FEDERALISM:

The relationship between state and federal powerHow has federal power expanded over time?

Who has power?

Me Me and My Parents

My Parents

Create this chart:

State Powers(Reserved)

Shared Powers(Concurrent)

Federal Powers(Expressed or Enumerated)

10th Amendment Article I, Section 8 in the Constitution

Place the powers below on your chart.

Collect TaxesCollect Taxes Regulate MarriagesRegulate Marriages Regulate Interstate Regulate Interstate

CommerceCommerce Coin MoneyCoin Money Charter Local Charter Local

GovernmentsGovernments Lend and Borrow Lend and Borrow

MoneyMoney Registration and Registration and

VotingVoting

Raise an ArmyRaise an Army Enforce Criminal Enforce Criminal

CodesCodes Regulate Regulate

Professional Professional StandardsStandards

Declare WarDeclare War Administer Administer

Drivers’ Licenses Drivers’ Licenses Establish CourtsEstablish Courts

Reserved Powers Derived from the Tenth Amendment

Regulate MarriageRegulate Marriage Enforce Criminal CodesEnforce Criminal Codes Charter Local GovernmentsCharter Local Governments Registration and votingRegistration and voting Regulate Professional StandardsRegulate Professional Standards Administer Drivers’ LicensesAdminister Drivers’ Licenses Are there more?Are there more? Absolutely!Absolutely!

Expressed Federal PowersArticle I, Section 8 of the

Constitution Regulate Interstate Commerce Regulate Interstate Commerce (the (the

commerce clause)commerce clause) Coin MoneyCoin Money Raise an ArmyRaise an Army Declare WarDeclare War

Article I, Section 10: prohibits the states from certain Article I, Section 10: prohibits the states from certain things (making treaties, raising armies, etc.)things (making treaties, raising armies, etc.)

Article VI: Supremacy clause (laws of the national Article VI: Supremacy clause (laws of the national government shall be the supreme law of the land)government shall be the supreme law of the land)

Concurrent Powers Are Shared

Collecting taxesCollecting taxes

Lend and Borrow moneyLend and Borrow money

Establish CourtsEstablish Courts

State Powers(Reserved)

Shared Powers(Concurrent)

Federal Powers(Expressed or Enumerated)

These come from the 10th Amendment

Article I, Section 8 in the Constitution

Regulate MarriageEnforce Criminal CodesCharter Local GovernmentsRegistration and VotingDrivers’ Licenses Regulate Professional Standards

Collecting TaxesLend and Borrow MoneyEstablish Courts

Regulate Interstate CommerceCoin MoneyRaise an ArmyDeclare war

Elastic Clause: Implied PowersArticle I, Section 8, clause 18

Congress shall have the Congress shall have the powerpower . . . to . . . to make all Laws which shall be make all Laws which shall be necessary necessary and properand proper for carrying into Execution for carrying into Execution the foregoing Powers and the foregoing Powers and all other all other Powers vestedPowers vested by this Constitution in the by this Constitution in the Government of the United States, or in Government of the United States, or in any Department or Officer thereof.”any Department or Officer thereof.”

Does this clause expand or reduce Does this clause expand or reduce federal power?federal power?

Expands!

Because it’s elastic!

Using an expressed power, justify the implied power of

Congress to: See Implied Powers sheetSee Implied Powers sheet Working in small groups, decide Working in small groups, decide

what expressed power gives what expressed power gives Congress the implied power listed Congress the implied power listed on your sheet.on your sheet.

. . .THE ELASTIC CLAUSEThe Supreme Court interprets . . .The Supreme Court interprets . . .

McCulloch v. Maryland (1819)

Hamilton proposed establishing a Hamilton proposed establishing a national bank (essential for the national bank (essential for the country’s economic development)country’s economic development)

Jefferson opposed the bank (b/c Jefferson opposed the bank (b/c favored elites)favored elites)

Does Congress have the power to Does Congress have the power to establish a national bank?establish a national bank?

If so, could a state tax the bank?If so, could a state tax the bank? Yes, and No. Says the Marshall CourtYes, and No. Says the Marshall Court

Marshall’s Decision:

We the people (not we the states)We the people (not we the states) Argument for national sovereignty Argument for national sovereignty

The N & P clause allows for any legislation The N & P clause allows for any legislation where “the ends are legitimate and the where “the ends are legitimate and the means not prohibited”means not prohibited” Therefore, the bank is Therefore, the bank is constitutionalconstitutional

The power to tax is the power to destroyThe power to tax is the power to destroy Therefore, Maryland’s tax is Therefore, Maryland’s tax is unconstitutionalunconstitutional

Why it matters:

McCullochMcCulloch paved the way for a paved the way for a broad interpretation of the broad interpretation of the necessary and proper clause.necessary and proper clause.

It’s so stretchy it’s “elastic”It’s so stretchy it’s “elastic” This grants the federal This grants the federal

government a tremendous amount government a tremendous amount of powerof power

THE COMMERCE CLAUSEThe Supreme Court interprets:The Supreme Court interprets:

Gibbons v. Ogden (1824)

New York law granted a monopoly New York law granted a monopoly to Ogden for operating a ferry to Ogden for operating a ferry between New York and New Jerseybetween New York and New Jersey

But Gibbons had a steamboat But Gibbons had a steamboat license granted by Congresslicense granted by Congress

Marshall Court said that the Marshall Court said that the Congress had power to regulate Congress had power to regulate commerce among the states and commerce among the states and federal rules trump statefederal rules trump state

Trend:

For the most part, the Commerce For the most part, the Commerce Clause has greatly expanded Clause has greatly expanded Congress’ power.Congress’ power.

Modern Interpretation:

Congress may regulate channels Congress may regulate channels of interstate commerce – including of interstate commerce – including highways, waterways and airhighways, waterways and air

Congress can regulate people, Congress can regulate people, machines, and things used in machines, and things used in carrying out commercecarrying out commerce

Congress can regulate commercial Congress can regulate commercial activities that have a large effect activities that have a large effect on commerceon commerce

US v. Lopez (1995)

Congress passes a law making it a Congress passes a law making it a federal crime to carry guns in a federal crime to carry guns in a school zoneschool zone

Lopez was convicted of just that, Lopez was convicted of just that, and challenged the lawand challenged the law

Supreme Court, for the first time Supreme Court, for the first time in decades, ruled that Congress in decades, ruled that Congress had exceeded it’s commerce had exceeded it’s commerce clause authority b/c carrying a gun clause authority b/c carrying a gun is not an economic activityis not an economic activity

Dred Scott v. Sanford (1857)

Northern slave Dred Scott applied Northern slave Dred Scott applied for freedom when his master died, for freedom when his master died, citing a federal law (MO citing a federal law (MO Compromise)Compromise)

Court ruled against Scott, claiming Court ruled against Scott, claiming that persons of African descent were that persons of African descent were barred from citizenship and could barred from citizenship and could not sue in federal courtnot sue in federal court

Did Did notnot expand national power; was expand national power; was a state’s rights outcomea state’s rights outcome

Cake Metaphors

Dual Federalism

Until 1937Until 1937 Like a layer cakeLike a layer cake National government has enumerated National government has enumerated

powers only; states have reserved onlypowers only; states have reserved only Each government has own sphere of Each government has own sphere of

sovereigntysovereignty More tension than cooperationMore tension than cooperation Proved inadequate in a industrialized Proved inadequate in a industrialized

societysociety

Cooperative Federalism

After 1937After 1937 Like a marble cakeLike a marble cake Rejects the idea of “spheres”Rejects the idea of “spheres” Government action is jointly takenGovernment action is jointly taken Nation and states routinely share Nation and states routinely share

power (Medicaid)power (Medicaid) Power is fragmented enough; it Power is fragmented enough; it

cannot be concentrated at any cannot be concentrated at any levellevel

So what’s the critical difference?

It’s all in how we interpret two It’s all in how we interpret two sections of the Constitution . . .sections of the Constitution . . .

The elastic clauseThe elastic clause The Tenth AmendmentThe Tenth AmendmentDual: Narrow interpretation of the Dual: Narrow interpretation of the

elastic clauseelastic clauseCooperative: Broad interpretation of Cooperative: Broad interpretation of

the elastic clausethe elastic clauseWhich makes a “big” government?Which makes a “big” government?

Federalism in Practice

Long term expansion of national Long term expansion of national powerpower National Crises/DemandsNational Crises/Demands Judicial InterpretationsJudicial Interpretations Grants-in-Aid (Fiscal Federalism)Grants-in-Aid (Fiscal Federalism)

National Crises and Demands Civil WarCivil War Both World WarsBoth World Wars Great DepressionGreat Depression 9/11, Katrina, Irene, etc.9/11, Katrina, Irene, etc.

All of these involved problems that All of these involved problems that were too extensive for states to handle were too extensive for states to handle alonealone

National relief funds spent on states National relief funds spent on states are often attached to federal are often attached to federal stipulationsstipulations

Katrina and Federalism

Judicial Interpretation

Gibbons v. OgdenGibbons v. Ogden, , Marbury v. Marbury v. MadisonMadison, and , and Korematsu v. USKorematsu v. US all all increased the power of the federal increased the power of the federal governmentgovernment

Since 1937, the Supreme Court has Since 1937, the Supreme Court has almost always supported the almost always supported the national government in power national government in power contestscontests

Grants-in-Aid

Financial incentives influence state Financial incentives influence state behavior (because the money behavior (because the money comes with “strings”)comes with “strings”)

Two forms:Two forms: CategoricalCategorical BlockBlock

Categorical Grants

For a specific purposeFor a specific purpose Little discretion by recipient Little discretion by recipient

governmentgovernment Formula: very specific rules such asFormula: very specific rules such as

Per capita incomePer capita income Number of school age childrenNumber of school age children

Project: competitive applicationsProject: competitive applications Health (HIV-AIDS programs)Health (HIV-AIDS programs) Natural Resources (Radon, asbestos, energy)Natural Resources (Radon, asbestos, energy)

Block Grants

Recipient governments have more Recipient governments have more discretion over fundsdiscretion over funds

Welfare Reform Act of 1996Welfare Reform Act of 1996 States were given power and money States were given power and money

to run their own welfare programto run their own welfare program States were given discretion to States were given discretion to

determine how to implement the goal determine how to implement the goal of getting people to workof getting people to work

States have obligations to one another

Full Faith and Credit ClauseFull Faith and Credit Clause Article IV, Section IArticle IV, Section I States must honor the “public Acts, States must honor the “public Acts,

Records, and judicial Proceedings” of Records, and judicial Proceedings” of other statesother states Marriage, Divorce, Custody and AdoptionMarriage, Divorce, Custody and Adoption

Defense of Marriage ActDefense of Marriage Act Loving v. VirginiaLoving v. Virginia

More obligations . . .

Comity ClauseComity Clause Article IV, Section 2Article IV, Section 2 Citizens of states enjoy “privileges Citizens of states enjoy “privileges

and immunities” in other statesand immunities” in other states AZ can’t pass a law prohibiting NM AZ can’t pass a law prohibiting NM

residents from traveling, owning residents from traveling, owning property, or working in AZproperty, or working in AZ

And more . . .

Interstate Commerce ClauseInterstate Commerce Clause Article I, Section 10Article I, Section 10 ““No state shall, without the consent No state shall, without the consent

of the Congress . . . enter into any of the Congress . . . enter into any Agreement or Compact with another Agreement or Compact with another other State . . . ” other State . . . ”

Water RightsWater Rights Has, more than any other clause, Has, more than any other clause,

increased the power of the federal increased the power of the federal governmentgovernment

Unfunded Mandates

Setting National Standards – but Setting National Standards – but not paying for themnot paying for them

New Federalism and Devolution

New FederalismNew Federalism Reagan, Nixon, and ClintonReagan, Nixon, and Clinton Return more discretion to the statesReturn more discretion to the states

DevolutionDevolution Giving the states more power over Giving the states more power over

policypolicy

Simulation

http://www.wwnorton.com/lowi8/chapters/ch03/simulation.asp