How the circle and the squares get along

FederalismFederalist #51Delegated powersReserved powersConcurrent powersProhibited powersElastic clauseMcCulloch v. Maryland (1819)Commerce clauseGibbons v. Ogden (1824)

Terms you need to know after this presentation…

• Dual Federalism• Cooperative Federalism• Grants-in-aid• Categorical grant• Block grant• Mandate• Devolution• Pros and cons of federalism

Who’s job was it to clean up New Orleans and the rest of the coast after Katrina?

Disaster Relief

Should the national gov’t step in to regulate school performance?

No Child Left Behind

Defends the Constitution

Explains why a strong gov’t is necessary

•“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Defends separation of powers between state and national gov’t

Federalist #51

Federalism – Two or more governments exercise power and authority over the same people in the same territory

OR… the relationship between the federal government (circle) and the state governments (squares)

What is Federalism?

OLD SCHOOL – Dual Federalism• Federal and state governments remain dominant in their

separate spheres of influence• Gibbons v. Ogden proved life is not that simple

NEW SCHOOL – Cooperative Federalism• State and Federal governments work together to solve

complex problems

2 Federalisms?

Dual Federalism – Layer Cake: Constitution has given limited list of powers to the national gov’t and the rest belongs to the states

2 Federalisms

• Cooperative Federalism – Marble Cake: Mixed set of responsibilities in which all levels of government are engaged in a variety of issues

Federal

State

Competitive: National government, States, and localities all trying to compete with each other over ways to hand out goods/services packages

Permissive: Even though powers are to be shared the States’ powers rest with the National gov’t’s permission

New federalism: Nixon and Reagan were good with this. Power of the fed. Gov’t is limited in favor of the wider powers reserved to the states

Other Forms

1. Checks the Growth of Tyranny

2. Unity without Uniformity

3. Experimentation

4. Training for Future Leaders

5. Government close to the People

Advantages

1. Slow response time to national problems

2. Difficult to know who is responsible

3. Lack of uniformity can lead to conflict

4. So many policies can lead to inefficiency

Disadvantages

-Delegated Powers (enumerated powers) – powers given to Fed gov’t by Constitution- Implied: Inferred from express powers that allow Congress to function

-Concurrent Powers – shared

-Prohibited Powers – denied from both- Ex. Neither gov’t can tax exports

Powers of National Government

•Regulate interstate and international trade

•Coin money

•Declare war

•Maintain an armed forces

•Establish a postal system

•Enforce copyrights

•Sign treaties

Delegated Powers

• Regulate intrastate trade

• Establish schools

• Establish local governments

• Pass statewide laws • safety belt laws• gun laws, etc.

• Run elections

Reserved Powers of the States

•Power to tax

•Maintain courts

•Borrow money

Concurrent Powers

Aka – “Necessary and Proper Clause”Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Impossible to predict all powers Congress will need to function, sometimes we might have to allow Congress extra powers to fulfill their delegated powers

Elastic Clause

1. National Supremacy Article• Article IV … This Constitution under the

Authority of the United States, shall be SUPREME law of the Land

2. War Power

3. Commerce Clause (Article I, Section 8, Clause I)

• Wide range of activity• Gibbons v. Ogden

4. Power to Tax and Spend

4 Pillars of Authority

Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power - To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Congress has used the elastic clause to stretch this power

What is commerce? “Buying and selling of goods and services.”

Congress given the power to regulate commerce between foreign countries and US as well as state to state… they control business law.

Commerce clause

1824 – aka “The Steamboat Case”

Ogden received a state licensed monopoly to run a ferry across the Hudson River

Gibbons also saw the potential of the traffic between NJ and NY and obtained a federal license.

Ogden sued saying he had the valid state license, even though Gibbons had US license

Gibbons v. Ogden (1824)

Result – Gibbons wins

Marshall Court says only national gov’t can regulate interstate commerce, not individual states per Art I, sect. 8 commerce clause.

Fed Gov’t gets STRONGER

All trade today is primarily controlled by national law

Gibbons v. Ogden (1824)

Who cares? Why is it important?

Gibbons v. Ogden ruling makes a loop hole giving Congress power to take control over any issue involving the movement of people, or things

Fed gov’t power increased

Commerce Clause

Supremacy Clause

McCulloch v. Maryland (1819)Background

Bank of the US operated in Maryland

Maryland did not want BoUS to operate in state, competition unwanted, unfair

Maryland taxed the bank to put it out of business

McCulloch, BoUS employee, refused to pay the state tax

The Courts as the Umpire of Federalism

Is a Bank of the US Constitutional?

YES. The national gov’t has certain implied powers that go beyond delegated powers. US needs a national bank for borrowing, lending, holding minted money, etc. All of which are delegated powers.

McCulloch v. Maryland (1819)

Can a state tax the federal gov’t?

-NO. The federal gov’t is supreme. Since the BoUS is constitutional, only the feds may tax it.

-John Marshall reaffirmed Supremacy Clause and Elastic Clause

-National (Federal) Gov gets STRONGER

McCulloch v. Maryland (1819)

Commerce clause quiz!!!

1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school, 12 year old Lopez carried a gun on to the property

Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce”

LIMITED National government power

United States v. Lopez (1995)

Commerce clause quiz!!! Medicinal MarijuanaControlled Substance Act (1970) – US gov regulates the manufacture, importation, possession, and distribution of certain drugsMedicinal marijuana was legalized in California, but illegal to US government. Raich argued commerce clause should not take effect because 1) there was no business transactions and 2) there were no state border issues.Supreme Court ruled 6-3 against Raich saying that the federal government could trump state laws that permitted medicinal marijuana

Gonzalez v. Raich (2005)

•Reserve Powers- Not delegated to the national gov’t (10th Amendment)

•Create schools and local governments

Powers of the States

Full Faith and Credit Clause• State courts must enforce the civil judgments of the courts in other states

• Must accept their public records and acts as valid

Article IV Section 2• States must extend same privileges and immunities they grant to their own citizens

• Extradition to other states

Interstate Relationships

• Established judicial review - affirms the Court’s position as a coequal branch of government having considerable influence on the politics of government and direction of public policy.

• John Marshall Supreme Court Justice

• Marshall ruled against Marbury stating that it wasn’t under the Supreme Court’s original jurisdiction

Marbury v. Madison (1803)

Fiscal means $

Q – How do you get the states to do things they normally wouldn’t do?

A – Money

Q – What is the answer to any question ever asked?

A – Money

Fiscal Federalism

Money paid from one level of government to another to be spent for a specific purpose

Categorical Grants - target specific purposes and “strings attached.” (States receive funds if state raised age to 21 and lowered BAC to .08)

Block Grants (or flexible grants) – given for broad, general purposes and allow more discretion on how the money is spent (ex. Welfare reform)

Project Grants – Scientific research, highway construction, and job training. Fixed amount of time and strict guidelines

Grants-in-Aid

A requirement that a state undertake an activity or provide a service

Most apply to Civil Rights and the Environment

Often times the states or local gov’ts have to pay the bill of the mandate set by Congress

Mandates

1986 – Asbestos Emergency Response Act, Handicapped Children’s Protection Act1988 – Drug-free Workplace Acts, Ocean Dumping Ban Act1990 – Clean Air ActEX – Columbus, OH spends 23% of the city budget trying to meet environmental mandates (including testing for pesticides used on rice and pineapple)EX – Public schools have to use Internet filtering or schools lose e-rate subsidies

Mandates

Change in SpendingShift towards Federal Gov’t Spending

Federal State Local (City)

1929 17% 23% 60%

1939 47% 23% 30%

1960 64% 17% 19%

1997 66% 19% 15%

Devolution is the return of power to the state gov

Idea is fueled by distrust of the federal gov and the desire to save money by reducing the size of the “bloated federal government”

Devolution

Personal Responsibility and Work Opportunity Reconciliation Act of 1996

Eliminated welfare and transferred the money to states as block grants

• States received wide latitude on how to administer “workfare” but with the knowledge that Congress was counting on anti-poverty spending”

• Strings attached: head of family must work or lose benefit; lifetime benefits limited to 5 years; unmarried mother < 18 only receive $ if stay in school and live with adult; immigrants ineligible for 5 years

Devolution Example

Living under 2 governments is great…

Built on compromise, promotes unity

Gov’t duties can be split up

Brings gov’t closer to people

Allows for state gov’t to address issues in unique regions of the country

Allows states to experiment with policy before enacting it at the federal level – Ex. Vermont’s free health care for children

Federalism is good

Living under 2 governments is bad…

States can impede progress of Nation

States are unequal

States have different policy

Easier for states to be dominated by interest groups

Federalism is bad