National Government, spelled out expressly in the Constitution.

The National Government Is One of Delegated PowersThese powers exist because the United States

exists.

Expressed: 27 Powers are given to Congress, including: coin money, collect taxes, raise and maintain armed forces, declare war, etc.

The president is also given expressed powers, including: acting as commander in chief, grant reprieves and pardons, make treaties, and name federal officials.

The National Government Is One of Delegated PowersImplied powers: powers that are not

expressly stated in the Constitution, but are reasonably implied by those powers that are (to regulate foreign and interstate commerce)

“Necessary and proper” power, granted through the Necessary and Proper Clause.

Ex) regulation of labor-management relations, building of hydroelectric power dams, building of a 42,000-mile interstate highway system, making federal crimes of kidnapping across State lines.

The National Government Is One of Delegated PowersInherent powers: powers that belong to the

National Government because it is the national government of a sovereign state in the world community.

These are powers that the national government has historically possessed.

Inherent powers include: regulate immigration, deport aliens, acquire territory, give diplomatic recognition to other states, and protect the nation against rebellion or internal subversion.

Powers Denied to the National GovernmentExpressly Denied Powers: levy duties on exports,

deny freedom of religion, speech, press, or assembly; conduct illegal searches or seizures; and to deny any person a speedy and public trial, or trial by jury.

Silence Denied Powers: create a public school system for the nation, enact uniform marriage and divorce laws, and to set up units of local government.

Federal Denied Powers: cannot tax any of the States or their local units in the carrying out of their governmental functions.

The States Are Governments of Reserved PowersReserved powers: powers held by the

States in the federal system. Powers that are not given to the National Government.

Ex) forbid persons under the age of 18 to marry without parental consent, forbid persons to buy liquor if under the age of 21; require doctors, lawyers, plumbers, or hairdressers to be licensed in order to practice; set up public school systems, permit certain forms of gambling, etc.

Not until 18

Powers Denied to the StatesConstitution Denied Powers: no State can

enter into any treaty, alliance, or confederation, no State can print or coin money or deprive any person of life, liberty, or property without due process of law.

Federal Denied Powers: no State or local government can any of the agencies or functions of the National Government.

Each State also has its own Constitution, which denies many powers to the State.

The Federal System and Local GovernmentsThere are really only two levels of

government: National Government and the 50 States governments.

Local governments are located within one of the 50 States governments.

The 50 States have created these units to: provide services, regulate activities, collect taxes, or do anything else established by the State.

Local governments exercise State powers.

Video Clip - Federalism

http://video.about.com/usgovinfo/Federalism.htm

The Exclusive Powers

Exclusive powers: powers that can be exercised only by the National Government.

They include most of the delegated powers.

Some of the delegated powers are also expressly denied to the States. Ex) coin money, make treaties

The Concurrent PowersConcurrent powers: powers that both the

National Government and the States possess and exercise.

These powers are not held and exercised jointly, but separately.

Concurrent powers are those powers that the Constitution does not grant exclusively to the National Government, but at the same time does not deny to the States.

The Supreme Law of the LandThe Supreme Court is the umpire of the federal system. Chief duty is to apply the Supremacy Clause to the

conflicts which the dual system of government inevitably produces.

Court first called in 1819, to settle a clash between a national and State law – McCulloch v. Maryland – it involved the controversial Second Bank of the U.S.

Bank was chartered by Congress in 1816, in 1818, Maryland legislature placed a tax on all notes to cripple the bank. McCulloch refused to pay tax, State court convicted him, but the Supreme Court reversed Maryland’s ruling.

The Supreme Law of the LandMcCulloch v. Maryland: Bank was chartered by

Congress in 1816, in 1818, Maryland legislature placed a tax on all notes to cripple the bank. McCulloch refused to pay tax, State court convicted him, but the Supreme Court reversed Maryland’s ruling.

John Marshall based the decision on the Constitution’s Supremacy Clause.

Supreme Court plays a major role in our federal system.

John Marshall

The Supreme Law of the LandOliver Wendell Holmes

once said, “I do not think that the United States would come to an end if the Court lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

Video Clip: Federalism Issues

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

Chapter 4 Section 2:The National Government and the 50 StatesWhat are the obligations of the National

Government to the States under the Constitution?

What kinds of aid does the National Government grant to the States?

What kinds of aid do the States provide to the National Government?

The Nation’s Obligations to the StatesConstitution places several obligations

on the National Government for the benefit of the States.

Most are found in Article IV.1) Guarantee of a Republican Form

of Government2) Protection Against Invasion and

Domestic Violence

Nation’s Obligation to States1) Guarantee of a Republican Form of

Government

Constitution does not define “republican form of government”, and the Supreme Court has refused to do so. Supreme Court believes this should be decided by the President and Congress.

Understood to mean representative government.

Nation’s Obligation to States

Court Case: Luther v. BordenCourt case came from Dorr’s Rebellion.

Thomas W. Dorr led a rebellion against the State of Rhode Island.

Supreme Court refused to decide this matter.

Republican-form guarantee also seen after civil war.

Nation’s Obligation to States2) Protection Against Invasion and

Domestic Violence

National government must protect states from invasion and domestic violence.

Now of little importance because an attack on any State would be an attack on the United States.

This was not the case in the 1780’s.

Nation’s Obligation to StatesFederal government assumes that each of the

50 States will keep peace within its own borders. Constitution states protection against domestic violence is guaranteed in each State.

Rare to use federal force to keep peace in the States.

1967-1968, President Lyndon Johnson sent units of the army into Detroit, Baltimore, and Chicago at the request of state governors.

Used to control riots, looting, arson, and violence.

Nation’s Obligation to States

When national laws are broken functions interfered with, or national property endangered, President does not need to wait for a plea from the States.

The Federal Government also is ready to aid areas that were stricken with natural disasters. (ex. Storms, floods, drought, forest fires, etc.)

Respect for Territorial IntegrityNational Government is constitutionally

bound to respect the territorial integrity of each State.

National Government must recognize physical boundaries and legal existence of each State.

Congress must include in both of its houses, representatives from each state.

No State can be deprived of its equal representation in the United States Senate without its own consent.

Admitting New StatesOnly Congress has the power to admit new

States to the Union. A new State cannot be created by taking

territory from one or more existing States without the consent of the State(s)’ legislatures.

37 States have been admitted to the Union.5 States were created from existing States:

Vermont, Kentucky, West Virginia, Tennessee, and Maine.

Texas was an independent republic.California was ceded to U.S. from Mexico.

Admitting New StatesArea desiring Statehood petitions Congress for

admission. If Congress chooses it, it passes an enabling

act: directs framing of a proposed State constitution.

A convention prepares the constitution, and then puts it to a popular vote.

If voters approve, it is submitted to Congress for admission. If Congress approves Statehood, it passes an act of admission: act to admit the State into the Union. If the president signs the act, the new State enters the Union.

Cooperative FederalismFederalism is a part of government in the

United States, however there is a continuous power struggle between the National Government and the States. Think of it as a tug-of-war.

Some areas of American government are a great example of cooperative federalism.

A division of powers is of great importance in the American governmental system.

Cooperative Federalism

Grants-in-aid programs: grants of federal money or other resources to the States and/or their cities, counties, and other local units. Provide these levels of government with funds often needed to carry out many of their functions.

This program has been around for more than 200 years.

States receive grants for various projects, including: schools, colleges, roads, flood control work, canals, job-training, healthcare, etc.

Cooperative Federalism

States must follow certain conditions for grant money: use funds for the purpose specified, make its own contributions, set up an agency and procedures to manage the grant, and obey federal guidelines for which the grant was given.

Many disputes exist over the involvement, use, and guidelines of grants.

Cooperative FederalismBlock grants: grants given to State and local

governments with more broadly defined purposes and fewer strings attached.

Other forms of financial aid exist in many other ways, for example “lulu payments” (federal monies that go to local governments in those areas in which there are large federal landholdings). These payments are in lieu of – take the place of - property taxes because local governments cannot collect from the Federal government. The States aid the National Government in many ways.

Chapter 4 Section 3:Interstate Relations

How do several of the Constitution’s provisions promote cooperation between and among the States?

Interstate CompactsConstitution established provisions that

deal directly with the States’ relationships with one another.

Interstate compacts: agreements among themselves and with foreign states. Began with only 26 compacts until 1920,

have since grown in number to upwards of 200.

Some compacts may involve several States, in fact two compacts involve all 50 States: the Compact for the Supervision of Parolees and Probationers and the Compact on Juveniles.

Interstate CompactsCompacts allow the States to share important

law enforcement data with one another.

Examples of other multi-State compacts: development and conservation of resources (fish, water, oil, wildlife), forest and fire protection, stream and harbor pollution, tax collections, motor vehicle safety, the licensing of drivers, and the cooperative use of public universities.

Full Faith and Credit“Full faith and credit shall be given to each

State to the public acts, records, and judicial proceedings of every other State” -- U.S. Constitution

Public acts – laws of a StateRecords – birth certificates, marriage, licenses,

deeds to property, car registration, etc. Judicial proceedings – outcome of court

actions: judgments for debt, criminal convictions, divorce decrees, etc.

Full Faith and CreditFull faith and credit: respect the validity of

the public acts, records, and judicial proceedings of every other State.

Ex) person dies in Maryland and leaves a will disposing of some property in Illinois, person will have the right documents to prove this record.

2 Exceptions to the Full Faith and Credit Clause:1) Applies only to civil not criminal matters.2) Need not be given to certain divorces

granted by one State to another State

Full Faith and CreditThe second exception always asks this

question: Was the person who obtained the divorce in fact a resident of the State that granted it?

If so, continue accordingly. If not, then the State granting the divorce did

not have the authority to do so and another State can refuse to recognize it.

Doubts cast over the validity of interstate divorces.

ExtraditionExtradition: legal process in which a

fugitive from justice in a State is returned to that State from another. Designed to prevent the person from being able to escape justice by fleeing the State.

Governors regularly approve extradition requests, however since 1987 the federal courts can force a governor to turn over fugitives.

Some extraditions are contested, especially in cases with strong political and racial overtones, and in parental kidnapping.

Privileges and ImmunitiesConstitution states that a resident of one

State will not be discriminated against unreasonably by another State.

Partial list of interstate citizenship: right to pass through or reside in any other State for the purpose of trade, agriculture, professional pursuits, or otherwise; right to use the courts; right to make contracts; right to buy, own, rent, and sell property; and the right to marry.

Privileges and ImmunitiesResidents must obey the State’s laws

regardless of home State. Any State can require a person to live in that

State for a certain period of time before he or she can vote or hold a public office.

Residency often needs to be established to obtain a license – ex) law, dentistry, medicine, etc.

Nonresidents can pay higher fees to game commissions.

Higher tuition for out-of-state residents.