Chapter 3 FEDERALISM

Theories and Metaphors Federalism: the division of power between a central government and regional governments

Systems of Government Federal: Central and state/local governments share power in government Unitary: State/local governments derive all authority from a strong national government Central government is superior Confederation: National government derives its powers from the states State/local governments are superior

Enumerated Powers Exclusive powers of the national government via Article I Section 8 Coin money Declare war Commerce clause Provide for a national defense

Delegated Powers Exclusive powers of the national government via Article I Section 8, Article II and III Powers granted to Congress President’s powers Judiciary powers

Reserved Powers Article I: set the “Times, Places, and Manner for holding elections.” Article IV also provides each state a “Republican Form of Government Tenth Amendment Reserve or Police Powers Public Health Safety Intrastate commerce

Concurrent Powers Powers shared by national and state governments Borrow money Establish courts Make laws Collect taxes

Denied Powers under the Constitution Bill of attainders: Laws declaring an act illegal without a judicial trial Ex Post Facto laws: laws that punish for actions that occurred before such actions were made criminal Cannot suspend the writ of habeas corpus: protects against illegal imprisonment

Necessary and Proper Clause Article I, Section 8 Gives Congress the authority to pass all laws “necessary and proper” to carry out the enumerated powers specified in the Constitution. (a.k.a. elastic clause) Implied powers: powers derived from enumerated powers and the necessary and proper clause but not found in the Constitution.

Commerce Clause Listed in Article I, Section 8 Enumerated power giving Congress the power to regulate commerce between states, foreign countries, and Native American tribes Interstate commerce Has resulted in a growth of the national government’s power Regulation of segregation (Heart of Atlanta Motel v. U.S.) Regulation of navigation (Gibbons v. Ogden)

Metaphors for Federalism

Dual Federalism Dual Federalism (layer-cake federalism): a view that holds the Constitution is a compact among sovereign states, so that the powers of the national governments and the states are clearly differentiated The national government rules by enumerated powers ONLY States tend to have more power via 10th Amendment

Dual federalism The layer-cake approach (dual federalism) Developed under the leadership of Chief Justice Roger B. Taney (1835-1863) and lasted until the New Deal Dred Scott v. Sandford (1857): Congress lacked the authority to ban slavery in territories Missouri Compromise was unconstitutional Came to an end with the Great Depression, leading to an increase in federal power

Dual Federalism The following have been used to increase the power of the state government relative to the nation: Block Grants: targeted money for general purpose “Few strings attached” Gives states greater discretion on how to spend the money Tenth Amendment Reserves power to the states and people

Cooperative Federalism Cooperative Federalism (marble-cake federalism): a view that holds that the Constitution is an agreement among people who are citizens of both state and nation Tends to favor national government (supremacy clause) National and state agencies typically undertake government functions jointly rather than exclusively

New Deal FDR creation of government programs to stimulate economy Many programs overturned by Supreme Court “Court-packing”: FDR threatened to increase SC justices from 9 to 13.

Cooperative Federalism The following are features of the Constitution which have led to a growth in the power of the national government: Necessary and Proper Clause Supremacy Clause Commerce Clause

New Federalism Ronald Reagan takes office in 1980 Devolution Returning some of the responsibilities assumed by the federal government back to the states Unfunded Mandates Reform Act Restricted the number of unfunded mandates Welfare Reform Act of 1996 Restructured the welfare system to return much authority and distribution of welfare dollars to the states

Federal vs. State Powers Increases the power of the federal government relative to the states: 1) Commerce Clause: allows Congress to regulate interstate commerce 2) Categorical Grants: States must spend money in accord with the national government’s wishes 3) Unfunded Mandates: Commands from the national government to the states with no money provided

Federal vs. State Powers 4) Selective Incorporation Supreme Court has applied Bill of Rights to the states by means of the 14th Amendment 5) Federal Mandates: Command from the national government to the states which requires the state undertake a national government function Civil Rights Act (1964) Prevented all forms of discrimination based on race, color, religion, sex, or national origin Clean Air Act (1970) $200-300 million in costs on states and localities Americans with Disabilities Act (1990) Cities and states had to make their buildings wheelchair accessible $1 billion in costs on states and localities Unfunded mandate

Key Federalism Court Cases ALL cases strengthened the power of the NATIONAL government Marbury v. Madison (1803) Established Judicial Review McCulloch v. Maryland (1819) Denied Maryland the right to tax the Second National Bank of the United States Gibbons v. Ogden (1824) interstate commerce included the power to regulate navigation of the New York waters. Heart of Atlanta Motel v. United States (1964) interstate commerce included the power to regulate private business. Obergefell v. Hodges State laws prohibiting recognition of same-sex marriage violate the United States Constitution (judicial review)

Key Federalism Court Cases Cases that strengthen the power of STATE governments Dred Scot v. Sandford (1857) Congress lacked the constitutional authority to ban slavery in the territories Strengthens powers of the states Missouri Compromise of 1820 overturned U.S. v. Lopez (1995) Gun Free School Zone Act 1990 was unconstitutional, commerce clause did NOT apply to guns or education

14th Amendment and Federalism Due Process Clause Our individual protections found in the Bill of Rights cannot be taken away by the states (incorporation) without due process Extends due process to the states Citizenship Clause “Any person born or naturalized in the United States is a citizen” States must recognize all people born or naturalized in the U.S. as citizens Equal Protection Clause As citizens of the United States, states cannot discriminate against people/groups of people