FEDERALISM Chapter 4

Federalism is a political system in which power is divided and shared between the national/central government and the states in order to limit the power of government. Both subject to the Constitution

Division of Powers Federalism Produces a “Dual” system of government: which means there are two basic levels of government, each with its own field of authority, and operating over the same people at the same time. Division of Powers are implied in the Constitution

The Roots of the Federal System The major arguments for federalism are: 1. government power inevitably poses a threat to individual liberty 2. Therefore, government must be restrained. 3. To divide power is to prevent abuse of that power. 4. the provision for increased participation in politics; 5. and the use of the states as testing grounds or laboratories for new policies and programs.

The Powers of The National Government in the Federal System The distribution of powers in the federal system consists of “Delegated powers”: Expressed powers Implied powers Inherent powers

Article I, section 8 The Expressed powers or “enumerated powers” of the central government consist 27 specifically written powers. They include… lay and collect taxes, duties, and borrow money provide for the common defense and general welfare of the United States. regulate commerce with foreign nations, and among the states, and with Indian tribes coin money and regulate the value thereof declare war

Implied Powers- Article I, Sec 8, Clause 18 The central government may make all laws which shall be necessary and proper for carrying into execution the enumerated powers. The necessary and proper clause has often been used to expand the powers of the national government and as a result has been called the Elastic Clause

What do you feel are the benefits of the “necessary and proper” wording in the Constitution? What is the danger of the same wording?

Inherent Powers Powers that belong to the government because it is in charge of the country. Or These powers exist because the USA exists.

Powers denied to the Federal Government? Why? 1st. The first 8 Amendments do not list right a person has, rather it list things the government cannot do.. 2nd. The Silence of the Constitution: There are items that the Constitution does not give the national government; expressly, implicitly, or inherently

State Powers Most of State powers come from the Tenth Amendment that says: "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." These are often referred to as reserve or police powers. Ex. Marriage age, sale of pornography, permit or prohibit gambling, lawyer/teacher licenses, public schools, land use, utilities, drinking age, etc etc etc. (Most things government does are done by the states, not the fed)

State of Oregon Law Oregon's measure, House Bill 2177- Voter Automatic Registration The secretary of state's office will regularly collect drivers' license data and "provisionally" register people who aren't already signed up to vote. 21 days to opt out of registration Will add 300,000 voters Eventually, the voting rolls could include virtually all of the estimated 860,000 people now unregistered but otherwise eligible to vote 

House Bill 2177 cont. What benefits do you see with the new law? What problems do you foresee with the laws?

Denied Powers Article I, section 9 lays out powers denied to the central government. For example: give preference to ports of one state over another Article I, section 10 lays out the powers denied to the states. These are referred to as “exclusive powers” For example: enter into treaties, alliances, or confederations

Concurrent Powers States also have some powers that the central government also wields called concurrent powers such as the right to tax, borrow money, establish courts, and make and enforce laws.

Importance of the Supremacy Clause The Supremacy Clause (Art 6, Sec 2) “This Constitution, and the laws of the United States…shall be the supreme law of the land…” In a nutshell, the Constitution is #1, acts of congress and treaties are #2, then the state laws are #3.

Relations among the States The Framers wanted a single country, not 13 squabbling semi-countries. Article IV requires states to give "full faith and credit" to each others' laws. Ex. Marriage licenses, birth certificates and driving licenses… States are also required to extradite criminals if asked by another state.

The Role of the Supreme Court & Evolution and Development of Federalism The allocation of powers in our federal system has changed dramatically over the years. The Supreme Court in its role as interpreter of constitution has been a major player in the redefinition of our Federal system. McCulloch v. Maryland (1819) Gibbons v. Ogden (1824) Dred Scott v. Sandford (1857)

McCulloch v. Maryland (1819) McCulluch was the first major decision by the Supreme Court under Chief Justice John Marshall about the relationship between the states and the national government. The Court upheld the power of the national government and denied the right of a state to tax the bank. “The states have no power to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress”

Gibbons v. Ogden (1824) The Gibbons case centered on the conflict between the states and the powers of Congress. Could New York grant a monopoly concession on the navigation of the Hudson River? The Hudson River forms part of the border between New York and New Jersey and the U.S. Congress also licensed a ship to sail the Hudson. The main constitutional question in Gibbons was about the scope of Congress' authority under the Commerce Clause. In Gibbons, the Court upheld broad congressional power over interstate commerce.

Dred Scott v. Sandford (1857) The Supreme Court articulated the idea of concurrent powers and dual federalism in which separate but equally powerful levels of government is preferable, and the national government should not exceed its enumerated powers. The Taney Court held that Mr. Scott was not a U.S. citizen and therefore not entitled to sue in federal court. The case was dismissed and Scott remained a slave. Taney further wrote that Congress had no power to abolish slavery in the territories and slaves were private property protected by the Constitution.

The Civil War and Beyond Dual federalism remained the Supreme Court's framework for federalism even after the adoption of the 13th, 14th, and 15th amendments. Dual federalism finally ended in the 1930s, when the crisis of the Great Depression demanded powerful actions from the national government.

The Changing Nature of Federalism Prior to the 1930s, many scholars used the analogy of a layer cake to describe federalism. Each layer had clearly defined powers and responsibilities. After the New Deal, the analogy of a marble cake seemed more appropriate because the lines of authority were much more mixed. This marble cake federalism is often called cooperative federalism and has a much more powerful national government. States have a cooperative role, as did many cities.

Federalism and the Supreme Court By the 1980s and 1990s, many Americans began to think that the national government was too big, too strong, and too distant to understand their concerns. The Supreme Court, once again, played a role in this new evolution of federalism. For example: Since 1989, the Court has been allowing states to introduce limitations on the right to an abortion.

Continuity and Change Federalism as outlined at Philadelphia in 1787 has evolved considerably over time. Initially, the states remained quite powerful, and the national government was small and weak. Over time the national government became progressively stronger. However, we have a Court today that is more interested in reinvesting power in the Tenth Amendment and in the states.