Federalism The Tug-of-War Between States and the National Government IT’S ALIVE!!!! Homework: Wilson (59-74) Woll, Federalist 45

Federalism The Tug-of-War Between States and the National Government

Federalism

Federalism How was federalism established in the Constitution? ◦ Why do you think this was something the Framers developed? How is federalism different from the concept of the “separation of powers?” How is this different from the principle of checks and balances?

British Colonial Rule Powerful British Government Political Subunits (Colonies) – some self- government, but not much Unitary System – all power flows from one central government

Articles of Confederation 1781 – 1789 – RIP Confederate System – power concentrated in political subunits (states) with a weak central government (typically unite for a common goal)

The US Constitution Central US government State governments Federal System – powers are divided and/or shared between state and central governments (Current gov’t designed by framers)

Analyzing our Federal System What advantages does the federal system provide our nation? What problems exist because of our federal system? What is the difference between the states’ rights position and the nationalist position with regard to government power?

Madison’s Arguments in Federalist 39 The topic: Whether the nature of the republic created by the Constitution is of a “wholly (con)federal or wholly national character.” ◦ This was intended to answer critics who said the Constitution consolidated the states into a unitary government, and took away the sovereignty of the states entirely. Madison claims that the nature of the government is indeed not wholly federal, or wholly national, but rather a composition of both. He cites the following four areas to make his argument. ◦ Foundation: States will ratify ◦ Sources of power: House and Senate, President ◦ Extent: states have some control ◦ Amendments: process includes states and national gov.

Issues Surrounding Federalism What powers do states have with regard to making their own laws? ◦ The 10 th amendment ◦ Police power, referendum, initiative, recall How does the Elastic Clause impact the federal system? Devolution – is this a current trend? Nullification – what was the “final verdict” on this concept? Dual Federalism – what is its relation to the commerce clause? ◦ The Commerce clause  Really a focal point for the debate over how much control the national government should have to legislate in areas that might be purely local.

United States v. Lopez Facts The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any individual knowingly to possess a firearm at a place that he knew or had reasonable cause to believe was a school zone. Alfonso Lopez, Jr., a 12th-grade student, carried a concealed and loaded handgun into his high school and was arrested and charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating the Act. Issues Does the GFSZA exceed Congress’ authority under the Commerce Clause? What categories of activity may Congress regulate under its commerce power?

Holding and Rule (Rehnquist) Yes. The GFSZA exceeded Congress’ authority under the Commerce Clause. The three broad categories of activity that Congress may regulate under its commerce power are: ◦ a) the use of the channels of interstate commerce; ◦ b) Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and ◦ c) Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. The Supreme Court held that the GFSZA exceeded Congress’ Commerce Clause authority. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. Neither the Act itself nor its legislative history expresses congressional findings regarding the effects of gun possession in a school zone on interstate commerce. To uphold the Government’s contention that the Act is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would convert congressional Commerce Clause authority to a general police power of the sort held only by the States.

Dissents in US vs. Lopez Dissent (Stevens) Guns are articles of commerce and can be used to interfere with commerce. The national interest justifies prohibiting their use by children in school. Dissent (Souter) The only inquiry should be whether the legislative judgment is within the realm of reason. Congress should have plenary power to legislate under the Commerce Clause as long as the law passes the rational basis test. Dissent (Breyer) Violence in schools interferes with the quality of education and education is inextricably tied to the economy. Congress could have rationally concluded that the possession of guns in school zones is related to interstate commerce. The majority contradicts well settled precedent that has permitted Congress to regulate noncommercial activity affecting interstate commerce.

Can you have your cake and eat it too? Dual federalism, also known as "layer cake federalism" involves clearly enumerated powers between the national and state governments, and sovereignty in equal spheres. This relationship predominated from the 1790s to Cooperative federalism, also known as "marble cake federalism," involved the national and state governments sharing functions and collaborating on major national priorities. This relationship predominated between 1930 and Creative federalism, also known as "picket fence federalism," predominated during the period of 1960 to This relationship was characterized by overloaded cooperation and crosscutting regulations. Finally, new federalism, sometimes referred to as "on your own federalism," is characterized by further devolution of power from national to state governments, deregulation, but also increased difficulty of states to fulfill their new mandates. This period began in 1981 and continues to the present.