Federalism 4.1 The Division of Power

Focus Your Thoughts “A government that is big enough to give you all you want is big enough to take it all away.” Barry Goldwater Think about this quote . . . What does it mean? Do you agree? How do we know how much government is too much?

Federalism Defined Federalism is a system of government in which a written constitution divides the powers of government on a territorial basis between a central, or national, government and several regional governments. (Pg. 93) Neither level, acting alone, can change the basic division of powers the constitution created.

Division of Powers? What’s that mean? When we refer to the ‘division of powers’ we mean that the Constitution assigns certain powers to the National Government and certain powers to the States. This was implied by the original Constitution, but spelled out specifically by the Bill of Rights. Which amendment spelled it out more specifically?

Principles of a Federalist System Under a Federalist system of government, the State and National governments have their own areas of authority but operate over the same people and the same territory at the same time. One of the major perks of a Federalist government is that local actions in matters of local concern, and national action in matters of wider concern. Local traditions, needs, and desires vary from one State to another.

Powers of the National Government The National Government is a government of delegated powers . . . this means it has only those powers granted to it in the Constitution: Expressed powers Implied powers Inherent powers

Expressed Powers The expressed powers are powers delegated to the National Government in so many words – spelled out, expressly, in the Constitution. These powers are also sometimes called the enumerated powers Examples: The power of Congress to lay and collect taxes, coin money, regulate foreign and interstate commerce, raise and maintain armed forces, declare war, etc. These all come from Article 1, Section 8 of the Constitution

The Implied Powers The implied powers are not expressly stated in the Constitution but are reasonably suggested – implied – by the expressed powers. Article 1, Section 8 of the Constitution gives Congress the “Necessary and Proper Clause” This clause states that Congress has the power to make all laws which shall be necessary and proper for them to carry out their expressed powers. Overtime, it’s become known as the “Elastic Clause” because it’s been stretched to cover so many situations.

The Inherent Powers The inherent powers belong to the National Government solely because it is the national government of a sovereign state in the world community. Although the Constitution does not expressly provide for them, they are powers that, over time, all national governments have possessed. Examples: Regulation of immigration Acquiring new territories Protection of the nation against rebellion/attempts to overthrow the government

Powers Denied to the National Government The Constitution denies certain powers to the government in three ways: Expressly Some powers are denied in the written wording Silence Some powers are denied because the Constitution doesn’t mention them; recall that the National Government has only those powers which are granted to it by the Constitution Federalism Some powers are denied simply because we have a Federalist system of government; clearly the Constitution does not intend that the government have any power which would threaten the existence of the system itself. For example, Congress cannot tax any of the States or local units in the carrying out of their governmental functions; it if could, it would have the power to destroy – tax out of existence – one or more, or all, the States.

Powers Reserved to the States The reserved powers are those powers that the Constitution does not grant to the National Government and does not, at the same time, deny to the States. Most of what government does in this country is done by the States (and their local governments) Examples: Forbidding a person under 18 the right to marry without parental consent Forbidding those under 21 from buying alcohol Forbidding gay/lesbian couples from obtaining a marriage license Banning the sale of pornography Outlawing prostitution, etc.

Powers Denied to the States Just as the Constitution denies many powers the National Government, it also denies powers to the States Examples: No state can enter into any treaty, alliance, or confederation When do you think this came about? No state can print or coin money No state can deprive any person of life, liberty, or property without due process of law

The Concurrent Powers The concurrent powers are those powers that both the National Government and the States possess and exercise. Examples: The power to levy and collect taxes The power to define crimes and set punishments for them The power to condemn (take) private property for public use What is this referred to as?

The Role of Local Government Government is often discussed in terms of three levels: national, state, and local; however . . . this is misleading because local governments are only parts of – or subunits – of State governments. Local government only exists - and can only act - because the State government has given it the power to do so. When local governments exercise their powers, they’re actually exercising state powers.

The Supremacy Clause In the Supreme Court case McCulloch v Maryland; we established the principle of judicial review . . . we also established the Supremacy Clause. The Supremacy Clause states that the Constitution stands above all other forms of law in the United States. In the event that the State and National Government enter into a dispute, the Constitution will always determine the outcome.