UNIT I: CONSTITUTIONAL UNDERPINNINGS OF U.S. GOVERNMENT CHAPTER 3: FEDERALISM

WHAT IS FEDERALISM? Federalism: When two or more governments exercise power and authority over the same people in the same territory. Federalism is the relationship and interactions between the federal government and the state governments. Pursuant to the Constitution’s Supremacy Clause (Article VI), the Constitution, federal laws, and treaties are the “supreme law of the land.”

TYPES OF GOVERNMENTAL POWERS: Enumerated Powers (Art. I, §8) Concurrent Powers (federal and state) Reserved Powers (states) Regulating interstate and foreign commerce Levying taxesRegulating intrastate commerce Coining and printing moneyBorrowing moneyEstablishing local governments Providing army and navySpending for general welfareEstablishing public school systems Declaring warChartering banksAdministering elections Establishing federal courtsMaking and enforcing lawsProtecting health and welfare Conducting Foreign relationsRegulating corporations Necessary and proper lawsEstablishing and administering licenses Acquiring territories and admitting states Establishing state courts Immigration

TYPES OF GOVERNMENTAL POWERS: Enumerated Powers (federal government): Powers specifically assigned to the federal (national) government Implied Powers (federal government): Necessary and Proper Clause (Elastic Clause): federal government’s implied powers (Art. I, §8) e.g., creation of Bank of the United States in late 18 th century Concurrent Powers (federal and state governments): Powers shared by or assigned to both the federal and the state governments Reserved Powers (10 th Amendment) (state governments): All other powers that are not specifically or impliedly delegated to federal government and that are not forbidden to the states

ARTICLE IV OF THE CONSTITUTION: Full Faith and Credit Clause (Art. IV, Sec. 1): States must recognize/enforce laws of other states Privileges and Immunities Clause (Art. IV, Sec. 2): A state may not discriminate against non-state residents

National Government’s Guarantees to the States: Article IV of the constitution Under Article IV, the federal government must guarantee to each state: a republican form of government defense from foreign invasion and domestic violence maintenance/safety of borders

MCCULLOCH V. MARYLAND (1819):  Second Bank of the U.S. (“Bank”) established in 1816  Maryland did not want Bank to operate a branch in Maryland and therefore imposed a tax upon Bank in an attempt to put it out of business.  Supreme Court of the United States (SCOTUS) (Chief Justice John Marshall) holds:  The federal government has implied powers, beyond the enumerated powers, pursuant to the necessary and proper clause of the Constitution (the “Elastic Clause”)  Because the federal government is supreme within its sphere of action (including when exercising its implied powers), the federal government, only, would have authority to tax Bank. Maryland is forbidden from taxing Bank.

GIBBONS V. OGDEN (1824): Ogden received New York state-issued exclusive license to operate ferries on Hudson River (monopoly); Gibbons sued on basis that exclusive license interfered with interstate commerce SCOTUS (Chief Justice John Marshall) held New York law requiring licensing for out-of-state ferry operators was invalid pursuant to the Supremacy Clause Interstate commerce includes navigation on interstate waterways (such as between New York and New Jersey) Congress has exclusive jurisdiction over interstate commerce

FEDERALISM: POTENTIAL BENEFITS AND DRAWBACKS Best for larger nation? Avoids concentration of power? Preserves state sovereignty? States are training/testing grounds (laboratories of democracy)? Government close to the people? Too many governments? Duplication of powers and functions? Conflicts of authority?

DUAL FEDERALISM: Form of federalism until the New Deal National government and state governments retained separate powers and jurisdictions “Layer-cake federalism” Sovereignty and limits of national government and state governments was expressly upheld Sharing of powers was limited

COOPERATIVE FEDERALISM: Form of federalism from New Deal through present (with “New Federalism” also popular since 1990s) “Marble cake federalism” National government and state governments share more powers, cooperate

DUAL VERSUS COOPERATIVE FEDERALISM:

“New” Federalism Devolution: the federal government’s returning power to the state and local governments 1980s-1990s: Fueled by general distrust of the federal government and the desire to reduce the “bloated federal bureaucracy” Example: Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (welfare reform): transferred money to states as block grants, with states receiving latitude on how to administer funds but with strings still attached (e.g., head of family must work/perform community service; lifetime cap on benefits; rules for unmarried mothers under age 18; restrictions on immigrants’ eligibility)

GRANTS AND MANDATES: When federal government wants states to implement policies, the federal government can: Provide grants to states. States often accept grants, even with “strings attached,” because states desire (“need”) additional funds. Issue mandates directed toward states. Mandates require states to satisfy federally- prescribed conditions. Mandates may be fully funded, partially funded, or unfunded.

FISCAL FEDERALISM: GRANTS Grants-in-Aid: Federal funds provided to states and local governments to be used for specific purposes Categorical Grants (“strings attached”): Federal funds for specific programs and projects Example: drinking age must be raised to 21 in all states in order for states to receive highway funds Example: State public schools must use internet filtering to keep federal subsidies Block Grants: Awarded for broad, general purposes; allow states greater discretion in how funds are utilized/spent

FISCAL FEDERALISM: MANDATES Mandate: requirement that a state undertake an activity or provide a service By 1992, more than 170 congressional acts contained partially or wholly unfunded mandates In 1995, Congress passed the Unfunded Mandates Relief Act to try to address this situation.