FEDERALISM: The relationship between state and federal power How has federal power expanded over time?

Who has power? MeMe and My ParentsMy Parents

Create this chart: State Powers (Reserved) Shared Powers (Concurrent) Federal Powers (Expressed or Enumerated) 10 th AmendmentArticle I, Section 8 in the Constitution

Place the powers below on your chart. Collect Taxes Collect Taxes Regulate Marriages Regulate Marriages Regulate Interstate Commerce Regulate Interstate Commerce Coin Money Coin Money Charter Local Governments Charter Local Governments Lend and Borrow Money Lend and Borrow Money Registration and Voting Registration and Voting Raise an Army Enforce Criminal Codes Regulate Professional Standards Declare War Administer Drivers’ Licenses Establish Courts

Reserved Powers Derived from the Tenth Amendment Regulate Marriage Regulate Marriage Enforce Criminal Codes Enforce Criminal Codes Charter Local Governments Charter Local Governments Registration and voting Registration and voting Regulate Professional Standards Regulate Professional Standards Administer Drivers’ Licenses Administer Drivers’ Licenses Are there more? Are there more? Absolutely! Absolutely!

Expressed Federal Powers Article I, Section 8 of the Constitution Regulate Interstate Commerce (the commerce clause) Regulate Interstate Commerce (the commerce clause) Coin Money Coin Money Raise an Army Raise an Army Declare War Declare War Article I, Section 10: prohibits the states from certain things (making treaties, raising armies, etc.) Article VI: Supremacy clause (laws of the national government shall be the supreme law of the land)

Concurrent Powers Are Shared Collecting taxes Collecting taxes Lend and Borrow money Lend and Borrow money Establish Courts Establish Courts

State Powers (Reserved) Shared Powers (Concurrent) Federal Powers (Expressed or Enumerated) These come from the 10 th Amendment Article I, Section 8 in the Constitution Regulate Marriage Enforce Criminal Codes Charter Local Governments Registration and Voting Drivers’ Licenses Regulate Professional Standards Collecting Taxes Lend and Borrow Money Establish Courts Regulate Interstate Commerce Coin Money Raise an Army Declare war

Elastic Clause: Implied Powers Article I, Section 8, clause 18 Congress shall have the power... 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.” Does this clause expand or reduce federal power?

Expands! Because it’s elastic!

Using an expressed power, justify the implied power of Congress to: See Implied Powers sheet See Implied Powers sheet Working in small groups, decide what expressed power gives Congress the implied power listed on your sheet. Working in small groups, decide what expressed power gives Congress the implied power listed on your sheet.

...THE ELASTIC CLAUSE The Supreme Court interprets...

McCulloch v. Maryland (1819) Hamilton proposed establishing a national bank (essential for the country’s economic development) Hamilton proposed establishing a national bank (essential for the country’s economic development) Jefferson opposed the bank (b/c favored elites) Jefferson opposed the bank (b/c favored elites) Does Congress have the power to establish a national bank? Does Congress have the power to establish a national bank? If so, could a state tax the bank? If so, could a state tax the bank? Yes, and No. Says the Marshall Court Yes, and No. Says the Marshall Court

Marshall’s Decision: We the people (not we the states) We the people (not we the states) Argument for national sovereignty Argument for national sovereignty The N & P clause allows for any legislation where “the ends are legitimate and the means not prohibited” The N & P clause allows for any legislation where “the ends are legitimate and the means not prohibited” Therefore, the bank is constitutional Therefore, the bank is constitutional The power to tax is the power to destroy The power to tax is the power to destroy Therefore, Maryland’s tax is unconstitutional Therefore, Maryland’s tax is unconstitutional

Why it matters: McCulloch paved the way for a broad interpretation of the necessary and proper clause. McCulloch paved the way for a broad interpretation of the necessary and proper clause. It’s so stretchy it’s “elastic” It’s so stretchy it’s “elastic” This grants the federal government a tremendous amount of power This grants the federal government a tremendous amount of power

THE COMMERCE CLAUSE The Supreme Court interprets:

Gibbons v. Ogden (1824) New York law granted a monopoly to Ogden for operating a ferry between New York and New Jersey New York law granted a monopoly to Ogden for operating a ferry between New York and New Jersey But Gibbons had a steamboat license granted by Congress But Gibbons had a steamboat license granted by Congress Marshall Court said that the Congress had power to regulate commerce among the states and federal rules trump state Marshall Court said that the Congress had power to regulate commerce among the states and federal rules trump state

Trend: For the most part, the Commerce Clause has greatly expanded Congress’ power. For the most part, the Commerce Clause has greatly expanded Congress’ power.

Modern Interpretation: Congress may regulate channels of interstate commerce – including highways, waterways and air Congress may regulate channels of interstate commerce – including highways, waterways and air Congress can regulate people, machines, and things used in carrying out commerce Congress can regulate people, machines, and things used in carrying out commerce Congress can regulate commercial activities that have a large effect on commerce Congress can regulate commercial activities that have a large effect on commerce

US v. Lopez (1995) Congress passes a law making it a federal crime to carry guns in a school zone Congress passes a law making it a federal crime to carry guns in a school zone Lopez was convicted of just that, and challenged the law Lopez was convicted of just that, and challenged the law Supreme Court, for the first time in decades, ruled that Congress had exceeded it’s commerce clause authority b/c carrying a gun is not an economic activity Supreme Court, for the first time in decades, ruled that Congress had exceeded it’s commerce clause authority b/c carrying a gun is not an economic activity

Dred Scott v. Sanford (1857) Northern slave Dred Scott applied for freedom when his master died, citing a federal law (MO Compromise) Northern slave Dred Scott applied for freedom when his master died, citing a federal law (MO Compromise) Court ruled against Scott, claiming that persons of African descent were barred from citizenship and could not sue in federal court Court ruled against Scott, claiming that persons of African descent were barred from citizenship and could not sue in federal court Did not expand national power; was a state’s rights outcome Did not expand national power; was a state’s rights outcome

Cake Metaphors

Dual Federalism Until 1937 Until 1937 Like a layer cake Like a layer cake National government has enumerated powers only; states have reserved only National government has enumerated powers only; states have reserved only Each government has own sphere of sovereignty Each government has own sphere of sovereignty More tension than cooperation More tension than cooperation Proved inadequate in a industrialized society Proved inadequate in a industrialized society

Cooperative Federalism After 1937 After 1937 Like a marble cake Like a marble cake Rejects the idea of “spheres” Rejects the idea of “spheres” Government action is jointly taken Government action is jointly taken Nation and states routinely share power (Medicaid) Nation and states routinely share power (Medicaid) Power is fragmented enough; it cannot be concentrated at any level Power is fragmented enough; it cannot be concentrated at any level

So what’s the critical difference? It’s all in how we interpret two sections of the Constitution... The elastic clause The elastic clause The Tenth Amendment The Tenth Amendment Dual: Narrow interpretation of the elastic clause Cooperative: Broad interpretation of the elastic clause Which makes a “big” government?

Federalism in Practice Long term expansion of national power Long term expansion of national power National Crises/Demands National Crises/Demands Judicial Interpretations Judicial Interpretations Grants-in-Aid (Fiscal Federalism) Grants-in-Aid (Fiscal Federalism)

National Crises and Demands Civil War Civil War Both World Wars Both World Wars Great Depression Great Depression 9/11, Katrina, Irene, etc. 9/11, Katrina, Irene, etc. All of these involved problems that were too extensive for states to handle alone All of these involved problems that were too extensive for states to handle alone National relief funds spent on states are often attached to federal stipulations National relief funds spent on states are often attached to federal stipulations

Katrina and Federalism

Judicial Interpretation Gibbons v. Ogden, Marbury v. Madison, and Korematsu v. US all increased the power of the federal government Gibbons v. Ogden, Marbury v. Madison, and Korematsu v. US all increased the power of the federal government Since 1937, the Supreme Court has almost always supported the national government in power contests Since 1937, the Supreme Court has almost always supported the national government in power contests

Grants-in-Aid Financial incentives influence state behavior (because the money comes with “strings”) Two forms: Categorical Categorical Block Block

Categorical Grants For a specific purpose For a specific purpose Little discretion by recipient government Little discretion by recipient government Formula: very specific rules such as Formula: very specific rules such as Per capita income Per capita income Number of school age children Number of school age children Project: competitive applications Project: competitive applications Health (HIV-AIDS programs) Health (HIV-AIDS programs) Natural Resources (Radon, asbestos, energy) Natural Resources (Radon, asbestos, energy)

Block Grants Recipient governments have more discretion over funds Recipient governments have more discretion over funds Welfare Reform Act of 1996 Welfare Reform Act of 1996 States were given power and money to run their own welfare program States were given power and money to run their own welfare program States were given discretion to determine how to implement the goal of getting people to work States were given discretion to determine how to implement the goal of getting people to work

States have obligations to one another Full Faith and Credit Clause Full Faith and Credit Clause Article IV, Section I Article IV, Section I States must honor the “public Acts, Records, and judicial Proceedings” of other states States must honor the “public Acts, Records, and judicial Proceedings” of other states Marriage, Divorce, Custody and Adoption Marriage, Divorce, Custody and Adoption Defense of Marriage Act Defense of Marriage Act Loving v. Virginia Loving v. Virginia

More obligations... Comity Clause Comity Clause Article IV, Section 2 Article IV, Section 2 Citizens of states enjoy “privileges and immunities” in other states Citizens of states enjoy “privileges and immunities” in other states AZ can’t pass a law prohibiting NM residents from traveling, owning property, or working in AZ AZ can’t pass a law prohibiting NM residents from traveling, owning property, or working in AZ

And more... Interstate Commerce Clause Interstate Commerce Clause Article I, Section 10 Article I, Section 10 “No state shall, without the consent of the Congress... enter into any Agreement or Compact with another other State... ” “No state shall, without the consent of the Congress... enter into any Agreement or Compact with another other State... ” Water Rights Water Rights Has, more than any other clause, increased the power of the federal government Has, more than any other clause, increased the power of the federal government

Unfunded Mandates Setting National Standards – but not paying for them Setting National Standards – but not paying for them

New Federalism and Devolution New Federalism New Federalism Reagan, Nixon, and Clinton Reagan, Nixon, and Clinton Return more discretion to the states Return more discretion to the states Devolution Devolution Giving the states more power over policy Giving the states more power over policy

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