The Federal System

Chapter 4

National and State Powers

Section 1

Pages 95 - 102

The Division of Powers

The Constitution divided power in the following ways:1) The national government received certain specified

powers. (Article I, Section 8, Clauses 1 -18)2) Some powers are reserved to the states. (Amendment 10)3) Some powers are reserved to the people. (Amendment 9)4) National and state governments share some powers.5) Some powers are specifically denied to each level of government.

National Powers

The Constitution grants three types of powers to the national government:

1) Expressed2) Implied 3) Inherent Collectively, these powers are known as

delegated powers because the Constitution grants or delegates them to the national government.

Expressed Powers

The expressed powers are those powers directly expressed or stated in the Constitution by the Founders. Most of these are found in the first three articles of the Constitution. Expressed powers are also called enumerated powers.

Some expressed powers include:1) power to levy and collect taxes2) to coin money3) to make war4) to raise an army and navy5) to regulate commerce between the states

Implied Powers

The powers that the national government requires to carry out the powers that are expressly defined in the Constitution are called implied powers. They are not specifically listed but depend upon the expressed powers.

For example, the power to draft peopleinto the armed forces is implied by theexpressed power of the national government to raise an army and a navy.

Implied Powers

The basis for the implied powers is the necessary and proper clause (Article I, Section 8). This clause is also called the elastic clause because it allows the Constitution to stretch. Implied powers have helped the national government strengthen and expand its authority to meet many problems the Founders did not foresee such as the regulation of nuclear power plants and the development of the space program.

Necessary and Proper Clause aka Elastic Clause

Elastic Clause  -  Article I, Section 8 of the Constitution states that Congress shall have the power "to make all laws which shall be necessary and proper for carrying into execution...powers vested by this Constitution in the government of the United States." This clause, known as the elastic clause, was the point of much contention between those who favored a loose reading of the Constitution and those who favored a strict reading.

Inherent Powers

Those powers that the national government may exercise simply because they are a government are its inherent powers. For example, the national

government must control immigration and establish diplomatic relations with other countries, even though these powers are not listed in the Constitution.

Federalism: Division of Powers

The States and the Nation Some people felt that the

Constitution granted too much power to the national government. In The Federalist, No. 45, James Madison argued that in fact it granted few and limited powers to the national government, while the state’s powers were many and broadly drawn. The Constitution also reserves certain powers strictly to the states. These are called reserved powers. (Amendment 10) An example of a reserved power is the regulation of public school systems.

The Supremacy Clause

Article VI, Section 2, of the Constitution makes the acts and treaties of the United States supreme. This is called the supremacy clause. No state law or state constitution may conflict with any form of national law. All national and state officials and judges are bound to support the Constitution. States may not use their reserved powers to interfere with the Constitution. Because all local governments (cities and counties) are created by state governments, they are also bound by the Constitution.

The Supremacy Clause

Article VI, Paragraph 2 of the United States Constitution is known as the Supremacy Clause: "This Constitution, and the law of the United States which shall

be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."

The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land." The Constitution is the highest form of law in the American legal system. State judges are required to uphold it, even if state laws or constitutions conflict with it.

Concurrent Powers

Concurrent powers are those powers that both the national government and the states have. Each level of government exercises these powers independently. Concurrently, with the national government, states may exercise any power not reserved by the Constitution for the national government. State actions may not conflict with any national laws.

Concurrent Powers:

1) power to tax

2) to maintain courts

3) to define crimes

4) to appropriate private property for public use (eminent domain)

Denied PowersThe Constitution specificallydenies some powers to alllevels of government. Article I, Section 9,enumerates those thingsthat the nationalgovernment cannot do. Examples of denied powers: 1) the national government

cannot tax exports2) the national government

cannot interfere with the states to carry out their responsibilities.

Article I, Section 10 lists thepowers denied to the states.Among powers denied tothe states are:1) states cannot make treaties

or alliances with other countries

2) states cannot coin money3) states cannot make any laws

impairing the obligations of contracts

4) states cannot grant titles of nobility

5) States must have the permission of Congress to collect duties on imports or exports or to make compacts with other states

Guarantees to the States

The Constitution obliges the national government to do three things for the states. These three obligations are found in Article IV, Sections 3 and 4.

1) The national government must guarantee each state a republican form of government. 2) The national government must protect states from invasion and domestic violence. 3) The national government has the duty to respect the territorial integrity of each state.

Republican Form of Government

The national government must guarantee each state a republican form of government. Enforcement of this guarantee has become the responsibility of Congress. When Congress allows senators and representatives to take their seats in Congress, it is in effect ruling that the state have a republican form of government. The only extensive use of this was after the Civil War when some Southern states refused to ratify the Civil War amendments. (13th, 14th, & 15th ) Congress ruled that these states did not have a republican form of government and refused to allow the senators and representatives to take their seats until the state had ratified these amendments.

Protection

The national government must protect states from invasion and domestic violence. An attack by a foreign power on one state is considered an attack on the United States. Congress has given the president authority to send federal troops to put down domestic disorders when state officials ask for help. The president may send troops without the request of local officials, even over local objections in the following three circumstances:

1) national laws are violated2) federal property is threatened3) interference with federal responsibilities The national government has extended its definition of

domestic violence to include natural disasters.

Territorial Integrity

The national government has the responsibility to respect the territorial integrity of each state. The national government cannot use the territory of an existing state to create a new state without the permission of the legislature of the state involved. The admission of West Virginia in 1863 may be considered an exception to this rule.

Admission of New States

The Constitution gives Congress the power to admit new states. There are two restrictions to this power.

1) No state may be formed by taking territory from

one or more states without the consent of the

states involved or Congress.

2) Acts of admission, like all laws are

subject to presidential veto.

Admission of New States

1) Congress passes an enabling act when signed by the President allows the people of a territory interested in becoming a state to prepare a constitution.

2) After the constitution is drafted and approved by a popular vote in the area, it is submitted to Congress

3) Congress then passes an act admitting the territory as a state.

Conditions for Admission

The Supreme Court has ruled that Congress and the president may impose certain conditions before admitting a new state including requiring changes in the submitted constitution. Once a state is admitted, those conditions may be enforced only if they do not interfere with the new state’s authority to manage its own internal affairs.

Equality of the States

Once admitted to the Union, each state is equal to every other state and has rights to control its internal affairs. No state has more privileges or fewer obligations than any other. Each state is also legally separate from every other state in the Union. All states in the Union are bound to support the Constitution.

National Governors’ Association

• Meeting of governors called by President Theodore Roosevelt in 1908 to discuss conservation.

• Governors began to meet regularly at the Governors’ Conference to deal with a variety of issues.

• In the 1960’s the governors set up a permanent organization with an office in Washington D.C.

• Renamed the National Governors’ Association.

Role of the National Governors’ Association

• NGA supports federalism by helping governors in state policy making and in influencing national policy.

• NGA held seminars and published materials in the 1970’s to improve a governor’s performance in his or her own state.

• NGA allows states to share ideas about how to solve common problems.

• NGA started focusing their attention on national policy concerns in the 1980’s becoming a big part of the national policy-making process.

Obligations of the States

The states perform the following two functions for national government.

1) State and local governments conduct and pay for elections of all national government officials – senators, representatives and presidential electors.

Congress has the authority to alter state election laws if it so desires.

2) States also have an important role in the addition of amendments to the Constitution. It requires three fourths of the states to ratify an amendment before it can be added to the Constitution.

The Courts as Umpire

When conflicts arise between national and state governments, the federal court system (particularly the Supreme Court) serves as an umpire in our federal system.

In McCulloch v. Maryland (1819) the Supreme Court held that in a conflict between the national and state government, the national government is supreme. Through time this position has shifted depending upon the mood of the nation and the make up of the Court.

American FederalismMarble Cake Or Layer Cake?

Marble Cake Federalism is based on a pragmatic mixing of authority and programs among the national, state, and local governments.

Layer Cake Federalism is based on a clear delineation of authority and programs among the levels of government

American Federalism

Marble Cake

Or Layer Cake?

                                                                                           Marble Cake Federalism is based on a pragmatic mixing of authority and programs among the national, state, and local governments.

                                                                                           Layer Cake Federalism is based on a clear delineation of authority and programs among the levels of government

Dual Federalism

Federalism: Which is preferred by most Americans?

Relations Among the StatesSSCG5 (e)

Section 2

Pages 103 - 105

Introduction The Constitution, in establishing the federal system, defined

not only national-state relations but also relations among states. One of the major reasons for drafting the Constitution in 1787 was to solve conflicts and jealousies that occurred among the states. The Constitution dealt with this problem in the following two ways:

1) The national government was strengthened.2) Legal ground rules for relations among states were set.

(Article IV) This works because each state retains much power and independence leading to cooperation among the states.

Interstate Relations

Article IV of the Constitution requires the states to do the following:

1) Give “full faith and credit” to the laws, records and court decisions of other states.

2) Give one another’s citizens all the “privileges and immunities” of their own citizens

3) Extradite – return to a state-- criminals and fugitives that flee across state lines to escape justice

Full Faith and Credit

• Each state must recognize the laws and legal proceedings of all other states.

• This clause applies only to civil law, or laws relating to disputes between individuals, groups or with the state. One state cannot enforce another state’s criminal laws.

• Without this rule, states could treat each other like foreign countries and they would become havens for people trying to avoid legal duties and responsibilities.

Privileges and Immunities• This clause means that one state may not discriminate

unreasonably against citizens of another state.• It must provide citizens of other states the same privileges

and immunities that it provides it’s own citizens.• This includes the rights to pass through or live in any state;

use the courts; make contracts; buy, sell, and hold property: and marry.

• States may make reasonable discrimination against nonresidents. The privileges and immunities clause does not apply to voting, serving on juries, or using certain facilities.

• Some states require a residence requirement before allowing a person to vote, become a public official or practice a specific profession.

• Reasonable discrimination examples:

Extradition

• Because states are basically independent of each other, there has to be a way of preventing criminals from escaping justice by simply moving to another state.

• Article IV, Section 2 provides for the extradition of fugitives.

• “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime” --Article IV, Section 2

• Congress has made the governor of the state to which the fugitive has fled responsible for returning them.

• The Supreme Court has ruled that a governor does not have to extradite a fugitive.

• Congress has tried to close this loophole in recent years by making it a federal crime to flee from one state to another to avoid prosecution.

Extradition

• Congress has made the governor of the state to which the fugitive has fled responsible for returning them.

• The Supreme Court has ruled that a governor does not have to extradite a fugitive.

• Congress has tried to close this loophole in recent years by making it a federal crime to flee from one state to another to avoid prosecution.

Interstate Compacts• The Constitution requires that states settle their

differences with each other without the use of force.• The principal way states do this is through the

negotiation of interstate compacts.• An interstate compact is a written agreement between

two or more states. The national government or foreign countries may also be a part of an interstate compact.

• Congress must approve interstate compacts. • Today there are nearly 200 interstate compacts in force.• These agreements are used to deal with matters such as

air and water pollution, pest control, toll bridges, transportation and the development and conservation of natural resources.

• Interstate compacts have become an important way for states to deal with regional problems.

Georgia/Interstate Compact

• Georgia is a participant in the national Interstate Compact. In short, the compact allows offenders convicted in one state to be supervised in another state to facilitate employment or family support. As of the end of the fiscal year, there were more than 4,000 Georgian probationers being supervised in other states and approximately 2,891 probationers from other states being supervised in Georgia. 

Lawsuits Between States

• Sometimes states cannot resolve their differences and an interstate lawsuit results.

• Since 1789 more than 220 disputes between states have wound up in court.

• Suits among two or more states are heard in the United States Supreme Court, the only court in which one state may sue another.

• States may bring each other to court for a variety of reasons such as water rights or boundary lines.

Let’s Recap

• What were the 3 requirements the Constitution says that states must do for each other?

• What is the purpose of an interstate compact?

• So what is the importance of cooperation between the states?

Developing Federalism

Section 3

Pages 106 - 110