1. The division of power

2. Why Federalism is important  AP Test gives Separation of powers 15% of its time: as much as the Constitution  The powers allotted to state and federal governments has changed considerably over time  The history of our government is a history of conflict over sovereignty

3. AP Key terms  Federalism: The system of government in which a constitution divides power between a central government and regional government  Sovereignty: Supreme and independent political authority  This includes all of the key powers expressed by the three branches

4. Why Bother with the States at all?  Because history matters!  States that had powerful executives such as New York refused to surrender too much power to federal government  States become the primary agents when it comes to dividing power and jurisdiction  People at the time identified primarily with state first and nation second

5. Federalism: Who Decides What?  Constitution recognizes two sovereigns  It grants few expressed powers to the Federal government and reserves the rest to the states  However, the Constitution’s implied powers specifically through Article I, Sections 8-10 gives Congress the power to expand  Especially when paired with Article VI’s supremacy clause  The history of the U.S. has been the history of the slow expansion of Federal power

6. Powers of the State Government  10 th Amendment to the Constitution grants states reserve powers: all powers not specifically given to the federal government are reserved to the states  States have the power to define private property  State laws against trespass define who and who isn’t entitled to use a piece of property

7. Examples of reserved power  2008: Columbia v. Heller: SCOTUS ruled that D.C.’s restrictive handgun laws made owning a gun (protected by the 2 nd Amendment) impossible  Court ruled that since D.C. was a federal district, the 2 nd Amendment directly applied  This was the first ruling to actually spell out that owning a gun was a right  Previously, some states attempted to use the “militia” portion of second amendment to ban private gun ownership  End Result: 2 nd Amendment was only to be applied federally, maintaining state power

8. Reserved Power cont.  2010: McDonald v. Chicago  Court struck down a similar handgun ordinance in Chicago  2 nd Amendment now trumps state regulations on property  State power reduced, Constitution strengthened.

9. Police Power  The state’s authority to regulate things like gun ownership is commonly referred to as police power  Definition: The power reserved to governments to regulate the health, safety and morality of its citizens  How and who enforces specific police powers is constantly in flux

10. Concurrent powers  States also share concurrent powers with the national government.  Definition: Authority possessed by both state and federal governments  Examples: chartering banks, granting or denying licenses to engage in businesses, regulating labor can all affect interstate trade

11. Obligations  Constitution creates obligations among the states  Article IV, Section 1: The Full Faith and Credit Clause states must honor the actions and decisions of other states  Current Controversy: The Defense of Marriage Act (DOMA)

12. Equal Protection  Article IV’s comity clause  Provides that citizens enjoying the privileges and immunities of one state are entitled to similar treatment in other states  In other words, states may not discriminate against citizens of other states  Example: 1978, Hicklin v. Orbeck: SCOTUS ruled that Alaska could not give preference to in-state workers over out of state workers to help build its oil pipeline

13. Local Governments  Local governments have no status in the Constitution, yet occupy a very important place in American life  State Constitutions typically delegate power to local governments especially large cities  The ability of local governments to elect their own governments and control their own ordinances is known as home rule

14. The slow creep: growth of Federal Power  Prior to the 1930s America’s government was known as dual federalism  Power split between States and Federal government with most of the power in the hands of states  Federal government generally confined itself to expressed powers  Federal government rarely had contact with the lives of regular citizens prior to the prohibition amendment (18)  Developed from local Blue Laws

15. Early expansions of power  Commerce Clause becomes a major vehicle for Federal Power  Example: McCulloch v. Maryland

16. McCulloch v. Maryland, 1819  At Issue: The Congress created a National Bank over the protest of President Jefferson, designed to provide loan guarantees, monitor currency, and exchanges  Maryland levies a tax on all National Bank transactions  Tax is meant to be destructive  Congress claims that Maryland has no authority to tax a Federal Bank

17. Court’s Decision  SCOTUS finds that Congress was justified under the Commerce Clause to create a National Bank  Argues Maryland has no right to collect money from a Federal (and therefore paid by everyone’s taxes) institutions based on the Supremacy Clause  Chief Justice Marshall “The Power to Tax is the Power to Destroy”

18. Gibbons v Ogden, 1824  New York gives the Fulton Steamboat Company exclusive right to operate a ferry between New York and New Jersey  Aaron Ogden, and independent contractor gets a license from the company to operate his own ferry  Thomas Gibbons a disgruntled partner of Ogden goes to the Federal government for a license when he can’t get one from New York  New York argues that Gibbon’s license is meaningless

19. Court Decision  Court Argues that, as this is a matter of interstate commerce, New York has no right to decide who gets to compete and who doesn’t for traffic between New York City and New Jersey

20. Wabash and the Pacific Railway Company v. Illinois  The Pacific and Wabash railway companies give rates that favor long haul, big businesses and discriminate against small farmers  Illinois passes a state law forcing a flat rate for all railroad traffic  The rail companies go to the Court arguing this is unfair

21. Court Decision  States do not have the right to regulate interstate commerce like railroads. This amounted to Illinois discriminating against other states  In response, Congress passes Interstate Commerce Act, creating the (ICC) Interstate Commerce Commission, the first federal regulatory agency.

22. End Result  These cases, while extremely important represent exceptions to the rule  Court overwhelmingly rules in favor of the states over the federal government.  Well into the 20 th Century, the court takes a strict interpretation of the Interstate Commerce Clause.

23. Cooperative Federalism: Grants- in-Aid  Relationship between states and federal government goes from an adversarial relationship to one of a partnership in which the federal government increasingly looks like the bigger brother

24. The Carrot and Stick  Grants in aid: A general term for grants given by Congress to state or local governments  Federal grants make up an increasing.  Carrot in the form of increased funding  Stick in that the government can withhold money if states don’t meet their demands/targets  Categorical Grants-in-aid  Grants targeted at specific projects such as education, transportation and public health  1950: total 2.3 billion, 2008: 450 billion

25. Example of Grants in Action  National Speed limit:  Congress did not have the authority to tell states what the speed limits on their country roads should be  Instead they bribed states with large grants tied to specific speed limits  By the 1990s Congress allowed some states to go up to 65 or 70 and still retain the highway grants if they met other targets like emissions.

26. Ways states can influence the grant process  Project Grants: Grant programs in which state and local governments submit project proposals for grant money to the Congress. This is typically a one-time cash injection for large projects like bridges, tunnels, or subway systems  Formula grants: Ongoing money for state projects determined by a formula submitted by the state and approved by Congress. Typically for long-term problems like poverty or education

27. The 1960s: Regulated Federalism  By the 1960s the Federal Government became much more aggressive in threatening to withhold grant money  Grants were conditional on a much broader range of conditions including pollution, civil rights, workplace safety, etc.  Often additional requirements are placed on existing grants, a process known as an unfunded mandate

28. 1990s onward  During the 1990s, Republican Congress under Newt Gingrich passed the Unfunded Mandates Reform Act (UMRA)  Included a “stop look and listen” mandate that allowed Congressmen to use Point of Order to stop mandates that required funding from states of over 50 million dollars

29. The Revenge of the Unfunded Mandate  This has not stopped several unfunded mandates from passing  No Child Left Behind Act (2002) required massive increases in state education funding for testing, and accountability  Bush’s Health Care Reform Act included nearly 800 billion in prescription drug coverage reforms that were unfunded.  The ACA (Obamacare) requires states to set up healthcare exchange websites if they wish to receive their current level of Medicare funding

30. The New Federalism  In the last two decades, states, with the help of conservative politicians have reasserted some power over the Federal Government  Reagan and H.W. Bush championed block grants: Federal funding giving to states to pay for goods and services with few strings attached.  Clinton’s welfare reform placed much of the authority for welfare and unemployment distribution in the states a process known as devolution

31. The Referees  The SCOTUS serves as the ultimate referee in cases between state and federal governments  The way a particular court interprets the 10 th Amendment can completely change state/federal relationship

32. example  United States v. Lopez, 1995  At issue: The United States Congress passed a law limiting the possession of handguns within close proximity of a school  SCOTUS struck down the provision stating that it exceeded Congress’s authority under the Commerce Clause at that the 10 th Amendment made handguns and schools a state issue  First time since New Deal the court limited the power of Congress in this way

33. Beyond the Constitution: How Separation of Powers continues to change  Separation of powers goes beyond merely those expressed in the Constitution  One of the traditions of separation of powers has been the rationality principle: what is rationally expected of a branch to be able to maintain its position in the balance  Example: executive privilege: President has the power to keep certain national security items secret even from Congress

34. The Court as the Decider  Court’s assertion that it is the supreme arbiter of Constitution comes from Marbury v. Madison, 1803  Court asserts its authority to arbitrate whether or not a law is Constitutional.  Court assumes prerogative to decide standing, issue, and mandate changes if necessary, known derogatively as “legislating from the bench”

35. The States and Fed as Deciders  Only a few recorded cases where Federalist precedent was set by direct state or government action versus the Constitution or power of the court.

36. Kentucky and Virginia Resolutions  1788, 1789 Kentucky and Virginia legislatures declare the Alien and Sedition Acts to be unconstitutional and declare that they will not enforce them.  Successfully unchallenged because it was supported by strong opposition in the Federal Government, Introduced concept of “nullification”

37. Nullification Crisis  Congress imposes tariff to protect Northern industries but hurts Southern trade  S. Carolina declares that it can nullify the law based on precedent of V and K Resolutions  President Jackson ends the debate when he threatens to send in the army  Further solidified afterwards by McCullough V. Maryland.

38. Conclusion  The federal system provides critics of the American system of government with a lot of ammunition because it disperses power and confuses decision making  The federal system, however is designed that way in order to prevent tyranny