Noah Hart - Ch 3 Outline

Federalism Preview
- 1. Under AOC, most authority in states
  2. COnstitution divided power between state and national govt.
    1. Exclusive or shared
    2. System called federalism
  3. Did not define boundaries clearly
What was the conflict over Medical Marijuana
- 1. Two sued US govt, use protected by states, federal illegal
  2. Using Marijuana for medical purposes
  3. Possession illegal under CSA
    1. Federal agents destroyed weed plants
    2. Up to supreme court
    3. One on many that helped established lines in federalism
Federalism and the Constitution
1. What are the systems of government?
  1. Unitary, central power executes control over others
    1. Can delegate/or take back power
    2. China, UK, Iran, Most Govts,
  2. Opposite Confederal system
    1. National govt. Reliant on states
    2. Example AOC and switzerland
  3. Federalist constitutional innovation
    1. Divided power
      1. Some powers denied and granted
    2. US, Mexico, Nigeria, Russia
2. What are the national and state powers?

- - 1. Powers of national govt. Enumerated in constitution
    2. Exclusive powers only national can exercise.
      1. Most in A1S8
    3. Implied powers not explicitly given
      1. Necessary and proper clause allows congress to make laws to carry out enumerated powers
    4. Constitution denies certain powers to national govt.
      1. Violating some rights
      2. Bills of attainder
      3. Ex post de facto
      4. Not suspend writ of habeas corpus
      5. Cant make states borders change w/o consent
      6. Cannot force in other states
      7. Cannot tax interstate commerce
1. What are the Commerce, Necessary and Proper, and Supremacy clauses?
  1. These and 10th amendment set relative powers
  2. Commerce clause modern influence, regulate commerce with
    1. Foreign nations
    2. Interstate commerce
    3. Indian Tribes
  3. With necessary and proper clause, can be defined any productive activity as commerce
  4. Necessary and proper clause allow Congress to make laws to execute enumerated powers
    1. Aka elastic clause
  5. Supremacy clause states federal laws highest law of land, Constitution extreme highest law
    1. States must follow federal law
2. What are the Powers of the State Government
  1. 10th amendment protects state authority
    1. States rights advocates say the 10th amendment restricts national govt. To only enumerated powers, states superior on all other things
    2. US v. Darby decided truism, meaning that state and individual powers don't supersede national govt.
    3. Congress can decide when to regulate state and local activity
  2. Reserved powers are powers retained by the states
    1. Police powers
    2. Conducting elections
    3. Establish local governing bodies
    4. Final say on amendments
      1. 3/4s of legislatures or ratification convention
  3. Sometimes both govts given power together, called concurrent powers
    1. Both can borrow money, but states have more restrictions
    2. Taxing power
3. How do regional and local governments rely on the states?
  1. Constitution does not describe power of governments below states
  2. State and local governments unitary in general
    1. Can disband local govts
    2. Set rules
    3. Govern public utilities
  3. Really only 2 levels of American Federalism
  4. Article IV outlines interactions between states
    1. Full Faith and Credit means states have to recognize records, public acts, etc. from other states
    2. Limits, drivers license for example
    3. Extradition is required, most states happy
    4. Privileges and Immunities clause says you cannot discriminate based on state residence
      1. Exception in-state and out-state, but parents pay through taxes, subsidize in state
      2. More fundamental, more protected

The Dynamic Nature of Federalism
- 1. Federalism changes, evolves like politics does
  2. John Marshall important
1. What impact did the Marshall court have on Federalism?
  1. First McColloch v. Maryland
    1. Over Second BoUS
    2. Some questioned power
    3. Maryland taxed
    4. Unanimous favor on national govt.
    5. Cited N&C clause
      1. Consistent with spirit, did not advocate literal
    6. Established implied powers
  2. Other major case Gibbons v. Ogden
    1. Over commerce clause
    2. Aaron Ogden had granted by NY to monopoly on steamboats in NY&NJ
    3. Gibbons had federal license
    4. Gibbons won, due to power to regulate interstate commerce
    5. Also cited supremacy clause
2. What are the 13th, 14th, and 15th amendments
  1. 13th outlawed slavery
  2. 14th placed limits on state actions
    1. All born in US citizens
    2. Cannot deny equal protection
    3. Due Process clause prevents limitations of Due Process
  3. 15th all men allowed to vote
  4. After Civil war, Supreme court did not strongly support African American rights
    1. Recognized federalism that help us state authority
  5. Plessy v. Ferguson restricted rights
    1. Legalized segregation
    2. Separate but “equal”
    3. Only one dissented, argued constitution is color blind
3. What was the shift from Dual to Cooperative Federalism?
  1. For most, dual federalism

- 1. Distinct separation of powers
    1. Like factory with 2 sets of machinery, wheels interconnected, but doing own work without interfering with other
  2. Supreme court drew similar image in 19th century
  3. Division never clear and neat
    1. Example education
  4. As industrialized, govts tried regulation, but SCOTUS struck it down
    1. Violated liberty (Lochner v. NY)
  5. 1925 weight in on rights given by states, selective incorporation
  6. SCOTUS said 1st amendment rights cannot be violated by states
1. Late 18th early 19th, shift toward cooperative federalism

- 1. Don't play same roles though
    1. States administer, National fundraise
1. How did the Great Depression affect Federalism?
  1. Increase in national power, states could not cope
  2. GD strained it
  3. 20s states increased spending, esp. Highways, took out loans, could not repay debt.
  4. Local govts. Could not care for unemployed
  5. Appealed to the National govt.
2. How did FDR greatly expand the role of the national govt.?
  1. FDR clear he was going to use full power of executive on GD
  2. IDC about congress, ill just ask them?
  3. Savvy politician, powerful influence over short period
    1. Knew state governments could not handle crisis
    2. Could not refuse, even if it meant giving up state authority
  4. Fundamentally changes dynamic, especially national and economy
  5. Expand regulation of interstate commerce under New Deal
    1. Cooperative federalism replaced Dual Federalism
  6. Examples Social Security
  7. Works Progress Administration
    1. Provide jobs
  8. Made possible by economic crisis
  9. States desperate

Modern American Federalism
- 1. 2nd half of 20th century, national govt. Expanded economic role, many federal agencies, cooperative federalism still in place
1. What are Grants-in-aid and the expansion of Cooperative Federalism?
2. 1. One of the primary tools used by the national govt. To get stuff done is grant-in-aid
  2. Money to states in order to get stuff from the national govt. Decides is important
  3. AKA Fiscal Federalism
  4. Categorical grants give states money for specific projects and and certain conditions for receiving and spending
  5. One may require lower govts. To match spending
  6. May have instructions
  7. Some awarded based on population, location, etc.
  8. Important source of national power
    1. Not required to accept, once they do, they accept regulation
  9. Categorical grants like carrot and stick for will of national govt.
    1. Critics say this is problem
    2. Wealthy states subsiduze poorer states
  10. Some mandates unfunded
    1. Example ADA
  11. Advocates say it reduces inequality
  12. Help improve to extend not possible w/o national govt
  13. Socail welfare under states undil Great Society program under Johnson
  14. Medicaid concurrently fundes
  15. ESEA provided federal funding for low income families
3. What are devolution and block grants?
  1. Nixon promised to role back national authority, some back to states
  2. Main strategy use block grants
    1. Still grant-in-aid
  3. Increase in authority o how that money spent to state, local govts.
  4. Trend continued under Reagan
    1. Increased block grants for social welfare
  5. HHS block grants for drug and alcohol addiction
  6. DoE block grant to wean off oil and gas, improve efficency
  7. Revenue Sharing is whe fed. Govt. apportions money no strings attached
  8. Ended 1986
    1. Not likely in future due to deficit
  9. Devolution returns federal authority to states
    1. Increase autonomy, decentralize administration and control
    2. Example PRWORA, replaced AFDC with TANF, time limits imposed, work requirements
4. How does Federalism and Public Policy affect Education?
  1. ESEA tried to level playing field by providing funding, esp. To low income families
  2. Federal money to states to improve retention and education
  3. Reauthorized by No Child Left Behind
  4. States provided grant money if they standardized tested
    1. Very criticized
    2. ESSA gave more flexibility but still testing
  5. Advocates say that federal govt. Overstepping its bounds
  6. Others say that students should not be disadvantaged by state they live in
The Supreme Court and Modern Federalism
- 1. 10th amendment more prominent recently
1. What was US v. Lopez
  1. Kid brought gun into school, charged with state law, dropped, charged with federal law
  2. Lopez claimed unconstitutional, could not regualte public schools
  3. Appealed to 5th circut CoA, won, US appealed to SCOTUS
  4. Required to prove Gun-free school act was allowed under commerce clause
    1. Increase crime, affects economy our business
    2. SCOTUS said no
      1. Then everything would be commerce, 10th amendment issue
      2. Dissenting said it did affect commerce, look at overarching effect, gun violence problem
  5. Reversed trend of national power expanding, reaffirmed state powers
2. What about Smae Sex Marriage?
  1. States decide requirements for marriage
  2. SCOTUS overutnred prohobotion on interracial
  3. Lesbian Marriage not legal under fed. Law, but under Canada and NY law
    1. More taxes
  4. Sued under 5th amendment due process clause
  5. Challenged DOMA
    1. Man and woman
    2. Reaffirmed state power
    3. SSM did not fall under full faith and credit protections
  6. 5-4 ruling DOMA unconstitutional
    1. Interference wth equal protections
    2. Dissenting said that constitution does not protect right to SSM
  7. 2 men flew from Ohio to Maryland, reconized SSM
    1. Medical plane, married while they still could
  8. Ohio did not recognize one as spouse, sued, 5-4 case affirmed right to SSM, right to privacy
  9. Obergefell case legalized SSM nationwide
3. What was Gonzolaes v. Raich?
  1. Did federal government have power to ban medical marijuana
  2. 6-3 sided with federal govt.
  3. Different from lopez, had rational basis that it affected interstate commerce
  4. Still illeagal under federal law, but legal in many states
  5. Obama’s solicitor general said supreme court shouldn’t hear case against colorado
  6. Boundry between state and federal on drugs still undefined
  7. Difficult to enforce CSA, have to put millions in jail
    1. DOJ confirmed this impossiblity
  8. With Trump, thought that authority would shift to states
    1. No because Sessions appointed, did not want to relinquish federal authority
  9. Break federal but obey state law unanswered.
  10. Federalism always loosely defined
    1. Still hotly contested.