Federalism The division of powers between the federal government and the state governments.

Federalism

The division of powers between the federal government and the state

governments

Power in Three Systems of Government

Constitutional Powers

• Expressed

• Reserved

• Implied

• Inherent

• Concurrent

• Prohibited or Denied

Expressed/Enumerated

• First 7 articles of Constitution

• Fathers only listed powers for the national government. States were assumed to already hold powers

• War, interstate commerce, coining money

• Covered weaknesses of Articles of Confederation

Reserved

• Based on 10th Amendment

• State powers have varied with history

• Clause frequently cited by “state’s rights” advocates for limited/small government

• Abortion and death penalty issues are good examples of the ideological struggle

Implied Powers

• Come from “necessary and proper” or elastic clause

• Increased usage under Justice Marshall leads to strengthening of national government

Inherent Powers

• Not specifically addressed in Constitution but assumed to be part of the national government’s authority

• Examples: Foreign relations, immigration policy, territorial acquisitions, environmental treaties, etc.

Concurrent Powers

• State shares power with the feds

• Usually implied powers like– Local and state taxes– Borrow money– Establish courts– Charter banks– Hold elections

Concurrent…Continued

• States cannot use reserved or concurrent powers to usurp the power of the national government (Supremacy Clause)

• All national and state officers must swear allegiance to the Constitution

Prohibited/Denied Powers

• Limit both State and National Governments

• National cannot impose export taxes, set up a national church or school system

• States cannot make treaties, coin money, declare war, etc.

Defining National Power

• McCulloch v. Maryland

• Key Questions and implications– Can Congress charter a bank (elastic clause)?– If bank WAS constitutional, could the state of Md.

Tax it?– Case established idea of implied powers– First use of Supremacy clause– Became basis of strengthening power of national

government

Gibbons V. Ogden1824

• 3 key issues– What was the scope of Congress’s authority

under the commerce clause?– Did the national government’s power to

regulate interstate commerce extend to intrastate commerce?

– Was the power to regulate commerce a concurrent power or exclusive national power?

Gibbons v. OgdenThe Ruling….

• Ruling defined commerce as ALL commerce

• Recognized no limits on commerce except as specified in Constitution

• Commerce is exclusively a national power

• Today this means the national govt. can regulate tv, radio, electricity, telephones, the internet,etc.

What’s it to you, Bunky?

• The Gibbons case allowed the national government to exercise increasing authority over all areas of economic affairs.

• By the 1930s, the commerce clause became the primary constitutional basis for national government regulation.

• The issue led to the Civil War

History of Federalism

• Dual Federalism aka Layer Cake Federalism (1865-1933)

• Cooperative Federalism aka Marble Cake Federalism (1933-1968)

• Competitive Federalism (1969-74)

• Revenue Sharing (1969-86)

• New Federalism (1981-89)

Still More Federal-isms

• Permissive Federalism (1992-1996)

• Devolution….the returning to the states of many rights and responsibilities.

• Slater Federalism: The belief that naming this stuff with deliberately confusing dates and ideas is a conspiracy by the folks who bring you the AP Exam.

Figure 3.2: The Changing Purposes of Federal Grants to State and Local Governments

Source: Budget of the U.S. Government, Fiscal Year 1999, Table 12.2, 205-210.

Figure 3.3: Federal Aid to State and Local Governments, 1980-

2000

Source: Budget of the U.S. Government, Fiscal Year 1998, Historical Tables, Table 6.1, 99.

Devolution in the Polls: The States over Washington