Federalism: Chapter 3

1. Federalism: Chapter 3 Enduring Struggle: Who’s got the power!!!!!

2. What is federalism? • Founders: • Don’t want unitary gov • Confederal gov wasn’t working

3. What is Federalism? • The division of powers and functions between the national and state governments • Each have a large measure of sovereignty • Power to restrain each other • Goal: protection of liberty • “ambition must be made to counteract ambition”

4. So how is power divided? How do we know who is in charge of what?!? • Expressed (Enumerated): powers granted to the National Government that are explicitly written into the Constitution • Reserved: (guaranteed by 10th amendment): powers granted to the state governments • “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” • Concurrent: powers that both states and the National government share • Art. I, secs 8 • Art. IV, sec 4

5. Implied power: • Necessary and proper / Elastic clause Article 1 Section 8 Clause 18 • Equation: Congress has the implied power to __________________ because it is “necessary and proper” in order to carry out its expressed power (s) to ______________________________________. • Example: Congress has the implied power to impose regulations on drugs because it is “necessary and proper” in order to carry out its expressed power (s) to regulate interstate commerce.

6. Inherent power: powers given to all sovereign nations under international law • Wage war, make peace, acquire land

7. Federalism as established in Constitution Who’s got the power?!? : This debate ensued during ratification process • Many assumed that the Federal government would only have the powers given to it by the Constitution. • Govern such different areas of policy that there is no need to spell out the powers • Madison: Federalist 46 • “ both state and federal governments are in fact different agents and trustees of the people, constituted with different powers • Anti-Feds disagree: 10th amendment • “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”

8. Who’s got the power? Madison v. Hamilton • M: The power comes from “the people” they have the ultimate authority, not the national gov • “ The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite” • Originally favored strong national gov • H: Supremacy clause = national gov is top dog

9. Dual Federalism: Classic Constitutional Federalism (1789-1932) Concurrent powers Supremacy Clause Expressed Powers 10th amendment Reserved powers Each sphere has it’s own distinct powers: Federal (PFDA) States (regulate their own meat inspection)

10. What about the relationship between states? • Article IV • Full faith and credit clause • 1996: Congress passed DOMA: states don’t have to recognize same sex marriage • SCOTUS currently discussing constitutionality of this • Privileges and immunities clause (comity clause) • Extradition

11. Enduring Struggle: States’ rights v. National Supremacy (Who’s got the power?) “ The question of the relation of the States to the National government is the cardinal question of our constitutional system. At every turn of our national developments we have been brought face to face with it, and no definition either of statesmen or judges has ever quieted or decided it. It cannot, indeed, be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question” Woodrow Wilson

12. What happens when the states and national gov can’t agree? Necessary and proper clause • McCulloch v. Maryland (1819) case background • 1) Congress establishes the Bank of the United States • 2) Maryland passes a new state law which…. • 3) McCulloch is fed up!!!

13. What did the Supreme Court determine? • 1) Does Congress have the power to establish a national bank? • 2) Do the states have the power to tax federal institution? • A) Intent of the Maryland is…. • B) “This Constitution, and the Laws of the United States which shall be made in pursuance thereof………shall be the supreme Law of the Land.” • Necessary and proper clause strengthened Congress has the implied power to create a bank because it is “necessary and proper” in order to carry out its expressed power (s) to tax, borrow money, pay debts, and print and coin money. • Supremacy Clause establishes a hierarchy!!

14. Expansion of Federal powers: Commerce Clause • Gibbons v. Ogden: • Background of case • NY state grants Ogden exclusive rights to shipping on a NY waterway, this allows him to ship good between NY and NJ • Gibbons sues, violates commerce clause… • Did NY violate the commerce clause by attempting to regulate interstate trade? • What does the court decide? • How does this expand federal powers? • Commerce Clause – broad definition of what can be considered commerce • Allows gov to get SUPER involved in economic activity

15. SCOTUS : Who’s got the power? • These rulings indicated that the national government was entitled to expansive powers under • Supremacy Clause • Fed gov top dog • Necessary and proper clause • Grants implied powers; think equation • Commerce Clause • Power to regulate interstate trade: almost EVERY type of commercial activity is considered interstate trade today By in large, Congress neglected to act on their ability to expand their powers until the 1930s…

16. Questions to ponder • Should states always obey federal laws? (Supremacy Clause) • When have states challenged fed law? • Compact theory, Calhoun and nullification, Little Rock • What was the outcome? • How far should the elastic / necessary and proper clause stretch? • Commerce Clause: how much regulation? • When doe intrastate commerce end and interstate commerce begin? • Is there still such a thing as intrastate commerce in 2013?

17. History of US Federalism 1789-1933 1933-Today

18. History of US Federalism:Dual Federalism /Layer Cake… National Gov State govs • 1789 to New Deal = Layer Cake / Dual Federalism • Powers clearly divided, states actually do most of the governing, but national gov top dog

19. Cooperative Federalism / Marble Cake Federalism • 1930s to present day = Marble Cake Federalism (cooperative federalism) • Cooperating on policy together • Interstate highway system • Initial $ from fed, state implements and maintains program • Federal gov’s role is expanding • Courts generally rule in favor of Supremacy Clause and Necessary and proper clause and against the 10th amendment • Basically in favor of Federal intervention • This slowed down from 1981-2001 = devolution revolution • Post 9/11 = more federal intervention

20. Devolution Revolution(1981-2001) • Sometimes referred to as New Federalism • Argued that Federal gov needs to give power back to the states • States’ rights • Dev Rev in action • US v. Lopez 1995 • Fed gov can’t make laws concerning handguns in school zones, this does not concern interstate commerce • Congress changed law to state laws bought out of state can’t be in a school zone • States may make their own laws concerning this issue • US v. Morrison 2000 • Challenged 1994 Violence Against Women Act, violence against women is not an economic issue • Congress passed this act citing the Commerce Clause, amended act to include violence that crossed state lines • Welfare Reform Act 1996 • Fed gov gives block grants to states and they decide who qualifies, how much people receive • No more than 2 years of assistance without working • Can’t get assistance for more than 5 years Many claim this era ended with the attacks on 9/11/01 ,

21. Fiscal Federalism: The Carrot Grants in aid = $ given to state and local gov • key feature of cooperative / marble cake federalism • Allows federal gov to influence what happens at the state level • Types of grants in aid • Categorical Grants: federal grants that can be used for specific purposes; allow Federal gov to get involved in areas they can’t due to the lack of an expressed power • To build an airport • Block Grants: federal grants to support broad programs, generally a block (group) of categorical grants; gives states more freedom • To aid with law enforcement • Community development • Begin to be used during Reagan’s presidency (part of devolution revolution)

22. Fiscal Federalism • $460 billion in grants every year • Grant distribution follows universalism—a little something for everybody. • I scratch your back, you scratch my back • Can lead to disproportionate share of the pie • Homeland Security funding Wyoming gets 17x more funding per person than NY

23. Fiscal Federalism • http://www.pewstates.org/research/data-visualizations/fiscal-federalism-by-the-numbers-85899427055

24. Types of grants • http://www.neh.gov/grants/education/enduring-questions • http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/communitydevelopment/programs/entitlement#intro

25. Sequestration and fiscal federalism • http://www.pewstates.org/research/data-visualizations/the-impact-of-the-fiscal-cliff-on-the-states-sequestration-85899435504 • Congress has set the amount of $ to be cut • Basically 9% cuts across the board – no discretion • EVERY program gets cut by 9% • All grant programs will be effected • $85 billion cut between March and September of this year

26. Fiscal Federalism: The Stick Mandates • Laws that states/ local gov must comply with, must come from an expressed power!!!! • Basically financial obligations placed on states, may be funded but not always… • Mandates are MANDATORY (as the name implies ) • Unfunded mandates: must do this, no money to fund it… 1995 unfunded mandate act… • Civil Rights Act 1964 ( no money) • Commerce clause • Americans with Disabilities Act (some money given but not enough) • Commerce clause • No Child Left behind Act (some money given but not enough) • Power to tax, borrow money… (if you can raise $ you can spend $)

27. Grants v. Mandates Grants: The Carrot (Optional) Mandates: The Stick (Mandatory) Federal government imposes regulation on states / local governments Got to do itor there will be penalties 21 drinking age = highway dollars Sometimes money is given to states if they comply with all of the rules No Child Left Behind Sometimes mandates are issued and no money is rewarded Civil Rights Act 1964 • Categorical grants: fed power • Often have strings attached to give Fed gov more control over states • TANF (food stamps) • Head Start • Block Grants: state power • States, local governments, citizens request grants • Want to do it, usually little to no strings • Power to solve problem without federal intervention

28. 10th amendment as a source of State power • Can give states power to solve problems in a unique way, as long as it doesn’t contradict federal law • Problem: NJ needed to raise more revenue • Solution: Legalize gambling and tax it • Problem: Citizens of NJ want more options when it comes to treating chronic pain and other medical conditions • Solution: Legalize the use of Medical Marijuana

29. Selective incorporation as a limit on state power Selective incorporation: the 14th amendment has been used by the courts in a haphazard way to apply several of the first 10 amendments to the states as well as the federal gov • 14th : “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” • Currently on the 3rd and 7th not incorporated • Initially the Bill of Rights ONLY applied to the Federal Gov • Examples: • Gitlow v. NY: 1st-freedom of speech (1925) • Mapp v. Ohio: 4th-search and seizure ( 1961) • Gideon v. Wainwright: 6th -right to counsel in all felony cases (1963) • Benton v. Maryland: 5th- No double jeopardy (1968) • Argersinger v. Hamlin: 6th- right to counsel imprisonable misdemeanor (1972) • How would this limit the power of the states?

30. Federalism • Enduring question: who’s got the power? “ The question of the relation of the States to the National government is the cardinal question of our constitutional system. At every turn of our national developments we have been brought face to face with it, and no definition either of statesmen or judges has ever quieted or decided it. It cannot, indeed, be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question” Woodrow Wilson

31. Pros and Cons of Federalism • Pros: • promotes diverse policies – “labs of democracy” • division of power: no one faction can dominate • multiple avenues for political participation • Cons: • states have different resources (unequal access) • local interests can delay policy that is good for majority • confusion/ difficult to know what different levels of government are doing

32. Physician assisted suicide and Federalism • Gonzales v. Oregon (2006) • Attorney Gen. Gonzales, on behalf of the Fed gov, brought suit against Oregon stating their legalization of physician assisted suicide violated the CDS Act • The process includes the use of Schedule II drugs (deemed to have medicinal value) • Problem?: Treatment designed to cause death is not a proper medical use of a CDS

33. Currently legal in Oregon, Washington, and Montana

34. Federalism: A Review • What: a division of power between the national and state governments • Be able to identify expressed / reserved/ and concurrent powers (when the Constitution was written) • Dual federalism / layer cake • 1796-New Deal • Cooperative Federalism / marble cake • New Deal to today • Grants • Mandates • Americans with Disabilities Act • Civil Rights Act 1964 • Devolution Revolution?!? • Why: to protect liberty • Pros / Cons of federalism • Who’s go the power? • Limits on the power of the states • Supremacy Clause • Necessary and proper clause / commerce clause : McCulloch & Gibbons • Categorical grants • Mandates • Selective Incorporation • Power given to the states • 10th amendment • US v. Lopez, US v. Morrison • Block grants • Devolution: examples? • Lopez. Morrison, and Welfare reform

35. FRQ • The Framers of the Constitution created a federal system. • A) define federalism • B) select two of the following and explain how each has been used to increase the power of the federal government relative to the states. • Categorical grants • Federal mandates • Selective incorporation • C) Select two of the following and explain how each has been used to increase the power of states relative to the federal government • Welfare reform act of 1996 • Block grants • 10th amendment