2 Federalism: A Comparative Perspective Three forms of Government OrganizationUnitary GovernmentCentralized, All power at the centerFederal GovernmentSome power at the centerSome power in sub-units (States)Confederal Government (Confederation)Decentralized, All power in the sub-units
3 Federalism: A Comparative Perspective Unitary GovernmentExamples: England, France, ChinaStrong CentersDelegated power to counties etc. can be withdrawnGood at coordination and solving local tyrannyPoor at addressing special local needsPoor at protecting against a central tyrannyNo place for experimentation
4 Federalism: A Comparative Perspective Confederal Government (Confederation)Decentralized, All power in the sub-unitsReal examples: US under Articles of Confederation, UN, NAFTA, European Union.Ineffective at national coordinationCan’t resolve tyranny at the local levelGood at dealing flexibly with local needsProvides local laboratories for experimentsBlocks a central tyranny
5 Federalism: A Comparative Perspective Federal Government (the hybrid model)Examples: USA, Canada, Switzerland, India, Mexico, GermanySome power at the centerSome power in sub-units (States)Division of power spelled out in the structure and can’t be changed by the central authorityModerately good at national coordinationModerately good at local needPartially blocks central tyrannySlowly overcomes local tyrannyCreates local laboratories for experimentation
7 Federalism: A Comparative Perspective FEDERALISM IN THE US:Expressed Powers of the National GovernmentImplied Powers of the National GovernmentNecessary 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 StatesIMPLIED: "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 CorporationsPowers Reserved to the States-Regulate Intrastate Commerce-Conduct Elections-Provide for Public Health, Safety, and Morals-Establish Local Governments-Ratify Amendments to theFederal 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 HabeasCorpus-Make ex post facto laws-Subject office holders to areligious testPowers denied both Federal and State Government-Tax exports from anystate-Violate the Bill of Rights-Change State Boundaries-Suspend the right ofHabeas Corpus-Make ex post facto laws-Subject office holders to areligious testPowers Denied to the States-Tax Imports or Exports-Coin Money-Enter into Treaties-Impair Obligations ofContracts-Abridge the Privileges orImmunities 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: 1996No 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 BankOutcome: Feds win, a National bank is constitutionalJustification: “Necessary and Proper” clause and “Supremacy” clauseArticle 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 HarborOutcome: Feds win: states must recognize licenses issued by federal governmentJustification: “Interstate Commerce” clause and “Supremacy” clauseInterstate 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 FederalismWickard V. Filburn 1942Re: Grain Production in OhioIs this issue properly Interstate commerce or Intrastate commerce?A: interstate B: IntrastateOutcome: Feds win. Farmers crops can be regulated by Federal governmentJustification: 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 clientsOutcome: civil rights laws can be imposed by the federal government even on private businessesJustification: Interstate Commerce and Supremacy clauses
17 Defining Federalism CIVIL War Amendments: Especially 14th Defines CitizenshipGuarantees:Privileges and Immunities from State violationDue Process from State violationEqual Protection from State violationApplies most of the Bill of Rights to States, expanding Federal RoleExpansion of Federal powers
18 Other Stuff… Federal Mandates: Orders Grants: Categorical-formula GrantsProject GrantsBlock Grants