Federalism The system that divides power between the national government and state government

Founding Fathers Thinking Created a system between Articles & tyrannical system of Great Britain Federalism based on sovereignty of the people Delegate power to central government Delegate power to state government Vertical separation of powers - limiting the power of government – prevent tyranny

The framers sought to create a federal system promotes: strong national power in certain spheres, and recognizes states sovereignty in other spheres. Federalist No. 46 – States Rights James Madison: states and national government "are in fact but different agents and trustees of the people, constituted with different powers.“ Federalist No. 28 – National Rights Hamilton: both levels of government would exercise authority to the citizens' benefit: "If their [the peoples'] rights are invaded by either, they can make use of the other as the instrument of redress."

Strengths of Federal System Strong national government to meet national needs Currency Tax Declare war etc. Preserves state rights Marriage Gun laws Death penalty education

Local action in local concerns Gambling Illegal immigrants – Arizona Marriage? Keeps government close to the people Local ordinances State laws National action in National concerns Security Engaging troops/war Discrimination?

Sometimes state laws become federal laws Allows states to act as “laboratories” and rate policies that may become federal laws Suffrage Welfare Education legalization of marijuana immigration? Sometimes state laws become federal laws SB 1070 Same sex marriage Abortion Healthcare

Weaknesses Expensive Inefficient Federal blackmail Too much bureaucracy Gridlock Federal blackmail $ given to states under certain circumstances No Child Left Behind .08 drinking level Drinking age Categorical Grants – Federal funds for specific purpose

Forcing a state to do something through federal legislation Clean Water Act NCLB Affordable Care Act Gay marriage Unfunded mandate States receive no $ to meet the demands Civil Rights Legislation Americans with Disabilities Act Voting Rights Act Motor voter Law

Roots of the Federal System National Powers Enumerated 17 powers granted in A1, S8 Powers exclusive to National Government Figure 3.3, p. 101 in textbook Coin money, regulate commerce declare and conduct war Necessary and Proper Clause A1, S8, clause 18 Powers necessary to carry out enumerated powers Increases national power These powers are known as implied powers

Supremacy Clause A6, S2 Solves issues between state and federal governments “the laws of the United States, and its treaties are to be supreme law of the land” McCulloch v Maryland (1819) Taxing a federal entity Gibbons v Ogden (1824) Shared waterways

State Powers Reserve Powers Privileges & Immunities Clause A4 S2 A1, A2, A4, and 10th Amendment P. 101, figure 3.3 in textbook Elections, amendments to Cons., estab. local govt. Privileges & Immunities Clause A4 S2 Guarantees citizens of each state are afforded the same as citizens of all other states No unreasonable distinctions - NJ requiring state employees to reside in state or lose their jobs? NJ First Act 2011

Relations among the States Framers wanted a united country Constitution designates the Supreme Court arbiter of state disputes - A3 S2 A4: Full Faith & Credit “. . .given to each State to the public Acts, Records, and judicial Proceedings of every other State.” Not absolute Wms. vs N. Carolina – denied full faith and credit for quickie divorces.

9th & 10th Amendment States retain powers not enumerated in the Constitution as belonging to the national government, and not denied to the states Issues today not designated by the Framers US v Lopez: Carrying a weapon within a school zone is a crime punishable by the state, not Federal authority - general police power held only by the states under the 10th amendment

Concurrent Powers Powers shared by the national and state governments Never tried before Same power, own set of officials – each level would also be supreme in some spheres Taxing power Borrow $ Establish court systems Supremacy Clause would not be able to interfere

Powers Denied National Government A1, S9 Suspend Habeas corpus (rebellion or invasion) Pass bill of attainder, ex post facto laws Denies gov. authority to take arbitrary actions affecting constitutional rights and liberties. Tax items exported from any state Give preference to ports of one state over another

Powers Denied States A1, S10 Enter into treaties, alliances Coin money Pass ex post facto laws Enter into compacts with other states or foreign powers consent of Congress for interstate Approx. 200 in force today Engage in war

Pre John Marshall Increased Nationalism Madison & Jefferson Articles of Confederation inadequate US federal system devised Madison & Jefferson States right to void federal legislation they judge unconstitutional; sedition Act of 1798 Crime to criticize government of US unconstitutional

John Marshall Court 1801-1835 Nationalist Period Marshall court increased power of Federal Government Marbury v Madison (1803) McCulloch v Maryland (1819) Gibbon v Ogden (1824) Served as Chief Justice for 35 years 1835-61 Duel Federalism & Nullification States ability to ignore federal law

Dual Federalism Period of Dual Federalism [1789-1932] Federal and state governments are co-equals, each sovereign – layered cake federalism Exercise power separately in areas of concern to them Narrow interpretation of Constitution National government should not exceed its constitutionally enumerated powers 10th Amendment: all other powers are reserved to the states Separate and equal

Primacy of States Rights Main Elements of Dual Federalism Primacy of States Rights Necessary and Proper clause (Elastic Clause) Should be narrowly interpreted National government rules by enumerated powers only National and States are sovereign in their own spheres – layer cake federalism Gov. powers are separate Relationship between nation and state is characterized by tension rather than cooperation.

10th Amendment – all other powers Federal government has jurisdiction if clearly expressed in the Constitution Money Foreign affairs 10th Amendment – all other powers Reserved to the states States have greater role and powers Public education Race relations

Strong Emphasis on States Rights Taney Court 1835-1863 Dred Scott decision Sued to be free under Missouri Compromise Slavery forbidden by the Missouri Compromise Only citizens of the US could be a citizen of a state/territory Only citizens could file suit in court Declared Missouri Compromise unconstitutional Declared Congress did not have the authority to bar slavery in the territories

Civil War – Continuation of Dual National v State Conflict not resolved Federal Government & Constitution reign National Government grew in size and power Imposed its will on states with Civil War Amendments – 13th, 14th, 15th Supreme Court supported states police powers Plessy v Ferguson (1898) – separate but equal Civil Rights cases became state matters Supreme Court supported Federal power regarding economy – regulating commerce Interstate Commerce Act Sherman Anti-Trust Act

Stronger National Government The beginning of change 16th Amendment (1895) Authorized Congress to enact a national income tax 17th Amendment (1913) Made Senators directly elected by the people Removed their selection by state legislature

Jim Crow laws 1876-1954 Constitutional interpretation: states could determine voting eligibility along with most civil rights 10th amendment vs. Civil War Amendments Southern states denied blacks their voting rights for many years Federal Gov. did not enforce Civil War Amendments Plessy v Ferguson 1898 “separate but equal” doctrine supported by Supreme Court

Cooperative Federalism 1933~1980’s Federal Government intervenes or assists in some areas traditionally left to the states Education Healthcare Civil rights Began with the New Deal in the 1930’s Sweeping national programs Supreme Court eventually confirmed FDR’s right to intervene Marble cake Federalism – no clear distinctions

Cooperative Federalism Broad interpretation necessary & proper clause 10th Amendment Supremacy clause Commerce Clause Elements of Cooperative Federalism National & state work together Routinely share power Power not concentrated in any one area Grants in aid: categorical, block, revenue

Brown v Board of Education 1954 LBJ and the “Great Society 1964-68 Supreme Court mandated school integration LBJ and the “Great Society 1964-68 programs to fight poverty programs to fight civil rights violations Increased federal spending with strings attached Nixon and 1970’s Clean Air and Clean Water Acts - direct orders Federal programs funded through “block grants States have some discretion over spending Revenue Sharing – no strings 1987 ended Conservatives favor? Liberals favor?

Differences between Dual and Cooperative Federalism How each interprets the necessary and proper clause Dual: narrow interpretation of elastic clause (implied power) and states’ rights Cooperative: broad interpretation of necessary and proper clause and what the Tenth Amendment actually states Conservatives favor layer-cake Liberals favor marble cake

New Federalism: Devolving Power to the States Devolution 1980’s – 2001 Reagan Revolution Took steps to shrink the size of the federal gov. Lowered taxes Favored programs administered by state Budget deficits rose – federal gov. unable to fund programs – unfunded mandates US v Lopez strengthened state rights Gun control on school property does not fall under federal authority Clinton: welfare responsibility of states

9/11 Era Greater federal control – increases size of gov Wars/military conflicts Afghanistan, Iraq, Syria, Lybia Law enforcement Homeland Security, TSA Security – Patriot Act Education NCLB, Race to the top, tuition loans Deficits Disaster Relief Katrina, Irene, Sandy, Matthew, tornados FEMA

New New Federalism?? Is the Supreme Court deciding the direction? Restrict or increase? State addressing own problems?? Bush v Gore 2000 AZ SB 1070 Affordable Health Care Act Same Sex Marriage Marijuana – recreational/medicinal Gun control What if necessary & proper clause was not included in the Constitution?

New New Federalism Questions Should the federal government impose strict carbon standards on the states? Do the Common Core Standards go too far in taking away state and local autonomy in education? Should states be allowed to legalize marijuana despite its federal status as a controlled substance? What role should the states play in health care policy? http://roseinstitute.org/federalism-in-the-2016-election/