OQ 1. Give a strong definition of federalism (must discuss more than

“

sharing power

”

).

2. Is Federalism good or bad? Explain.

Chapter 3

Federalism

Governmental structure

A. Introduction

1. Definition of

Federalism

: a) a political system in which there are local units of government, as well as a national government,

that can make final decisions with respect to at least some governmental activities and whose existence is specially protected.

2. Federal, Unitary and Confederal? Examples?

National Powers A.

B.

C.

Delegated

(expressed,

enumerated powers

): actually stated in Constitution

1.

Implied

: not stated

explicitly

, but suggested

implicitly

.

Elastic clause

: Article 1, Section 8  To make all Laws which shall be necessary and proper…

2.

Commerce Clause

is another example of elastic language (to regulate commerce… among the several states…)

1.

Inherent

: not stated, but held by virtue of being a national government.

Powers such as diplomatic recognition, acquiring territory, defending itself.

Powers Reserved to the States

A. Amendment 10

B. Examples: est. voting requirements, running elections, licensing professionals, community health, vehicle licensing and much more.

Ron Paul a strong advocate for states

’

rights would like to see the 10 th Amendment made much stronger.

Concurrent powers

A. Powers granted to Congress, but not denied by the Constitution( or denied by the Courts) to the states. Examples?

1. taxing, borrowing, establishing courts and law enforcement B. Questions of state/federal authority decided by the courts.

National Supremacy

A. (Article VI 

Supremacy Clause

): National govt. supreme in case of conflict w/ states “

the supreme law of the land,

”

Ex: Use of medicinal marijuana in California Gonzales v. Raich



1970 Federal Drug laws versus California state law that allowed for the use of Medicinal marijuana

Obligations

A.

B.

1.

2.

3.

guarantee each state a

republican form of govt.

protect each state

against invasion and/or domestic violence (if the state asks) grant

new states same rights

as existing ones

Obligations of state govt.

1.

2.

3.

Obligations of national govt.

Full faith and credit clause

(Art.IV, Sec. 1): each state must honor the laws and legal proceedings of other states

Privileges and immunities clause

(Art IV, Sec 2): Uhh…??? Hey, if the courts can ’ t figure this one out…

Extradition

: delivery of a person, suspected or convicted of a crime, by the state where he has taken refuge to the state that asserts jurisdiction over him

American Federalism: States' Rights vs. National Government

A. States' Rights view

1. Constitution limits national authority 2. 10th Amendment 3. when in doubt power goes to states 4. National govt. has gotten too big + related problems 5. state govt. are closer to people  more democratic

American Federalism: States' Rights vs. National Government

A. Nationalist's view

1. elastic, commerce, and taxing/spending clauses gives great power to national govt. 2. Powers go to states only if they have been surrendered by national govt.

3. when in doubt, matter should be resolved in favor of national govt.

4. states have historically violated citizens' basic rights (South until the 1970s)- national govt. has protected it.

McCulloch v. Maryland, 1819

A.

B.

C.

D.

National bank first est. in 1791 and then re-established a) b) supported by Federalist opposed by Democratic-Republicans: seen as an instrument of the wealthy elites 1818 Maryland challenges "Monster Bank"--$15,000 tax Baltimore branch refuses to pay, is sued (McCulloch); state court rules for Maryland.

1.

Chief Justice

John Marshall

and the Supreme Court The Arguments: a) Maryland: Luther Martin  Congress had overstepped its authority in creating national bank b) National bank: Daniel Webster  "necessary and proper" clause (Art. I) gave Congress the right to establish bank

McCulloch v. Maryland, 1819 cont

’

d

1. The Decision of the Court

: a) it is necessary and proper for the national government to have a bank because, even though the term “ bank ” is not in the Constitution, the government does have the power to manage money (taxes, issue currency, borrow funds etc.) b) Federal government is supreme in the exercise of those powers conferred upon it by the people, therefore it is unconstitutional for the states to tax an extension of the federal government

McCulloch v. Maryland, 1819 cont

’

d

1.

2.

What does this mean?

a)

b)

c) Precedents

:

Supremacy

of national government over the states i.

as long as it abides by Constitutional law ii. federal laws preempt state/local laws (water quality, waste, + more) iii. great and clear impact example will be civil rights National gov. has

implied powers enumerated powers

that go beyond the i.

right to coin money, regulate its value, to borrow money, etc. Art. I Sec. 8

Elastic Clause

: to carry out these rights Art. I Sec. 8 "necessary and proper"

Federalism and Federal Grants $$$ A.

1.

2.

3.

4.

5.

6.

7.

Grants show how political realities modify legal authority

began before Constitution with land and cash grants to states dramatically increased with 20th C.

attractive to state officials--free money + no guilt or blame.

meets national needs a) shift in grant-in-aid from what the states wanted to federal priorities ex: Welfare, EPA, Civil Rights, etc.

b) state, local governments became dependent on funds reduces growth of federal bureaucracy as money goes to states to run programs (under federal guidelines) equalizes resources among rich and poor states Intergovernmental lobby