Federalism is…

A system of government in which political authority is divided between a national (or federal) government, and its political subdivisions (such as states).

Federalism is…a system where national and state governments each have defined powers, with some being shared by both and some being denied to both.

Governments in the U.S.

National and State Powers

National Powers State Powers

Concurrent Powers

National and State Powers Directions: Place each power in the correct area of the Venn diagram.

A. Coin moneyB. Borrow moneyC. Establish and maintain courtsD. Levy and collect taxesE. Regulate trade and business F. within a stateG. Issue driver’s licensesH. Draft people into the armed forcesI. Register votersJ. Define crimes and set punishmentsK. Issue marriage licensesL. Declare and conduct warM. Control immigrationN. Grant divorces

O. Conduct electionsP. Regulate alcoholic beveragesQ. Pass license requirements for

professionals (lawyers, teachers, etc.)R. Establish and regulate public schoolsS. Regulate interstate and foreign tradeT. Admit new statesU. Claim private property for public useV. Conduct foreign relationsW. Grant adoptionsX. Ratify amendments to the ConstitutionY. Manage the postal serviceZ. Restrict prostitution

Distribution of Power

The Roots of the Federal System

Under the Articles, U.S. was a confederation

Did not want a unitary system like Great Britain

Chose a federal system instead

National and state governments share power—

they both derive their powers from the people

National Powers

Enumerated powers set out in Article 1, Section 8

Includes coining money, providing army, creating courts

Necessary and proper clause is basis of implied powers

Article VI includes the supremacy clause

Federalism & the Constitution

The Federal Government has

expressed powers specifically granted in the Constitution (tax, regulate commerce,

declare war, etc.)

The Federal Government has

implied powers from the necessary & proper

clause or “elastic clause” (ex: create a

national bank)The 10th Amendment

reserves powers to the states (ex: education, law enforcement, etc.)

The U.S. Constitution is the supreme law

of the land (Supremacy Clause)

State Powers

Tenth Amendment deals with powers not enumerated

Reserves rights for states or the people

Includes regulation for health, safety, and morals

Other powers are concurrent, or shared

Other powers are expressly denied

Relations Among the States

States must give full faith and credit to other states

Privileges and immunities clause guarantees equality

States are required to extradite criminals

States work together through interstate compacts

If someone gets married in NY and then moves to VA are they still married? Explain.

The Marshall Court

Helps to define balance of state-federal power

McCulloch v. Maryland (1819)

Concerns states’ power to tax the national government

Gibbons v. Ogden (1824)

Concerns Congress’ power to regulate commerce

Defined by two separate governments—both sovereign and co-equal.

Narrow interpretation of the Constitution

Each level of government has its own sphere of responsibility

State have greater role and powers (ex: public education, race relations)

Federal government only has jurisdiction if clear expressed in the Constitution (ex: coin money, foreign affairs)

Characterized as layer-cake federalism.

Dred Scott ruled that Congress cannot regulate slavery

Federal government grows and changes after Civil War

Sixteenth and Seventeenth Amendments set stage.

Dual Federalism, 1800-1932

What does dual federalism have in common with a layer cake?

Cooperative Federalism, 1932-80

Cooperative federalism defined by collaboration

National government clearly supreme over the states with wide interpretation of the “necessary and proper clause” and “supremacy clause”

Characterized as marble-cake federalism

Result of New Deal recovery efforts, 1930s

Also seen in Great Society programs, 1960s

Through the use of categorical grants, the federal government intervenes or assists in some areas traditionally left to the states (ex: education, health care, civil rights) Welfare of citizens! (TVA, CCC, WPA, etc.) Clean Air Act Individuals with Disabilities Act Brown v. Board of Education

What does cooperative federalism have in common with a marble cake?

New Federalism, 1980-2001 New Federalism defined by return to state power, known as “Devolution

Revolution”

President Ronald Reagan was a pioneer; also seen in 1990s Republican Revolution

Perhaps a return to dual federal system?

Use of less restrictive block grants

Passage of law attempting to end unfunded mandates

US v. Lopez, Printz v. US, US v. Morrison

all decided by Rehnquist court in favor of state power

President George W. Bush departs from this trend

Prompted by 9/11 and the use of preemption

Supreme Court and Federalism

Court has played significant role in defining

federalism

Idea of “new judicial federalism.”

Issue areas such as sovereign immunity and

abortion

Rehnquist Court initially seemed pro-states

Uncertainty exists about direction of Roberts

Court—more recent decisions are mixed

Supreme Court and Federalism

Access to Abortion

The Challenges of Modern Federalism

New York, September 2001

New Orleans, August 2005

Post 9/11 Federalism

Increasing power of the national government— a departure from New Federalism?

– No Child Left Behind--took power from states to determine educational policy

– Patriot Act--took freedoms away from individuals to protect against future terrorist attacks

– Creation of the Department of Homeland Security--umbrella agency meant to create more centralized control

“Another Perfect Storm”

Total Preemption• In laws contradicting

what states have already legislated, the national government exercises total preemption

• A national moratorium on taxing internet commerce would totally preempt many laws that already exist in particular states

Partial Preemption

• The national government sets the requirements but makes states deal with the fine points

• No Child Left Behind—each state creates its own test

• Clean Air Act—each state figures out how to enforce the standards

• A huge source of so-called unfunded mandates

Unfunded Mandate Reform Act of 1995

• Part of the Republican Revolution

• If the national government requires states to do something, they have to provide the $$$

• Has been largely ignored

• States have said that NCLB is an unfunded mandate; some have filed suit