Federalism Week 4

Federalism: A Comparative Perspective Three forms of Government Organization Unitary Government Centralized, All power at the center Federal Government Some power at the center Some power in sub-units (States) Confederal Government (Confederation) Decentralized, All power in the sub-units

Federalism: A Comparative Perspective Unitary Government Examples: England, France, China Strong Centers Delegated power to counties etc. can be withdrawn Good at coordination and solving local tyranny Poor at addressing special local needs Poor at protecting against a central tyranny No place for experimentation

Federalism: A Comparative Perspective Confederal Government (Confederation) Decentralized, All power in the sub-units Real examples: US under Articles of Confederation, UN, NAFTA, European Union. Ineffective at national coordination Can’t resolve tyranny at the local level Good at dealing flexibly with local needs Provides local laboratories for experiments Blocks a central tyranny

Federalism: A Comparative Perspective Federal Government (the hybrid model) Examples: USA, Canada, Switzerland, India, Mexico, Germany Some power at the center Some power in sub-units (States) Division of power spelled out in the structure and can’t be changed by the central authority Moderately good at national coordination Moderately good at local need Partially blocks central tyranny Slowly overcomes local tyranny Creates local laboratories for experimentation

Federalism:

Federalism: A Comparative Perspective FEDERALISM IN THE US: Expressed Powers of the National Government Implied Powers of the National Government Necessary and Proper Clause (I will call it the Necessary and Proper Clause, not the simple-minded term in the text – elastic clause)

Implied Powers Necessary and Proper Clause (this is college, I will use the legal language, not the simple minded “elastic clause” language) "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)

Federalism: Selected Constitutional Powers Federal Powers: EXPRESSED - Coin Money - Conduct Foreign Affairs - Regulate Interstate Commerce -Levy and Collect Taxes -Declare War -Raise / Support a Military -Establish Post Offices -Establish Inferior Courts -Admit New States IMPLIED: "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) Concurrent powers -Levy and Collect Taxes -Borrow Money -Make and Enforce Laws -Establish Courts -Provide for General Welfare -Charter Banks and Corporations Powers Reserved to the States -Regulate Intrastate Commerce -Conduct Elections -Provide for Public Health, Safety, and Morals -Establish Local Governments -Ratify Amendments to the Federal Constitution -Establish a State Militia

SELECTED POWERS DENIED BY THE CONSTITUTION Powers Denied to the Federal Government -Tax exports from any state -Violate the Bill of Rights -Change State Boundaries -Suspend the right of Habeas Corpus -Make ex post facto laws -Subject office holders to a religious test Powers denied both Federal and State Government -Tax exports from any state -Violate the Bill of Rights -Change State Boundaries -Suspend the right of Habeas Corpus -Make ex post facto laws -Subject office holders to a religious test Powers Denied to the States -Tax Imports or Exports -Coin Money -Enter into Treaties -Impair Obligations of Contracts -Abridge the Privileges or Immunities of Citizens -Deny Due Process -Deny Equal Protection

Interstate relations Full Faith and Credit Clause Article IV, Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Birth certificates, Marriage Licenses, etc.

Interstate relations Gay Marriage? 1995: Hawaii Defense of Marriage Act: 1996 No state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state. The Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states. Now: Massachusetts, California, etc? Is Defense of Marriage Act Constitutional??? A: Yes B: No C: I just don’t know.

Defining Federalism McCulloch V. Maryland, 1819 RE: US National Bank Outcome: Feds win, a National bank is constitutional Justification: “Necessary and Proper” clause and “Supremacy” clause Article 6: Supremacy Clause: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Defining Federalism Gibbons V. Ogden, 1824 RE: Ferry service in New York Harbor Outcome: Feds win: states must recognize licenses issued by federal government Justification: “Interstate Commerce” clause and “Supremacy” clause Interstate Commerce: Article 1 Section 8 Clause 3 “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”

Defining Federalism Wickard V. Filburn 1942 Re: Grain Production in Ohio Is this issue properly Interstate commerce or Intrastate commerce? A: interstate B: Intrastate Outcome: Feds win. Farmers crops can be regulated by Federal government Justification: Interstate Commerce clause, argued that farmers effect interstate commerce even if they buy or sell nothing.

Defining Federalism Heart of Atlanta Motel V. US 1964 RE: Discrimination in private business, specifically a motel that wanted to serve only white clients Outcome: civil rights laws can be imposed by the federal government even on private businesses Justification: Interstate Commerce and Supremacy clauses

Defining Federalism CIVIL War Amendments: Especially 14th Defines Citizenship Guarantees: Privileges and Immunities from State violation Due Process from State violation Equal Protection from State violation Applies most of the Bill of Rights to States, expanding Federal Role Expansion of Federal powers

Other Stuff… Federal Mandates: Orders Grants: Categorical-formula Grants Project Grants Block Grants