The Constitutional Framework: Federalism and the Separation of Powers

3 Fundamental Limitations on Government Per the Contract A government is “legitimate” when its actions conform to the will of the people. In America that legitimacy is based upon a Contract: that the people give ok to a strong national government in exchange for it accepting strict limitations on its powers. Federalism Separation of powers Individual rights

Federalism Federalism: the division of powers and functions between the national government and the state governments Sought to limit the power of both governments by sharing power between them. Under the Articles, States had tremendous power (bad), however, even after Constitution written, states continued to be more important than the national government. For the next 150 years, in fact, state legislatures made most of the important policies governing the lives of Americans, not Congress

The Powers of the Federal Government Constitution recognized two sovereigns: state and federal governments To reinforce this it gave national government “expressed powers” and held all the rest for the states. Article 1 Section 8: declares 17 powers of the national government (coin money, collect taxes, declare war, regulate commerce), also: “implied powers” which enable Congress “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” This is also known as the “necessary and proper clause” – it has allowed Congress to expand the scope of its powers and authority Finally, the “Supremacy Clause”- made all national laws and treaties “the supreme law of the land.”

The Powers of the State Governments To preserve a strong role for the states the Constitution provided Amendment 10: the powers that the Constitution does not delegate to the national government or prohibited to the states are “reserved to the States respectively, or the people.” (this is also known as the “reserve powers amendment”) Power of “Coercion” – power to develop and enforce criminal codes, to administer health and safety rules, to regulate the family via marriage and divorce laws, to regulate individuals livelihoods (licenses to practice), the power to define private property (state laws define who is and is not allowed to use a piece of property) Police Power – states power to regulate the health, safety, welfare, and morals of its citizens. It is what states do – they coerce you to follow the rules in order to maintain public order.

State Obligations to One Another Article IV – to promote national unity by requiring states to respect actions and decisions made by other states as legal and proper. “Full faith and credit” among states meant that each state is expected to honor the “public Acts, Records and judicial Proceedings” that take place in other states. Recent challenge to this clause: gay marriage being recognized in all states.

“Comity Clause” – Article IV Section 2 – again promotes national unity by providing that a citizen enjoying the “Privileges and Immunities” in one state should be entitled to similar treatment in other states. States cannot discriminate against someone from another state or give special treatment to its own citizens. This Article also covered extradition – requires states to return fugitives to the states from which they have fled.

“interstate compact clause” – Article I section 10 – “ No state shall, without the Consent of Congress …. Enter into any Agreement of Compact with a another state” Compacts are use by states to reach binding agreements on problems that cross state lines: example – distribution of river water, addressing environmental concerns, operating transportation systems that cross state lines.

Local Government and the Constitution Not mentioned in Constitution Creation of State Governments to help share the load of governing in the state Some cities have home rule – guarantee of non interference in various areas of local affairs.

Slow Growth of the National Governments Power Dual Federalism – another term for the 2 layer governmental system Questions about how to divide powers have existed since the beginning, there no right answer, it changes with the generations. First 150 years power mainly held by States, then in 1930’s it shifted to more national power, since the 90’s it has begun to revert back to the states. Several court cases have influenced the location of power through their interpretation of Article I section 8, where Congress is given the power “to regulate commerce with foreign nations, and among the several states and with the Indian tribes.”(the Commerce Clause) : McCulloch v. Maryland – Implied powers and Supremacy clause Gibbons v. Ogden (1824) – interstate commerce control

These rulings interpreted the “Commerce Clause” as a power of the federal government, as long as it was used to improve commerce. However, in 1900’s, when government tried to use the clause to regulate commerce, not promote its growth, the clause became a restraint of national power. Regulation was seen s violating interstate commerce, because the factory and workplace were seen as “local” (goods had not passed into commerce). Intervention on a local level was seen as “police power” – a power reserved for the states, for the protection of the health and safety of its citizens. After 1937, the court changes its interpretation and ends its view of a distinct difference between “intrastate and interstate commerce”.

Cooperative Federalism and Grants in Aid Since the 1930’s, Dual Federalism has become more of a case of “Cooperative Federalism” – refers to supportive relations, sometimes partnerships, between national government and the state and local governments. The form it sometimes takes is known as “grants-in-aid” – federal subsidies (money) for special state and local activities. **** Important to note **** The grants in aid are an important form of federal influence. They are a kind of “bribe” where Congress appropriates money for state and local governments with the condition that the money be spent for a particular purpose as defined by Congress. Congress uses grants-in-aid because it does not have the political or constitutional authority to command states or cities to do what it wants.

Categorical Grants-in-Aid 1930’s the same approaches begin to be applied to cities. Congress begins to apply national goals such as public housing and unemployment programs and fund them via grants in aid. Increase from 2.3 billion in 1950 t0 350 billion in 2002 Some times the state must match dollar for dollar – some times the fed pays up to 90% Congress can threaten to remove these aids if national standards are not met – ie 55mph on highway. Most simply help states perform traditional functions of governance via education and policing. A majority of these types of grants were made in the 60’s and came in the form of project grants or formula grants Layered cake to marbled cake!

Regulated Federalism 1960’s to the 90’s Threats to with hold fed $ if standards are not met. Most instances occur in the area of civil rights, poverty programs and environmental protection. Shift from economic oversight to social regulation of states Unfunded mandates become the norm

New Federalism 90’s ish to present? Block grants – funds given to pay for good, services and programs with out “strings” or restrictions. Devolution becomes key – removing programs and passing them down to lower governments. Gives states more freedoms and burdens – dealing with poor, ect