Homework: Assignment 11 for tomorrow; Collaborize by Mon. Consider: When should state governments be able to make laws on their own, and when should they not? Federalism and Speed Limits Homework: Assignment 11 for tomorrow; Collaborize by Mon.
The Tug-of-War Between States and the National Government Federalism The Tug-of-War Between States and the National Government IT’S ALIVE!!!! Homework: Assignment 10 for tomorrow
3 Video: The Big Picture Before we begin our discussion of federalism, let’s watch a short video that asks the question: What is the source of all power in the United States? The answer may surprise you. Author Karen O’Connor delves into how federalism works, and reveals why the framers chose to use a system that was so different from what the states expected. http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/OConner_Ch03_Federalism_Seg1_v2.html
The Tug-of-War Between States and the National Government Federalism The Tug-of-War Between States and the National Government
The Tug-of-War Between States and the National Government Federalism The Tug-of-War Between States and the National Government
The Tug-of-War Between States and the National Government Federalism The Tug-of-War Between States and the National Government
Federalism How/where is federalism established in the Constitution? Why do you think this was something the Framers developed? How is federalism different from the concept of the “separation of powers?” How is this different from the principle of checks and balances?
3.1 FIGURE 3.1: Where does governmental authority come from? This figure shows three ways to organize a governmental system. A unitary system of government has a strong central government; state and local governments derive their power from the national government. In a confederation, the government derives its power from the states. Having experienced the challenges of a unitary government under King George, and a confederate system under the Articles of Confederation, the Framers of the Constitution chose a federal system. The power of both state and national governments comes from the people.
British Colonial Rule Unitary System – all power flows from one central government Powerful British Government Political Subunits (Colonies) – some self-government, but not much
Articles of Confederation 1781 – 1789 – RIP Confederate System – power concentrated in political subunits (states) with a weak central government (typically unite for a common goal)
The US Constitution Federal System – powers are divided and/or shared between state and central governments (Current gov’t designed by framers) - Key component: states/subdivisions have the final word on some decisions Central US government State governments
3.1 FIGURE 3.3: How many governments exist in the United States? More than 87,000 governments exist in the United States. Most of these governments are found at the local level, and are divided between municipal governments, town councils, and special districts, such as school districts. The most common form of government is the special district.
When do national and state governments work together? 3.1 When do national and state governments work together? Implementation of many public policies requires intergovernmental cooperation. Often transportation projects are jointly funded by both federal and state governments.
Analyzing our Federal System What advantages does the federal system provide our nation? What problems exist because of our federal system? What is the difference between the states’ rights position and the nationalist position with regard to government power?
Explore the Simulation: You Are a Federal Judge 3.1 Explore the Simulation: You Are a Federal Judge Let’s conduct an exercise on intergovernmental relations before we move on to the section on federalism and the Court. Although the national government has always held supremacy over state government in our federal system, the relationship between the levels of government has changed over time. In this simulation, you will explore the current relationship as you play the role of a federal judge. http://media.pearsoncmg.com/long/long_longman_media_1/2013_mpsl_sim/simulation.html?simulaURL=3
Homework: Assignment 12 for Tuesday; Consider: How has federalism seemed to follow a “back and forth” course over American history? Homework: Assignment 12 for Tuesday; Collaborize by Mon.
Madison’s Arguments in Federalist 39 The topic: Whether the nature of the republic created by the Constitution is of a “wholly (con)federal or wholly national character.” This was intended to answer critics who said the Constitution consolidated the states into a unitary government, and took away the sovereignty of the states entirely. Madison claims that the nature of the government is indeed not wholly federal, or wholly national, but rather a composition of both. He cites the following four areas to make his argument. Foundation: States will ratify the Constitution (F) Sources of power: House and Senate, President (F/N) Extent: states have some control (F/N) Amendments: process includes states and national gov. (F/N)
Homework: Assignment 12 for tomorrow; Unit 1 test Th/Fr Consider: Do you think we are in a period where the federal government is asserting itself, or where states seem to be gaining in power vis-à-vis the fed? "President Obama warned that the government could shut down in two weeks. Obama added, 'Not because of a budget impasse but because we'll all be watching the last episode of 'Breaking Bad.'" –Conan O'Brien "Starbucks announced they don't want customers bringing guns into their stores. Meanwhile, Dunkin' Donuts said there is nothing you can bring in here that's more dangerous than what we serve." –Conan O'Brien "Brazil's President Dilma Rousseff is apparently so mad over the NSA's spying scandal that she has canceled her trip to the White House next month. Of course it didn't help when Brazil called to say they weren't coming and the White House was like, 'Yeah, we heard.'" –Jimmy Fallon "Cher has turned down an invitation to sing at the 2014 Olympics in Russia because of Russia's anti-gay laws. Their anti-gay laws are so strict, men can be arrested just for showing up at a Cher concert." –Jay Leno Homework: Assignment 12 for tomorrow; Unit 1 test Th/Fr
Federalism and the Marshall Court 3.2 Federalism and the Marshall Court Defining National Power: McCulloch v. Maryland (1819) Affirming National Power: Gibbons v. Ogden (1824) Limiting the Bill of Rights: Barron v. Baltimore (1833) In this section we will learn why the Supreme Court under the leadership of Chief Justice John Marshall played a key role in defining the relationship and powers of the national government. The Courts broadly interpreted the supremacy and commerce clauses, thereby expanding the powers of the federal government.
Defining National Power: McCulloch v. Maryland (1819) 3.2 First Court decision to define national and state government relationship Could Congress charter a bank? Could states tax it? Ruling: Congress’ power to charter a bank falls under its power to tax, etc. States cannot tax because the nat’l gov needs to remain supreme In 1816, Congress chartered the Second Bank of the United States. In 1818, the Maryland state legislature levied a tax on it. James McCulloch, the head cashier of the Baltimore branch of the Bank of the United States, refused to pay the tax, and Maryland brought suit against him. In a unanimous opinion, the Supreme Court answered the two central questions presented to it: Did Congress have the authority to charter a bank? And, if it did, could a state tax it? Congress had enumerated powers to borrow money and collect taxes. The constitution does not say that Congress can charter a bank, but Chief Justice Marshall found it was reasonable that Congress had the power to charter a bank, which could be considered “necessary and proper” to exercise its enumerated powers. Marshall next addressed whether a state could tax a federal bank. To Marshall, this was not a difficult question. The state tax violated the supremacy clause because individual states cannot interfere with operations of the national government, whose laws are supreme. The Court’s decision in McCulloch had far-reaching consequences. Lawmakers use the necessary and proper clause to justify federal action in many areas. Furthermore, had Marshall allowed the state of Maryland to tax the federal bank, states could have attempted to tax all federal agencies located within their boundaries.
Affirming National Power: Gibbons v. Ogden (1824) 3.2 Affirming National Power: Gibbons v. Ogden (1824) Congress’s authority under commerce clause disputed Power to regulate just products or commercial activity too? Ruling: Congress can regulate commercial activity New York had no authority to grant monopoly Shortly after McCulloch, the Marshall Court had another opportunity to rule in favor of a broad interpretation of the scope of national power. Gibbons v. Ogden involved a dispute that arose after the New York state legislature granted to Robert Fulton the exclusive right to operate steamboats on the Hudson River. Simultaneously, Congress licensed a ship to sail on the same waters. Gibbons addressed this question: What was the scope of Congress’s authority under the commerce clause? The states argued that “commerce,” as mentioned in Article I, should be interpreted narrowly to include only direct dealings in products. The Supreme Court ruled that Congress’s power to regulate interstate commerce included the power to regulate commercial activity. Thus, New York had no constitutional authority to grant a monopoly to a single steamboat operator, an action that interfered with interstate commerce.
Limiting the Bill of Rights: Barron v. Baltimore (1833) 3.2 Limiting the Bill of Rights: Barron v. Baltimore (1833) Due process clause Guaranteed by Fifth Amendment Action by state, not federal, government caused damages Federal government not at fault for state actions In Barron v. Baltimore, the Court addressed the issue of whether the due process clause of the Fifth Amendment applied to actions of the states. John Barron, a Baltimore businessman, ran a successful docking business off the city’s wharf. During extensive construction, the city deposited dirt onto Barron’s wharf. Barron sued the city and state for damages, arguing that the city took his lands “without just compensation,” as guaranteed by the Fifth Amendment. The Marshall Court ruled that Barron had no federal claim because enumerated rights contained in the Bill of Rights bound only the national government. The city, not the federal government, was responsible for the dirt, so Barron had no recourse.
States Assert Their Powers: Nullification 3.3 States Assert Their Powers: Nullification Nullification is the right of a state to declare a federal law void, or legally invalid. Nullification was proposed by Thomas Jefferson, James Madison, and others who opposed the Alien and Sedition Acts, which were passed to prevent criticism of the federal government. Jefferson felt that states had a right to nullify any federal law that they believed violated the Constitution. When Congress passed a tariff act disliked by South Carolina, the southern states resurrected the nullification theory as a justification for its refusal to abide by the law. They theorized that states’ rights were supreme. If the people of any individual state did not like an act of Congress, they could hold a convention to nullify that act. If a state contested an act, the law would have no force until three-fourths of all the states ratified an amendment expressly giving Congress that power. Then, if the nullifying state still did not wish to be bound by the new provision, it could secede, or withdraw, from the union. Nullification States declare federal laws invalid Alien and Sedition Acts (1798) Unconstitutional “Tariff of Abominations” (1828) Southern states use nullification to resist anti-slavery laws
States’ Rights and the Dred Scott Decision 3.3 States’ Rights and the Dred Scott Decision Dred Scott v. Sandford (1857) Slaves were property, not citizens Congress could not ban slavery in new territories Enhanced states’ power States’ rights continued in the issue of slavery. Dred Scott had been born into slavery but had lived at one time in territory that was not a slave state. Abolitionists used that prior residence to argue that he had been made a free man. The Court disagreed, ruling that slaves were property. Further, Congress could not ban slavery in territories. This ruling narrowed the scope of national power in favor of states’ rights.
The Rehnquist Court 3.6 Appointed by Reagan Committed to states’ rights Rolled back federal authority U.S. v. Lopez (1995) From the New Deal until the 1980s, the Supreme Court’s decisions generally favored the national government’s authority at the expense of the states. Beginning in the late 1980s, however, the Court’s stance on federal government power changed. Ronald Reagan appointed new justices who were committed to the notion of states’ rights. They rolled back federal intervention in matters that many Republicans believed were state responsibilities. For example, in the case of U.S. v. Lopez, the Court ruled that Congress could not use the interstate commerce law to ban hand guns within 1,000 feet of a schools. Gun control laws were a state, not a federal issue, according to the Rehnquist Court.
United States v. Lopez Facts The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any individual knowingly to possess a firearm at a place that he knew or had reasonable cause to believe was a school zone. Alfonso Lopez, Jr., a 12th-grade student, carried a concealed and loaded handgun into his high school and was arrested and charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating the Act. Issues Does the GFSZA exceed Congress’ authority under the Commerce Clause? What categories of activity may Congress regulate under its commerce power?
Holding and Rule (Rehnquist) Yes. The GFSZA exceeded Congress’ authority under the Commerce Clause. The three broad categories of activity that Congress may regulate under its commerce power are: a) the use of the channels of interstate commerce; b) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and c) those activities having a “substantial relation” to interstate commerce, i.e., those activities that substantially affect interstate commerce. The Supreme Court held that the GFSZA exceeded Congress’ Commerce Clause authority. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. Neither the Act itself nor its legislative history expresses congressional findings regarding the effects of gun possession in a school zone on interstate commerce. To uphold the Government’s contention that the Act is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
Dissents in US vs. Lopez Dissent (Stevens) Guns are articles of commerce and can be used to interfere with commerce. The national interest justifies prohibiting their use by children in school. Dissent (Souter) The only inquiry should be whether the legislative judgment is within the realm of reason. Congress should have plenary power to legislate under the Commerce Clause as long as the law passes the rational basis test. Dissent (Breyer) Violence in schools interferes with the quality of education and education is inextricably tied to the economy. Congress could have rationally concluded that the possession of guns in school zones is related to interstate commerce. The majority contradicts well settled precedent that has permitted Congress to regulate noncommercial activity affecting interstate commerce.
3.6 The Roberts Court Has decided in favor of the federal government more often Immigration Health care reform – Obamacare decision Conservative Chief Justice John Roberts was appointed by President George W. Bush to replace Rehnquist. Bush also appointed conservative associate justice Samuel Alito. President Obama has appointed two liberal justices so far, Sonya Sotomayor and Elena Kagan. Observers were surprised when the conservative-dominated Court sided with the federal government on issues of immigration and Obama’s health care reform. What does the future hold? We will have to wait and see. A lot depends upon which, if any, justices retire during Obama’s second term.
The ACA case(s) Does Congress have power under Article I, Section 8 of the Constitution, specifically under the Commerce Clause or the Taxing and Spending Clause, to require most Americans to purchase health insurance? Is the individual mandate severable from the ACA? Did Congress exceed its enumerated powers and violate principles of federalism when it pressured States into accepting conditions that Congress could not impose directly by threatening to withhold all federal funding under Medicaid, the single largest grant-in-aid program?
Can you have your cake and eat it too? Dual federalism, also known as "layer cake federalism" involves clearly enumerated powers between the national and state governments, and sovereignty in equal spheres. This relationship predominated from the 1790s to 1930. Cooperative federalism, also known as "marble cake federalism," involved the national and state governments sharing functions and collaborating on major national priorities. This relationship predominated between 1930 and 1960. Creative federalism, also known as "picket fence federalism," predominated during the period of 1960 to 1980. This relationship was characterized by overloaded cooperation and crosscutting regulations. Finally, progressive federalism, is characterized by both a cooperative and coercive relationship. Sometimes referred to as "on your own federalism," is characterized by further devolution of power from national to state governments (deregulation), but also increased use of mandates to implement national standards.
Video: In the Real World 3.6 Video: In the Real World Let’s watch a video about the Supreme Court and federalism. Should the federal government be allowed to mandate health care reform or should that power belong to the states? Hear supporters and detractors of Obamacare explain their opinions, and learn about the recent Supreme Court decision that handed this power to the federal government. http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Seg5_Federalism_v2.html