Dividing Governmental Power

Federalism’s Basic Structure National (Federal) Level & State Level Federal Powers Article I Article II Article III Power Reserved the States Tenth Amendment

Expansive Powers of the Federal Government Article I, §8 – Power to coin and borrow money, establish a post office, establish and maintain military forces, promote the arts and sciences, and create immigration laws Article I, § 8, Clause 3 – Commerce Clause Article I, § 8, Cl. 18 – Necessary and Proper Clause Article VI – Supremacy Clause

CIVIL WAR AMENDMENTS Thirteen, Fourteen, and Fifteenth Amendments Each have “enforcement clauses” allowing Congress to enforce, by appropriate legislation, the provisions of these articles

Forms of Federalism Dual Hierarchical Cooperative

Dual Federalism Model of federalism whereby federal government and state governments are coequal sovereigns Tenth Amendment is read broadly and the supremacy, necessary and proper, and commerce clauses are read narrowly This model reflected relationship until the early twentieth century

Hierarchical Federalism Model of federalism wherein federal government is model of federalism that asserts that the national government is supreme in the scheme The supremacy, necessary and proper, and commerce clauses are read expansively, whereas the Tenth Amendment is interpreted as not creating any specific state powers Tenth Amendment is viewed as a truism, a negative statement of state power

Cooperative Federalism Model of federalism whereby there is increased interaction between the states and national government (and local forms of government) in an effort to effectively regulate and administer law and programs Examples include the “war on drugs” waged during the Reagan and George Herbert Walker Bush administrations and the “war on terror” waged during the George W. Bush administration

Separation of Powers Framers’ objective: limit governmental authority by dividing it (divide and conquer)

Basic Constitutional Structure Article I establishes Congress and sets its authorities Two chambers -- House of Representatives and Senate Article II establishes the Presidency and also sets forth its authorities Article III establishes the Supreme Court and such inferior courts as Congress may establish and sets forth its power (Judicial Power)

Checks and Balances Examples within the Constitution: Congress responsible for making law/Checked by President, who may veto legislation President can veto legislation/Checked by Congress who can override veto with a two-thirds majority Congress passes legislation/Checked by the judiciary who can declare void those laws that conflict with the Constitution

Checks and Balances, cont. Examples of Checks and Balances President conducts foreign affairs and negotiates treaties/Senate must ratify treaties President is the commander-in-chief of the military/Congress can make rules regulating the military and is responsible for declaring war President nominates federal judges and other governmental officers/Senate confirms the appointments The Judiciary reviews laws for their constitutionality/ Congress regulates the appellate jurisdiction of the courts

Basic Forms of State and Federal law The United States Constitution – highest form of law Federal laws or statutes – passed by Congress and found in the United States Code Treaties – made in tandem with President and Senate Executive Orders – issued by President as way to governed executive action Administrative Rules – standards set forth by executive agencies

Other forms of law Common Law – longstanding and traditional doctrines and standards made by judicial authorities that are sometimes used to fill in the gaps of legislation and other legal standards Judicial Opinions – formal opinions of courts deciding particular legal questions; used with the doctrine of “precedent”