FEDERALISM CH. 2

DEFINING FEDERALISM Federalism: a system of government that divides power and sovereignty over a territory between two or more separate governments Multiple levels of government make decisions for one population The United States has three main tiers: national government (1) state governments (50) local governments (87,000)

“Laboratories of Democracy”

CONSTITUTIONAL BASIS Combined the features of a confederacy with features of a unitary government DIVIDE THE POWER! Single most persistent source of political conflict = national government and states “national interest” v. “states’ rights” Loose interpretation v. strict interpretation Who has the right to legislate?

ADVANTAGES of STRONG STATES Laboratories of democracy Suffrage, healthcare reform, welfare reform, environmental innovation State and local govs are closer to the people “Statehouse democracy” Increases participation Responsive to citizen needs States provide more access to the political system Responsiveness is quicker Local involvement (campaigning; school board meeting) States provide an important check on national power States compete for your residence/business

DISADVANTAGES of TOO MUCH state power Unequal distribution of resources Unequal protection of civil rights “Competitive federalism” may burden state budgets

OPPOSING PERSPECTIVES Liberal view – national government was superior and leading force in political affairs, since the people created it and its laws were the “supreme law of the land” Conservative view – believed that “the people” were the ultimate sovereigns, and since the Constitution was a result of agreement among the states, the states were supreme over the national gov.

IN COMPARISON Unitary Governments: all power resides in the central government Confederation: national government is weak and most or all power in hands of components (A of C)

DECENTRALIZATION Federalism decentralizes power: If no one person holds more power than another, than there is no room for abuse of that power. (Madisonian principle- Federalist #51) Increased: Political Participation/Public Involvement Access/Decisions

FEDERALIST #51 In this Federalist Paper, James Madison explains and defends the checks and balances system in the Constitution. Each branch of government is framed so that its power checks the power of the other two branches; additionally, each branch of government is dependent on the people, who are the source of legitimate authority.

POWERS OF GOVERNMENT Delegated Powers (enumerated powers) – powers given to Fed gov’t by Constitution Reserved Powers – those not delegated to the national gov, reserved for states Concurrent Powers – shared powers Prohibited Powers – denied from both

RESERVED POWERS 10th Amendment: Those powers not delegated at National government are reserved to the states Regulate trade within the state. Provide welfare within the state. Provide for the public health. Regulate commerce within the state. Determine qualifications of voters. Establish a public school system. Provide the public safety. Conduct elections. In charge of marriage laws. Establish and maintain schools.

DENIED POWERS

Enumerated(delegated), reserved or concurrent A tax is placed on products coming to the US from foreign countries Money is given to repair state roads A new stamp is designed to commemorate the signing of the Constitution The government decides the border between two states will be a river The value of money is established Every driver of an automobile must have a license There are rules and procedures for becoming an American citizen Courts are established

IMPLIED POWERS "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.” (Article 1 Section 8 Clause 18)

McCULLOCH V. MARYLAND (1819) Background Bank of the US operated in Maryland Maryland did not want BoUS to operate in state, competition unwanted, unfair Maryland taxed the bank to put it out of business McCulloch, BoUS employee, refused to pay the state tax Is a Bank of the US Constitutional? YES. The national gov’t has certain implied powers that go beyond delegated powers. US needs a national bank for borrowing, lending, holding minted money, all of which are delegated powers. “The power to tax is the power to destroy” Can a state tax the federal gov’t? NO. The federal gov’t is supreme. Since the BoUS is constitutional, only the feds may tax it. John Marshall reaffirmed Supremacy Clause and Elastic Clause -National (Federal) Gov gets STRONGER

COMMERCE CLAUSE Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power - To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Congress has used the elastic clause to stretch this power What is commerce? “Buying and selling of goods and services.”

GIBBONS V. OGDEN (1824) BACKGROUND Ogden received a state licensed monopoly to run a ferry across the Hudson River Gibbons also saw the potential of the traffic between NJ and NY and obtained a federal license. Ogden sued saying he had the valid state license, even though Gibbons had US license Result – Gibbons won Expanded national power in all areas of commerce law because nation overruled state in interstate trade issues Fed Gov’t gets STRONGER

US V. LOPEZ (1995) Commerce clause quiz!!! 1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school, 12th grader Lopez carried a gun on to the property Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce” LIMITED National government power

How is this commerce? Follow this logic. Ready? Guns in schools increase violent crime This impacts the national economy b/c crime is expensive, and insurance spreads the cost of crime throughout the nation In addition, businesses would not want to relocate to high crime areas, which impacts interstate commerce SCOTUS’ response: “any activity could be looked upon as commercial”…where’s the limit? DISSENT: guns in schools undermine educational opportunities, impairing commerce nationwide

HISTORICAL FEDERALISM Continuing dispute over division of power: Dual Federalism supremacy within own spheres Cooperative Federalism Expanded role of national government Creative federalism – New Deal, Great Society New Federalism Financial power shift from federal to state control (fiscal federalism)

DUAL FEDERALISM Nat’l and the states remain supreme within their own spheres. National and state DO NOT overlap Federal government has jurisdiction only if the Constitution clearly grants such Layer cake federalism

COOPERATIVE FEDERALISM Nat’l and state governments share responsibility for public policies; national supreme Share Costs Federal Guidelines Shared Administration Marble cake federalism