FEDERALISM:FEDERALISM:

THE DIVISION OF THE DIVISION OF POWERPOWER

FederalismFederalism Written Constitution divides the Written Constitution divides the

powers of govt.powers of govt. Power is divided between two levels-Power is divided between two levels-

National government and StatesNational government and States Nat’l govt. has Nat’l govt. has delegateddelegated powers-powers powers-powers

specifically given to it by the Constitutionspecifically given to it by the Constitution Most are Most are exclusive powersexclusive powers-belong only -belong only

to the National Govt.to the National Govt. Three kinds of delegated powersThree kinds of delegated powers

ExpressedExpressed ImpliedImplied InherentInherent

Expressed PowersExpressed Powers

Listed in Constitution-Article 1, Listed in Constitution-Article 1, Section 8Section 8 Coin moneyCoin money Regulate interstate and foreign tradeRegulate interstate and foreign trade Raise and maintain armed forcesRaise and maintain armed forces Declare warDeclare war Admit new statesAdmit new states Govern territoriesGovern territories Conduct foreign relationsConduct foreign relations

Implied PowersImplied Powers Not expressly stated in Constitution, but Not expressly stated in Constitution, but

reasonably reasonably implied/implied/suggested by the suggested by the expressed powersexpressed powers Necessary and Proper ClauseNecessary and Proper Clause in Article 1, in Article 1,

Section 8, Clause 18…Congress has the power Section 8, Clause 18…Congress has the power “to make all Laws which shall be “to make all Laws which shall be necessary and proper for carrying into necessary and proper for carrying into Execution the foregoing Powers and all Execution the foregoing Powers and all other Powers…”other Powers…”

Often called Often called The Elastic ClauseThe Elastic Clause Stretched to cover many situations that Stretched to cover many situations that

Framers could not have possibly thought ofFramers could not have possibly thought of Regulation of laborRegulation of labor Building of interstate highway systemBuilding of interstate highway system Prohibiting racial discriminationProhibiting racial discrimination Regulate interstate commerceRegulate interstate commerce

Inherent PowersInherent Powers

Those powers that the National Those powers that the National Govt. historically possesses Govt. historically possesses because it exists as a sovereign because it exists as a sovereign StateState Immigration lawsImmigration laws Diplomatic recognitionDiplomatic recognition Acquire territoryAcquire territory

Powers Denied National GovernmentPowers Denied National Government ExpresslyExpressly denied powers-spelled out in denied powers-spelled out in

ConstitutionConstitution Tax exportsTax exports Take private property for public use without Take private property for public use without

fair compensation (O’Hare expansion)fair compensation (O’Hare expansion) Prohibit freedom of religion, expression, Prohibit freedom of religion, expression,

assembly, press, petitionassembly, press, petition Powers denied because Constitution is Powers denied because Constitution is

silentsilent, therefore the Nat’l. Govt. does not , therefore the Nat’l. Govt. does not have the power tohave the power to Create public school systemsCreate public school systems Enact uniform marriage/divorce laws (gay Enact uniform marriage/divorce laws (gay

marriages?)marriages?)

Powers Denied National GovernmentPowers Denied National Government Powers denied because of the Powers denied because of the

Federal systemFederal system itself itself Nat’l Govt. does not have any powers Nat’l Govt. does not have any powers

that would threaten the existence of that would threaten the existence of Federalism itselfFederalism itself Can tax, but no so much that it would Can tax, but no so much that it would

tax a State out of existencetax a State out of existence

The StatesThe States 1010thth Amendment guarantees that powers Amendment guarantees that powers

not granted in Constitution to the Nat’l not granted in Constitution to the Nat’l Govt Govt andand not denied specifically to the not denied specifically to the States are the States are the Reserved PowersReserved Powers-given to -given to the Statesthe States Marriage lawsMarriage laws ProstitutionProstitution Drinking ageDrinking age Licensing lawsLicensing laws Create and administer public schoolsCreate and administer public schools

Only power granted to the States is 21Only power granted to the States is 21stst Amendment Amendment Regulation of manufacture, distribution, sale Regulation of manufacture, distribution, sale

and transport of alcoholand transport of alcohol

Denied Powers to the StatesDenied Powers to the States Expressly deniedExpressly denied

Enter into treaty, alliance or Enter into treaty, alliance or confederation (Civil War???)confederation (Civil War???)

Print/coin moneyPrint/coin money Deprive persons of life, liberty, property Deprive persons of life, liberty, property

without due processwithout due process Denied because of Denied because of FederalismFederalism

No State can tax an agency or function No State can tax an agency or function of the Nat’l. Govtof the Nat’l. Govt

States have own constitutionsStates have own constitutions

Exclusive PowersExclusive Powers Powers given in the Powers given in the

Constitution to the Constitution to the Nat’l Govt. aloneNat’l Govt. alone Powers denied to Powers denied to

States either States either expressly or expressly or because of the because of the nature of the nature of the power…regulate power…regulate interstate interstate commercecommerce

Concurrent PowersConcurrent Powers

Powers given to both Nat’l Govt. and Powers given to both Nat’l Govt. and StatesStates Powers held simultaneously and separately Powers held simultaneously and separately

by both Nat’l and State governmentsby both Nat’l and State governments Constitution does not exclusively grant to Constitution does not exclusively grant to

Nat’l. Govt AND does not deny to the statesNat’l. Govt AND does not deny to the states TaxTax Define crime and punishmentDefine crime and punishment Take private property for public useTake private property for public use

There are also LOCAL governments…There are also LOCAL governments…

Supreme Law of the LandSupreme Law of the Land is held in the is held in the

Constitution in Constitution in the the Supremacy Supremacy ClauseClause-Article -Article VI, Section 2VI, Section 2 Who decides Who decides

what the what the Constitution Constitution says/means?says/means?

Who interprets Who interprets it for modern it for modern situations and situations and issues?issues?

Supreme Court and FederalismSupreme Court and Federalism Chief job is to apply Supremacy Clause to Chief job is to apply Supremacy Clause to

disagreements, issues that arisedisagreements, issues that arise 1819: 1819: McCulloch v. MarylandMcCulloch v. Maryland

Involved Second Bank of the United States Involved Second Bank of the United States (chartered 1816 by Nat’l. Govt.)(chartered 1816 by Nat’l. Govt.)

MD legislature taxed all notes issued by the bank in MD legislature taxed all notes issued by the bank in its Baltimore branchits Baltimore branch

James McCulloch-branch cashier-refused to pay the James McCulloch-branch cashier-refused to pay the tax and was convictedtax and was convicted

Supreme Court reversed MD courtSupreme Court reversed MD court “…“…the States have no power…to retard, the States have no power…to retard,

impede, burden or in any manner control, the impede, burden or in any manner control, the operations of the constitutional laws enacted operations of the constitutional laws enacted by Congress”by Congress”

Emphasized the SC’s job of looking at the Emphasized the SC’s job of looking at the constitutionality of acts, laws, etc. of states constitutionality of acts, laws, etc. of states and the Nat’l Govt.and the Nat’l Govt.

National Govt. and the 50 StatesNational Govt. and the 50 States

Constitution states that the Nat’l. Constitution states that the Nat’l. Govt. must guarantee Govt. must guarantee a “Republican Form of Government” a “Republican Form of Government”

(representative govt.)(representative govt.) protect the States “against invasion” protect the States “against invasion”

and “domestic Violence”and “domestic Violence” This allows federal officials to enter a State This allows federal officials to enter a State

to restore order (Little Rock, AK, Detroit-to restore order (Little Rock, AK, Detroit-1967, Chicago-1968)1967, Chicago-1968)

An attack on one State=an attack on all An attack on one State=an attack on all StatesStates

Shared PowersShared Powers Federalism=dual systemFederalism=dual system

Two basic levels operate over the same Two basic levels operate over the same people and the same territory at the people and the same territory at the same timesame time Power struggle btwn. Nat’l. Govt. and Power struggle btwn. Nat’l. Govt. and

StatesStates Also-cooperation btwn. States and Also-cooperation btwn. States and

Nat’l. Govt.Nat’l. Govt. Tax moneyTax money GrantsGrants

Grants-in-AidGrants-in-Aid Federal money/resources given to States Federal money/resources given to States

or their local govts.or their local govts. Helps to carry out everyday functionsHelps to carry out everyday functions Strings attached (drinking age tied to $$$ for Strings attached (drinking age tied to $$$ for

highways)highways) History History

Northwest Ordinance of 1787Northwest Ordinance of 1787 Congress set aside land to be developed for public Congress set aside land to be developed for public

education in the new territorieseducation in the new territories Land, dollars for schools, roads, canals, flood control, Land, dollars for schools, roads, canals, flood control,

militiamilitia 1930s-New Deal programs aimed at getting nation 1930s-New Deal programs aimed at getting nation

out of economic crisisout of economic crisis Money to build roads, art projects, dams, etc.Money to build roads, art projects, dams, etc.

TODAY???TODAY???

Effect of Grants-in-AidEffect of Grants-in-Aid Blurs the division of powers line Blurs the division of powers line

btwn. in federal systembtwn. in federal system Fed. govt. can operate in policy areas Fed. govt. can operate in policy areas

where it would not otherwise have the where it would not otherwise have the authority to do so-education, low income authority to do so-education, low income housing, etc.housing, etc.

Does this give the Fed. Govt. voice in Does this give the Fed. Govt. voice in making public policy in State and making public policy in State and local governments where it has no local governments where it has no Constitutional right?Constitutional right?

Revenue SharingRevenue Sharing 1972-19871972-1987

Congress gave over $83 billion (from Congress gave over $83 billion (from federal tax revenues) to States and local federal tax revenues) to States and local governments governments with no strings with no strings attached!attached!

Money could not be used for any program Money could not be used for any program that discriminated on the basis of race, that discriminated on the basis of race, religion, age, sex, disabilityreligion, age, sex, disability

Depleted funds of Nat’l. Govt. and was Depleted funds of Nat’l. Govt. and was stopped with Reagan Administrationstopped with Reagan Administration

Federal GrantsFederal Grants

Three types of federal Three types of federal Grants-in-Aid programsGrants-in-Aid programsCategoricalCategoricalBlockBlockProjectProject

Categorical GrantsCategorical Grants

Made for specific purposes-airports, Made for specific purposes-airports, school lunches, wastewater plantsschool lunches, wastewater plants

Strings attached: State mustStrings attached: State must Use federal money for specific purpose Use federal money for specific purpose

involvedinvolved Make its own monetary contribution-Make its own monetary contribution-

matching, but often lessmatching, but often less Provide agency to administer grantProvide agency to administer grant Obey guidelines tailored to purpose of Obey guidelines tailored to purpose of

grantgrant

Block GrantsBlock Grants More broadly More broadly

defined-health defined-health care, social care, social services, services, welfarewelfare

Fewer Fewer strings=greatstrings=greater freedom for er freedom for States and States and locals to locals to administeradminister

Project GrantsProject Grants Specific projects Specific projects

get money get money Dept. of Health Dept. of Health

and Human and Human Services gives Services gives scientists grants scientists grants for researchfor research

States apply States apply for grants for job for grants for job training and training and employment employment programsprograms

Other Forms of Federal AidOther Forms of Federal Aid FBI gives money to local law FBI gives money to local law

enforcementenforcement Army and Air Force equip and train State Army and Air Force equip and train State

National GuardNational Guard

State Aid to National Govt.State Aid to National Govt. National elections held in each StateNational elections held in each State

Financed and regulated with state and local Financed and regulated with state and local moneymoney

Local help with federal criminalsLocal help with federal criminals Naturalization takes place in State courtsNaturalization takes place in State courts

Interstate RelationsInterstate Relations Much of Constitution deals with how Much of Constitution deals with how

States interact with each otherStates interact with each other Interstate CompactsInterstate Compacts

State agreements in response to State agreements in response to shared problemsshared problems

Port Authority of New York and New Port Authority of New York and New JerseyJersey

All 50 States in Compact for All 50 States in Compact for Supervision of Parolees and Supervision of Parolees and Probationers and Compact on Probationers and Compact on Juveniles-States share important Juveniles-States share important law enforcement informationlaw enforcement information

Full Faith and CreditFull Faith and Credit In ConstitutionIn Constitution

Each State must Each State must honor the laws, honor the laws, records and court records and court decisions of every decisions of every other State in civil-other State in civil-not criminal-not criminal-mattersmatters

Divorce is Divorce is exception-must be exception-must be obtained in State obtained in State where people where people permanently residepermanently reside

ExtraditionExtradition

Legal process by which a person Legal process by which a person accused of a crime in one State is accused of a crime in one State is returned for trial to that State by the returned for trial to that State by the police of another Statepolice of another State You can run but you will be hunted down You can run but you will be hunted down

and returned for trial!and returned for trial! Exceptions: strong racial or political Exceptions: strong racial or political

overtones, parental kidnapping of overtones, parental kidnapping of children involved in custody disputeschildren involved in custody disputes

Privileges and ImmunitiesPrivileges and Immunities No State can discriminate against a No State can discriminate against a

person who lives in another Stateperson who lives in another State Each State must recognize the right of Each State must recognize the right of

any American to travel to other States any American to travel to other States fro business, pleasure or to become a fro business, pleasure or to become a resident of another Stateresident of another State

States may distinguish btwn. its residents States may distinguish btwn. its residents and residents of other Statesand residents of other States

Voting- residency requirements-think Voting- residency requirements-think about consequences if this were not in about consequences if this were not in force!force!

State college tuitionState college tuition