Federalism Today Practice of Cooperative Federalism

What is federalism?

Organization of Power  Unitary System  Central government make important decisions.  Lower levels of government have little power.  Lower levels Implement decisions  Federal System  Central government shares power with lower levels of government.

Federalism in the Constitution

National Power  Article I, Section 8  Expressed Powers  17 powers given to National Government  Collect taxesRegulate Commerce  Coin moneyDeclare War  Implied Powers  Necessary and Proper Clause  Enables Congress “to make all Laws which shall be necessary and proper in carrying out the other laws”

State Power  10 th Amendment  Reserved Powers  Powers not delegated to the national government or prohibited to the states are “reserved to the States respectively, or to the people (9 th Amendment).”  Laws of Health, education, safety, morals

“Play nicely, children.”  National / State Interaction  Concurrent Powers: Authority to govern a particular area is shared by national and state government  Collect taxes, make laws, create and maintain legal system  Conflict favors National Government  Article VI, Supremacy clause:  The Constitution, national laws, and treaties are the “supreme law of the land”

Local Government  Not mentioned in the Constitution  Creations of State Governments  Developed to implement State policy

DUAL FEDERALISM COOPERATIVE FEDERALISM STATE NATIONAL “Layer Cake” Federalism“Marble Cake” Federalism Intergovernmental cooperation and sharing have blurred a once- clear distinguishing line, making it difficult to say where the national government ends and the state and local governments begin.

Blurring the Line 1. Necessary and Proper Clause 2. Commerce Clause (controls all but intrastate) 3. Supremacy Clause 4. Grants-in-aid (quid pro quo) 5. Preemption (setting a precedent) 6. Unfunded Mandates (school testing, food, NCLB)

Necessary and Proper Clause  Constitution provides Congress with the power to make all laws “necessary and proper” to carry out its expressed powers.  Also known as the “Elastic” Clause

Commerce Clause The Constitution gives Congress the power “to regulate commerce with foreign nations, and among the several States and with the Indian tribes.”

Supremacy Clause  Article VI of the Constitution stating that laws passed by the national government and all treaties are the supreme law of the land.

National Government State and Local Government Use funds for purposes defined by national government GRANTS-IN-AID

Grants  Programs through which Congress provides money to state and local governments on the condition that the funds be employed for purposes defined by the federal government.

Blurring the line?  How do grants cause state governments to lose some of it’s traditional authority?  Which type of grant allows states to retain more authority?

Blurring the Line  Preemptions  Principle that allows the national government to override state or local actions in certain policy areas

Alberto Gonzales v. Raich, June 6, 2005 Oh…I’m so sick. Everything hurts. I could stand this day if I could only numb the pain. Your California State Government is here to serve. We will legalize marijuana for medicinal purposes. Thanks, that will help. Hold-up! I don’t like what is going on here. Sorry, National government has no authority to regulate medical practices under the Constitution. Thus, the situation is reserved for states by the 10 th amendment I know I can do something to stop this from happening! I’ll apply the Commerce Clause plus the Necessary and Proper Clause and then hit them with the good ol’ Supremacy Clause I regulate commerce among the states. And there shall be no buying and selling of marijuana between the states. That’s fine. We will just sell it in California. Hmm… Nope, that won’t work because people will come from other states to buy marijuana and then you have interstate commerce. Then I will just grow my own so that there is no buying and selling. If there is no commerce, you can’t regulate! Oh yes I can! I think it is necessary and proper to have you involved in commerce in order for me to fully “regulate commerce.” If you are growing your own medicine, then you are not buying medicine from US companies; therefore, you hurt commerce. It is necessary that I stop you from doing that… and I can because of the necessary and proper clause. What about my state government! What happens to it’s law allowing for marijuana use? It is erased from the law books! The law of the national government preempts the law of the state government because of the Supremacy clause. Since my law is written to fulfill the Constitution, and the Constitution is the Supreme law of the land…I win.

Blurring the Line  Unfunded Mandates  Conditions for receiving grants that impose costs on state and local governments Why do we have to take these stupid STAAR tests? Because the national government requires states to give them in order to receive money for education. Who pays for the testing? State governments. So in order to get money, states have to spend money and do what the national government wants. That seems unfair.