FEDERALIST #51: OPERATION TO LIMIT THE AUTHORITY OF THE CENTRAL GOVERNMENT?

Week 2

American Exceptionalism: Major Characteristics of Ameri-can Political System

GISA 220: American Politics and American Foreign Policy

Professor Jaechun Kim

I33004 Seme Park

International Relations

Table of Contents

1. James Madison

2. Federalist Papers

3. Federalist #51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

4. Separation of Power

5. Checks and Balances

6. Current Issue 1

7. Current Issue 2

8. Discussions

James Madison

• March 16, 1751 – June 28, 1836 • American statesman, political

theorist and the fourth president of U.S (1809–1817).

• Hailed as the "Father of the Constitution" for being instru-mental in the drafting of the United States Constitution and as the key champion and author of the United States Bill of Rights

Federalist Papers• The Federalist Papers are a series

of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay promoting the ratification of the United States Constitution.

• Seventy-seven were published seri-ally in The Independent Journal and The New York Packet between October of 1787 and August 1788.

Federalist #51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

• Addresses appropriate checks and balances can be created in gov-ernment

• Advocates a separation of powers within the national government.

• Purpose: to "form a more correct judgment of the principles and struc-ture of the government planned by the Constitutional Convention“ - by informing the reader of the safe-guards created by the convention to maintain the separate branches of government, and to protect the rights of the people and of the coun-try.

"Ambition must be made to coun-teract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of the government…In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the gov-erned; and in the next place oblige it to control itself".

Federalist #51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

• Key point: members of each depart-ment should be as little dependent as possible from the members of the other departments

• "the great security against a gradual concentration of the several powers in the same department"

• In a republican form of government, Madison asserts, the legislative branch is the strongest, and therefore must be divided into different branches, be as little connected with each other as possible, and render them by differ-ent modes of election.

• Deems the legislative branch to be the strongest since it is essentially the true voice of the people and stresses the need for the checks and balances.

• In 1788, power over people was di-vided both through federalism and through branches within the national (or federal) government.

• "double security arises to the rights of the people. The governments will con-trol each other, at the same time that each will be controlled by itself".

• Madison discusses at great length at the end the issue of political factions. In other words, even if individuals mingle with other members of the same social groups, ideals, and goals, no particular group should be able to become so strong as to thwart the interest of all other groups. No faction can become large enough to overthrow all other fac-tions in a well-run democracy.

Separation of Powers

• Separation of powers divides power among the executive, leg-islative, and judicial branches as distinct departments of American national government.• This endows several different insti-

tutions: the Congress, the executive branch, and the judicial branch, with the ability to influence the na-tion’s agenda and affect decisions.

• This also establishes a system of checks and balances in which power is divided to ensure that no one branch becomes predominant.

Checks and Balances• In designing the U.S Constitution, the Framers sough to secure individual lib-

erty against the encroachment of governmental power by not giving too much power to any one individual or branch in government.

• By doing so, they expected that ambitious men would keep each other in check as they jealously guarded their powers granted by the Constitution.

• Examples

1. The president can veto legislation passed by Congress (but Congress can override that veto with 2/3 vote)

2. The president commands the army but Congress declares war and appro-priates funds

3. The president appoints justices to the Supreme Court (but only with the approval of the Senate)

4. Congress and the president can pass laws (but the Supreme Court can strike those laws down as unconstitutional).

• http://www.c-span.org/video/?15130-1/checks-balances

Source: Essentials of the U.S. ConstitutionUtah Education Network (August 5, 2002)

Current Issue 1: Obamacare

• Patient Protection and Afford-able Care Act (March 23 2010)

• Goal to give more Americans access to affordable, quality health insurance, and to re-duce the growth in health care spending in the U.S.

• Expands the affordability, qual-ity, and availability of private and public health insurance through consumer protections, regulations, subsidies, taxes, insurance exchanges, and other reforms.

• https://www.youtube.com/watch?v=JZkk6ueZt-U

Current Issue 1: Obamacare• Efforts to oppose and repeal the leg-

islation have drawn support from prominent conservative advocacy groups, Congressional and many state Republicans, certain small business organizations, and the Tea Party movement.

• These groups believe the law will lead to disruption of existing health plans, increased costs from new in-surance standards, and that it will increase the deficit.

• Some are also against the idea of universal healthcare, viewing in-surance as similar to other com-modities to which people are not en-titled.

• Opponents turned to the federal courts to challenge the constitutionality of the legisla-tion. In National Federation of Independent Business v. Sebelius, decided on June 28, 2012, the Supreme Court ruled on a 5–4 vote that the individual mandate is constitutional under Congress's taxation powers, although the law could not have been upheld under an argument based on the regulatory power of Congress under the Commerce Clause.

• The Court also determined that states could not be forced to participate in the Medicaid expansion, effectively allowing states to opt out of this provision. As written, the ACA with-held all Medicaid funding from states declining to participate in the expansion.

• However, the Supreme Court ruled that this withdrawal of funding was unconstitutionally coercive and that individual states had the right to opt out of the Medicaid expansion without losing pre-existing Medicaid funding from the federal government.

Current Issue 1: Obamacare - 2013 federal government shutdown

• Strong partisan disagreement in Congress has prevented adjustments to the Act's

provisions. However, at least one change, a proposed repeal of a tax on medical devices, has re-

ceived bipartisan support

• Republicans attempted to defund its implementation, and in October 2013, House Republicans,

supported by Senators Rand Paul, Ted Cruz, Mike Lee, and Marco Rubio, refused to fund the fed-

eral government unless accompanied with a delay in implementation of the ACA, after the Presi-

dent unilaterally pushed back the employer mandate by one year, which critics claim he had no le-

gal right to do.

• The Republican-held House of Representatives passed three versions of a bill funding all elements

of the government while submitting various versions which would repeal or delay the ACA, with the

last version delaying enforcement of the “individual mandate”. These bills were unable to muster

enough votes in the Democrat-held Senate, with Democratic leadership stating the Senate would

only pass a "clean" funding bill without any restrictions on the ACA.

• After Congress failed to pass a continuing funding resolution by midnight on October 1,

a government shutdown ensued. Conservative groups such as Heritage Action provided lobbying

support for the linkage between the ACA and the government shutdown. Senate Republicans

threatened to block appointments to relevant agencies, such as the Independent Payment Advisory

Board and Centers for Medicare and Medicaid Services.

Current Issue 2: Legalization of Marijuana

• The government's failure to significantly reduce il-legal drug use and the underground economy it generates has led many individuals and a few states to rethink the wis-dom of outlawing drugs such as marijuana, par-ticularly in cases where marijuana may have medical benefits.

Current Issue 1: Legalization of Marijuana

• California was at the forefront of reformulating policy concerning marijuana laws.

• In 1996, the voters of California approved Proposition 215 that al-lowed people with a doctor's rec-ommendation to possess and grow marijuana for personal med-ical use.

• A 2000 Supreme Court decision upheld federal laws outlawing the use of marijuana (for any pur-pose) over the California law au-thorizing prescription and use of medical marijuana.

• Marijuana possession and use, medical or recreational, remains a federal crime. However, the decision also recognized that while federal law is technically supreme over state law, the federal gov-ernment cannot compel state law en-forcement officials to enforce federal laws. When state laws conflict with fed-eral laws, it becomes problematic and can undermine national policy objectives. As a practical matter, the overwhelming majority of arrests for illegal marijuana possession are by state police officers rather than federal agents. So while the federal government can continue to in-vestigate and make arrests of citizens in violation of federal law within a state, the limited legalization of marijuana would ef-fectively gut law enforcement measures.

Current Issue 2: Legalization of Marijuana

• Washington and Colorado be-came the first state in the US to legalize recreational use of marijuana. Ballot initiatives passed in both states allow for the possession of up to one ounce for adults over the age of 21.

• The laws also legalize the sale of marijuana through autho-rized retail outlets, subject to state regulation and taxation.

• http://www.huffingtonpost.com/2014/01/13/colorado-mile-marker-420-419-weed_n_4590392.html

Current Issue 2: Legalization of Marijuana

• The controversy over state legalization of marijuana illustrates arguments for and against federal systems of government. On the one hand, supporters of legalizing marijuana, much like supporters of state laws and judicial decisions recognizing same-sex marriage, celebrate federalism's openness to cre-ative policy solutions that can be pioneered at the state level.

• On the other hand, legalizing marijuana at the state level con-flicts with federal drug laws, illustrating how a federal system can foster state policies that work at cross-purposes with poli-cies of other states or the federal government itself, since mari-juana is clearly a product of interstate commerce. The effects of state-level marijuana legalization have spillover effects on states that may wish to maintain a more conservative strategy in combating drug use and abuse.

Discussions• Health policies always replete with discussion of federal-

ism, most often when advocates of reform put their hopes in states. Is the “Obamacare” rationally allocated health policy authority between the states and the federal gov-ernment?

• America has been at the edge of marijuana legalization several times during the past half-century, but never as close to mass acceptance of the drug as the nation is to-day. With Washington and Colorado on board, how far should the federal government be involved in individual state’s preferences towards marijuana?

References• Edwards-Levy, Ariel, Pot Legalizations Support At Record High Poll Finds, The Huff-

ington Post, April 12, 2012, http://www.huffingtonpost.com/2012/12/04/pot-legaliza-tion_n_2240257.html

• Lowi, Theodore J., et al, American Government: Power and Purpose, 8th edition, New York, W. W. Norton & Company, 2004, p.48.

• ObamaCare Facts, http://obamacarefacts.com/obamacare-facts.php• Pinkowski, Jack, Checks and Balances: The Government Shutdown in Perspective,

The Huffington Post, October 10, 2013, http://www.huffingtonpost.com/jack-pinkowski/checks-and-balances-the-g_b_4080850.html

• Powel, Jim, James Madison – Checks and Balances to Limit Government Power, FEE, March 01, 1996, http://www.fee.org/the_freeman/detail/james-madison-checks-and-balances-to-limit-government-power

• http://www.c-span.org/video/?15130-1/checks-balances• https://www.healthcare.gov/• http://www.huffingtonpost.com/news/obamacare/• http://en.wikipedia.org/wiki/James_Madison• http://useconomy.about.com/od/healthcarereform/f/What-Is-Obama-Care.htm• https://www.youtube.com/watch?v=JZkk6ueZt-U