Sect. 1--Federalism CHAPTER 4  FEDERALISM

Sect. 1--Federalism Section 1—Federalism and the Division of Power  Federalism refers to the division of power between National Gov’t and states.  Federalism defined: Written constitution divides the powers of government on a territorial basis between a national and regional governments. Written constitution divides the powers of government on a territorial basis between a national and regional governments. Each level has its own powers. Each level has its own powers. Neither level can change the distribution on their own. Neither level can change the distribution on their own. Each level operates through its own agencies and acts directly on the people through its own officials and laws. Each level operates through its own agencies and acts directly on the people through its own officials and laws.

Sect. 1--Federalism Section 1—Federalism and the Division of Power  Implied in the original Constitution and then spelled out in the 10th Amendment.  10 th 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.” “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.”

Sect. 1--Federalism Advantages of Federalism  Allows feds to concentrate on areas of national concern

Sect. 1--Federalism Advantages of Federalism  Allows states to accommodate local traditions and customs and to alter state laws and practices accordingly

Sect. 1--Federalism Advantages of Federalism Federalism Encourages Experimentation

Sect. 1--Federalism Advantages of Federalism  Allows Unity without Uniformity --Allows for local choice on issues—gambling, liquor laws, environment, etc.  Allows government to be closer to the people and for people to be more involved in Government

Sect. 1--Federalism THE CONSTITUTIONAL STRUCTURE OF AMERICAN FEDERALISM  National Government of Delegated Powers Expressed Expressed Implied Implied Inherent Inherent

Sect. 1--Federalism Expressed Powers  Expressed Powers Those powers delegated to the National Government explicitly—in so many words. Those powers delegated to the National Government explicitly—in so many words. Most of these are found in Article 1, Section 8. Most of these are found in Article 1, Section 8.

Sect. 1--Federalism Expressed Powers, cont.  Expressed powers include: power to lay and collect taxes power to lay and collect taxes to regulate commerce between states and with foreign countries to regulate commerce between states and with foreign countries coin money coin money to raise and maintain armed forces to raise and maintain armed forces

Sect. 1--Federalism Expressed Powers  Expressed powers include power: to declare war to fix standards of weights and measures to grant patents and copyrights To make all laws which shall be necessary and proper for carrying into execution the foregoing powers….. (Sect 8, Clause 18)

Sect. 1--Federalism Expressed Powers, cont.  Other Expressed Powers: 16th Amendment—power to levy income taxes 16th Amendment—power to levy income taxes Articles II gives express powers to the president. Articles II gives express powers to the president. Commander in Chief;Commander in Chief; Negotiate treaties;Negotiate treaties; Name federal officialsName federal officials Article III gives express powers to the federal courts. Article III gives express powers to the federal courts.

Sect. 1--Federalism Implied Powers  Implied Powers These are the powers arising from the Necessary and Proper Clause—Article 1, Sect. 8, Clause 18. Sometimes called the elastic clause These are the powers arising from the Necessary and Proper Clause—Article 1, Sect. 8, Clause 18. Sometimes called the elastic clause “Congress shall have the power…to make all laws necessary and proper for carrying into execution the foregoing powers” “Congress shall have the power…to make all laws necessary and proper for carrying into execution the foregoing powers”

Sect. 1--Federalism The Supreme Court and the Federal System  Early debate over meaning of Necessary and Proper Clause  Jefferson v. Hamilton and Bank of US  Resolved in McCulloch v. Maryland  Confirms broad interpretations of “necessary and proper”  First enforcement of Supremacy Clause

Sect. 1--Federalism Impact of McCulloch  Basic Rule: So long as the ultimate aim of legislation is to deal with an area expressly permitted to the federal government by the Constitution, and the means of doing it in the legislation is not prohibited by the Constitution, is OK under the Necessary and Proper clause. So long as the ultimate aim of legislation is to deal with an area expressly permitted to the federal government by the Constitution, and the means of doing it in the legislation is not prohibited by the Constitution, is OK under the Necessary and Proper clause. Impact on federalism Impact on federalism

Sect. 1--Federalism Inherent Powers  Inherent Powers: Those powers held by the National Government simply because it IS the national government.  The Power to regulate immigration, acquire territory, give diplomatic recognition, protect against rebellion.  powers that national governments have historically possessed and couldn’t function without.

Sect. 1--Federalism The States: Reserved Powers  Reserved Powers: Those powers neither given to the federal government nor denied to the states.  Basic principle of the 10th Amendment is that all powers not given to the feds nor denied to the states belong to the states.  Far more powers than possessed by the federal government. Roads, school, regulation of professions, child welfare, speed limits, traffic rules, marriage, etc. Roads, school, regulation of professions, child welfare, speed limits, traffic rules, marriage, etc.

Sect. 1--Federalism Powers Denied to the States  Explicitly, by express grant to the feds, or by the Bill of Rights. Examples: Treaties with foreign countries Issuing letters of marquis Coining money or issuing bills of credit  Impliedly. Those things that would be contrary to federalism, such as taxing federal entities.

Sect. 1--Federalism The Exclusive Powers  The exclusive powers are those that can be exercised only by the National Government.  Include most of the express powers of the national government, such as coining money, making foreign treaties and national defense.  Some powers are expressly denied to the state. Others are impliedly denied because they would be inconsistent. Regulation of interstate commerce. Regulation of interstate commerce.

Sect. 1--Federalism The Concurrent Powers  The Concurrent Powers are those that both the National Government and the States possess and exercise.  Those powers that the Constitution grants to the federal government, does not grant exclusively to the federal government, and does not deny to the states.  NOT held jointly. Are held separately and simultaneously. Examples?

Sect. 1--Federalism Concurrent Powers

Sect. 1--Federalism Supremacy Clause  State and Federal Laws often conflict.  Starting point in sorting out conflicts is Supremacy Clause.  Article VI, Section 2 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties 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.” “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties 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.”

Sect. 1--Federalism Supremacy Clause  Means: Constitution stands above all other laws, acts of congress and treaties just below.  Thus, state laws that conflict with the Constitution or with federal laws must give way.  State judges must enforce the federal law.  Supremacy Clause called the “linchpin of the Constitution.

Sect. 1--Federalism SECTION 2  Territorial Integrity  Grants-in-Aid Categorical Grants Categorical Grants Block Grants Block Grants Project Grants Project Grants

SECTION 3—INSTERSTATE RELATIONS Section 3 Interstate Relations  Constitution has four provisions to govern relations between states Privileges and Immunities Full Faith and Credit Interstate Compacts Extradition

SECTION 3—INSTERSTATE RELATIONS Interstate Relations Interstate Compacts  Interstate Compacts are agreements between states.  What types of issues? Usually done to take care of regional issues, such as use of water from rivers, environmental issues or waste management. Usually done to take care of regional issues, such as use of water from rivers, environmental issues or waste management.  Must be approved by Congress.  Once approved, are binding.  Who Enforces? Supreme Court Supreme Court

SECTION 3—INSTERSTATE RELATIONS Interstate Relations Full Faith and Credit  Full Faith and Credit (Article IV, Section 1) requires states to honor (give full faith and credit) to the civil judgments of the courts of other states civil judgments of the courts of other states public records and acts of other states. public records and acts of other states.  Applies to civil judgments, such as lawsuits. But also divorces and marriages  Congress has the power to prescribe the manner in which such acts and records shall be given full faith and credit.

SECTION 3—INSTERSTATE RELATIONS Interstate Relations Full Faith and Credit  Gay Marriage Controversy  Defense of Marriage Act Constitutional? Constitutional?

SECTION 3—INSTERSTATE RELATIONS Views on Gay Marriage by Age

SECTION 3—INSTERSTATE RELATIONS Interstate Relations Interstate Privileges and Immunities  States must extend to citizens of other sates the privileges and immunities granted to their own citizens  includes the protections of the laws, the right to engage in peaceful occupations, access to the courts and freedom from discriminatory taxes.  States may not impose unreasonable residency requirements about one day for basic services about one day for basic services 50 days for voting privileges 50 days for voting privileges one-year for in-state tuition. one-year for in-state tuition.

SECTION 3—INSTERSTATE RELATIONS Interstate Relations Extradition  When individual charged with crime, and flees from state, other states must deliver upon request from the state executive.  Congress has supplemented and made the governor of the state to which fugitive fled the agent for redelivering.  Is an extradition hearing to establish that validly charged with a crime. Only issue is identity Only issue is identity Politics of extradition Politics of extradition  Enforced by Federal Courts