9/13/2013
Federalism
Distribution of Power
Delegated
C
O
N
C
U
R
R
E
N
T
Reserved
(1) INHERENT – all governments possess these powers
(immigration, foreign policy)
(2) Expressed -- (enumerated) Stated specifically that
Congress makes laws (Art. I)
(3) Implied (Makes expressed powers work) – Congress
establishes a civil service system to hire federal workers.
(Necessary and Proper Clause)
Delegated Powers
1
9/13/2013
• Powers shared between the federal government and the
state governments.
• Education: No Child Left Behind
• Taxation: Federal Income Tax and State Income Tax
Concurrent Powers
• Power retained by and controlled by the states.
• Welfare
• Local Education
• Professional Licensing
Reserved Powers
• Supremacy Clause (Article VI, Clause 2)
• “This Constitution, and the Laws of the United States which shall be
made in pursuance thereof; and all treaties made, or which shall be
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,
anything in the constitution or laws of any state to the contrary
notwithstanding.”
• Necessary and Proper Clause (Article I, Section VIII, Clause
18)
• “The Congress shall have 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.”
Who Rules When a
Conflict Arises?
2
9/13/2013
• Second Bank of the United States established by Congress
• Maryland, hoping to crush the bank, placed a tax on all notes
issued by the bank.
• James McCulloch, Baltimore branch manager, refused to pay
it and he was convicted in state court.
• Supreme Court Ruling: “the government of the Union, though
limited in its powers, is supreme within its sphere of
action…the states have no power … to impede … the
operations of the constitutional laws enacted by Congress.”
• Set forth the “elastic clause” that gave the Congress the
Necessary and Proper powers (implied powers) to enact
policies to run the country.
McCulloch v. Maryland, 1819
• 10th Amendment
• The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.
• Commerce Clause
• Gibbons v. Ogden
• Both interstate and international commerce are ruled by
Congress
States Retain Power Unless…
• One state’s validity carries over state borders - i.e.
marriage licenses, drivers’ licenses
• Modern Application: Same-sex Marriage and insurance
coverage. The courts may decide this issue eventually.
Full Faith and Credit Clause
3
9/13/2013
• Citizens of one state will not be discriminated when they
visit another state. ie: sales tax for only tourists
• What about out of state tuition? Or only residents can vote
in elections? Court has been unclear.
Privileges and Immunities
Clause
• Education sets the stage for both the Federal Government
and the states to work together in “fiscal harmony.”
• “Shared Costs” of Fiscal Federalism
• Why use federal help at the “expense” of state
sovereignty?
• Federal government had the bucks. . . surpluses
abounded
• Federal income tax in 1920’s
• Federal government could print more if needed more
• Politics - States saw it as “free” money.” Why not
pursue it? Constituents benefitted!
From Dual to Cooperative
Federalism
• Grant-In-Aid programs have been around for 200 +
years. Federal government sells land to fund programs.
• Categorical grants: Specific money for specific projects
w/ strings attached. non-discrimatory. Cross cutting
requirements - Offenders lose it all!
• Project grants – National Science Foundation:
competitive requests
• Formula grant- Do you meet the formula? i.e. public
housing, employment programs
• Block grants - social service endeavors with less strings
attached. Special Interests Groups pursue the $350 billion
Grants
4
9/13/2013
• Federal government dictates specific guidelines. If a state
doesn’t comply, then they are penalized or lose the
funding. ie: Special education, Disability Act, Clean Air
Act, Medicaid
• unfunded mandates: Laws without funding (NCLB)
• Printz vs. US claimed forcing sheriff’s departments to
pursue gun permits without federal money was
unconstitutional, but unfunded mandates still occur
today.
Mandates
• Not all states are treated equally. When it comes to fiscal federalism, it
is the role of the politician to take care of their constituents. With a $3
trillion budget, there
is plenty to fight for.
Competition
• Federal government is sending less and less money down
to the states. Requiring states to take more responsibility
for funding.
• Welfare to Work Reform act of 1996
• Federal government cutting welfare benefits, forcing
states to move people off welfare rolls.
Devolution
5
9/13/2013
a)
b)
c)
d)
e)
f)
g)
h)
i)
Issue of Sovereignty . . .people control both federal and
state government.
Supremacy clause (Art VI) gave power to Federal
government
Constitutional amendments cannot occur without state
ratification. (Art V)
Federal government dictate civil liberties and civil rights.
Voting and Elections of House of Representative Members
Representation of Representatives by state.
Electoral College
If a tie in electoral college, the states elect President
Judicial selection. . .senatorial courtesy.
Threads of Federalism
a.
b.
c.
d.
e.
f.
g.
h.
i.
No Child Left Behind
Eminent Domain
Legalizing Marijuana
Teri Schaivo
Balance the budget Amendment.
Yucca Mountain
Same-sex Marriage
Patriot Act
Affordable Healthcare Act
Federalism Issues Today
6