implied (and the importance of the Elastic, or Necessary and Proper, Clause)
Powers denied by the Constitution
Explain the supremacy doctrine
Explain the obligations states have to each other..
Explain the Constitutional questions posed in McCullochv.Maryland and Gibbons v. Ogden.
Explain the importance of the commerce clause.
Explain the impact of the Civil War on federalism.
Explain t he rights granted by the Civil War amendments, and their impact on federalism (eventual application of the Bill of Rights to the states; civil rights).
Describe dual federalism as it evolved after the Civil War.
Explain how dual federalism was replaced by cooperative federalism (the Great Depression and the New Deal) and how the Supreme Court’s resistance to cooperative federalism came to an end (the court-packing scheme).
A Unitary System. In a unitary system of government, the central government gives power to sub-national governments (counties, provinces, etc.). This is the most common form of government. Local governments typically have only those powers granted to them by the central government, rather than any reserved powers. Especially important is the central government’s role of provider of funds. Many sub-national governments rely exclusively o funds from the national government for overhead and program administration, as they may not have the power to tax.
A Confederal System. In a confederal system of government, power is retained by local or regional governments. The EU (European Union) is an example of a current confederal system. Each country has ultimate power within the system although there is an EU parliament and other institutions that set a common European policy.
A Federal System. Federal systems divide power between the national and lower level governments. Each government has distinct powers that the other governments cannot override. A number of countries use a federal form of government (Australia, Brazil, Canada, Germany, India, Mexico, and the United States).
A Practical Solution. The authors of the Constitution wanted to combine a central government strong enough to maintain order with strong states.
Other Arguments for Federalism. Other arguments for federalism include the large geographical size of a country.
Benefits for the United States. State governments have served as training grounds for national politicians and as laboratories in which new ideas can be tested.
Federalism Allows for Many Political Subcultures. Federalism can be favored because of sectionalism and political subcultures that led many to advocate decentralization.
Arguments against Federalism.
The Constitutional Basis for American Federalism
Powers of the National Government. Powers delegated to the national government include both expressed and implied powers. Most of the expressed powers are bestowed on Congress (Article I, Section 8). Implied powers allow the national government to make decisions that fall outside the expressed powers.
The Necessary and Proper Clause. Many of these powers are traced to the necessary and proper clause in Article I, Section 8.
Inherent Powers. The other major source of power is known as inherent powers, powers that are recognized by all sovereign nations.
Powers of the State Governments. Reserved powers of the states are, according to the Tenth Amendment, all powers that were not delegated to the national government. Interpretation of the Constitution has significantly altered the meaning of this amendment. In 1791, when this amendment became effective, the national government was not as active as it is today. In theory states still retain all powers not delegated to the national government, but in reality the national government has expanded the scope of governmental action on a grand scale. Key concept: police power, the authority to legislate for the protection of the health, morals, safety, and welfare of the people. In the United States, most police power is reserved to the states.
Concurrent Powers. Concurrent powers are powers that are shared by both the national and state governments. Examples include the power to tax, the make and enforce laws and to establish courts, and to a limited extent, the police power.
Prohibited Powers. Prohibited powers apply to both the national and state governments. The national government is prohibited from taxing exports. State governments are prohibited from conducting foreign policy and from coining money.
The Supremacy Clause. Article VI of the Constitution (the supremacy clause) mandates that actions by the national government are supreme. Any conflict between a legitimate action of the national government and a state will be resolved in favor of the national government.
Interstate Relations. Article IV of the Constitution attempts to resolve potential problems between states by stipulating the following:
Full faith and credit clause—states must honor actions of other states.
Privileges and immunities—citizens of one state must not be treated as aliens when in another state. If the citizen of one state moves to another state, the receiving state must treat the new person as a citizen.
Interstate extradition—if a person is alleged to have committed a crime in one state and then flees to another state, the accused person will be extradited to the state where the alleged action occurred. (Note that this clause originally applied to escaped slaves as well.)
Interstate compacts—compacts between states—must be approved by Congress if the compact alters the power relationship between states or the national government.
Defining Constitutional Powers—The Early Years
McCulloch v. Maryland (1819). This case settled a constitutional question concerning the powers of the national government. Chief Justice John Marshall’s decision confirmed national power. The power of Congress is not strictly limited to the expressed powers. Marshall held Congress has implied powers to carry out the expressed powers. Further, Marshall upheld the supremacy doctrine by ruling that states could not override federal actions by taxing them.
Gibbons v. Ogden (1824). This case set the precedent for the national government to regulate a wide range of economic activities. The definition of what could be considered interstate commerce was greatly expanded. In time this definition would allow Congress the power to regulate a wide range of economic activities.
States’ Rights and the Resort to Civil War
The Shift Back to States’ Rights. In the Jacksonian era (1829–1837) states’ rights were reemphasized by the new Democratic Party. However, President Jackson would not tolerate a direct challenge to the supremacy doctrine, as was presented by South Carolina’s nullification doctrine. Because South Carolina received little or no support from other Southern States in this dispute over the national government’s exercise of its enumerated power to set taxes on imports (tariffs), the state had to back down.
War and the Growth of the National Government.
The War Effort. A major effect of the Civil War was the growth of the national government. The cost of the military led the national government to develop new ways to generate revenue (the first income tax). This increased action by the national government did not end with the war. After the war there was no longer a question as to whether the national government was supreme.
The Civil War Amendments. The post-war amendments represented a serious enhancement of national power. The national government now abolished slavery, defined who was an American citizen, and attempted (with limited success) to provide rights to the freed slaves that included the right to vote. In time, the Fourteenth Amendment—at first almost a dead letter—would be used to apply the Bill of Rights to state governments and to underpin the civil rights gained by African Americans in the 1960s.
The Continuing Dispute Over the Division of Power
Dual Federalism and the Retreat of National Authority. Dual federalism emphasized dividing the state and national spheres of power into entirely separate jurisdictions.
A Return to Normal Conditions. This doctrine was, in part, a return to the states’ rights beliefs that prevailed before the Civil War.
The Role of the Supreme Court. The Supreme Court was caught out on the wring side of the Civil War conflict and lost its legitimacy for a generation. As the Court regained its powers, it used them to define and defend what we now call dual federalism. In particular, the Court denied the federal government any police power at all.
The New Deal and Cooperative Federalism. Cooperative federalism emphasized an expanded role for the national government, and cooperation between the national government and the states.
The New Deal. In response to the Great Depression, Franklin D. Roosevelt’s administration implemented social-welfare programs designed to alleviate the bad economic times. Dual federalism, in contrast, had held that programs such as poor relief were entirely outside of the federal role.
The End of Dual Federalism. The Supreme Court struck down dozens of New Deal programs as unconstitutional. After Roosevelt threatened to “pack” the Court with newly appointed justices, however, the Court ceased to interfere with the national government’s attempts to legislate broadly under the commerce clause.
Cooperative Federalism. Roosevelt’s programs typically were funded by the federal government, but administered by states and local governments, thus creating a cooperative framework for federalist relations.
Methods of Implementing Cooperative Federalism.
Categorical Grants. Federal grants became a popular way to help to construct the national infrastructure. In addition to infrastructure needs, states began to see federal grants as a way to provide services to the public. Key concept: categorical grants, or federal grants to states or local governments that are for specific programs or projects.
Feeling the Pressure--the Strings Attached to Federal Grants. Usually such grants must include matching funds from the state or local government. Often, grants have significant strings attached.
Block Grants. Key concept: Block grants, which allow state or local governments more leeway in deciding how to spend funds for a specific type of governmental service such as health care. Policies such as welfare reform have enabled states to act as policy laboratories, trying different policy solutions to see what works best.
Federal Mandates. Sometimes the federal government will impose a mandate on state or local governments to implement a costly policy in return for funds that may not make up the full costs of the program.
Federalism and the Supreme Court
Reining in the Commerce Power. Since the early 1990s, the Court has reined in some of the federal government’s authority under the commerce clause, though this hardly amounts to a return to dual federalism.
State Sovereignty and the Eleventh Amendment. The Court has ruled that in many cases, the states are immune from suits brought by their own citizens in federal court. This is a significant expansion of states’ rights.
Tenth Amendment Issues. The Court has ruled that the federal government cannot “conscript state governments as its agents” in undertaking programs. It can still “bribe” them, however.
At Issue—Tribal Governments and Federalism. By the Constitution, Indian tribal governments are directly under the federal government. State legislation is only binding on them when Congress permits it. Therefore, the tribes have considerable autonomy that allows them to raise funds by activities such as gambling casinos.