1. Enduring Struggle: Who’s got the power!!!!!

2.   Founders:  Don’t want unitary gov  Confederal gov wasn’t working What is federalism?

3.   The division of powers and functions between the national and state governments  Each have a large measure of sovereignty  Power to restrain each other  Goal: protection of liberty  “ambition must be made to counteract ambition” What is Federalism?

4.   Expressed (Enumerated): powers granted to the National Government that are explicitly written into the Constitution  Reserved: (guaranteed by 10 th amendment): powers granted to the state governments  “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”  Concurrent: powers that both states and the National government share  Art. I, secs 8  Art. IV, sec 4 So how is power divided? How do we know who is in charge of what?!?

5.   Implied power:  Necessary and proper / Elastic clause Article 1 Section 8 Clause 18  Equation: Congress has the implied power to __________________ because it is “necessary and proper” in order to carry out its expressed power (s) to ______________________________________.  Example: Congress has the implied power to impose regulations on drugs because it is “necessary and proper” in order to carry out its expressed power (s) to regulate interstate commerce.

6.   Inherent power: powers given to all sovereign nations under international law  Wage war, make peace, acquire land

7.  Dual Federalism: Classic Constitutional Federalism Supremacy Clause Expressed Powers Concurrent powers 10 th amendment Reserved powers

8.  Who’s got the power?!?  Assumed that the Federal government would only have the powers given to it by the Constitution.  Govern such different areas of policy that there is no need to spell out the powers  Madison: Federalist 46  “ both state and federal governments are in fact different agents and trustees of the people, constituted with different powers  Anti-Feds disagree: 10 th amendment  “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” Federalism as established in Constitution

9.   Even after creating the Constitution the founding father's couldn’t agree on this question  Madison v. Hamilton  M: The power comes from “the people” they have the ultimate authority, not the national gov  “ The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite”  Originally favored strong national gov  H: Supremacy clause = national gov is top dog Who’s got the power?

10.   Article IV  Full faith and credit clause  1996: Congress passed DOMA: states don’t have to recognize same sex marriage  SCOTUS currently discussing constitutionality of this  Privileges and immunities clause (comity clause)  Extradition What about the relationship between states?

11.  “ The question of the relation of the States to the National government is the cardinal question of our constitutional system. At every turn of our national developments we have been brought face to face with it, and no definition either of statesmen or judges has ever quieted or decided it. It cannot, indeed, be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question” Woodrow Wilson Enduring Struggle: States’ rights v. National Supremacy (Who’s got the power?)

12.   McCulloch v. Maryland (1819) case background  1) Congress establishes the Bank of the United States  2) Maryland passes a new state law which….  3) McCulloch is fed up!!! What happens when the states and national gov can’t agree? Necessary and proper clause

13.  1) Does Congress have the power to establish a national bank? Pro- National BankAnti-National Bank

14.  2) Do the states have the power to tax federal institution? Anti-Maryland taxPro-Maryland tax

15.  What did the Supreme Court determine?  1) Does Congress have the power to establish a national bank?  2) Do the states have the power to tax federal institution?  A) Intent of the Maryland is….  B) “This Constitution, and the Laws of the United States which shall be made in pursuance thereof……… shall be the supreme Law of the Land.”  Supremacy Clause establishes a hierarchy!!

16.   Gibbons v. Ogden:  Background of case  Did NY violate the commerce clause by attempting to regulate interstate trade?  What does the court decide?  How does this expand federal powers? Expansion of Federal powers: Commerce Clause

17.   These rulings indicated that the national government was entitled to expansive powers under  Supremacy Clause  Necessary and proper clause  Commerce Clause By in large, Congress neglected to act on their ability to expand their powers until the 1930s… SCOTUS : Who’s got the power?

18.   Compact Theory  Jefferson and Madison / Virginia and Kentucky resolutions  Calhoun and Nullification  Tariff unfair to Southerners, S.C. should nullify it  Civil War and Nullification  fought over federalism Supremacy Clause v. 10 th amendment…  Civil war basically ends nullification debate Nullification: States v. National gov

19. Layer Cake…  Creation of Constitution to New Deal (solidified with Civil War) = Layer Cake Federalism  Powers clearly divided, states actually do most of the governing, but national gov top dog National Gov State govs

20.   1930s to present day = Marble Cake Federalism (cooperative federalism)  Cooperating on policy together  Interstate highway system  Initial $ from fed, state implements and maintains program  Federal gov’s role is expanding  Courts generally rule in favor of Supremacy Clause and Necessary and proper clause and against the 10 th amendment Marble cake…

21. Fiscal Federalism  The pattern of spending, taxing, and providing grants in the federal system  The cornerstone of the national government’s relations with state and local governments

22.  Fiscal Federalism  Grants = given to state and local gov  The Grant System: Distributing the Federal Pie  Categorical Grants: federal grants that can be used for specific purposes; grants with strings attached  Project Grants: based on merit  Formula Grants: amount varies based on formulas  Block Grants: federal grants given more or less automatically to support broad programs

23.  Fiscal Federalism  The Scramble for Federal Dollars  $460 billion in grants every year  Grant distribution follows universalism—a little something for everybody.  The Mandate Blues  Mandates direct states or local governments to comply with federal rules under threat of penalties or as a condition of receipt of a federal grant.  Unfunded mandates  Civil Rights Act 1964  Americans with Disabilities Act