federalism

  • neither ‘federal’ nor ‘federalism’ are mentioned in the Constitution

  • implied:

    • separation of powers

    • elastic clause

    • concurrent powers - federal n state can tax

    • 10th amendment - all remaining powers to states

    • SC umpire between federal and states

2 features:

  1. the power of states is protected by the Constitution

  2. regional powers are equal

    • ∴ sovereignty is shared

      • state powers can’t be changed without their consent

      • all states have the same level of decision-making powers although they are free to interpret

how the relationship works:

  • in some aspects, the division of sovereignty was clear initially

  • the state deals with most parts of domestic policy inc education and economic policy

  • fed govt limited to foreign policy n security

  • national govt = expressed, implied n inherent powers

  • shared national n state powers = concurrent powers

  • state govts = reserved powers

powers delegated to the national govt

shared

powers reserved to states

declare war

raise taxes

establish local governments

create n maintain armed forces

provide for the public welfare

establish n maintain schools

establish foreign policy

criminal justice

regulate trade within states

regulate interstate n foreign trade

borrow money

conduct elections

make copyright n patent laws

charter banks

provide for public safety

establish postal offices

build roads

coin money

evolution:

  • this relationship has evolved over time

  • westward expansion = more states created

  • industrialisation led to the need for more federal regulation

  • growing population » 4 mil in 1790, 76 mil by 1900, 322 mil by 2016

  • improving comms » faster transport, telegraph, radio, internet = fostered national identity

  • the great depression (led to roosevelt’s new deal) massively boosted the power of the federal govt » erosion of state power

  • ww1 n ww2 pushed the country into being a superpower n ‘the world’s policeman’ » federal govt controls foreign policy, so role heightened

  • 1930s to 70s = increase in federal power, financially

  • nixon started run of republican presidents who urged less centralisation

    • ‘new federalism’ » block grants given to states, could use as wished

    • federal deficit in 1980s » money dried up, ‘unfunded mandate’

gonzales v raich (2005):

  • when cali legalised marijuana, fed govt argued this was a federal matter, not state » drug would end up reaching the wider country

  • SC interpreted the ‘interstate commerce law’ in favour of California

  • court argued legislation of production on Cali would have an impact on the supply n demand of the drug across the USA

biden pardons:

  • federal level: obama, trump n biden have all pardoned ppl in prison for weed possession, at national level

  • oct 22, biden: “sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit”

  • promised to call upon all state governors to issue their own weed pardons

federalism weaponised?

  • trump, in power and since, has tried to use relationship between fed govt n states to his political advantage

  • as president:

    • lambasted states that defied his ideas, labelled them enemies; attacked judges that disagreed with them

  • since:

    • has encouraged states to defy biden administration n supported picks for governors n senators that endorse that view for elections

  • leaders like desantis n cruz very much in trump style n actively defy the fed govt