Government Structure and Federalism

1
Government Structure and Federalism

• Frank Brooks

2
The Constitution as a Contract

• Lays out key elements of government
• purposes
• structure
• powers
• limits
• Effectiveness v. safeguards
• Skeletal framework, not detailed blueprint
• Constitution is vague, inspired ambiguity
• provides flexibility and stability
• channels conflict into political channels

3
Powers Formal and Evolved

• Formal, constitutional powers
• Congress (Article 1)
• President (Article 2)
• Supreme Court (Article 3)
• Informal, evolved powers
• Congress necessary and proper clause
  (elastic)
• Supreme Court judicial review
• President inherent (implied) powers
• Many rooted in commander in chief authority
• Capacity to lead nation enhanced by technology
• Development of national constituencies and
  interests

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 I, Section 8)
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Limits on National Government

• Constitutional Limits
• Amendment Process
• channels policy change into political channels
• Separation of Powers Checks and Balances
• Decentralize power by separating it
• Encourage competition between power centers
• Federalism
• Acknowledge and define role of state and local
  governments as counterweight

5
Amending the Constitution

• Proposal
• By 2/3 vote of both houses of Congress (A)
• By 2/3 of state legislatures calling for a
  convention (B)
• Ratification
• By ¾ of state legislatures (C)
• By ¾ of state ratifying conventions (D)
• History of amendment
• Only 27 (17 since Bill of Rights)
• AC route for all but one
• Difficulty of amendment channels policy change to
  Congress, executive branch, even courts

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Separation of Powers

• Three branches four significant parts
• Congress
• House
• Senate
• Presidency Executive Branch
• Courts
• Three kinds of separation into those four parts
• Function
• Constituency
• Term

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Separation by Function

• House
• Legislative
• Spending
• Senate
• Legislative
• Executive approve nominations, ratify treaties
• President
• Executive
• Foreign relations
• Courts
• Judicial
• Interpret Constitution

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Separation by Constituency

• House
• Chosen by voters in Congressional districts
• Narrowest representation, most accountability
• Senate
• Chosen by states (legislatures, then voters)
• More heterogeneous constituency than House
• President
• National constituency (distorted by electoral
  college)
• Court
• Federal judges chosen by President and Senate
• represent the Constitution (defend it against
  threats)

9
Separation by Term

• House
• 2 years, no term limits
• Senate
• 6 years (staggered), no term limits
• President
• 4 years, 2 term limit (after 22nd Amendment)
• Court
• life term
• Cannot gain control of all the government all at
  the same time

shall hold their Offices during good Behaviour
(Article 3, Section 1)
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Checks and Balances

• Consider FDRs court-packing scheme
• Separation of powers may slow down concentration
  of power, but cant stop it
• Ambition must be made to counteract ambition
• Assume that office-holders need/want power
• Give each part tools to interfere with other
  parts
• Let competition among parts limit overall power,
  or at least ensure that power used appropriately
• Broad impact of checks and balances
• enforce separation
• compel cooperation and compromise

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Federalism

• Separation of power between levels of government
• Historical context
• shift of power away from states
• But, left them considerable authority
• Complex subject (abstract to concrete)
• Structure of relationship between states
  federal
• How the Constitution describes terms of
  relationship
• Interpretation of Constitutional language
• Politics of relationship (especially money)

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Structure of Federalism

• Unitary Government
• Confederal Government
• Federal Government

13
Federalism in the Constitution

• National Supremacy Clause (Article 6)
• Seems to favor national government
• Anti-Federalists sought clarification/dilution
• Tenth Amendment
• National government has delegated powers
• E.g. regulate interstate commerce, raise army
• Only those explicitly mentioned in Constitution?
• States governments have reserved powers
• Residual category (after powers prohibited to
  states)
• Includes police powers, education

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, any Thing in
the Constitution or Laws of any state to the
Contrary notwithstanding
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.
14
Interpreting Federalism

• Need for Interpretation
• National Supremacy clause and 10th Amendment
  potentially contradictory
• Specific meaning of delegated and reserved
  unclear
• Supreme Court resolves
• McCulloch v. Maryland (1819)
• If both state and federal government exercise
  legitimate power, which prevails?
• Elastic clause national supremacy clause
  national government wins

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Interpretations of the Commerce Clause

• How much power was conferred by Congress power
  to regulate interstate commerce?
• Gibbons v. Ogden (1824)
• commerce broad interstate narrow
• 1830s-1930s commerce power interpreted narrowly
  to limit Congressional power
• Jones v. NLRB (1937)
• Virtually all commerce is interstate
• Greatly expanded Congressional power

16
The Politics of Federalism

• Dual federalism
• Dominant until 1930s
• States and national government had distinct,
  separate realms (depending on functions)
• Cooperative federalism
• States and national government cooperate
• Often, national government funds, while states
  implement
• Regulatory federalism
• National government sets conditions for funding
  and thus regulates state actions
• Unpopular with states
• New federalism, devolution, states rights

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Funding Federalism

• Categorical and Project Grants
• Money appropriated for specific purposes
• Local governments and organizations write grant
  proposals
• States often circumvented
• Block grants
• Broad purposes, e.g. economic development
• Only about 10 of federal funding
• Revenue Sharing
• States get proportional share of taxes
  collected by federal government to spend on any
  purpose