Division of Power Between Federal & State Governments Federalism Division of Power Between Federal & State Governments

Review What are the 3 ways power can be distributed? Unitary Federal Confederate What are the 6 Constitutional Principles? Popular Sovereignty Limited Gov’t Separation of Powers Checks and Balances Federalism*** Judicial Review

Why Federalism? The Framers had to answer the question: How do they create a strong enough National gov’t, yet preserve the Strength of the existing states? Most framers were dedicated to the idea of Limited Government: Gov’t poses a threat to Individual Liberty Government power must be Restrained To Divide gov’t is to curb it and prevent its abuse

Federalism Defined Federalism: Division of power between the federal gov’t and the states The US is a prime example of Federalism; The Constitution provides for a division of power between the National Gov’t and the States. Certain powers go to the Federal Government and certain powers go to the States 10th 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.”

Federalism Defined Federalism’s biggest strength is that it allows local actions on local matters and national action on matters of wider concern. It’s the Constitution’s way of saying that local communities can differ widely from one another on what is acceptable, and what is the social norm. Ex: Same-Sex Marriage for many years was left up to the states. It’s not explicitly referred to in the Constitution, so each State can determine to have it or not.

Federalism Defined Federalism allows states the right to handle local matters, but also provides for the strength that comes from Union Ex: National Defense, Foreign Affairs, & some domestic affairs – Hurricane Katrina destroyed much of New Orleans and the Federal Gov’t took action

Powers of the National Government Delegated Powers: Powers given to the Federal Government specifically granted in the Constitution… AKA: “Exclusive,”“Enumerated” OR “Expressed” powers… Three types…

#1: Delegated Powers Expressed Powers: also called Enumerated Powers; “those powers expressly written in the Const.” (Most in Art 1 Sec. 8). Examples – Powers granted to Congress: Declare War Collect Tax Grant Patents *** There are also powers granted to the President, Supreme Court, etc.

IMPLIED Powers Implied Power “…powers that are not specifically stated, but reasonably suggested through CONGRESS’ EXPRESSED powers” (Article I, Section 8) Necessary & Proper Clause - AKA The “Elastic Clause” -Stretched Over Time “The Congress shall have Power… 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.” Expressed Power of Congress The need to enforce an Expressed Power… Necessary & Proper Clause Implied Power EXAMPLE: Constitution gives Congress the power to raise an army; but does it explicitly give them the power to draft people into the military?

INHERENT Powers “…powers that are NATURALLY GIVEN or Presumed to have given to governments because it is a government of a sovereign state” * “BECAUSE it is a government, it has THIS or THAT power” * “BECAUSE I am a teacher, I have the power to do THIS or THAT” EXAMPLES? Regulating Immigration Acquiring Territory Recognizing other states Protecting the nation against rebellion ***These powers exist because the US exists

#2: RESERVED Powers “…to reserve is to save, in this case all powers not specifically granted to the Federal Government are reserved for the State Governments” * All but ONE of the states’ powers come from constitutional silence (Tenth Amendment): Only Expressed state power: regulation, manufacture, sale & consumption of alcohol! (Twenty-First Amendment) Examples: Forbid those under 21 from buying alcohol Ban the sale of pornography Permit some forms of gambling Establish public schools

#2: RESERVED Powers States can do all these things because: The Constitution does not give the Federal Government the power to do them. It also doesn’t DENY the states the power to do them. Most of what governments do is done by State & Local Governments

#3: Denied Powers Example: No state can enter into a Treaty, Alliance, or Confederacy. They can’t Print money or deny due process of law. Exclusive Powers: powers that can be exercised by the Federal Gov’t Alone!!! (money, treaties, regulate interstate commerce) Concurrent Powers: powers that the Federal Gov’t and State Govt’s both possess – Shared powers Examples: Levy Taxes Define Crime Take Private Property for public use

The Federal System & Local Gov’ts There are more than 89,000 units of local governments in the US today; created by the state governments Provide services, Collect Taxes, and regulate activities Each state government is a Unitary government & the local governments are created by them for their own Convenience

The Supreme Law of the Land Remember the Supremacy Clause (Article 6) “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, anything in the constitution or laws of any state to the contrary notwithstanding.” The Constitution is Above all other forms of government & it joins the Fed. & State governments into a single unit.

Supremacy Clause in action… U.S. Constitution U.S. Treaties & Federal Laws State Constitutions & State Laws City/County Charters & City Ordinances

Supreme Court and Federalism McCulloch vs. Maryland Established that the Federal Courts could rule laws Unconstitutional at the Federal or State level The COURT SYSTEM serves as a referee between the 50 states and the Federal government! States could not pass laws that impede the operations of the Constitutional laws legally passed by Congress from being carried out