American National Government Lecture 3

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American National Government Lecture 3

• Federalism

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Systems of Government

• Unitary
• Confederal
• Federal

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Federalism Pros

• Diversity Diffusion of Power
• Local Problems handled Locally
• State governments training ground for future
  national leaders
• Increased opportunity for political participation
• Accommodation of different political subcultures
• Individual rights protected
• Fosters experimentation and innovation
• Conducive to large countries with diverse
  populations

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Federalism Cons

• National unity difficult to achieve and maintain
• State resistance of national policies
• Inequalities among states
• Varying quality of government services
• Limited access to expertise and funds
• Role of special interests enhanced at lower
  levels

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Constitutional basis for Federalism

• Express powers
• Implied powers
• Reserved powers
• Concurrent powers
• Prohibited powers
• Supremacy clause

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Express Implied Powers

• Express Powers
• Article I, Section 8, of the Constitution defines
  these as
• coining money
• setting standards for weights and measures
• making uniform naturalization laws
• admitting new states
• establishing post offices
• declaring war
• power to regulate commerce among the states

• Implied Powers
• Based on Article I, Section 8
• Necessary and proper clause
• 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.
• those powers that can be reasonably inferred from
  the brief wording of the Constitution.
• the national government has used this to
  strengthening the scope of its authority

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Reserved Concurrent Powers

• Reserved Powers
• Tenth Amendment.
• the powers not delegated to the United States by
  the Constitution, nor prohibited by it to the
  states, are reserved to the states, or to the
  people.
• Powers that the national government cannot deny
  to the states.
• Ambiguous - not expressly listed
• State powers have been held to include
• regulate commerce within its borders
• provide for a state militia.
• make laws on all matters not prohibited to the
  states by the national or state constitutions and
  not expressly, or by implication, delegated to
  the national government.
• Police power

• Concurrent Powers
• Shared areas of responsibility
• Not explicitly described by the Constitution -
  they are only implied.
• Examples include the power to
• tax.
• borrow money
• establish courts
• Charter banks and corporations
• Concurrent powers are normally limited in two
  ways
• to the geographic area of the state and
• to those functions not delegated by the
  Constitution exclusively to the national
  governmentsuch as the coinage of money and the
  negotiation of treaties.

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Prohibited Powers

• National government prohibited from
• imposing taxes on goods sold to other countries
  (exports)
• Asserting any power not delegated expressly or
  implicitly to the federal government
• States are also denied certain powers.
• No state is allowed to enter into a treaty on its
  own with another country

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Supremacy Clause

• Article VI, Clause 2 states the following
• This Constitution, and the Laws of the United
  States which shall be made in Pursuance thereof
  and all Treaties 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, any Thing in the Constitution or
  Laws of any State to the Contrary
  notwithstanding.
• Prohibits states from using their reserved or
  concurrent powers to thwart national policies.
• Any legitimate exercise of national governmental
  power supersedes any conflicting state action.
• Arbiter Supreme Court
• Legitimacy of action
• Actual conflict of law

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Preemption

• Supremacy of national law over state and local
  law
• Very controversial
• Can can be used to impose Federal priorities on
  states
• Tool to expand power of national government
  during the 20th century
• Note States can also preempt local governments
  and often do so through the passage of
  comprehensive state laws

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Additional Sources of Restraint on Government

• Vertical checks and balances
• Horizontal federalism

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Vertical checks and balances

• Power described above provide for a system of
  checks and balances between the national and
  state governments
• Examples
• State Reserved powers check power of the national
  government.
• States interests are represented in the national
  legislature (Congress), and the citizens of the
  various states determine who will head the
  executive branch (the presidency).
• Impossible for the central government to change
  the Constitution without the states' consent,
• National programs and policies are typically
  administered by the states,
• National government can influence state policies

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Horizontal Federalism

• Equality amongst the states
• Full faith and credit clause
• Privileges and immunities clause
• Interstate extradition
• Compacts

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Discussion Same sex marriage

• How should states deal with same sex couples who
  may have been married in one state and reside in
  another state that has expressly banned that type
  of legal relationship? SameSex Marriages

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Evolution of Federalism

• Early Supreme Court Decisions
• Civil War
• Dual Federalism
• Cooperative Federalism

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The Marshall Court

• McCulloch v. Maryland
• Gibbons v. Ogden

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McCulloch v. Maryland

• 2 Questions
• whether the national government had the implied
  power, under the necessary and proper clause, to
  charter a bank and contribute capital to it.
• If the bank was constitutional, could a state tax
  it? OR
• Was a state action that conflicted with a
  national government action invalid under the
  supremacy clause?

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McCulloch v. Maryland

• Establishes Two Concept
• Implied Powers
• National Supremacy

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Gibbons v. Ogden

• Interpreting the Commerce Clause
• 3 Issues
• How to define Commerce?
• Extent of national governments regulatory power?
• Status of commerce power concurrent or
  exclusive?

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Gibbons v. Ogden

• Commerce all business dealings
• Exercisable in state jurisdictions
• Exclusive national power

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Civil War

• Key Issue States rights versus national
  government supremacy
• Resolution Increased national power and reduced
  states rights

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Dual Federalism

• Prevailing post civil War doctrine
• emphasized a distinction between federal and
  state spheres of government authority
• State powers limited to police powers and
  concurrent regulation of intrastate commerce

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Cooperative Federalism

• Great Depression
• Expansion if the New Deal Picket Fence
  Federalism

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Modern Federalism

• Creative Federalism
• New Federalism
• Regulatory Federalism and Unfunded Mandates

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Modern Federalism

• Grants
• Contracts
• Cooperative agreements
• Federal mandates

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Modern Federalism
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Show Me the Money
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Supreme court decisions

• The Rehnquist Court
• United States v. Lopez
• United States v. Morrison
• Alden v. Maine
• Bolstered 10th Amendment

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Federalism and You

• Right to Die
• Do terminally ill patients have the right to end
  their own lives through physicianassisted
  suicide?
• Should the states or the federal government have
  the final word on whether physicianassisted
  suicide is legal?