3.2 Federalism and the Constitution

Systems of Government

• Unitary Systems (Concentrated Power): one central government exercises authority. National government may delegate certain powers to subnational govs.

• Confederal Systems (Decentralized Power): in which the subnational governments, such as states, have more power than the national government. In confederal systems, national governments depend heavily on the states to carry out and pay for public policies.

• Federal Systems (Divided Power): power is divided between the states and the national government. Each level of government retains some exclusive powers and has some powers denied to it.

National and State Powers

• Enumerated or expressed powers: refer to those powers granted to the national government in the Constitution, and especially to Congress. powers explicitly granted to the national government through the Constitution;

  • power to coin money, declare war, raise and support an army and navy, make treaties, provide for the naturalization of American citizens, and regulate interstate and foreign commerce.

• Implied powers: authority of the federal government that goes beyond its expressed powers; powers not granted specifically to the national government but considered necessary to carry out the enumerated powers.

• Federal Government prohibits:

  • bills of attainder, when the legislature declares someone guilty without a trial.

  • pass ex post facto laws: which punish actions that were legal when they occurred.

  • writ of habeas corpus: giving defendants the right to be informed of the charges and evidence against them

The Commerce, Necessary and Proper, and Supremacy Clauses

• commerce clause: grants Congress the authority to regulate interstate business and commercial activity.

• necessary and proper clause: granting Congress the authority to legislate as necessary for carrying out its constitutionally granted powers.

• Supremacy Clause: constitutional provision declaring that the Constitution and all national laws and treaties are the supreme law of the land. states must abide by the laws passed by Congress, even if state constitutional provisions conflict with them.

Power of the State Governments

• Tenth Amendment: reserves powers not delegated to the national government to the states and the people; the basis of federalism.

• Reserved Powers: powers not given to the national government, which are retained by the states and the people.

  • Article V: gives states final say about an amendment that will become part of the constitution.

• current Powers: Finally, both the national government and states are given the authority to act in certain areas of public policy.

  • allow national and state authority to overlap.

  • The power to tax is shared by the national and state governments.

  • Both may pass and enforce laws, create and operate a system of courts, and charter banks and corporations

Regional and Local Governments Rely on the States

• Article IV of the Constitution outlines the obligations between states.

• full faith and credit clause: requires states to recognize the public acts, records, and civil court proceedings from another state.

  • the couple married in Vermont is still married when their family relocates to South Carolina, even though the requirements for getting a marriage license may differ between states.

• privileges and immunities clause: prevents states from discriminating against people from out of state.

3.3 The Dynamic Nature of Federalism

The Marshall Court: Expanding National Power

• Many questioned if Congress had the authority to charter a national bank.

• The case centered on two questions: Did Congress have the authority to establish the bank in the first place? And did individual states have the authority to tax its branches operating within their borders?

  • The decision emphasizes that the states and people ceded some of their sovereignty to the national government in ratifying the Constitution.

    • The right to establish the bank was a valid implied power of Congress

    • This means that Congress is not limited by its expressed powers.

  • Maryland and other states did not have the authority to tax the bank’s state branches.

Shifting from Dual to Cooperative Federalism

• Dual Federalism: in which the states and the national government operate independently in their own areas of public policy.

  • used during earlier parts of American history.

• Selective Incorporation: by which fundamental liberties in the Bill of Rights are applied to the states on a case-by-case basis. This is done through Section 1 of the Fourteenth Amendment, which provides

  • the Supreme Court applied the Fourteenth Amendment to prevent states from taking away most of the liberties provided in the Bill of Rights.

• cooperative federalism: in which both levels work together in the same areas of public policy. Under this type of federalism, the two levels do not generally play the same roles.

  • latter part of 19th cent. more recent.

3.4 Modern American Federalism

Grants-in-Aid and the Expansion of Cooperative Federalism

• Grants in Aid: federal money provided to states to implement public policy objectives.

• grants-in-aid are an important source of national power

  • Though state, local, and regional governmental authorities are often not required to accept these funds, once they do so, they accept the national regulation that goes along with taking the money.

• Unfunded mandates: federal requirements the states must follow without being provided with funding.

Devolution and Block Grants

• Block Grant: provide federal money for public policies in a way that tries to increase state, local, and regional authority in how that money is spent and lessen federal influence.

• Devolution: returning more rule to state or local governments. by decentralizing control and administration of programs.

• N

• o Child Left Behind Act (NCLB).50 This controversial law provided states with grant money, if they agreed to give standardized assessment tests to students at certain grade levels.

3.5 The Supreme Court and Modern Federalism

United States v. Lopez: Preserving States’ Authority