1. Federalism
Week 4

2. Federalism: A Comparative Perspective
Three forms of Government Organization
Unitary Government
Centralized, All power at the center
Federal Government
Some power at the center
Some power in sub-units (States)
Confederal Government (Confederation)
Decentralized, All power in the sub-units

3. Federalism: A Comparative Perspective
Unitary Government
Examples: England, France, China
Strong Centers
Delegated power to counties etc. can be withdrawn
Good at coordination and solving local tyranny
Poor at addressing special local needs
Poor at protecting against a central tyranny
No place for experimentation

4. Federalism: A Comparative Perspective
Confederal Government (Confederation)
Decentralized, All power in the sub-units
Real examples: US under Articles of Confederation, UN, NAFTA, European Union.
Ineffective at national coordination
Can’t resolve tyranny at the local level
Good at dealing flexibly with local needs
Provides local laboratories for experiments
Blocks a central tyranny

5. Federalism: A Comparative Perspective
Federal Government (the hybrid model)
Examples: USA, Canada, Switzerland, India, Mexico, Germany
Some power at the center
Some power in sub-units (States)
Division of power spelled out in the structure and can’t be changed by the central authority
Moderately good at national coordination
Moderately good at local need
Partially blocks central tyranny
Slowly overcomes local tyranny
Creates local laboratories for experimentation

6. Federalism:

7. Federalism: A Comparative Perspective
FEDERALISM IN THE US:
Expressed Powers of the National Government
Implied Powers of the National Government
Necessary and Proper Clause
(I will call it the Necessary and Proper Clause, not the simple-minded term in the text – elastic clause)

8. Implied Powers Necessary and Proper Clause
(this is college, I will use the legal language, not the simple minded “elastic clause” language)
"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 1 Section 8 Clause 18)

9. Federalism: Selected Constitutional Powers
Federal Powers:
EXPRESSED
- Coin Money
- Conduct Foreign Affairs
- Regulate Interstate Commerce
-Levy and Collect Taxes
-Declare War
-Raise / Support a Military
-Establish Post Offices
-Establish Inferior Courts
-Admit New States
IMPLIED: "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 1 Section 8 Clause 18)
Concurrent powers
-Levy and Collect Taxes
-Borrow Money
-Make and Enforce Laws
-Establish Courts
-Provide for General Welfare
-Charter Banks and Corporations
Powers Reserved to the States
-Regulate Intrastate Commerce
-Conduct Elections
-Provide for Public Health, Safety, and Morals
-Establish Local Governments
-Ratify Amendments to the
Federal Constitution
-Establish a State Militia

10. SELECTED POWERS DENIED BY THE CONSTITUTION
Powers Denied to the Federal Government
-Tax exports from any state
-Violate the Bill of Rights
-Change State Boundaries
-Suspend the right of Habeas
Corpus
-Make ex post facto laws
-Subject office holders to a
religious test
Powers denied both Federal and State Government
-Tax exports from any
state
-Violate the Bill of Rights
-Change State Boundaries
-Suspend the right of
Habeas Corpus
-Make ex post facto laws
-Subject office holders to a
religious test
Powers Denied to the States
-Tax Imports or Exports
-Coin Money
-Enter into Treaties
-Impair Obligations of
Contracts
-Abridge the Privileges or
Immunities of Citizens
-Deny Due Process
-Deny Equal Protection

11. Interstate relations Full Faith and Credit Clause
Article IV, Section 1.
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Birth certificates, Marriage Licenses, etc.

12. Interstate relations Gay Marriage? 1995: Hawaii
Defense of Marriage Act: 1996
No state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state.
The Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.
Now: Massachusetts, California, etc?
Is Defense of Marriage Act Constitutional???
A: Yes B: No C: I just don’t know.

13. Defining Federalism McCulloch V. Maryland, 1819
RE: US National Bank
Outcome: Feds win, a National bank is constitutional
Justification: “Necessary and Proper” clause and “Supremacy” clause
Article 6: Supremacy Clause:
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.

14. Defining Federalism Gibbons V. Ogden, 1824
RE: Ferry service in New York Harbor
Outcome: Feds win: states must recognize licenses issued by federal government
Justification: “Interstate Commerce” clause and “Supremacy” clause
Interstate Commerce: Article 1 Section 8 Clause 3
“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”

15. Defining Federalism
Wickard V. Filburn 1942
Re: Grain Production in Ohio
Is this issue properly Interstate commerce or Intrastate commerce?
A: interstate B: Intrastate
Outcome: Feds win. Farmers crops can be regulated by Federal government
Justification: Interstate Commerce clause, argued that farmers effect interstate commerce even if they buy or sell nothing.

16. Defining Federalism Heart of Atlanta Motel V. US 1964
RE: Discrimination in private business, specifically a motel that wanted to serve only white clients
Outcome: civil rights laws can be imposed by the federal government even on private businesses
Justification: Interstate Commerce and Supremacy clauses

17. Defining Federalism CIVIL War Amendments: Especially 14th
Defines Citizenship
Guarantees:
Privileges and Immunities from State violation
Due Process from State violation
Equal Protection from State violation
Applies most of the Bill of Rights to States, expanding Federal Role
Expansion of Federal powers

18. Other Stuff… Federal Mandates: Orders Grants:
Categorical-formula Grants
Project Grants
Block Grants