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The Federal System Compound Republic
Constitution first divides Power of the people between two governments Then subdivides it among separate branches of government Thus, a double security exists System in which regional (i.e., state) governments share power with the national government States get power from their citizens, not from national government (sovereign power)
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Compound Republic National Government Great and Aggregate Interests
State Governments Local and particular interests One level is not dependent on the other; levels are co-equal partners Justice is the end (or purpose) of government Specific boundaries are ambiguous Debate goes back to Federalist--Anti-Federalist struggle
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Efficiency v. National Purpose
Pro-states (like Anti-Federalists) Government is closer to the people States can be source of creativity & democratic experimentation (e.g. welfare reform; extended franchise to women) Government is more efficient Pro-nation (like Federalists) Nation can help in times of crisis (e.g. Great Depression) Nation can correct state prejudice (e.g. racial segregation) Together they allow more public participation
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Alternatives Unitary system: constitutional arrangement where power is centralized; e.g., relationship of counties and municipalities to states Confederation: constitutional arrangement in which sovereign states create a central government by compact but limit its power and do not give authority over individuals; e.g., Articles of Confederation or United Nations or European Union
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Powers of National Government
Express Powers Specifically granted by the Constitution Implied Powers Inferred from express powers & allow Congress to carry out its functions (e.g., establish banks) Necessary and Proper Clause (Art. I Sect. 8) Right to make laws for carrying out express powers Inherent Powers Powers that inhere in all nation-states; e.g., foreign policy
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Powers of National Government
Article 1, Section 8 (Congress) Regulate commerce with foreign nations, among states, and with Indian tribes Declare war Collect taxes, duties, imposts, excises Provide common defense and general welfare Pay debts Establish post offices and roads Raise & support armies, navies ...call the militia Make all laws that are necessary and proper for executing foregoing powers and all other powers
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Powers of National Government
Article 6: National Supremacy clause The Constitution…and the Laws of the United States…shall be the Supreme Law of the Land States may not override national policies
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Powers of the States All powers not granted to the national government or denied to the states by the Constitution (e.g., coin money) Some concurrent powers, (e.g., collect taxes, spend money, pass laws, establish courts) Create a republican form of government Charter local governments Conduct elections
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Inter-state Relations
Art. IV, Sect. 1: Give Full Faith & Credit to other states’ public acts, judicial proceedings, etc. (e.g., recognize marriages) Art. IV, Sect. 2: Extend to citizens of other states the privileges & immunities of their own citizens (e.g., health care or welfare benefits) Art. IV, Sect. 2: Extradite criminals Resolve differences without force (interstate compacts)
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Forms of Federalism Dual Cooperative New Federalism Coercive elements
Competitive Permissive New Federalism Coercive elements
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Dual Federalism Layer cake model--1789-1932
National government is restricted to enumerated powers National and state governments have separate spheres, but some ambiguity is unavoidable Relationship is subject to change Tension between the two is inevitable
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Cooperative Federalism
Marble Cake federalism s National government has expansive view of supremacy clause (Article 6) National emergencies have invoked “necessary and proper” clause of Constitution (economic externalities) Cooperation between federal, state & local governments is preferable States are included in federal decisions, largely through political parties
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Balance Achieved is Political
Secession & Civil War (question of nullification) 14th Amendment (due process & equal protection) 16th Amendment (federal income tax-1913) 17th Amendment (direct election of senators) 1937 Supreme Court shift with SSA & NLRA 1954 Brown v. Board of Education 24th Amendment (poll tax prohibited-1964) 1964 Civil Rights Act 1965 Voting Rights Act
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Competitive Federalism
Federal financial support especially through categorical grants encourage competition among state and local governments for federal largesse (1960s) Administrative staff required to solicit grant funds (growth of bureaucracy) Pluralist model (many interest groups) also facilitates
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Permissive Federalism
General revenue sharing (Nixon--early 1970s) made it easier for states to get federal support with no strings attached Accountability is reduced Charges of corruption undermined this approach as well as cost
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Roots of Federal Power Commerce Clause 1819 McCullough v. Maryland
John Marshall: power to tax is power to destroy bank is prerogative of national government state cannot tax federal government Grants-in-Aid Categorical grants (target specific purpose) formula grants (formula for eligibility) project grants (policy focused) Block grants (broad, general purposes)
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Problems with Expansive View
national drinking age tied to highway $ coercive use of power through federal “largesse” Federal mandates such as anti-discrimination or affirmative action measures required of any recipient of federal funds Unfunded mandates (Reagan--1980s) Congress legislates to states but provides no financial support
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Reactions New Federalism -- Nixon return power to the states with $
New New Federalism -- Reagan return power to the states without $ or block grants Unfunded mandates Congress passes laws that are binding on states without financial support (e.g. Age Discrimination in Employment or some environmental laws) Mandates -- require state action Restraints -- forbid state action Preemption -- federal laws trump state law
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Supreme Court Actions Allows some state discretion in restricting abortion Imposes limits on state redistricting efforts when race involved United States v. Lopez (1995) Gun Free School Zones Act found unconstitutional United States v. Morrison (2000) Violence Against Women Act deemed unconstitutional
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