Federalism

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Federalism

• Wilson Chapter 5
• Week 5

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FederalismA Comparative Perspective

• Three forms of Government Organization
• Unitary Government
• Centralized, All power at the center
• Federal Government
• Some power at the center
• Some power in sub-units (States)
• Confederal Government (Confederation)
• Decentralized, All power in the sub-units

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FederalismA Comparative Perspective

• Unitary Government
• Examples England, France, China
• Strong Centers
• Delegated power to counties etc. can be withdrawn
• Good at coordination and solving local tyranny
• Poor at addressing special local needs
• Poor at protecting against a central tyranny
• No place for experimentation

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FederalismA Comparative Perspective

• Confederal Government (Confederation)
• Decentralized, All power in the sub-units
• Real examples US under Articles of
  Confederation, UN, NAFTA, European Union.
• Ineffective at national coordination
• Cant resolve tyranny at the local level
• Good at dealing flexibly with local needs
• Provides local laboratories for experiments
• Blocks a central tyranny

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FederalismA Comparative Perspective

• Federal Government (the hybrid model)
• Examples USA, Canada, Switzerland, India,
  Mexico, Germany
• Some power at the center
• Some power in sub-units (States)
• Division of power spelled out in the structure
  and cant be changed by the central authority
• Moderately good at national coordination
• Moderately good at local need
• Partially blocks central tyranny
• Slowly overcomes local tyranny
• Creates local laboratories for experimentation

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Federalism
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FederalismA Comparative Perspective

• FEDERALISM IN THE US
• Expressed Powers of the National Government
• Implied Powers of the National Government
• Necessary and Proper Clause
• (I will call it the Necessary and Proper Clause,
  not the simple-minded term in the text elastic
  clause)

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Implied Powers

• Necessary and Proper Clause
• (this is college, I will use the legal language,
  not the simple minded elastic clause language)
• "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.
  
• (Article 1 Section 8 Clause 18)

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Federalism Selected Constitutional Powers
Federal Powers EXPRESSED - Coin Money - Conduct
Foreign Affairs - Regulate Interstate
Commerce -Levy and Collect Taxes -Declare
War -Raise / Support a Military -Establish Post
Offices -Establish Inferior Courts -Admit New
States IMPLIED "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.. (Article 1 Section 8 Clause 18)
Concurrent powers -Levy and Collect Taxes -Borrow
Money -Make and Enforce Laws -Establish
Courts -Provide for General Welfare -Charter
Banks and Corporations
Powers Reserved to the States -Regulate
Intrastate Commerce -Conduct Elections -Provide
for Public Health, Safety, and Morals -Establish
Local Governments -Ratify Amendments to the
Federal Constitution -Establish a State Militia

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SELECTED POWERS DENIED BY THE CONSTITUTION
Powers Denied to the Federal Government -Tax
exports from any state -Violate the Bill of
Rights -Change State Boundaries -Suspend the
right of Habeas Corpus -Make ex post facto
laws -Subject office holders to a religious
test
Powers denied both Federal and State
Government -Tax exports from any
state -Violate the Bill of Rights -Change State
Boundaries -Suspend the right of Habeas
Corpus -Make ex post facto laws -Subject office
holders to a religious test
Powers Denied to the States -Tax Imports or
Exports -Coin Money -Enter into Treaties -Impair
Obligations of Contracts -Abridge the
Privileges or Immunities of Citizens -Deny
Due Process -Deny Equal Protection
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Interstate relations

• Full Faith and Credit Clause
• Article IV, Section 1.
• Full faith and credit shall be given in each
  state to the public acts, records, and judicial
  proceedings of every other state.
• Birth certificates, Marriage Licenses, etc.

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Interstate relations

• Gay Marriage?
• 1995 Hawaii
• Defense of Marriage Act 1996
• No state (or other political subdivision within
  the United States) need recognize a marriage
  between persons of the same sex, even if the
  marriage was concluded or recognized in another
  state.
• The Federal Government may not recognize same-sex
  or polygamous marriages for any purpose, even if
  concluded or recognized by one of the states.
• Now Massachusetts, California, etc?
• Is Defense of Marriage Act Constitutional???

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Defining Federalism

• McCulloch V. Maryland, 1819
• RE US National Bank
• Outcome Feds win, a National bank is
  constitutional
• Justification Necessary and Proper clause and
  Supremacy clause
• Article 6 Supremacy Clause
• This Constitution, and the laws of the United
  States which shall be made in pursuance thereof
  and all treaties made, or which shall be made,
  under the authority of the United States, shall
  be the supreme law of the land and the judges in
  every state shall be bound thereby, anything in
  the Constitution or laws of any State to the
  contrary notwithstanding.

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Defining Federalism

• Gibbons V. Ogden, 1824
• RE Ferry service in New York Harbor
• Outcome Feds win states must recognize licenses
  issued by federal government
• Justification Interstate Commerce clause and
  Supremacy clause
• Interstate Commerce Article 1 Section 8 Clause 3
• To regulate commerce with foreign nations, and
  among the several states, and with the Indian
  tribes

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Defining Federalism

• Wickard V. Filburn 1942
• Re Grain Production in Ohio
• Outcome Feds win. Farmers crops can be
  regulated by Federal government
• Justification Interstate Commerce clause,
  argued that farmers effect interstate commerce
  even if they buy or sell nothing.

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Defining Federalism

• Heart of Atlanta Motel V. US 1964
• RE Discrimination in private business,
  specifically a motel that wanted to serve only
  white clients
• Outcome civil rights laws can be imposed by the
  federal government even on private businesses
• Justification Interstate Commerce and Supremacy
  clauses

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Defining Federalism

• CIVIL War Amendments Especially 14th
• Defines Citizenship
• Guarantees
• Privileges and Immunities from State violation
• Due Process from State violation
• Equal Protection from State violation
• Applies most of the Bill of Rights to States,
  expanding Federal Role
• Expansion of Federal powers

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Other Stuff

• Federal Mandates
• Orders
• Grants
• Categorical-formula Grants
• Project Grants
• Block Grants