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Chapter 3: Federalism

Objectives:

o 3.1 Roots of Federalism:

OBJECTIVE: Trace the roots of the

federal system and the

Constitution’s allocation of

government powers.

(Tit 1:5) For this cause left I thee

in Crete, that thou shouldest set

in order the things that are

wanting, and ordain elders in

every city, as I had appointed

thee:

o The U.S. was the first country to adopt a federal system of government.

o Federal never appears in the Constitution.

o Federalism is a system of government where the national and State governments share power and derive their authority from the people.

o In the Articles, the U.S. was

governed as confederation.

o The National Government derived

all of its powers from the states.

o This led to a weak national

government unable to even

respond to small crisis such as

Shay’s rebellion.

o Federalism was different from the Unitary system of Great Britain.

o In the British system, local and regional governments derived all their power from a strong national government.

o The Framers feared centralizing power in one government or institution.

FEDERALISM:

o The founders made both the state and the federal government accountable to the people at large.

o Both State and Federal shared some powers such as the power to tax.

o Each government was supreme in some spheres.

EXCLUSIVE POWERS OF THE NATIONAL GOVERNMENT:

o Authorities to coin money.

o Conduct foreign relations.

o Provide for an army and navy.

o Declare war.

o Article I Section 8 of Constitution

“enumerated powers.”

ARTICLE I SECTION 8: IMPLIED POWERS

o Also contains necessary and proper clause also called the elastic clause.

o This gives Congress the authority to enact any laws “necessary and proper” for carrying out any of its enumerated powers.

o These powers derived from enumerated powers.

o Necessary and proper clause are known as implied powers.

National Power under the Constitution:

o Right to collect duties and excises.

o Collect Tariffs (taxes on imported

goods).

o Federal Government has these

exclusive powers.

o To prevent the financial issues and

excise wars between the States

during the Articles.

ARTICLE VI

o The national government is to be

supreme in situations of conflict

between state and national law.

o It declares that the U.S. Constitution,

the law of the United States, and its

treaties are to be “the supreme Law

of the Land; and the Judges in every

state shall be bound thereby.”

State Powers Under the Constitution:

o Article I allows states to set the “Times, Places, and Manner for holding elections for senators and representatives.”

o Article II requires that each state appoint electors to vote for president.

o Article IV provides each state a Republican Form of Government, meaning one that represents the citizens of the state.

THE TENTH AMENDMENT OF THE CONSTITUTION:

o “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.”

o These powers often called the states’ reserved or police powers.

o Including the ability to legislate for the public, health, safety, and morals for their citizens.

POLICE POWERS

o Police Powers is a rationale for many state’s restrictions on abortion.

o Police powers are also the basis for state criminal laws, including varied laws concerning the death penalty.

o As long as the Supreme Court finds that the death penalty does not violate the Constitution, states may use it.

State Powers Under the Constitution:

o As long as the Supreme Court

finds that the death penalty does

not violate the Constitution,

states may use it.

CONCURRENT POWERS UNDER THE CONSTITUTION:

o Power shared by the national and

state governments.

o States already had the power to

tax; the Constitution extended

this power to the national

government as well.

CONCURRENT POWERS:

o Rights to borrow money

o Establish courts

o Charter banks

o Spend money for the general

welfare.

Powers Denied Under the Constitution: ARTICLE I

o Congress is barred from favoring

one state over another in

regulating commerce.

o Congress cannot lay duties on

items exported from any state.

Powers Denied Under the Constitution:

o The national government is also prohibited from granting titles of nobility.

o Employees of the government may not accept salaries or gifts from foreign heads of state.

o State governments as well as national government are denied the authority to take arbitrary actions affecting constitutional rights and liberties.

Powers Denied Under the Constitution:

o Neither national nor state

governments may pass a bill of

attainder, a law declaring an act

illegal without a judicial trial.

o Also cannot pass ex post factor laws.

o Laws that make an act punishable

as a crime even if the action was

legal at the time it was committed.

Interstate Relations under the Constitution:

o Mechanism to resolve interstate

disputes.

o Disputes between states be

settled directly by the U.S.

Supreme Court under Article II

original jurisdiction.

o This is to avoid favoritism.


o Article IV requires that each state give Full Faith and Credit to the public.

o Judicial decrees and contracts made in one state will be binding and enforceable in another State.

o This helps facilitate trade and other commercial relationships.

Interstate Relations under the Constitution (ARTICLE IV)

o Privileges and immunities clause.

o Guaranteeing that the citizens of each state are afforded the same rights as citizens of all other states.

o Extradition Clause

o Requires states to extradite or return criminals to states where they have been convicted or are to stand trial.


o To facilitate relations among states, Article I, Section 10, Clause 3 of the Constitution.

o Sets the legal foundation for interstate cooperation in the form of interstate compacts, contracts between states that carry the force of law.

o More than 200 interstate compacts exist today.


o An example is the Drivers License Compact (recognizing drivers license in all 50 States).

o States today find that the interstate compacts help them maintain control.

o Compacts with other states allow for sharing resources, expertise, and responses that often are available more quickly than those with the federal government.

Local Governments under the Constitution:

o The Constitution gives local governments, including counties, municipalities, townships, and school districts no independent standing.

o Their authority is not granted directly by the people but through state governments.

o These governments establish or charter administrative subdivisions to execute the duties of the State government on a smaller scale.

SHORT ANSWER How does the full faith and credit clause affect

interstate relations?

Quizlet: https://quizlet.com/_2xwjql

Objectives:

o Federalism and the Marshall

Court

o 3.2: We will study the impact of

the Marshall Court on federalism.

Psa_98:9 Before the LORD; for

he cometh to judge the earth:

with righteousness shall he judge

the world, and the people with

equity.

HISTORICAL RECAP

o Federalism, especially the allocation of power between the National and State Government changed the past two hundred years.

o Much of the change is due to the Supreme Court.

o The Court defined the distribution of power between the national and State governments because the Constitution was unclear.

The Marshall Court

o Chief Justice John Marshall had a

great impact in defining the

federal-state relationship through

the decisions of the Supreme

Court.

o And defining the balance of power

between the national and State

governments.

McCulloch v. Maryland 1819:

o First major Supreme Court

decision to define the relationship

between the national government

and State governments.

o The central issues of this case is:

Does Congress have authority to

charter a bank?

o And if it did, could a state tax it?


o Congress had the right to establish a bank or corporation based on implied powers.

o This reaffirms a strong national government.

o The word “bank” is not mentioned in the Constitution but the enumerated powers give Congress the power to levy and collect taxes, issue currency, and borrow funds.


o From enumerated powers, it was

reasonable for Congress to have

the power to charter a bank.

o This could be necessary and

proper to exercise the

enumerated powers.


o The national government was

dependent on the people, not the

states for its powers.

o In addition Marshall noted, the

Constitution specifically calls for the

national law to be supreme.

o Therefore Maryland could not tax

the U.S. Bank in Maryland.


o The State tax violated the Supremacy Clause.

o Individual states cannot interfere with the operation of the national government, whose laws are supreme.

o “Necessary and Proper” clause is used to justify federal actions including social welfare programs.

o It protected the federal government from possible state taxes that could have driven the federal government to debt.

Gibbons V. Ogden:

o New York asserted right to grant

exclusive rights to operate

Steamboats on the Hudson River.

o Congress also licensed a ship to sail

on the same waters.

Gibbons V. Ogden:

o The crux of the issue was what was the scope of Congressional authority under the commerce clause?

o States argued that “commerce” should be interpreted narrowly with only direct dealings with products.

Gibbons V. Ogden:

o The Supreme Court ruled that Congress’s power to regulate interstate commerce included the power to regulate commercial activity.

o “Commerce Power” had no limits except specifically found in the Constitution (e.g. taxing exports).

o New York had no constitutional authority to grant a monopoly to a single steamboat operator, in action that interfered with interstate commerce.

Barron v. Baltimore:

o The court addressed the issue of whether the due process clause of the Fifth Amendment applied to actions of the states.

o The Supreme Court ruled that the due process clause of the Fifth Amendment did not apply to the actions of the states.

o This decision limited the Bill of Rights to the actions of Congress alone.

o It was John Marshall’s last major case.

Objectives:

o DUAL FEDERALISM: THE TANEY

COURT, SLAVERY, and the CIVIL

WAR.

o 3.3: Describe the emergence and

decline of dual federalism.

The Taney Court:

o Roger B. Taney who succeeded John

Marshall as chief justice.

o Emphasized the authority of the

states to make laws “necessary to

their well-being and prosperity.”

The Taney Court:

o Articulated concurrent power

o Dual Federalism

o Dual Federalism is the belief that

having separate and equally powerful

state and national governments is the

best constitutional arrangement and

one envisioned by the Framers.

The Taney Court:

o Thus, the national government should

not exceed its constitutionally

enumerated powers, and as stated in

the Tenth Amendment.

o All other powers, are and should be,

reserved to the states or to the

people.

The Dred Scott Decision:

o Dred Scott v. Sandford (1857).

o Cases involved resolving issues of ownership, status of fugitive slaves, and slavery in new territories.

o These cases generally were settled in favor of slavery and states rights within the framework of dual federalism.

The Dred Scott Decision:

o The Court found that Congress lacked

the authority to ban slavery in the

territories.

o The decision narrowed the scope of

national power, while it enhanced that

of the states.

Nullification:

o Nullification was the purported right of a state to declare void a federal law.

o South Carolina Senator John C. Calhoun being a leading proponent.

o Calhoun believed that the Federal Government was but the agent of the States.

o The Constitution was simply a compact that provided instructions on how the Federal Government should act.

Nullification:

o Calhoun asserted that the Supreme Court was not legally competent to assert (judicial review), pass judgment on acts of Congress.

o Like Congress, the Court was only a branch of a government created by and answerable to the states.

o if the people of any individual state did not like an act of Congress, they could hold a convention to nullify the act of Congress.

Nullification:

o In the State contesting the act, the law would have no force until three-fourths of all of the states ratified an amendment expressly giving Congress that power.

o If then the nullifying state still did not wish to comply with a new provision, it could secede from the Union.

The Transformation of Dual Federalism:

o The Civil War forever changed the

nature of federalism.

o Dual Federalism and its emphasis on

the role of the States was destroyed

with the defeat of the Confederacy.


o Federal Authority became supreme.

o Thirteenth, Fourteenth, and Fifteenth Amendments asserted the strength of the Federal Government.

o The Sixteenth Amendment gave Congress the power to levy and collect taxes on income without apportioning (distributing) them among the states.

o It gave the Federal Government access to funds to support and expand the government.


o The Seventeenth Amendment, ratified in 1913, enhanced the power of the national government at the expense of the states.

o The amendment terminated the state legislatures election of senators and put their election in the hands of the people.


o With senators no longer directly

accountable to the state legislatures,

states lost their principal protectors in

Congress.

o These two amendments paved the way

of more drastic changes in the

relationship between the national and

state governments in the United States.

SHORT ANSWER How did the Civil War change the nature of

federalism?

https://quizlet.com/_2xwnk7

Objectives:

o COOPERATING FEDERALISM: THE

GROWTH OF NATIONAL

GOVERNMENT.

o 3.4: Explain how cooperative

federalism led to the growth of the

national government.

Pro_29:14 The king that

faithfully judgeth the poor, his

throne shall be established for

ever.

o The era of dual federalism came to an end in the 1930s.

o Ratification of the Sixteenth and Seventeenth Amendment set the stage for expanded national government.

o The series of economic events that led to the Great Depression ended dual federalism.

o Bank failures were common in the 1920s.

o The Great Depression began with the Stock Market crash in October 29, 1929.

o Presidents Calvin Coolidge and Herbert Hoover took little action.

o They believed that the national depression was a state economic crisis.

o It should be dealt with state and local governments.

o Franklin D. Roosevelt brought a new era of American politics with the New Deal.

o FDR believed that government intervention was necessary to stabilize the economy.

o Used his power of persuasion in radio and politically the convince of this need.

o Most politicians during this era

agreed to find national solutions to

the Depression.

o The national government would

have to exercise tremendous

authority.

o The New Deal programs forced all levels of government to work cooperatively with one another.

o Local governments mainly in big cities became a third partner in the federal system.

o FDR relied on big-city Democratic political machines to turn out voters to support his programs.

o Cities were embraced as equal partners in an intergovernmental system for the first time and became players in the national political arena.

o Because many members of Congress wanted to bypass state legislatures where urban interests usually were underrepresented.

o After squabbles with the Supreme Court and Roosevelt’s threat to pack the court with justices to his favor.

o The Supreme Court reversed anti-New Deal decisions concluding that Congress and therefore the national government had the authority to legislate in any area.

o So long as what was regulated affected commerce in any way.

o The Court held the constitutionality of the bulk of New Deal relief programs.

o Congress used this newly recognized

power to legislate in a wide array of

areas including maximum hour and

minimum wage laws and regulation

of child labor.

o Before the Depression and the New

Deal, most political scientists likened

the federal system to a layer cake.

o In most policy areas, each level of

layer of government, national, state,

and local had clearly defined powers

and responsibilities.

o After the New Deal the government

looked more like a marble cake one

that is a mixture and a merger

without distinct lines of separation.

o The metaphor of marble cake

federalism offers to cooperative

federalism

o Cooperative federalism is a term that

describes the intertwined

relationship among the national,

state, and local government that had

began with the New Deal.

o States began to take a secondary,

albeit important, cooperative role in the

scheme of governance as did many

cities.

o This shift in power from the states to

the national government is exemplified

by the New Deal and other social

welfare programs such as President

Lyndon B. Johnson’s Great Society.

Federal Grants and National Efforts to Influence the States:

o New Deal Programs increased the flow of federal dollars to the states for variety of public works programs (building roads, etc.)

o In the boom times of World War II even more new federal programs were introduced.

o By the 1950s and 1960s, federal grant-in-aid programs were well entrenched.


o Federal Grants often defined federal-state relationships and made the national government a major player in domestic policy.

o Until the 1960s, most federal grant programs were constructed in cooperation with the states and were designed to assist the states in the furtherance of their traditional responsibilities.

o To protect the health, welfare, and safety of their citizens.


o Most were categorical grants.

o Congress appropriates funds for specific purposes.

o Categorical grants allocate federal dollars by a precise formula.

o And are subject to detailed conditions imposed by the national government.

o Often on a matching basis; where states must contribute money to match federal funds.

o Although the national government may pay as much as 90 percent of the total.


o In 1964, President LBJ launched the Great Society Programs including the War on Poverty.

o Where federal funds were used to states, and local governments.

o And even directly to citizen action groups in an effort to alleviate social ills that the states had been unable or unwilling to remedy.


o The national government began to use federal grants as a way to further national and not state needs.

o Grants based on what states wanted or believed they needed, began to declined.

o Grants based on what the national government wanted states to do to foster national goals increased dramatically.

Objectives:

o New Trends in Federalism 3.5:

Identify New Trends in Federalism.

Ezr_7:25 And thou, Ezra, after

the wisdom of thy God, that is in

thine hand, set magistrates and

judges, which may judge all the

people that are beyond the river,

all such as know the laws of thy

God; and teach ye them that

know them not.

New Federalism:

o In 1980 Ronald Reagan was

elected president.

o Pledged New Federalism.

o Return of power to the States.

The Reagan Revolution:

o Reagan attacked Federal Grants

as imposing national priorities on

the States.

o Liberals believed grants helped

raise services for the poor.

o In the early 1980s, federal aid to

the state and local governments

declined.

The Reagan Revolution:

o Reagan convinced Congress to consolidate categorical grants to far fewer, and less restrictive block grants.

o Large amounts of money given to states with only general spending guidelines.

o Many of these went to education and health care.

o These programs were popular with governors asking for more consolidation of block grants.

The Devolution Revolution:

o In 1994, Newt Gingrich led the

Republican House of

Representatives in a call to scale

back the federal government.

o One agenda passed was the

unfunded mandates.


o Where national laws that direct state or local governments to comply with federal rules or regulations (such as clean air or water standards).

o But contain no federal funding to defray the cost of meeting these requirements absorbed nearly 30 percent of some local budgets.


o The Unfunded Mandates of Reform

Act of 1995 was passed.

o This act prevented Congress from

passing costly federal programs

without debate on how to fund

them and addressed a primary

concern for state governments.


o Another important act passed was

the Temporary Assistance for

Needy Families (TANF) that was

signed by President Clinton.

o TANF returned much of the

administrative power for welfare

programs to the states and

become a hallmark devolution

revolution.

Federalism under the Bush Administration:

o In 2000 President George W. Bush

promised to follow Reagan in

moving to return power to the

states.

o But 9-11, Wars in the middle east

and economic crisis altered that

promise.

Federalism under the Bush Administration:

o The No Child Left Behind Act imposed a host of federal requirements on everything from class size to accountability testing.

o It was viewed by many as an unprecedented preemption of state and local powers.

o Allowing the national government to override state or local actions in certain areas is not new.

o But now, Republicans were also advocating for it.

Judicial Federalism:

o The Supreme Court also plays an important role in providing guidelines for Federalism.

o During the New Deal era, it was until the Supreme Court reversed itself and found those programs constitutional that any real change occurred in the federal-state relationship.


o From the New Deal until the

1980s, the Supreme Court help

expand the authority of the

national government at the

expense of the States.

o But in the 1980s, the Rehnquist

Court agreed upon Reagan’s

states rights views and limited

powers of Congress.


o The Supreme Court of the United

States has a huge influence in

determining the parameters of

federalism.

o The Executive Branch also has a

huge influence advocating certain

positions before the court.

Objectives:

o TOWARD REFORM: ATTEMPTS TO

BALANCE NATIONAL AND STATE

POWER

o 3.6 Assess the challenges in

balancing national and state

powers and the consequences of

policy making.

The Price of Federalism:

o The Price of Federalism published

by Paul E. Peterson.

o Peter believed that responsibilities

in two broad issues:

o Redistributive policies

o Developmental policies.

Redistributive Policies:

o Government collects money

usually through taxation from one

group of citizens to finance a

service such as health care or

welfare.

o Thus one group of citizens finance

a service such as health care for

another group of citizens.

Developmental Policies:

o Designed to strengthen a

government’s economic standing,

such as building roads and other

infrastructure.


o The national government’s greater financial resources and the ability to assure a uniform standard, made it better suited to handle redistributive programs.

o In contrast, developmental programs would be best left to state governments.

o Which are closer to the people, and better able to assess and address regional needs.


o The issue with this idea is that the

Federal Government does not

normally follow this pattern.

o While not totally abandoning

developmental projects, the

Federal Government began to take

greater responsibility for

redistributive policies.


o One such example is the passage

of the No Child Left Behind Act of

2001, the first comprehensive

federal education legislation.

o Another is the Patient Protection

and Affordable Care Act of 2010.


o States, are less happy about these

steps toward policy efficiency.

o Both education and health care

traditionally been among the policy

areas reserved to the states under

the Tenth Amendment and

politicians have not taken the

federal intervention lightly.

Progressive Federalism:

o Despite the national interventions

in policy areas traditionally in policy

areas reserved for the states.

o The Obama administration also

appears to be receptive to a

movement known as progressive

federalism.


o The national government gives

states officials such as governors

and attorney general significant

leeway in acting issues normally

considered national in scope.

o Among these issue areas are the

environment and consumer

protection.


o Obama gave such states as California and other states to pass laws of stricter greenhouse emissions.

o Progressive Federalism encourages states to act as laboratories of democracy.

o States can in effect test new and innovative solutions to policy problems that, if successful, may later be adopted by the federal government.


o It allows policy makers to achieve

their policy goals gradually.

o In this case more stringent

emission standards without having

to work with the U.S. Congress

where such policies may not be well

received.

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