FEDERALISM

CH. 3

• Federalism: a system of government that divides power and sovereignty over a territory between two or more separate governments

• Multiple levels of government make decisions for one population

• The United States has three main tiers:• national government (1)• state governments (50)• local governments (87,000)

DEFINING FEDERALISM

“Laboratories of Democracy ”

• Combined the features of a confederacy with features of a unitary government

• DIVIDE THE POWER!• Single most persistent source of

political conflict = national government and states– “national interest” v. “states’ rights”– Loose interpretation v. strict

interpretation–Who has the right to legislate?

CONSTITUTIONAL BASIS

• Federalism decentralizes power: If no one person holds more power than another, than there is no room for abuse of that power. (Madisonian principle- Federalist #51)

• Increased:– Political Participation/Public Involvement– Access/Decisions

DECENTRALIZATION

• Unitary Governments: all power resides in the central government

• Confederation: national government is weak and most or all power in hands of components (A of C)

IN COMPARISON

– Separation of powers to safeguard liberties

– "Ambition must be made to counteract ambition.”

– The only way to counteract the effects of factions is to have more factions

FEDERALIST #51

- Delegated Powers (enumerated powers) – powers given to Fed gov’t by Constitution

- Reserved Powers – those not delegated to the national gov, reserved for states

- Concurrent Powers – shared powers- Prohibited Powers – denied from both

POWERS OF GOVERNMENT

• A tax is placed on products coming to the US from foreign countries

• Money is given to repair state roads• A new stamp is designed to commemorate the

signing of the Constitution• The government decides the border between

two states will be a river• The value of money is established• Every driver of an automobile must have a

license• There are rules and procedures for becoming

an American citizen• Courts are established

Enumerated(delegated), reserved or concurrent

• 10th Amendment: Those powers not delegated at National government are reserved to the states

RESERVED POWERS

•Regulate trade within the state. •Provide welfare within the state. •Provide for the public health. •Regulate commerce within the state. •Determine qualifications of voters. •Establish a public school system. •Provide the public safety. •Conduct elections. •In charge of marriage laws. •Establish and maintain schools.

DENIED POWERS

"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)

IMPLIED POWERS

Background• Bank of the US operated in Maryland• Maryland did not want BoUS to operate in state,

competition unwanted, unfair• Maryland taxed the bank to put it out of business• McCulloch, BoUS employee, refused to pay the state

tax• Is a Bank of the US Constitutional?YES. The national gov’t has certain implied powers that

go beyond delegated powers. US needs a national bank for borrowing, lending, holding minted money, all of which are delegated powers. “The power to tax is the power to destroy”

Can a state tax the federal gov’t?NO. The federal gov’t is supreme. Since the BoUS is

constitutional, only the feds may tax it.John Marshall reaffirmed Supremacy

Clause and Elastic Clause -National (Federal) Gov gets STRONGER

McCULLOCH V. MARYLAND (1819)

• Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power - To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

• Congress has used the elastic clause to stretch this power

• What is commerce? “Buying and selling of goods and services.”

COMMERCE CLAUSE

• BACKGROUND• Ogden received a state licensed monopoly to

run a ferry across the Hudson River• Gibbons also saw the potential of the traffic

between NJ and NY and obtained a federal license.

• Ogden sued saying he had the valid state license, even though Gibbons had US license

Result – Gibbons won• Expanded national power in all areas of

commerce law because nation overruled state in interstate trade issues

• Fed Gov’t gets STRONGER

GIBBONS V. OGDEN (1824)

• Commerce clause quiz!!!• 1995 – “Gun Free School Zone” law

banned possession of a firearm within 1000 feet of a school, 12th grader Lopez carried a gun on to the property

• Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce”

• LIMITED National government power

US V. LOPEZ (1995)

OPPOSING PERSPECTIVES Liberal view – national

government was superior and leading force in political affairs, since the people created it and its laws were the “supreme law of the land”

• Conservative view – believed that “the people” were the ultimate sovereigns, and since the Constitution was a result of agreement among the states, the states were supreme over the national gov.

Continuing dispute over division of power:Continuing dispute over division of power:Dual Federalism Dual Federalism

supremacy within own spheressupremacy within own spheresCooperative FederalismCooperative Federalism

Expanded role of national governmentExpanded role of national government Creative federalism – New Deal, Great SocietyCreative federalism – New Deal, Great Society

New Federalism New Federalism Financial power shift from federal to state Financial power shift from federal to state

control (fiscal federalism)control (fiscal federalism)

HISTORICAL FEDERALISM

• NatNat’’l and the l and the states remain states remain supreme within supreme within their own spheres. their own spheres. National and state National and state DO NOT overlapDO NOT overlap– Federal Federal

government has government has jurisdiction only if jurisdiction only if the Constitution the Constitution clearly grants suchclearly grants such

– Layer cake Layer cake federalismfederalism

DUAL FEDERALISM

• NatNat’’l and state l and state governments share governments share responsibility for responsibility for public policies; public policies; national supremenational supreme– Share CostsShare Costs– Federal GuidelinesFederal Guidelines– Shared AdministrationShared Administration

• Marble cake Marble cake federalismfederalism

COOPERATIVE FEDERALISM