Agenda- 9/8 CE Topic: Federalism Lecture: Structure and Conflict Fed. Scavenger Hunt and Fed. 10 HW: Finish WS/Test Review

STRUCTURE OF AMERICAN FEDERALISM National powers. National govt. has 3 categories of powers that are delegated to it. Here are the categories of the delegated powers: A. Expressed (enumerated): actually stated in the Const. B. Implied: not stated explicitly, but suggested implicitly. Importance of elastic clause. C. Inherent: not stated explicitly, but held by the national govt. by virtue of its being a national govt. Any govt. is entitled to certain foreign policy powers such as diplomatic recognition, acquiring territory, or defending itself.

STRUCTURE OF AMERICAN FEDERALISM II. State powers: reserved A. Amendment 10 states that any powers not granted to the national govt. are reserved for the states. B. Examples: establishing voting requirements, running elections, licensing professionals, protecting community health, establishing a vehicle code.

STRUCTURE OF AMERICAN FEDERALISM III. Concurrent powers. A. Granted to Congress, but not denied by Const. or courts to the states ---> held by both national and state govts. B. Examples: taxing, borrowing, establishing court system, establishing law enforcement agencies. C. Questions of fed./state authority are decided by courts.

STRUCTURE OF AMERICAN FEDERALISM IV. National supremacy (Article VI): national govt. supreme in case of conflict.

STRUCTURE OF AMERICAN FEDERALISM V. Obligations of national govt. to the states A. Guarantee each state a republican form of govt. B. Protect each state against invasion or domestic violence. C. Grant new states the same rights as other states.

STRUCTURE OF AMERICAN FEDERALISM VI. Obligations of state govts. A. Privileges and immunities clause: each state must grant to citizens of other states the same rights and privileges that they grant to their own citizens, i.e., states cannot unreasonably discriminate against citizens of other states. B. Full faith and credit clause: each state must honor the public acts, records and legal proceedings of other states, e.g., birth certificates, marriages, debts. 1. Thirteen states have legalized same-sex marriages, while 35 have banned it. . 2. In the 1990s Congress passed the Defense of Marriage Act, which allowed each state to define marriage, and in effect not recognize gay marriage if the state defined marriage as the union of a man and a woman. 3. In 2013, the Supreme Court struck down DOMA as unconstitutional, saying that the act wrote inequality into federal law and violated the Fifth Amendment’s protection of equal liberty. C. Extradition: Governors must return suspects to the states in which they allegedly committed their crimes. D. Interstate compacts require consent of Congress.

DECENTRALISM (STATES' RIGHTS) V. CENTRALISM (NATIONALIST) I. Decentralist (states' rights) approach. A. Const. a compact created by states ---> implies strong state authority. B. Const. carefully limits national authority to delegated powers. C. 10th Amendment gives broad powers to states. D. When in doubt as to which holds a power, matter should be resolved in favor of states. E. Implies strict constructionist approach to Constitution F. National govt. has gotten too big and impersonal. G. State govts. are closer to the people. H. Followers: Calhoun, Goldwater, Reagan, southern conservatives, western conservatives, Christian fundamentalists, Newt Gingrich, Bush 43

DECENTRALISM (STATES' RIGHTS) V. CENTRALISM (NATIONALIST) II. Centralist (nationalist) approach. A. Const. created by people ("We the people ..."), and not the states. B. Elastic, commerce, and taxing/spending clauses give great power to national govt. C. Powers go to states only if they have been surrendered by national govt. D. When in doubt, matter should be resolved in favor of national govt. E. Implies loose constructionist approach to Constitution. F. Size of federal bureaucracy has remained relatively constant for last 40 years. G. While state govts. may be closer to people, some of those state govts. have violated people's basic rights (e.g., South during first 70 years of 20th century) -- national govt. has been key protector of rights. H. Followers: Hamilton, Marshall, Webster, TR, FDR, JFK, LBJ, Clinton, Obama

III. Triumph of nationalist approach: McCulloch v. Maryland, 1819 A. Maryland attempted to tax a branch of the Bank of the U.S.: 1. It argued that taxing was one of its reserved powers. 2. In addition, it argued that the Bank was unconstitutional, anyway. B. The Court's decision (under Marshall): 1. Need for a more flexible interpretation of the Const. so that it would endure -> Bank was "necessary and proper" ---> establishment of implied powers. 2. "Power to tax involves power to destroy" ---> states clearly not free to destroy the national govt. ---> establishment of national supremacy.

IV. Sources of National Strength. A. Elastic clause: Congress can pass laws “necessary and proper” to carry out expressed powers. B. War powers. C. Commerce clause: virtually anything is interstate or foreign commerce  Congress can regulate virtually anything. D. Power to tax and spend for the “common defense and the general welfare.” 1. While Congress cannot technically legislate on everything, it can spend funds on virtually everything. 2. States don't have to accept federal money, but if they do, they must follow federal guidelines (e.g., fed. highway funds can be denied if a state’s alcohol purchasing age is less than 21, fed. education funds can be denied if states do not comply w/No Child Left Behind Act) -- Federal "strings" attached to funding are ways in which the federal govt. can get its way on things. E. Preemption of state laws by fed. courts if laws in conflict w/Const. or fed. laws. F. Imposition of federal mandates (some unfunded) on states

V. Recent Developments. A. Evolution towards greater federal control throughout most of 20th century. B. Nixon's "New Federalism:" returning some power back to states. Also favored by Reagan, both Bushes, and Republican Party in general C. Republican victory in cong. elections of 1994 ---> Contract with America and devolution of power back to states: 1. Unfunded Mandates Reform Act of 1995 restricted future unfunded mandates. 2. Use of block grants to replace categorical grants. 1996 welfare reform bill that ended welfare as fed. entitlement. Repeal of 55 m.p.h. speed limit.

V. Recent Developments E. Supreme Court actions consistent with devolution: Struck down Gun Free School Zones Act in 1995 in US v. Lopez: Congress overextended itself when it linked gun control laws to the interstate commerce clause of the Constitution. Struck down part of the Violence Against Women Act in US v. Morrison (2000), saying that rape victims could not sue their attackers in federal court because it was up to the states – not Congress – to give such help to women victimized by violence. Again, the Court said that the Congress overextended itself with the use of the interstate commerce clause in passing the Act. Struck down Religious Freedom Restoration Act in 1993: This act had restricted the power of the states to regulate religion -> this ruling gave states greater authority to regulate religion. Struck down Brady Act in 1997 that required local law enforcement agencies to do background checks on gun buyers. Upheld an Indiana law that required photo ID for voting (Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, 2008)