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FEDERALISM:. The relationship between state and federal power How has federal power expanded over time?. Who has power?. Create this chart:. Collect Taxes Regulate Marriages Regulate Interstate Commerce Coin Money Charter Local Governments Lend and Borrow Money Registration and Voting.

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FEDERALISM:

The relationship between state and federal power

How has federal power expanded over time?


Who has power?


Create this chart:


Collect Taxes

Regulate Marriages

Regulate Interstate Commerce

Coin Money

Charter Local Governments

Lend and Borrow Money

Registration and Voting

Raise an Army

Enforce Criminal Codes

Regulate Professional Standards

Declare War

Administer Drivers’ Licenses

Establish Courts

Place the powers below on your chart.


Reserved Powers Derived from the Tenth Amendment

  • Regulate Marriage

  • Enforce Criminal Codes

  • Charter Local Governments

  • Registration and voting

  • Regulate Professional Standards

  • Administer Drivers’ Licenses

  • Are there more?

  • Absolutely!


Expressed Federal PowersArticle I, Section 8 of the Constitution

  • Regulate Interstate Commerce (the commerce clause)

  • Coin Money

  • Raise an Army

  • Declare War

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

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


Concurrent Powers Are Shared

  • Collecting taxes

  • Lend and Borrow money

  • Establish Courts


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

Congress shall have the power . . . 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.”

Does this clause expand or reduce federal power?


Expands!

Because it’s elastic!


Using an expressed power, justify the implied power of Congress to:

  • See Implied Powers sheet

  • Working in small groups, decide what expressed power gives Congress the implied power listed on your sheet.


The Supreme Court interprets . . .

. . .The elastic clause


McCulloch v. Maryland (1819)

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

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

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

  • If so, could a state tax the bank?

  • Yes, and No. Says the Marshall Court


Marshall’s Decision:

  • We the people (not we the states)

    • Argument for national sovereignty

  • The N & P clause allows for any legislation where “the ends are legitimate and the means not prohibited”

    • Therefore, the bank is constitutional

  • The power to tax is the power to destroy

    • Therefore, Maryland’s tax is unconstitutional


Why it matters:

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

  • It’s so stretchy it’s “elastic”

  • This grants the federal government a tremendous amount of power


The Supreme Court interprets:

The commerce Clause


Gibbons v. Ogden (1824)

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

  • But Gibbons had a steamboat license granted by Congress

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


Trend:

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


Modern Interpretation:

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

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

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


US v. Lopez (1995)

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

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

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


Dred Scott v. Sanford (1857)

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

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

  • Did not expand national power; was a state’s rights outcome


Cake Metaphors


Dual Federalism

  • Until 1937

  • Like a layer cake

  • National government has enumerated powers only; states have reserved only

  • Each government has own sphere of sovereignty

  • More tension than cooperation

  • Proved inadequate in a industrialized society


Cooperative Federalism

  • After 1937

  • Like a marble cake

  • Rejects the idea of “spheres”

  • Government action is jointly taken

  • Nation and states routinely share power (Medicaid)

  • Power is fragmented enough; it cannot be concentrated at any level


So what’s the critical difference?

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

  • The elastic clause

  • The Tenth Amendment

    Dual: Narrow interpretation of the elastic clause

    Cooperative: Broad interpretation of the elastic clause

    Which makes a “big” government?


Federalism in Practice

  • Long term expansion of national power

    • National Crises/Demands

    • Judicial Interpretations

    • Grants-in-Aid (Fiscal Federalism)


National Crises and Demands

  • Civil War

  • Both World Wars

  • Great Depression

  • 9/11, Katrina, Irene, etc.

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

    • National relief funds spent on states are often attached to federal stipulations


Katrina and Federalism


Judicial Interpretation

  • Gibbons v. Ogden, Marbury v. Madison, and Korematsu v. US all increased the power of the federal government

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


Grants-in-Aid

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

Two forms:

  • Categorical

  • Block


Categorical Grants

  • For a specific purpose

  • Little discretion by recipient government

    • Formula: very specific rules such as

      • Per capita income

      • Number of school age children

  • Project: competitive applications

    • Health (HIV-AIDS programs)

    • Natural Resources (Radon, asbestos, energy)


Block Grants

  • Recipient governments have more discretion over funds

  • Welfare Reform Act of 1996

    • States were given power and money to run their own welfare program

    • States were given discretion to determine how to implement the goal of getting people to work


States have obligations to one another

  • Full Faith and Credit Clause

    • Article IV, Section I

    • States must honor the “public Acts, Records, and judicial Proceedings” of other states

      • Marriage, Divorce, Custody and Adoption

        • Defense of Marriage Act

        • Loving v. Virginia


More obligations . . .

  • Comity Clause

    • Article IV, Section 2

    • Citizens of states enjoy “privileges and immunities” in other states

      • AZ can’t pass a law prohibiting NM residents from traveling, owning property, or working in AZ


And more . . .

  • Interstate Commerce Clause

    • Article I, Section 10

    • “No state shall, without the consent of the Congress . . . enter into any Agreement or Compact with another other State . . . ”

    • Water Rights

    • Has, more than any other clause, increased the power of the federal government


Unfunded Mandates

  • Setting National Standards – but not paying for them


New Federalism and Devolution

  • New Federalism

    • Reagan, Nixon, and Clinton

    • Return more discretion to the states

  • Devolution

    • Giving the states more power over policy


Simulation

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


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