Transcript Federalism

Federalism
a system of government in
which s________ is shared
between two or more l_______
of government so that on some
matters the national government
is supreme and on others the
subnational gov’ts are supreme
There are three essential features that
characterize a federal system of governance
First, C___________sets up l__________in same territory
It’s a geo________________ division of governmental authority
Second, each government must have its own
authority and sph________of power, though
they may overlap.
The degree of overlap can vary
informal term to describe a power sharing
arrangement between national and
subnational governments where the
powers of the two are clearly delineated
and do _____ overlap
informal term to describe a power
sharing arrangement between national
and subnational governments whereby
the two levels of government share
powers
Fill in missing info
Third, neither level of government (federal
or state governments) can a________ the
other
Remember: central to the conflict in the civil war were
questions of states' sovereignty including the power to
________federal laws or dissolve the Union
Article 4, Section three : “New States may be admitted by the Congress
into this Union; but no new State shall be formed or erected within the
Jurisdiction of any other State; nor any State be formed by the Junction of
two or more States, or Parts of States, without the Consent of the
Legislatures of the _______________concerned as well as of the
Congress.”
The Geographic Division of Government Authority: there are other
ways to structure the relation between national and sub____________levels of
government
Do you get it?????
__________sovereignty is wholly in hands of national gov't
and local govs are at its will –subnationals are not
powerless, and certainly exist but don’t have ULTIMATE
sov
_________states are sovereign and national is allowed to do
only what states permit
________sov shared: in some matters national govt is
supreme and in some states are: here states are supposed
supreme in social, moral and family issues, including
criminal laws
Fill in with federalism, confederalism and unitary
Do you get it? While the United States itself is
federal, most (if not all) U.S. states are
themselves u__________, with counties and
other municipalities having only the authority
devolved to them by the state constitution or
legislature
So as we go from Articles of Confed to Fed . . .
Get more or less centralized?
Articles of Confederation
Article II
Each s____________retains its sovereignty, freedom, and independence, and every
power, jurisdiction, and right, which is not by this Confederation expressly delegated to
the United States, in Congress assembled.
United States Constitution
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the __________respectively, or to the people.
Answer?
Separation of Governmental Authority
G________ vs S_________ separation
decentralized
CONFEDERAL
Geographic
sep of FEDERAL
authority
UNITARY
centralized
Authoritarian
Parliamentary
concentrated
Structural sep of authority
Presidential
dispersed
NOT
FEDERALISM IS
SEPERATION OF POWERS
Although they both
separate authority
and are part of
framer’s attempt to
institute a
pl_____________
system which will
limit the potential
for nasty mobs to
tyranize
Do you get it? Fill in federalism( “f) or sep of
powers (“S of P”)
If Congress passes a law and applies it to the states and the
states refuse to follow it, that is a ________ issue
If the president sends troops to Fisherland, and Congress
refuses to fund them, that is a _________ issue
If a state passes a law and it conflicts with a law Congress
passes, that is a ______ issue
A fight b/w levels of government raises issues of
______________
Nullification doctrine? ______________
Signing statements (when Pres signs a bill but says he won’t
enforce part of it) _________________
Reln b/w federalism and
democracy
Most federal systems are_________________,
but most ___________ are not federal
Does this show federal or unitary systems?
Back to federalism: Let’s look at this
sphere idea in more detail:
“each government must have its own
authority and sphere of power, though
they may overlap. “
When state and federal authority conflict, federal law is
supreme according to the Constitution (Article _______) aka the
__________ clause
Pre-___________ doctrine
Derives from the Supremacy Clause of
Article VI
any federal law--even a regulation of a
federal agency--trumps (or preempts) any
conflicting state law.
trump1
trəmp/
noun
noun: trump; plural noun: trumps
1.
(in bridge, whist, and similar
card games) a playing card of
the suit chosen to rank above
the others, which can win a
trick where a card of a
different suit has been led.
Answers Sought for When
Marijuana Laws Collide
September 10, 2013
. . . The Justice Department said last month that it would not
seek to pre-empt the state laws as long as states set up
“robust” regulations to keep marijuana operations from
running afoul of the agency’s top enforcement priorities, like
preventing children and drug cartels from obtaining the drug
and prohibiting its use on federal land.
A man pulls out a bag of marijuana to fill a pipe at Hempfest
in Seattle on Aug. 16. Thousands packed a waterfront park
for the opening of a three-day marijuana festival, an event
that is part party, part protest and part victory celebration
after the legalization of pot in Washington and Colorado in
2012
Feds Seek To Corral Medical Marijuana
'Wild West'
September 11, 2013 When the Obama administration recently announced it wouldn't
challenge the decision by Colorado and Washington voters to fully legalize marijuana,
criticism rained down. . . . The administration's position, complained one Colorado
congressman, was tantamount to allowing states to opt out of the federal law banning
pot possession, cultivation and sale.
So how does a move not to enforce federal drug law in Colorado and Washington help
control medical marijuana sales and use in the 18 other states and the District of
Columbia where it's legal?
Simple, says Kleiman.
To keep federal drug prosecutors at bay, Colorado and Washington have to come up
with what Deputy Attorney General James Cole described this week to members of the
Senate Judiciary Committee as "strict regulatory schemes" that are tough in practice
and meet eight federal enforcement priorities.
The priorities address everything from the distribution of marijuana to minors and
transporting pot across state lines to drugged driving and using marijuana sale
proceeds for criminal activities.
Don't meet those priorities? Sorry — your state is going to be in trouble with the feds,
Cole says.
Limits on pre-emption: if Congress is going to call “trump” it
MUST be exercising authority granted to it by the
Constitution
Article I, Sec. 8 of the Constitution
delegates certain
e____________powers to the
national government that includes
the exclusive power to
m_______currency, establish and
maintain an army and n______
declare _______, regulate interstate
c_________, establish post offices,
establish the seat of national
government, and enter into treaties.
All of the Art 1 section 8 powers are
within whose sphere?
Of course, the “_________and _______ clause” has expanded
those enumerated powers to include ________powers as well
aka which case class? _____________ vs______________
Congress shall have the power . . . To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United States, or in any Department or Officer
thereof
So . . . if Congress is not in its “sphere” then
the States trump because of
The ________ Amendment: The powers not delegated to
the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to
the people
In the US states are
supposedly supreme
In which areas?
See next slide
in social, m______ and family issues-including cr__________ laws
Wash. to Set Medical Marijuana Limits
By CURT WOODWARD
The Associated Press
Thursday, July 5, 2007; 12:29 PM
SEATTLE -- This fall, sober public servants will convene
meetings across Washington state to answer a pressing
question: How much marijuana constitutes a two-month
supply. . . . Washington's medical marijuana law was
approved by nearly 60 percent of voters in 1998, following
closely behind California in the first wave of such measures
nationwide
Of course, there is tension between, ahem, centralized
power (viz the_______ government) and decentralized
power (viz the__________)
Go to: http://www.oyez.org/cases/19901999/1994/1994_93_1260/
Feds can be the boss by using sticks or carrots
Mandates: the "sticks”
The supremacy clause means they trump—so they can tell the states
what to do—that’s the “__________doctrine”: if state and fed law conflict,
state law is rendered void and unenforceable
Of course Congress must be acting in
its “sphere” of enumerated powers
found where?________________
And even more expansively, within its
implied powers made possible by the
what clause? ___________
Go to: http://www.oyez.org/cases/2000-2009/2004/2004_03_1454
As a side note . . . look who
gets power with all this
separation of authority
EXAMPLE: Most environmental legislation
(States are told: Clean up the air . . period).
Clean Air Act
Another mandate: Civil Rights Legislation
Remember: if the feds are mandating something, they must be acting
within their “sphere” but uh oh, social issues are supposed to be state
spheres
Of course, separate
but equal drinking
fountains are bad . . .
But that is not the
question here—the
question is can
Congress do
anything about it?
Is it within their “enumerated powers sphere?
They say yes it is within our authority to regulate
_________and they pass the Civil rights act—(telling states
they can not provide separate but equal facilities)
The Constitutional Issues behind the Affordable
Care Act
Listen:: http://now.iscotus.org/healthcare/
Segment on commerce clause and segment on
Spending clause
Read http://www.oyez.org/cases/20102019/2011/2011_11_400
Another Mandate Example: Americans with
Disabilities Act (ADA)
Americans with Disabilities Act—States (and businesses) may not
discriminate in employment and state and local governments must
provide equal access to service, employment , buildings and
transportation—
So the ____________
government is telling
__________ that they have to
do something (private people
too but that is another
question—now we are talking
about federalism—that’s a
mandate)
Important note: Mandates can be funded . . . Or they can be partially funded . . . Or
they can be unfunded . . . But they are a stick—the states must do it. The ADA was
unfunded which creates even MORE tension
No Child Left Behind was partially funded
It’s a mandate
And Utah refuses to comply
with any parts that are
unfunded
the carrot approach
strings attached to grants as "condition of aid"
They say if you want our __________. . . . You
have to x y or z. It is not a m__________ cuz
state could say ______.
Fiscal Federalism
Fiscal Federalism is
the power of the
national government to
influence state policies
through gr_________
Another appropriate example . . . .
A federal law enacted in December 2004 designates
September 17 as "C__________ Day and Citizenship Day," to
commemorate the signing of the United States Constitution on
September 17, 1787. The federal law is included in Section 111 of
Pub. L. 108-447 (Consolidated Appropriations Act of 2005). It
contains the following provision in Section 111(b): "Each
educational institution that receives Federal funds for a fiscal
year shall hold an educational program on the United States
Constitution on September 17 of such year for the students
served by the educational institution."
Ah ha in an act of defiance I did NOT teach you about the Const
on Const day . . . .
U.S. secretary of
education opposes
California's testing plan
By Howard Blume
September 9, 2013, 10:18 p.m.
The nation's top education
official threatened Monday to
withhold federal funds if
California lawmakers approved
pending legislation to revamp
the state's standardized testing
system. . . .
U.S. Secretary of Education Arne Duncan said
he opposes California's proposed testing plan.
(Susan Montoya Bryan / Associated Press /
September 9, 2013)
http://www.latimes.com/local/lanow/la-me-ln-duncanopposes-testing-plan-20130909,0,5545295.story
This gets harder to do in eras of big deficits.
Advantages to Federalism
Check on t________ . . . How?
• because if it occurred in a few states, the fed. Gov could prevent its
spread--furthers pl_____________
• Limits gov't. National gov't only has those powers granted to it--all others
belong to state thru _________ amendment
•
More advantages
Keeps Gov’t closer to
the people
more ways for people
to participate
Accommodates
diversity; More suitable
for h_______ogeneous
peoples
Twelve northern Nigerian states have introduced
Sharia since the year 2000
•
•
•
•
It is inefficient
Incoherent
More expensive
L_______ voter
turnout (too much!)
• Special interests can
thwart
Disadvantages:
Map showing 35 states ratifying E.R.A.
(in blue).
...
Who gets what depends on where--e.g. of Ronald Harmelin who
learned about fed. the hard way--on June 27, 1991 SU Ct upheld his
life without parole sentence imposed on him for possessing 650
grams (about 1 and 1/2 pounds) of cocaine. Michigan was the only
state at that time to impose a mandatory life sentence for this amount
of cocaine--in Alabama for example would have received 5 years-under federal sentencing guidelines--10 years--sup court said too bad
More disadvantages:
• It’s confusing . . . Who’s sphere is it
•
As a result, more power goes to
the _________cuz they are umpires
OK so the Trump Cards for the
feds are .
The Pr_________Doctrine which derives from the S_________
Clause: and says: federal law trumps conflicting state law
But only if Congress is legitimately exercising an
enumerated Power . . With the _________clause
being especially useful to them
Or an implied power created through the “Elastic” or
“necessary and______” clause
Or if there is a clear pattern of discrimination so they say
they can use section 5 of the 14th amendment—to be
explained in the next slide show
Any other time . . . States trump
(1) Because of general principles of f___________
(2) Because of the ________h amendment:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved for
the States respectively, or to the people
And (3) (sometimes) because of the 11th amendment which
recognizes the states’ sovereign immunity so the feds can’t
allow individual damage suits against state officials (to be
explained later)
Do you get it?
Bowers v Hardwick as an example--Georgia police found
a man in bed with another and he was prosecuted under
Georgia's anti-sodomy law. Sup Court upheld his
conviction saying that the states could pass a law
outlawing sodomy. Headlines blare: Supreme court ruled
homosexuality is illegal. WRONG--why?
States relations to each other
DOMA
See/listen to http://www.oyez.org/ssm/