Chapter 3Federalism

Defining Federalism• What Is Federalism?– Federalism a way of organizing the nation so that two or

more levels of government have formal authority over the land and people. The US, Mexico, Germany, Brazil, Canada and Australia are examples.

– Unitary governments – Organizing a nation so all power resides in the central government. Americans lived under this as colonies of Britain, majority of countries today operate under this government.

– Confederation – A nation in which the national government is weaker than the states. Switzerland is one today. Was the US ever this?

– Intergovernmental Relations: the workings of the federal system- the entire set of interactions among national, state and local governments

Defining Federalism

• Why Is Federalism So Important?– Decentralizes our politics• More opportunities to participate

– Decentralizes our policies• Federal and state governments handle different

problems.–States regulate drinking ages, marriage, and speed

limits.• States can solve the same problem in different ways

and tend to be policy innovators.

The Constitutional Basis of Federalism• Why Federalism? – foundation laid

at CC when states rights advocated debated with strong national government advocates.

• The term federalism is not in the constitution- rather its sets out different types of powers, powers of the national government, powers of the states and prohibited powers.

• The powers delegated to the national government include expressed, implied and inherent powers.

National Gov’t: Expressed/Enumerated Powers

• Most of these powers are found in Article 1, sec 8 of the constitution.

• Enumerated/expressed powers include coining money, setting standards for weights and measures, making uniform naturalization laws, admitting new states, establishing post offices, declaring war and regulating interstate commerce.

Necessary and Proper ClauseThe implied powers of the national government are also in Article 1, sec 8 which states that Congress shall have the power“to make all Laws which shall be necessary and proper for the carrying into Execution the foregoing powers, and all the other Powers vested by this Constitution in the Government of the US, or in any Department or Officer thereof. “This is also sometimes called the elastic clause. It gives Congress all of those powers that can be reasonably inferred but that are no expressly written in the Constitution.

• This clause was first used in the SC decision of McCulloch v. Maryland– Nowhere in the Constitution does it state that the US Congress

can create a national bank, although it can regulate currency. Twice in the history of the nation has Congress chartered national banks, the First and Second Banks of the US.

– The government of Maryland didn’t like the competition and attempted to impose a tax on the 2nd bank’s Baltimore branch to put them out of business.

– The Branch’s cashier, James McCulloch refused to pay, it went to state court and McCulloch lost, so the decision was appealed to the SC.

Constitutional Question from McCulloch v Maryland• Congress has the power to make laws that are necessary

and proper• Strict constructionists believed that meant the national

government only had those powers indispensable to the exercise of its designated powers.

• They did not believe that chartering a bank was necessary for the coining of money or regulation of its value.

• Loose constructionists disagree believing the word necessary could not be looked at in the strictest sense.

• Question: If the national bank was constitutional, could the state tax it?

The Decision• Decision• Chief Justice Marshall said that- it is true that Congress’

power to establish a national bank was not expressed; however, if the establishment of a bank aided the government in the exercising of its expressed powers than the authority to set up such bank is implied.

• “We must never forget that it is a constitution we are expounding”- in other words the constitution is a living instrument that has to be interpreted to meet the practical needs of the government.

Inherent Powers• A special category of national powers not implied by the

necessary and proper clause are inherent powers. • These derive from the fact that the US is a sovereign

power among nations and so its national government must be the only government that deals with other nations.

Powers of the State Gov’t• 10th Amendment states that the powers NOT delegated

to the national government in the constitution , nor prohibited by it to the states, are reserved for the states or people.

• Reserved powers Like regulating trade within state borders and creating a state militia, also creating laws that don’t contradict federal laws and police power– the authority to legislate for the protection of the health, morals, safety and welfare of the people.

Supremacy Clause

The Division of PowerSupremacy Clause: Article VI of the Constitution states the following are supreme:• The U.S. Constitution• Laws of Congress• Treaties

Yet, national government cannot usurp state powers.• Tenth Amendment

Supremacy Clause

Concurrent PowersShared powers between the national and state governments. Most are not listed in the constitution specifically. Example: the power to tax, borrow funds, establish courts, charter banks…

Prohibited PowersConstitution prohibits or denies several powers to the national government. For example, the national government can’t impost taxes on goods sold to other countries (exports) and states can’t enter into treaties with other countries.

Interstate Relations• So far we have focused on how states and the national

government interact, now lets look at the States’ Obligations to Each OtherThe three most important ones come from the AOC and are in Article IV of the Constitution.– Full Faith and Credit – Article IV, Section I of Constitution

requires each state to recognize the public acts, records, and judicial proceedings of all other states.

– Applies only to civil matters– Protects you as you move from state to state

States’ Obligations to Each other (cont.)– Extradition - Article IV, Section II of Constitution

requires a state to surrender a person charged with a crime to the state in which the crime is alleged to have been committed.

– Federal judges do not do this, this is the governor’s responsibility.

– States can also enter into interstate compacts if consented by Congress if it is a big enough issue.

• States’ Obligations to Each Other (cont.)– Privileges and Immunities – Article IV, Section II of

Constitution requires states to give citizens of each state the privileges of citizens of other states.

Commerce Clause• The commerce clause, Article 1, sec 8 is one of the most

important parts of the constitution. • In the commerce clause, Congress is given the power to

regulate commerce with foreign nations and among the several states and with the Indian tribes.

• What does regulate commerce mean? What does commerce entail?

• The issue here is the same as McCulloch v Maryland- how strict of an interpretation should be given to the constitutional phrase?

Gibbons v. Ogden (1824)• A monopoly on steam navigation

in NY was secured from the NY legislature by Fulton and Livingston in 1803- they licensed Ogden to operate the steam ferry boat between NY and NJ.

• Gibbons, who had a license from the government to operate boats in interstate waters decided to compete with Ogden but he did so without NY’s permission.

• Ogden sued Gibbons. • The NY Courts prohibited Gibbons

from operating in NY waters, Gibbons appealed to the SC.

Questions Raised and RulingIssues raised: 1. How should commerce be defined? (NY court defined it as the

shipment of goods or the interchange of commodities but not the navigation or transportation of people.

2. Whether the national government’s power to regulate interstate commerce extended to commerce within a state (intrastate commerce)

3. Whether the power to regulate interstate commerce was a concurrent power (as NY court said) or an exclusive power.

Marshall defined commerce as all commercial intercourse, between business dealings, including people and that the power to regulate commerce was an exclusive power of the national government. Finally he ruled that the commerce power of the NG could be exercised in state jurisdictions even though it can’t reach solely intrastate commerce.

The Civil War and State’s Rights• Marshal- increased power of national government and to reduce that

of the states. • During the Jacksonian Era (1829-1837) a shift back to states’ rights

began.• Congress passed a tariff in 1828 and SC tried to ignore it saying that in

cases of conflict btw the state and national government, the state has the ultimate authority.

• Over the next 3 decades the N and S became divided over tariffs and slavery.

• On Feb 4, 1861- SC and other southern states succeeded from the union.

• The end of the Civil War ended any idea that a state could claim successful the right to secede or withdraw from the Union.

Civil War Amendments• The expansion of the national government’s power was

reflected in these.• 13th Amendment abolished slavery and allowed African

Americans to be counted in full in state’s populations. • 14th Amendment defined who was a citizen of each state

and guaranteed them equal rights under the law (loses much of its power later)

• 15th Amendment- gave African Americans the right to vote, even though it would be a century before that actually was enforced.

Dual Federalism (1789-1932)Federal and state governments are co-equals, each

sovereignNarrow interpretation of the ConstitutionFederal government only has jurisdiction if clear

expressed in the Constitution (ex: coin money, foreign affairs)

State have greater role and powers (ex: public education, race relations)

Cooperative Federalism (1933-present)

National government clearly supreme over the states with wide interpretation of the “necessary and proper clause” (Article I, Sect. 8 of the Constitution, also known as the “elastic clause.”)

Federal government intervenes or assists in some areas traditionally left to the states (ex: education, health care, civil rights)

The New Deal in the 1930s changed the relationship between state and Federal governments. Many of the new Federal programs required the federal government to do

what the state governments use to do.

Types of Cooperative Federalism

FISCALNEW (DEVOLUTION)

Fiscal FederalismFiscal Federalism- when federal and state work together with money

Categorical Grants- federal grants to state or local governments that are for SPECIFIC programs or projects. Gives power to the Federal gov’t.

Block Grants: Block Grants: Federal programs that provide state and local governments funds for general functional areas, such as criminal justice or mental healthy care programs.• Lessens restrictions on federal grants. State governors prefer this

because it gives states more flexibility on how the money is spent. (Welfare Act of 1996)

Federal Mandate- a requirement in federal legislation that forces states to comply with certain rules.

An unfunded mandate is a statute or regulation that requires a state or local government to perform certain actions, yet provides no money for fulfilling the requirements. • When a federal government imposes a law or regulation without

necessary funding, it becomes the responsibility of the state or local government to pay for the implementation of the law.

• In the end, it is local taxpayers who end up footing the bill.• Important unfunded mandates to know- • Motor voting requires states to ask drivers when renewing

license if they have registered to vote (but state pays for voter registration).

• Americans with Disabilities Act- businesses and gov’t buildings must make accommodations for disabled people.

• NCLB- required states to develop testing programs whose results had to be reported to the federal government.

Unfunded Mandate

Devolution• In the years after 1968, the devolution of power from the national

government to the states became a major theme for the Republican• Nixon was the first to promote this and advocated “new federalism”

that would devolve national government to the states. • Would convert categorical grants to block grants• Implemented revenue sharing- where the national government

provided direct, unconditional support to state governments.

Reagan was also a strong advocate of this type of federalism. However, he eliminated revenue sharing and while he was more successful in obtaining block grants for the states from Congress, his were less generous than the categorical grants they replaced.