Government Structure and Federalism

1. Government Structure and Federalism Frank Brooks Introduction to American Politics

2. The Constitution as a Contract • Lays out key elements of government • purposes • structure • powers • limits • Skeletal framework, not detailed blueprint • Constitution is vague, “inspired ambiguity” • provides flexibility and stability • channels conflict into “political” channels

3. Powers: Formal and Evolved • Formal, constitutional powers • Congress (Article 1) • President (Article 2) • Supreme Court (Article 3) • Informal, evolved powers • Congress – “necessary and proper clause” (elastic) • President – “inherent” (implied) powers • Many rooted in “commander in chief” authority • Capacity to lead nation enhanced by technology • Development of national constituencies and interests • Supreme Court – judicial review “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.” (Article I, Section 8)

4. Limits on National Government • Constitutional Limits • Amendment Process • channels policy change into political channels • Separation of Powers; Checks and Balances • Decentralize power by separating it • Encourage competition between power centers • Federalism • Acknowledge and define role of state and local governments as counterweight

5. Amending the Constitution • Proposal • By 2/3 vote of both houses of Congress (A) • By 2/3 of state legislatures calling for a convention (B) • Ratification • By ¾ of state legislatures (C) • By ¾ of state ratifying conventions (D) • History of amendment • Only 27 (17 since Bill of Rights) • AC route for all but one • Difficulty of amendment channels policy change to Congress, executive branch, even courts

6. Separation of Powers • Three branches; four significant parts • Horizontal separation (among the branches) • Congress (consider both chambers) • House • Senate • Presidency [Executive Branch] • Courts • Three kinds of separation into those four parts • Function • Constituency • Term

7. Separation by Function • House • Legislative • Spending • Senate • Legislative • Executive: approve nominations, ratify treaties • President • Executive • Foreign relations • Courts • Judicial • Interpret Constitution

8. Separation by Constituency • House • Chosen by voters in Congressional districts • Narrowest representation, most accountability • Redistricting and “gerrymandering” • Illinois’ Fourth Congressional District • Senate • Chosen by states (legislatures, then voters) • More heterogeneous constituency than House • President • “National” constituency (distorted by electoral college) • Court • Federal judges chosen by President and Senate • “represent” the Constitution (defend it against threats)

9. Separation by Term “shall hold their Offices during good Behaviour” (Article 3, Section 1) • Court • “life” term • House • 2 years, no term limits • Senate • 6 years (staggered), no term limits • President • 4 years, 2 term limit (after 22nd Amendment) • Cannot gain control of all the government all at the same time

10. Checks and Balances • Consider FDR’s court-packing scheme • Separation of powers may slow down concentration of power, but can’t stop it • “Ambition must be made to counteract ambition” • Assume that office-holders need/want power • Give each part tools to interfere with other parts • Let competition among parts limit overall power, or at least ensure that power used appropriately • Broad impact of checks and balances • enforce separation • compel cooperation and compromise

11. Federalism • Separation of power between levels of government (vertical) • Historical context • shift of power away from states • But, left them considerable authority • Complex subject (abstract to concrete) • Structure of relationship between states & federal • How the Constitution describes terms of relationship • Interpretation of Constitutional language • Politics of relationship (especially money)

12. Structure of Federalism • Unitary Government • Confederal Government • Federal Government

13. Federalism in the Constitution • “National Supremacy” Clause (Article 6) • Seems to favor national government • Anti-Federalists sought clarification/dilution • Tenth Amendment • National government has “delegated” powers • E.g. regulate interstate commerce, raise army • Only those explicitly mentioned in Constitution? • States governments have “reserved” powers • Residual category (after powers prohibited to states) • Includes “police” powers, education This Constitution, and the Laws 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 the 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 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.

14. Interpreting Federalism • Need for Interpretation • National Supremacy clause and 10th Amendment potentially contradictory • Specific meaning of “delegated” and “reserved” unclear • Supreme Court resolves • McCulloch v. Maryland (1819) • If both state and federal government exercise legitimate power, which prevails? • Elastic clause + national supremacy clause = national government wins

15. Interpretations of the Commerce Clause • How much power was conferred by Congress’ power to “regulate interstate commerce”? • Gibbons v. Ogden (1824) • “commerce” broad; “interstate” narrow • 1830s-1930s – commerce power interpreted narrowly to limit Congressional power • Jones v. NLRB (1937) • Virtually all commerce is “interstate” • Greatly expanded Congressional power

16. The Politics of Federalism • Dual federalism • Dominant until 1930s • States and national government had distinct, separate realms (depending on functions) • Cooperative federalism • States and national government cooperate • Often, national government funds, while states implement • “layer cake” v. “marble cake” • Regulatory federalism • National government sets conditions for funding and thus regulates state actions • Unpopular with states • “New” federalism, devolution, states’ rights

17. Funding Federalism • Categorical and Project Grants • Money appropriated for specific purposes • Local governments and organizations write grant proposals • States often circumvented • Block grants • Broad purposes, e.g. economic development • Only about 10% of federal funding • Revenue Sharing • States get proportional “share” of taxes collected by federal government to spend on any purpose