Download Chapter 4 Outline (Teacher`s Notes)

Mr. McCormack
American Government
Central Dauphin High School
Chapter Four
Federalism
I. The Division of Power
A. Federalism – a system of government in which governmental powers are divided on a territorial basis
1. Each government has power only in its own territory (either the whole country, or just a part of the country)
2. Each level of government has its own powers
a. Some powers are exclusive (only the national government can declare war)
b. Some powers are concurrent (both national and state governments share control over the environment)
c. When powers are concurrent, the national government can overrule the state governments
3. Federalism is implied in the 10th Amendment to the Constitution – “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.”
a. The Constitution never firmly establishes a hard boundary between the powers of the states and the
powers of the national government
b. A general trend in American history has been the continuing cession of state powers to the national
government
4. Arguments in favor of Federalism
a. Allows for problem-solving at the most appropriate level
i. Major issues requiring national resources can be solved by the national government
ii. Purely local issues can be resolved at the level closest to the people involved
b. Respects the traditions and values of different people in different places
c. Helps keep a single government from growing too strong and abusing the people’s rights
d. Allows experimentation to find the best solutions to common problems
B. Powers of the National Government
1. The national government is a government of delegated powers
a. The government may only do what the Constitution permits (product)
b. The government may only do what it must in the ways the Constitution permits (process)
2. The national government’s powers may be classified into three categories
a. Express Powers (“enumerated powers”)
i. Clearly stated in the Constitution (mostly in Article I, Section 8)
ii. More than 30 distinct powers exist (i.e. coin money, collect taxes, etc.)
b. Implied Powers
i. Based on the “necessary and proper clause” - Article I, Section 8, Clause 18
ii. Congress shall have the power to make all laws that will be “necessary and proper” to execute
any of its express powers
iii. “Necessary and proper” now means “convenient and useful” – Congress has greatly expanded
the powers of the national government
iv. The Supreme Court does occasionally limit Congress’ attempts to expand its authority [i.e.
when it declared that criminalizing gun possession in school zones had nothing to do with
“regulating commerce” United States v. Lopez, 514 US 549 (1995)]
c. Inherent Powers
i. The powers naturally exercised by all sovereign states
ii. Examples include acquiring more territory, controlling immigration, and deporting illegal aliens
C. Powers Denied to the National Government
1. Expressly denied
a. Congress may not tax exports (goods shipped to other countries)
b. Congress may not violate certain rights (speech, religion, etc.)
2. Impliedly denied
a. The Constitution states that the government may only exercise the “delegated powers”
b. This category may be merely theoretical (an argument can be made that the implied powers can be
stretched to include anything not expressly denied)
3. Powers denied by the idea of federalism
a. Historically, states had supreme control over certain issues (i.e. establishing local governments,
educating children, deciding who can be married, etc.)
b. When there is clear evidence of a traditional “state function,” that power is assumed to be one of the
“reserved powers” of the 10th Amendment
c. While the federal government can’t usurp those powers, it can influence states to exercise their powers in
certain ways through its taxing and spending policies (i.e. national drinking age)
D. Powers of the States
1. Reserved Powers – those neither expressly granted to the federal government nor expressly denied to the states
2. States exercise significant powers over many issues (i.e. crime, education, marriage, developing land, etc.)
3. Most of what the government does is done by the states
4. The only state power expressed in the Constitution is the power to regulate the sale of alcohol (21st Amendment)
E. Powers Denied to the States
1. States can not exercise many of the powers expressly granted to the federal government (i.e. make treaties, coin
money, declare war, etc.)
2. States can not tax the federal government
3. State powers are also limited by state constitutions
4. Since the Civil War, it has been established that states do not have the power to secede from the USA
F. Local Governments
1. There are more than 87,000 local units of government (i.e. counties, townships, cities, etc.) in the USA
2. All local governments exist as parts of the states
a. State governments ultimately control the local governments (creation, regulation, destruction)
b. States have unitary, not federal, governments
D. Conflicts between National and State Governments
1. Supremacy Clause
a. Article VI, Section 2 of the Constitution establishes the Constitution as the supreme law of the land – no
state law can challenge the Constitution
b. Article VI, Section 2 also elevates acts of Congress and treaties – no state law (including state
constitutions) can violate a federal law or treaty
c. The Supremacy Clause guarantees that we remain a united nation
2. The Supreme Court and Federalism
a. The Supreme Court resolves conflicts between states and the federal government
b. The Supreme Court reasserted the supremacy of the federal government for the first time in McCulloch
v. Maryland, 17 US 316 (1819), when it ruled that Maryland could not tax (and thus destroy) a federal bank
II. The National Government and the Fifty States
A. The Nation’s Obligations to the States
1. The federal government must guarantee that every state has a “republican form of government”
a. The Constitution does not explain what “republican” means
b. The Supreme Court has refused to explain what “republican” means, claiming that it must be answered
by the Congress and President, not the courts [Luther v. Borden 48 US 1 (1849)]
c. “Republican” is generally understood to mean “representative” – the states must let the people choose
their government through elections
d. Congress used this guarantee as justification for delaying the readmission of several former Confederate
states after the Civil War
2. Invasion and Internal Disorder
a. The national government must defend every state from invasion
b. The national government must help any state that requests the assistance in suppressing domestic
disorder
c. The national government has only been called upon to protect the states on a few occasions (i.e. 1967
Detroit Race Riots)
d. The president may send federal troops into a state, even without the invitation of the state’s government,
if national laws are being broken, national functions interrupted, or national property endangered [In re
Debs 158 US 564 (1895)]
3. Respect for Territorial Integrity
a. The federal government must recognize the boundaries of each state
b. No new states could be created out of existing states without the consent of the states involved
B. Admitting New States
1. Thirty-seven states have joined the Union since the Constitution was ratified
a. Five of those states were formerly part of existing states
i. Vermont (New Hampshire and New York, before brief independence)
ii. Kentucky (Virginia)
iii. Tennessee (North Carolina)
iv. Maine (Massachusetts)
v. West Virginia (Virginia)
b. Texas was formerly an independent country (1836 to 1845), and recognized by the United States
2. Procedure for Admitting New States
a. An area desiring statehood must petition Congress for admission
b. Congress must pass an enabling act to direct the people of the area to draft a state constitution
i. A convention in the area drafts the proposed constitution
ii. A referendum of the area’s inhabitants must approve the constitution
iii. Both Hawaii and Alaska skipped this step in the 1950s
c. Congress may impose other conditions the people must meet
i. Conditions typically required a certain population, etc.
ii. Conditions may not restrict certain political actions of the state post-admission
a. 1910 – Oklahoma moved its capital against the “agreement” with Congress
b. 1912 – Arizona changed its law to allow the recall of judges against the “agreement”
with Congress
iii. 1896 – Utah was admitted on the condition that it abolish polygamy
iv. 1959 – Alaska was admitted on the condition that it never seize Native American land
d. Congress must approve the proposed constitution
e. Congress must pass an Act of Admission
f. The President must sign the Act of Admission (or it must be passed over his veto)
C. Cooperative Federalism
1. Federal Aid to State Governments
a. Grants-in-Aid
i. The federal government gives resources to the states for various purposes
ii. The earliest federal grants were land grants for education (Northwest Ordinance of 1787)
iii. The Morill Act of 1862 raised funds for state universities by selling public lands
iv. Many of these programs began during the Great Depression
v. There are now more than 500 grant programs in operation covering such areas as education,
transportation, health care, job training, and more
vi. Federal aid is worth around $275 billion, or 25% of the states’ collective budgets
vii. Federal aid allows the national government to influence issues that would otherwise be beyond
its power (i.e. education)
b. Revenue Sharing
i. This system was used between 1972 and 1987 to give states a share of the federal tax revenue
ii. This program cost the federal government about $83 billion over its life
iii. The money could be used in any non-discriminatory way and was very popular with its
beneficiaries (the states, cities, etc.)
c. Types of Federal Grants
i. Categorical Grants – made for specific, closely defined purposes (i.e. school lunches)
1. Must be used only for the specific purpose set by Congress
2. Must be matched by some state money
3. Must be spent by a state agency that administers the grant
4. Must obey Congressional guidelines for spending it
ii. Block Grants – made for more broadly defined purposes (i.e. health care)
Come with fewer guidelines/restrictions than categorical grants
Have grown increasingly popular since the 1980s
Many former categorical grants have been lumped together into block grants
iii. Project Grants – made for one particular project (i.e. research a special problem, construct a
special bridge, etc.)
d. Other Forms of Federal Aid
i. Agencies like the FBI cooperate with state and local officials
ii. Federal armed forces help train national guardsmen
iii. “Lulu payments” – the federal government gives aid in lieu of taxes on its property in an area
2. State Aid to the National Government
a. State and local officials conduct national elections
b. State courts administer naturalization (the process of becoming a citizen)
c. State and local police help the FBI
III. Interstate Relations
A. Interstate Compacts
1. Although states cannot enter into treaties, alliances, or confederations, Congress may approve some agreements
between the states or with foreign countries
2. Congressional consent may sometimes be implied [Virginia v. Tennessee 148 US 503 (1893)]
3. By 1920 only 26 compacts had been made, but the number has been growing and is now over 200
4. All 50 states belong to two compacts in particular
a. Compact for the Supervision of Parolees and Probationers
b. Compact on Juveniles
5. Compacts can cover shared resources (i.e. harbors, rivers, etc.), public safety, and other issues
B. Full Faith and Credit
1. Article IV, Section 1 of the Constitution requires every state to give “full faith and credit” to the “public acts,
records, and judicial proceedings of every other state”
a. Public acts refer to the laws of a state
b. Records refer to documents like birth certificates, marriage licenses, and property deeds
c. Judicial proceedings refer to court decisions (divorce decrees, etc.)
2. A state cannot enforce another state’s criminal laws
3. A state does not have to recognize a divorce granted to a non-resident of the state that granted the divorce
a. In order to be a good faith resident of a state, and thus, eligible for divorce, you must intend to live in that
state indefinitely [Williams v. North Carolina 325 US 226 (1945)]
b. This Supreme Court decision allows states to discourage people from “forum shopping” for easy
divorces
4. Article IV, Section 1 of the Constitution also states that “Congress may by general Laws prescribe the manner in
which such acts, records and proceedings shall be proved, and the effect thereof.”
a. Congress passed the Defense of Marriage Act based on its ability to prescribe the “effect” of a state’s
acts, records, and proceedings
b. The Defense of Marriage Act allows any state to refuse to recognize a homosexual marriage, even if it
has been licensed in a state like Massachusetts
C. Extradition
1. Article IV, Section 2, Clause 2 of the Constitution requires a state to return fugitives from justice to the
prosecuting state [Puerto Rico v. Branstad 483 US 219 (1987)]
2. Extradition is designed to prevent criminals from escaping justice by crossing a state border
3. Occasional extradition requests have been contested in cases with strong political overtones, but federal courts
force compliance
D. Privileges and Immunities
1. Article IV, Section 2, Clause 1 of the Constitution prevents states from drawing unreasonable distinctions
between its citizens and the citizens of other states within its borders
a. States cannot force employers to give hiring preferences to its own citizens [Hicklin v. Orbeck 437 US
518 (1978)]
b. States cannot give lower welfare payments to newly arrived recipients from other states [Saenz v. Roe
526 US 489 (1999)]
2. Privileges may include the rights to travel, own businesses, buy property, petition the government, and more
3. Reasonable distinctions between the citizens of states may include residency requirements for voting, receiving a
license, or running for office
4. Higher fees may be charged non-citizens for use of tax-supported state resources (i.e. a Californian attending
Penn State)