Constitutional Basis of Federalism

Once Again… Why Federalism? 1.Articles of Confederation were too weak to protect the people, promoted instability, and generally sucked…. HOWEVER 2.Giving government more power would inevitably threaten the liberty of the citizens… SO 3.Government power must be restrained… THEREFOR 4.That power MUST be fragmented among different branches and LEVELS

Constitution Establishes Federalism Since Federalism is a splitting of power it is defined by the powers it gives or denies to various levels of Government. 1.Expressed/Delegated/Enumerated Powers 2.Implied Powers 3.Inherent Powers 4.Denied Powers 5.Reserved Powers 6.Concurrent Powers

Expressed/Delegated/Enumerated The Powers listed in the Constitution under Article I, Section 8 Includes 27 Specific Powers that fall under the National Government’s Domain Examples

Implied Powers Powers not specifically stated in the constitution but reasonably suggested by the expressed powers. Found in Article 1, Section 8, Clause 18 Congress has 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.” This is sometimes called the elastic clause. Why?

Examples of Implied Powers Most examples relate to Congress’ use of the Commerce Clause Process 1)Congress makes law 2)Law is either accepted by citizens or challenged 3)Supreme Court gives the authority or denies it

Examples of Implied Powers 1)Power of the Federal Government to Establish a National Bank McCulloch v. Maryland, Yes it is an implied power. 2)Power of the Federal Government to Regulate Segregation in Public Institutions Heart of Atlanta Hotel v. U.S.. Yes it is an implied power. 3)Power of Federal Government to Regulate the Carrying of Firearms in a school zone U.S vs. Lopez. No, it is not as it does not impact an economic transaction.

Inherent Powers Powers that belong to the government because it is in charge of the country. These powers exist because the USA exists. Examples include: regulate immigration, deport aliens, acquire territory, grant diplomatic recognition, protect the country from rebellion

Denied Powers (Federal Government) 1) Expressly Denied Examples: can’t take private property without payment, can’t prohibit free speech, can’t conduct illegal searches 2) Denied Through Silence Can’t create public schools, can’t set up local government 3) Denied Because of Federalism Itself Can’t tax states

Reserved Powers (States) Found in the 10 th Amendment to 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” Prohibited to the States (Either through Articles or Amendments) Can’t print money (A1, Sec 8) Can’t make alliances (A1, Sec 8) Can’t tax the federal government (Supremacy Clause) Can’t deprive a person of life liberty or property without due process of law (14thAmendment)

Reserved Powers (States) So what can they do? Pretty Much Anything Marriage age, sale of pornography, permit or prohibit gambling, lawyer/teacher licenses, public schools, land use, utilities, drinking age, etc etc etc. (Most things government does are done by the states, not the fed) The catch? State laws cannot conflict with the Constitution of the United States (14 th Amendment)

Concurrent Powers Some powers are shared or overlap between the federal government AND the states at the same time tax, borrow money, establish courts, define crimes, environment and health standards, establish a police force, etc.

The Relationships Not only are powers discussed in the Constitution but the relationship between federal-state governments and state-state governments is dealt with in Article IV Article IV Makes Certain Guarantees to the States All States will have a Republican Form of Government All States will get protection against foreign invasion and domestic upheaval The Federal Government will respect the geographic integrity (borders) of States No state can be divided without its consent

The Relationships Article IV also lays out interactions between States. Full Faith and Credit Clause: States required to recognize the laws and legal documents of other states (birth certificates, marriage licenses, drivers’ licenses, wills, etc) Extradition: States may return fugitives to a state from which they have fled prosecution at the request of the governor Interstate Compacts: States can make agreements to work together to solve regional problems (shared natural resources, shared problems) Privileges and Immunities Clause: States cannot unreasonably discriminate against residents of other states. Non residents have the right to travel through, property, contracts. Does not extend to political rights or right to practice regulated professions (Law, Doctor, Teaching, Etc.)

The Relationships The Supremacy Clause (Article XI, Section 2) “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, anything in the constitution or laws of any state to the contrary notwithstanding.” In Practice 1)Constitution 2)Acts of Congress 3)State Law

Conclusion When laid out on paper it looks simple and easy to figure out who is responsible for what. HOWEVER….. The Concept of Implied Powers (as well as financial concerns we will cover later) make it less cut and dry In essence the Federal Government will take big actions and it is up to citizens or states to challenge them. Leaving the “constitutionality” of the actions up to the Supreme Court