Chapter 4 Dual Federalism and Cooperative Federalism

Federalism The delegates who met in Philadelphia wrote a new constitution and invented a new political form- federal government -that combined the features of a confederacy with features of a unitary government Citizens’ feared that without the federal system, majorities with different interests and values from different regions would rule them totally. So the federal system offered a solution and allows diversity from the state layer of govt.

Roots of the Federal System The Framers worked to create a political system that was halfway between the failed confederation of the Articles of Confederation and the tyrannical unitary system of Great Britain. 3 major arguments for federalism are: the prevention of tyranny; the provision for increased participation in politics; and the use of the states as testing grounds or laboratories for new policies and programs.

From the Federalist Papers… “If their rights are invaded by either, they can make use of the other as an instrument of redress.” (Hamilton) People may shift support between the two powers as needed, in order to keep the two in balance. Federalist #45 “The powers delegated, by the proposed constitution, the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” (Madison) Federalist #46 Both state and federal governments “are in fact but different agents and trustees of the people, constituted with different powers.” (Madison)

In pairs, discuss and list the pros/cons of which layer of government should regulate the following issues? And why? Education Standards Marriage Licensure Minimum Drinking Age Physician-assisted suicide Abortion Medical Marijuana Death Penalty, Minimum Wage Auto Emission Standards

“Unity without Uniformity” Federalism “Unity without Uniformity” National politicians do not have to iron out every difference on every issue that divides us. Issues are debated in state legislatures, county courthouses, and city halls.

2 perspectives of federalism have emerged: (1) Dual Federalism Federalism is the division of power between a central government and regional governments (states) Two or more governments exercise power and authority over the same people and the same territory. 2 perspectives of federalism have emerged: (1) Dual Federalism (2) Cooperative Federalism

Dual Federalism Dual Federalism (layer-cake federalism) is a view that holds the Constitution is a compact among sovereign states, so that the powers of the national governments and the states are clearly differentiated.

Dual Federalism Concepts The national government rules by enumerated powers only!! (i.e., Art 1 Sec 8) The national government has a limited set of constitutional purposes Each layer of government is sovereign within its sphere The relationship between nation and states is best characterized by tension rather than cooperation

Dual Federalism Concepts States rights - the idea that all powers not specifically given to the national government by the Constitution are reserved to the states. States’ rights supporters use the 10th Amendment as their validation and believe that the national government should interpret the Constitution strictly or narrowly (give national government limited power).

States Rights Position The Constitution is a compact among the states. States’ rightists argue that the states created the national government & gave it only certain limited powers Believe state governments are closer to the people and better reflect citizens wishes than the national government Any doubt about whether a power belongs to the national government or is reserved to the states should be settle in favor of the states. ----At various points in US history, the surpreme court has accepted this view. Under Chief justic Roger B. Taney the court often supported the states rights against powers of the ntation government. Also true during court rulings between 1918 and 1936 concerning child labor, industry and argiculture in the states uunconstitutional ---- ----Did not follow Uses the 10th Amendment for their rationale! 11

Cooperative Federalism Cooperative Federalism (marble-cake federalism) acknowledges the increasing overlap between state and national functions and rejects the idea of separate spheres, or layers, for the states and the national government.

Cooperative Federalism Concepts National and state agencies typically undertake government functions jointly rather than exclusively (building canals/highways) The nation and states routinely share power Power is not concentrated at any government level or in any agency Fragmentation of responsibilities gives people and groups access to many venues of influence.

Cooperative Federalism Concepts Supporters of this theory believe the Constitution should be used in an expansive way. State law is subordinate to national law (Art IV and the supremacy clause). If state laws are inconsistent with national policy they should be disregarded (medical marijuana) Supporters believe in broad or loose interpretation of the Constitution. Use the “elastic clause” or “the necessary and proper” clause their rationale!!

Figure 4.1: Metaphors for Federalism

Another Perfect Storm Artist: Jeff Danziger Date: September, 2005 http://cartoonbox.slate.com/ 16

Division of Government Powers National government retains specific powers while reserving all others powers to the States (10th amendment) or the People (9th amendment). Some powers are shared by the layers of government (taxing power) Some powers are denied/prohibited (no export tax for either national or state governments) - By giving national government certain specified powers, reserving all other powers to states or to the people. 17

National Powers 3 types of national powers are: expressed implied inherent 1. expressed, 2. implied, and 3. inherent 18

Expressed Powers in the Constitution also called enumerated powers are specifically granted to the national government by the Constitution Examples??? In the first three articles of the Constitution---- includes the power to levy and collect taxes, coin money, make war, raise an army and navy and to regulate commerce among the states. 19

Implied Powers in the Constitution NOT expressly defined in the Constitution. Art. I Sec.8 Cl #18 is an example Elastic Clause or Necessary and proper clause the power to draft into the armed forces is implied by the powers given to the national government to raise an army and navy (See Art. I Sec 8) Framers could not anticipate all powers needed in future thus this enables the federal government to extend its powers beyond what is expressed. (regulate nuclear power plants/pollution or develop the space program) 20

Inherent Powers Powers that the national government may exercise simply because it is a sovereign nation. Example: the national government must control immigration and establish diplomatic relations with other countries, even though these powers are not spelled out in the Constitution. 21

State Powers Reserved powers- certain powers that are specific held solely by the states Not listed specifically but allows states to assume powers based on what is left out of the Constitution “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.” 10th amendment Regulation of public school systems 22

Concurrent Powers Exercised by both the national and state governments Each level of government exercises these powers independently Examples??? 1. Power to tax, 2. to maintain courts and define crimes, 3. appropriate private property for public use 23

Prohibited/Denied Powers Constitution identifies denied powers for the national government, state government or for both No titles of nobility by US States cannot make treaties Neither can pass ex post facto laws Art. 1 Sec 9 & Sec10

Shared National & State Powers National Government (expressed, implied & inherent powers) State Governments (reserved powers) Shared National & State Powers (concurrent powers) 25

Guarantees or Obligations from the National Government to the States Art IV Sec 4 1. Guarantee each state a republican form of government 2. Protect states from invasion and against domestic violence. 3. Respect territorial integrity of each state. 1. Enforcement of the guarantee has become a congressional responsibility (just after civil war) 2. 1967 Lyndon Johnson sent troops to Detroit to help control racial unrest and rioting , 1984 president Cleveland sent federal troops to Chicago to restore order during a strike of railroad workers. 1950’s and 60’s Eisenhower and Kennedy used this power to stop state officials from blocking the integration of Southern schools and universities. Also used for natural disasters such as earthquakes floods hurricanes, tornadoes. 3. National government cannot use territory that is part of an existing state to create a new state unless the national government has permission from the legislature of the state involved. 26