October 28, 2015October 28, 2015October 28, 2015 Introduction to American Politics 1 Government Structure and Federalism Frank Brooks

2October 28, 2015October 28, 2015October 28, 2015 The Constitution as a Contract Lays out key elements of government purposes purposes structure structure powers powers limits limits Effectiveness v. safeguards Skeletal framework, not detailed blueprint Constitution is vague, “inspired ambiguity” Constitution is vague, “inspired ambiguity” provides flexibility and stability provides flexibility and stability channels conflict into “political” channels channels conflict into “political” channels

3October 28, 2015October 28, 2015October 28, 2015 Powers: Formal and Evolved Formal, constitutional powers Congress (Article 1) Congress (Article 1) President (Article 2) President (Article 2) Supreme Court (Article 3) Supreme Court (Article 3) Informal, evolved powers Congress – “necessary and proper clause” (elastic) Congress – “necessary and proper clause” (elastic) Supreme Court – judicial review Supreme Court – judicial review President – “inherent” (implied) powers President – “inherent” (implied) powers Many rooted in “commander in chief” authority Capacity to lead nation enhanced by technology Development of national constituencies and interests “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 I, Section 8)

4October 28, 2015October 28, 2015October 28, 2015 Limits on National Government Constitutional Limits Amendment Process channels policy change into political channels channels policy change into political channels Separation of Powers; Checks and Balances Decentralize power by separating it Decentralize power by separating it Encourage competition between power centers Encourage competition between power centersFederalism Acknowledge and define role of state and local governments as counterweight Acknowledge and define role of state and local governments as counterweight

5October 28, 2015October 28, 2015October 28, 2015 Amending the Constitution Proposal By 2/3 vote of both houses of Congress (A) By 2/3 vote of both houses of Congress (A) By 2/3 of state legislatures calling for a convention (B) By 2/3 of state legislatures calling for a convention (B)Ratification By ¾ of state legislatures (C) By ¾ of state legislatures (C) By ¾ of state ratifying conventions (D) By ¾ of state ratifying conventions (D) History of amendment Only 27 (17 since Bill of Rights) Only 27 (17 since Bill of Rights) AC route for all but one AC route for all but one Difficulty of amendment channels policy change to Congress, executive branch, even courts Difficulty of amendment channels policy change to Congress, executive branch, even courts

6October 28, 2015October 28, 2015October 28, 2015 Separation of Powers Three branches; four significant parts Congress CongressHouseSenate Presidency; Executive Branch Presidency; Executive Branch Courts Courts Three kinds of separation into those four parts Function Function Constituency Constituency Term Term

7October 28, 2015October 28, 2015October 28, 2015 Separation by Function House Legislative Legislative Spending SpendingSenate Legislative Legislative Executive: approve nominations, ratify treaties Executive: approve nominations, ratify treatiesPresident Executive Executive Foreign relations Foreign relationsCourts Judicial Judicial Interpret Constitution Interpret Constitution

8October 28, 2015October 28, 2015October 28, 2015 Separation by Constituency House Chosen by voters in Congressional districts Chosen by voters in Congressional districts Narrowest representation, most accountability Narrowest representation, most accountabilitySenate Chosen by states (legislatures, then voters) Chosen by states (legislatures, then voters) More heterogeneous constituency than House More heterogeneous constituency than HousePresident “National” constituency (distorted by electoral college) “National” constituency (distorted by electoral college)Court Federal judges chosen by President and Senate Federal judges chosen by President and Senate “represent” the Constitution (defend it against threats) “represent” the Constitution (defend it against threats)

9October 28, 2015October 28, 2015October 28, 2015 Separation by Term House 2 years, no term limits 2 years, no term limitsSenate 6 years (staggered), no term limits 6 years (staggered), no term limitsPresident 4 years, 2 term limit (after 22 nd Amendment) 4 years, 2 term limit (after 22 nd Amendment)Court “life” term “life” term Cannot gain control of all the government all at the same time “shall hold their Offices during good Behaviour” (Article 3, Section 1)

10October 28, 2015October 28, 2015October 28, 2015 Checks and Balances Consider FDR’s court-packing scheme Separation of powers may slow down concentration of power, but can’t stop it “Ambition must be made to counteract ambition” Assume that office-holders need/want power Assume that office-holders need/want power Give each part tools to interfere with other parts Give each part tools to interfere with other parts Let competition among parts limit overall power, or at least ensure that power used appropriately Let competition among parts limit overall power, or at least ensure that power used appropriately Broad impact of checks and balances enforce separation enforce separation compel cooperation and compromise compel cooperation and compromise

11October 28, 2015October 28, 2015October 28, 2015 Federalism Separation of power between levels of government Historical context shift of power away from states shift of power away from states But, left them considerable authority But, left them considerable authority Complex subject (abstract to concrete) Structure of relationship between states & federal Structure of relationship between states & federal How the Constitution describes terms of relationship How the Constitution describes terms of relationship Interpretation of Constitutional language Interpretation of Constitutional language Politics of relationship (especially money) Politics of relationship (especially money)

12October 28, 2015October 28, 2015October 28, 2015 Structure of Federalism Unitary Government Confederal Government Federal Government

13October 28, 2015October 28, 2015October 28, 2015 Federalism in the Constitution “National Supremacy” Clause (Article 6) Seems to favor national government Seems to favor national government Anti-Federalists sought clarification/dilution Anti-Federalists sought clarification/dilution Tenth Amendment National government has “delegated” powers National government has “delegated” powers E.g. regulate interstate commerce, raise army Only those explicitly mentioned in Constitution? States governments have “reserved” powers States governments have “reserved” powers Residual category (after powers prohibited to states) Includes “police” powers, education 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, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding 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.

14October 28, 2015October 28, 2015October 28, 2015 Interpreting Federalism Need for Interpretation National Supremacy clause and 10 th Amendment potentially contradictory National Supremacy clause and 10 th Amendment potentially contradictory Specific meaning of “delegated” and “reserved” unclear Specific meaning of “delegated” and “reserved” unclear Supreme Court resolves Supreme Court resolves McCulloch v. Maryland (1819) If both state and federal government exercise legitimate power, which prevails? If both state and federal government exercise legitimate power, which prevails? Elastic clause + national supremacy clause = national government wins Elastic clause + national supremacy clause = national government wins

15October 28, 2015October 28, 2015October 28, 2015 Interpretations of the Commerce Clause How much power was conferred by Congress’ power to “regulate interstate commerce”? Gibbons v. Ogden (1824) “commerce” broad; “interstate” narrow “commerce” broad; “interstate” narrow 1830s-1930s – commerce power interpreted narrowly to limit Congressional power Jones v. NLRB (1937) Virtually all commerce is “interstate” Virtually all commerce is “interstate” Greatly expanded Congressional power Greatly expanded Congressional power

16October 28, 2015October 28, 2015October 28, 2015 The Politics of Federalism Dual federalism Dominant until 1930s Dominant until 1930s States and national government had distinct, separate realms (depending on functions) States and national government had distinct, separate realms (depending on functions) Cooperative federalism States and national government cooperate States and national government cooperate Often, national government funds, while states implement Often, national government funds, while states implement Regulatory federalism National government sets conditions for funding and thus regulates state actions National government sets conditions for funding and thus regulates state actions Unpopular with states Unpopular with states “New” federalism, devolution, states’ rights

17October 28, 2015October 28, 2015October 28, 2015 Funding Federalism Categorical and Project Grants Money appropriated for specific purposes Money appropriated for specific purposes Local governments and organizations write grant proposals Local governments and organizations write grant proposals States often circumvented States often circumvented Block grants Broad purposes, e.g. economic development Broad purposes, e.g. economic development Only about 10% of federal funding Only about 10% of federal funding Revenue Sharing States get proportional “share” of taxes collected by federal government to spend on any purpose States get proportional “share” of taxes collected by federal government to spend on any purpose