2.2 Federalism Lecture Outline

FEDERALISM

 

  1. TYPES OF POWER DISTRIBUTION

    1. Unitary-

    2. Confederation-

    3. Federal System

      1. Sovereignty is delegated from the states to the national government

 

  1. FUNCTIONS OF FEDERALISM

    1. Check upon tyranny

      1. States are independent. A party will find it difficult to control ALL 50 states

    2. Allow Unity without Uniformity

      1. States may act as they choose but may not corrupt the Constitution

      2. States may pass ANY law as long as it does not violate the Constitution

    3. Encourage Experimentation

      1. 51 experiments in government (states + national)

        1. Successful programs are passed along to other states

      2. Keeps government close to the people.

        1. States elect their own representatives and state and local government.

 

  • INTENT OF THE FRAMERS

    1. Federalists

      1. Strong Central Government

    2. Anti-Federalists

      1. Decentralized power

    3. National Power Structure

      1. Enumerated Powers (Art. 1 Sec 8.)- Delegate Powers

      2. Necessary and Proper Clause (Elastic Clause)

        1. Implied Powers

      3. National Supremacy Clause

        1. Article VI, Clause 2. This clause asserts and establishes the Constitution, the federal laws made in pursuance of the Constitution, and treaties made by the United States with foreign nations as “the Supreme Law of the Land.” It establishes these as the highest form of law in the American legal system, both in the Federal courts and in all of the State courts, mandating that all state judges shall uphold them, even if there are state laws or state constitutions that conflict with the powers of the Federal government”

      4. Amendment 9- Reserved Powers- people

      5. Amendment 10- Reserved Powers- states

 

  1. Constitutional Federalism- Where is the Power?

    1. States came together to FORM the nation and the Constitution

      1. States DELEGATED powers to the national government

        • Enumerated or Expressed Powers: listed in Art. 1 Sec 8.

        • National government is SOVEREIGN in these areas.

      2. Those powers NOT delegated to the national government were therefore RESERVED to the states.

        • Amendment 9- People

        • Amendment 10-States

          • The powers of Amendment 10 are known as RESERVE or POLICE powers and may be used by states to control public health, safety, and morals of their citizens. The national government did not originally have police powers and hence could not regulate morality. (changed in the modern era)

  1. Constitution Prohibition of Power to either State or National Government (Denied Powers)

    1. Habeus Corpus

    2. Bill of Attainder

    3. Ex-Post Facto

    4. States- Any power granted to the Federal Government

    5. Federal Government- Any power not granted to it or logically asserted.

  2. Concurrent Power

    1. Any power granted to BOTH the states and the national government

      • Taxation

      • Borrow Money

      • Make and Enforce Law

    2. Guarantees to the States

      1. Representation in the Senate and Congress

      2. All Citizens shall have the same Privileges and Immunities as the citizens in all other states.

      3. National government will protect the states against domestic and foreign attacks (Shay’s Rebellion, LA Riots, etc)

        • Federal government may send in troops to uphold the law: Central High School Incident in Little Rock Arkansas.

      4. All states must have a republican form of government

 

  1. Special Provisions for Federalism

    1. Article VI National Supremacy Clause

      • The national government shall be superior to state governments

      • Necessary and Proper Clause

        • Congress shall have the authority to enact any laws which are “necessary and proper” to carry out its ENUMERATED powers.

        • Power derived from the Necessary and Proper Clause are called IMPLIED POWERS because they are implied in the Constitution, but not expressed or delegated. (Bank of US)

 

  1. FEDERALISM AND LEGAL RELATIONSHIPS AMONG PARTICIPANTS

    1. Vertical Federalism- National Government to the states

      1. Delegated Powers from the States (Expressed or Enumerated)

      2. Art VI National Supremacy Clause

      3. Necessary and Proper Clause- Powers implied through delegation but now written into the Constitution (spirit of the law but not the letter of the law)

      4. Key Events and Issues in Vertical Federalism

        1. Bank of the United States- McCulloch v. Maryland

        2. Alien and Sedition Acts- Virginia and Kentucky Resolutions

          • Nullification and Interposition

          • Great Depression/New Deal

          • Brown v. Board of Education- Little Rock High School

          • Reagan’s New Federalism

 

  1. Horizontal Federalism- State to State relationships

    1. Full Faith and Credit: All states MUST accept the records, laws, and judgments of all other states.

      1. Problem: States approve Gay Marriages. Does Alabama have to recognize this marriage?

      2. Solution: Congress passes the Defense of Marriage Act establishing that a LEGAL marriage is between a man and a woman.

      3. Problem: Can the Federal government impose a standard for marriage?

      4. Solution: The Supreme Court will decide who is right?

    2. Privileges and Immunities: No citizen of one state shall have more FUNDAMENTAL rights than a citizen in any other state.

      1. The freedom of speech is a fundamental right, therefore the federal government MUST uphold this right in ALL states. What are some other FUNDAMENTAL RIGHTS? (Roe v. Wade?)

    3. Extradition-No state shall be a safe haven form criminals. A

    4. Interstate Commerce Pacts- (National Interstate Commerce Commission)

 

  1. EARLY EVOLUTION OF FEDERALISM

    1. Marshall Court

      1. John Marshall was placed upon the Supreme Court by President John Adams so that the FEDERALIST perspective of law would prevail in questions of law between the states and the national government.

 

  1. Marbury v. Madison (1803)

    1. Supreme Court established Judicial Review and holds the right to interpret the Constitution.

 

  1. McCulloch v. Maryland (1819)

    1. Issue: Can a state tax the Federal Government? Can the United States establish a National Bank even though there is not provision for such a bank in the Constitution.

    2. Answer: Chief Justice Marshall “The power to tax is the power to destroy.” No state shall be superior to the national government. The National government has the IMPLIED POWER to create a bank. (Tax = Bank) The Framers intended to give Congress this power.

      1. Doctrine of National Supremacy

      2. Doctrine of Implied Powers

      3. Congress is therefore empowered to do ANYTHING that it can remotely prove was intended for its control when the Constitution was created.

 

  1. Gibbons v. Ogden (1824)

    1. Issue: Can a state regulate commerce between two states?

    2. Answer: No, only the Federal Government may regulate commerce between or among the states. Commerce Clause

 

  1. Barron v. Baltimore (1833)

    1. Issue: Does the Bill of Rights extend to the citizens of the several states? Is the national government required to uphold the Bill of Rights in the states?

    2. Answer: No. The Bill of Rights ONLY limits the national government, not the states. Citizens rights are defined by each state.

 

  1. Dred Scott v. Sanford (1857)

    1. Issue: Can Congress through the Missouri Compromise of 1820 establish rules for property (slaves) with in the states. (36’30” Line)

    2. Answer: Justice Roger B. Taney (Appointed by Andrew Jackson) holds that the Missouri Compromise is unconstitutional because the national government was never delegated the power to regulated property within the states. Furthermore, the national government has a legal obligation to PROTECT the property rights of citizens and must strike down state laws which limit the transportation and/or return of property. (slaves) Furthermore, slave AND former slaves are prohibited from becoming citizens and therefore have no standing in a court of law. “A black man holds no rights that need be respected by any white man.”

 

  1. TYPOLOGY OF FEDERALISM

    1. Dual Federalism (Founding Period)

      1. Defined by Taney’s decision in Dred Scott v. Sanford (1857), the states and the national government are two separate and distinct governments. The national government shall not exceed its ENUMERATED powers.

      2. Taney’s decision paved the road to the expansion of slavery in the south.

      3. Barron v. Baltimore (1833) Marshall held that the Bill of Rights is NOT applicable to the states. The right’s of citizens is a STATE issue, not a federal issue.

      4. Layer-Cake Federalism- a clear division

 

  1. Civil War Era

    1. 13th, 14th, and 15th Amendments create national power over the states.

      • 14th specifically crafted to bring states into line with national interest

      • Overturns Barron and Dred Scott rulings.

    2. Commerce power from the national government

      • Interstate Commerce Commission (ICC 1887)

      • Sherman Anti-Trust Act 1890

 

  1. Cooperative Federalism (New Deal Era) (empowers Democrats) (pluralism)

    1. Established during the New Deal era, this type of federalism enables the federal governments to intervene deep into the states. This was the intervention desired during the Progressive Era.

    2. FDR’s alphabet agencies and programs reached far into the states and developed rules and regulations to govern the citizens of the states. AAA, WPA, NIRA, NLRB, Fair Labor Standards Act etc.

    3. The states accepted the intervention of the federal government because of the catastrophic damage of the Great Depression.

    4. FDR’s New Deal, LBJ’s Great Society, Warren Court, the Civil Rights movement and the Democratic entrenchment of the 1960’s fully utilized their power of coercion over the states.

      • Federal Mandates- Brown v. Board of Education, Consumer and Environmental Laws (states MUST implement and pay for these items)

      • Categorical Grants- Federal Money to SPECIFIC projects as mandated by the federal government.

    5. AKA Marble Cake Federalism- there is no clear division where the federal government ends and the state government begins.

    6. Creative Federalism

    7. LBJ’s Great Society utilized “carrot and stick” grant in aid programs to bring states into-line with national agenda.

 

  1. “New Federalism” (Nixon-Reagan) (empowers Republicans) (individualism)

    1. A revival of Dual Federalism

      • A return of governing power back to the states

        • Newt Gingrich and the Contract with America

        • Fiscal Responsibility- Federal Government reduces aid to the states.

        • Grants- Shift from Categorical Grants to Block Grants

          • Block Grants are “lump-sum” blocks of money that may be used at the state’s discretion.

 

  1. Unfunded Mandate Reform Act of 1995

    • Members of Congress may challenge a mandate of the federal government and demand a debate on how to fund. Many programs are MANDATED by the federal government but are funded by the states without the state’s consent.

      • Americans with Disabilities Act

      • Special Education in Public Schools

 

  • POWERS OF FEDERALISM

    1. Direct Orders: Opportunity Act of 1982 barring job discrimination. These force states to come into compliance with the threat of civil or criminal action. States must uphold Federal Standards.

 

  1. Cross Cutting Requirements- one action of a Federal Grant will benefit is extended to all activities of federal funding regardless of their source. The provisions or requirements of the grant are extended to all recipients of the funds. Example: under Bush I, clinics who received federal funds could not discuss abortion with a patient- mandate of the funds. (Rust v. Sullivan)

 

  1. Cross Over Sanctions- The Federal Government uses money as a carrot and stick to get around the Constitution. It coerces states to change laws in order to receive funds. Using federal money to force states to come into compliance with the wishes of the national government. Emergency Highway Energy Conservation Act of 1974 required states to implement a 55 MPH Speed Limit, 1984 act required a minimum drinking age of 21.

 

  1. Total Preemption- Fed uses its Supremacy Clause and Commerce Clause to control state actions- Federal Law just Pre-emps state law.

 

  1. Partial Preemption- Feds draw up the guidelines but the states are left to administer them. Problems: If the state does not act as the government wants- it will step in and run the program. Or- as in the Clean Air Act of 1990- If the states do not comply, they will be punished- Feds will hold back $.

 

  1. Grants:

    1. Categorical: Funds from federal government to states MUST be spend as directed by the feds. (Education funding; Reading; under performing Lithuanian immigrants)

    2. Grants in aid: Federal government partially funds a project. State must fund remainder . (Education funding; Reading; under performing Lithuanian immigrants) 50% grant

    3. Block: Federal government gives a block of UNRESTRICTED money to states to use at the states discretion . (Education funding: states decide how to spend the money)

 

  • New Judicial Federalism

    1. Return to Dual Federalism

      1. FDR New Deal- Warren Court- Expansion of National Control

        1. Heart of Atlanta Motel Inc. v. United States (1964)

The Court held that Congress acted well within its jurisdiction of the Interstate Commerce clause in passing the Civil Rights Act of 1964, thereby upholding the act's Title II in question. While it might have been possible for Congress to pursue other methods for abolishing racial discrimination

  1. Rehnquist-Roberts Court- A return to state power.

    1. US v. Lopez (1995)

The Court held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale.

 

 

 THE DEVOLUTION OF FEDERALISM: THE REVERSAL OF THE NEW DEAL

    1. The Reagan Revolution was focused upon giving power back to the states in order to return government to local (Republican) control. New Federalism under Nixon, Reagan, Bush I and Bush II will give back to the states the power that they had at the time preceding the New Deal. This action will reverse the encroachment of the national government upon the states since FDR.

      1. Federal Grants move from Categorical to Block

      2. Federal Mandates are reduced for liberal issues (equity)

        • Preemption of National control over state choice

        • Unfunded Mandates Reform Act of 1985

      3. Federal Mandates are increased for conservative issues (moral)

      4. Supreme Court reduces its jurisdiction

        • Reduction in caseload 180 cases to 80.

        • Reduction in legal “standing,” right to bring forth a case..

      5. Judicial Devolution in the Supreme Court

        1. Reagan “packs” the federal courts in order to reverse liberal legal issues.

        2. Abortion- Roe v. Wade (1973) 7-2 SC decision extends a woman’s right to choose into ALL states

          1. Webster v. Reproductive Health Service (1989) and Casey v. Planned Parenthood of Southeastern Penn (1992)

            • Supreme Court breaks from Roe decision and allows states to define or limit women’s rights away from ABSOLUTE right in Roe.

          2. Analysis: Supreme Court is stating to states that it is shifting away from control over states in most ALL issues that are not legitimate Delegated or Necessary and Proper issues.

 

  1. Other Cases of Devolution 

    1. US. v. Lopez- Congress does not have the right to limit handgun usage around a school. States must make this law.

    2. Prntz v. U.S.-National government may not compel states to perform background checks for handgun sales.

    3. Brzonkala v. Morrison( 2000) (p. 97) Violence Against Women Act (VAWA)   Commerce Clause does not give the federal government the right to compel federal remedies for violent actions against women in the states.

 

  1. Ironic Federalism

    1. New Federalism as implemented by the Republicans has shifted the power and authority for decision-making back to the states. The national government has established the states as the proper decision-making body on issues that do not fall under the Delegated or Necessary and Proper jurisdiction.

      • Bush v. Gore (2000) Supreme Court of the United States overturns the decision of Florida State Supreme Court, interpreting Florida State Election Law on 2000 Presidential Election.

 

 

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