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Chapter 4
Sections 1 & 2
Expressed Powers
(Enumerated Powers)
Expressed powers are those directly expressed
or stated in the Constitution
Exclusive Powers
of the National Government
• Print money
• Regulate interstate (between states) and
international trade
• Make treaties and conduct foreign policy
• Declare war
• Provide an army and navy
• Establish post offices
• Make laws necessary and proper to
carry out the these powers
Implied Powers
Article I, Section 8, Clause 18 of the
U.S. Constitution
"[The Congress shall have Power] . . .
[t]o 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."
The authors of the U.S. Constitution wanted
to replace the weak national government of
the Articles of Confederation with a stronger
central government.
However, they were concerned about giving
the new national government too much
power.
They tried to limit the strength of Congress
by specifically listing the powers that
Congress could have.
Questions to Consider:
1.
Does this clause give unlimited power
to Congress to make laws? Support
your answer with evidence from the
clause.
2.
Why do you think this clause is
sometimes called the elastic clause?
After studying the distinction between
strict constructionists and loose
constructionists, how do you think each
group would interpret the amount of
power the clause gives Congress?
 According to the necessary and proper
clause, Congress generally may
assume additional powers not
specifically listed in the Constitution,
sometimes called implied powers, if
there is a link to a power that is listed in
the Constitution.
3.
Inherent Powers
Inherent powers are those that the Constitution
has not expressly given but which "necessarily
derive from an office, position, or status" of the
national government.
The U.S. Supreme Court has discovered federal
inherent powers to take land through eminent
domain proceedings, to acquire land by
discovery and occupation, to exclude or admit
aliens, and to sell munitions to belligerent
nations.
These powers also include the ability to
conduct foreign affairs; to exclude and deport
aliens; to protect persons in federal custody or
employment; to protect federal elections; to
protect federally created or federally
guaranteed rights.

The President has certain inherent powers that
Congress may not limit.
 We should, distinguish between
those inherent Presidential powers that
are mere default powers--exercisable
by the President even without
Congressional authorization but
nonetheless subject to Congressional
override--and those inherent
Presidential powers that are exclusive
powers--unregulable by Congress.
 The Constitution commits some
functions to exclusive Presidential
control.
 For example, a lame-duck President
would grant pardons to his wellconnected but otherwise undeserving
friends.
 To prevent this would be
unconstitutional because the
Constitution grants the president the
power to grant pardons.
State Powers
Exclusive Powers
of the State Governments
Issue licenses
Regulate intrastate (within the
state) businesses
Conduct elections
Establish local governments
Ratify amendments to the
Constitution
Take measures for public health
and safety
May exert powers the
Constitution does not delegate to
the national government or
prohibit the states from using
Oklahoma State Capitol
Concurrent Powers
Current powers of the
national government and
state governments include
the ability to:
Collect taxes
Build roads
Borrow money
Establish courts
Make and enforce laws
Charter banks and corporations
Spend money for the general welfare
Take private property for public
purposes, with just compensation
Powers Denied to the National
Government and State
Governments
National Government
May not violate the Bill of Rights
May not impose export taxes among
states
May not use money from the Treasury
without the passage and approval of an
appropriations bill
May not change state boundaries
State Government
May not enter into treaties with other
countries
May not print money
May not tax imports or exports
May not Impair obligations of contracts
May not suspend a person's rights
without due process
Guarantees to the States
The United States shall guarantee to every
State in this Union a Republican Form of
Government.
The government shall protect each of them
against invasion.
And on application of the Legislature, or of the
Executive (when the Legislature cannot be
convened), the government shall protect
against domestic Violence.
Under this provision, Congress has authorized
presidents to send federal troops into a state
to guarantee law and order.
Elizabeth Ann Eckford made history as a
member of the Little Rock Nine, the nine
African-American students who desegregated
Little Rock Central High School in 1957.
The image of fifteen-year-old Eckford, walking
alone through a screaming mob in front of
Central High School, propelled the crisis into
the nation’s living rooms and brought
international attention to Little Rock
Whites harass Elizabeth
Eckford,one of nine AfricanAmerican students whose
admission to Little Rock 's
Central High School was ordered
by a federal court.
Admission of States
The order in which the original
13 states ratified the
constitution, then the order in
which the others were
admitted to the union
The Constitution is rather unclear on the
process by which new states can be added,
noting only that "New States may be
admitted by the Congress into this Union",
and forbidding a new state to be created
out of the territory of an existing state
without the consent of both that state's
legislature and of Congress.
Generally speaking, the organized
government of a territory would make
known the sentiment of its population in
favor of statehood; Congress would then
direct that government to organize a
constitutional convention to write a state
constitution.
Upon acceptance of that Constitution,
Congress would then admit that territory as
a state.
Full Faith and Credit
The Full Faith and Credit Clause
refers to Article IV, Section 1 of
the Constitution of the United
States of America, which reads:
“Full faith and credit shall be given in
each state to the public acts, records,
and judicial proceedings of every other
state. And the Congress may by general
laws prescribe the manner in which such
acts, records, and proceedings shall be
proved, and the effect there of.”
Without this clause, enforcement of
state-to-state extradition, portability of
court orders, nationwide recognition of
legal status, out-of-state taxation,
spousal and child support, and the
collection of fees and fines would all be
impossible without separate federal
action, or a similar action by the other
states.
A person charged in any state with
treason, felony, or other crime, who shall
flee from justice, and be found in another
state, shall on demand of the executive
authority of the state from which he fled,
be delivered up, to be removed to the
state having jurisdiction of the crime.
Interstate Compacts
Compacts enable the states – in their
sovereign capacity – to act jointly and
collectively, generally outside the
confines of the federal legislative or
regulatory process while respecting the
view of Congress on the appropriateness
of joint action.
Compacts enable the states to develop
adaptive structures that can evolve to
meet new and increased challenges that
naturally arise over time.
Interstate compacts are contracts
between two or more states creating an
agreement on a particular policy issue,
adopting a certain standard or
cooperating on regional or national
matters.
Interstate compacts are the most
powerful, durable, and adaptive tools for
ensuring cooperative action among the
states.
Unlike federally imposed mandates that
often dictate unfunded and rigid
requirements, interstate compacts
provide a state-developed structure for
collaborative and dynamic action, while
building consensus among the states and
evolving to meet new and increased
demands over time.
Compacts are created when an offer is
made by one state, usually by statute
that adopts the terms of a compact
requiring approval by one or more other
states to become effective.
Other states accept the offer by adopting
identical compact language.
Once the required number of states has
adopted the pact, the “contract” among
them is valid and becomes effective as
provided.
Chapter 4
Sections 3 & 4
States’ Rights
“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.” (Amendment X)
The states' rights concept is usually used to defend
a state law that the federal government of the
United States seeks to override, or a perceived
violation of the bounds of federal authority.
Before the institution of the United States
Constitution, the Articles of Confederation created a
government composed purely of a collection of
states cooperating together, with no overruling or
federal government.
However, the Constitution implemented the federal
government to rule over the nation as a whole, with
a vague boundary between the two co-existing
"levels" of government.
The Articles of
Confederation
Nationalists’ Rights
Before the U.S. Constitution was written,
each American state was essentially
sovereign.
The U.S. Constitution created a federal
government with sufficient powers to
both represent and unite the states, but
did not supplant state governments.
This federal arrangement, by which the
central federal government exercises
delegated power over some issues and
the state governments exercise power
over other issues, is one of the basic
characteristics of the U.S. Constitution
that checks governmental power.
Other such characteristics are the
separation of powers among the three
branches of government--the legislative,
executive, and judicial.
The power delegated to the federal
government was significantly expanded
by amendments to the Constitution
following the Civil War, and by some later
amendments-- as well as the overall
claim of the Civil War, that the states
were legally subject to the final dictates
of the federal government.
After this, the federal government has
increased greatly in size and influence,
both in terms of its influence on everyday
life and relative to the state
governments.
There are several reasons for this,
including the need to regulate businesses
and industries that span state borders,
attempts to secure civil rights, and the
provision of social services.
Growth
of National Government
Although many people believe that the federal government has
grown beyond the bounds permitted by the express powers, from
1938 until 1995, the U.S. Supreme Court did not invalidate any
federal statute as exceeding Congress‘s power under the
Commerce Clause.
However, most actions by the federal government can find some
legal support among the express powers, such as the commerce
clause.
"Dual federalism" holds that the federal government and the
state governments are co-equals, each sovereign. In this theory,
parts of the Constitution are interpreted very narrowly, such as
the 10th Amendment, the Supremacy Clause, the Necessary and
Proper Clause, and the Commerce Clause.
It is the tension that arises from the needs of the individual states
and the federal government that generates much of the laws of
the United States.
This tension is the result of the premise that neither the state
government nor the national government is supposed to be over
the other; they are equal partners, in theory, in governing the
fifty republics (such as the Republic of California) or states that
make up the United States.
Chief Justice Roger B.
Taney, a supporter of
New Federalism
Three Powers
of National Government
United States Congress
The War Powers Act of 1973 (Public
Law 93-148) limits the power of the
President of the United States to wage
war without the approval of Congress.
The purpose of the War Powers
Resolution is to ensure that Congress and
the President share in making decisions
that may get the U.S. involved in
hostilities.
Portions of the War Powers Resolution
require the President to consult with
Congress prior to the start of any
hostilities as well as regularly until U.S.
armed forces are no longer engaged in
hostilities; and to remove U.S. armed
forces from hostilities if Congress has not
declared war or passed a resolution
authorizing the use of force within 60
days
Three Powers
of National Government
Article I, Section 8, Clause 3 of the United States
Constitution, known as the Commerce Clause,
empowers the United States Congress "To regulate
Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.“
The use of the Commerce Clause by Congress to justify
its legislative power has been the subject of long, intense
political controversy.
Interpretation of the sixteen words of the Commerce
Clause has helped define the balance of power between
the federal government and individual states.
The Commerce Clause is one of those few powers
specifically delegated to the federal government and thus
its interpretation is very important in determining the
scope of federal legislative power.
Chief Justice John Marshall ruled that the power to
regulate interstate commerce also included the power to
regulate interstate navigation.
John Marshall
Three Powers
of National Government
Amendment XVI
Amendment XVI in the
National Archives
“The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without
apportionment among the several states, and without regard
to any census or enumeration.”
Until the ratification of the Sixteenth Amendment, all direct
taxes were required to be apportioned among the states
according to each state's population.
This essentially meant that the dollar amount of direct taxes
imposed on the taxpayers in any given state was required to
bear a relationship to the total dollar amount of direct taxes
imposed in the entire nation that was equal to the ratio of that
state's population to the total population of the nation.
The amendment was the crowning feature of a larger trend of
legislative action meant to curb the power of the wealthy.
The Amendment essentially means that when imposing an
income tax, the Congress may impose the tax on income from
any source without having to apportion the total dollar amount
of tax collected from each state according to each state's
population in relation to the total national population.
“New Federalism”
New Federalism refers to the transfer of certain
powers from the United States federal government to
the U.S. states.
The primary objective of New Federalism is the
restoration to the states of some of the autonomy and
power which they lost to the federal government as a
consequence of President Franklin Roosevelt's New
Deal.
As a policy theme, New Federalism typically involves
the federal government providing block grants to the
states to resolve a social issue.
The federal government then monitors outcomes but
provides broad discretion to the states for how the
programs are implemented.
President Richard Nixon advanced many of the New
Deal and Great Society programs by establishing the
Supplemental Security Income program and expanding
the food stamp program.
In the words of political scientist Timothy Conlan,
Nixon participated in "the greatest expansion of federal
regulation of state and local governments in American
history."
President Nixon greets
released POW Lt. Cdr. John
McCain, future US Senator,
upon his return from years in
a North Vietnamese prison
camp in 1973.
Public Policy
Public policy is a course of action or
inaction chosen by public authorities to
address a problem.
It is the basic policy or set of policies
forming the foundation of public laws,
especially such policy not yet formally
enunciated.
Public policy is expressed in the body of
laws, regulations, decisions and actions
of government.
Policy analysis may be used to formulate
public policy and to evaluate its
effectiveness.
Public Policy is a process, and not simply
a choice.
It is a principle that no person or
government official can legally perform
an act that tends to injure the public.
Public policy manifests the common
sense and common conscience of the
citizens as a whole that extends
throughout the state and is applied to
matters of public health, safety, and
welfare.
It is general, well-settled public opinion
relating to the duties of citizens to their
fellow citizens.
It imports something that fluctuates with
the changing economic needs, social
customs, and moral aspirations of the
people. Public policy enters into, and
influences, the enactment, execution,
and interpretation of legislation.
Individuals and groups often attempt to
shape public policy through education,
advocacy, or mobilization of interest
groups.
Sunset Laws
In public policy, a sunset provision or
sunset clause is a provision in a statute
or regulation that terminates or repeals
all or portions of the law after a specific
date, unless further legislative action is
taken to extend it.
Not all laws have sunset clauses; in such
cases, the law goes on indefinitely.
The roots of sunset provisions are laid in
Roman law of the mandate.
Sunset provisions have been used
extensively throughout legal history.
Some high-profile examples in American
law include:
Sedition Act of 1798
1. Part of the Alien and Sedition Acts,
the Sedition Act was a political tool used
by John Adams and the Federalist Party
to suppress opposition.




2. The authors ensured the act would
terminate at the end of Adams's term so
that it could not be used by DemocraticRepublicans against his own party.
The USA PATRIOT Act, in which
several of the surveillance portions
originally expired on December 31, 2005,
and have since been renewed, but again
expired on March 10, 2006.
Assault Weapons Ban
In 2004 the sunset provision of the
assault weapons ban terminated the law.
At the time, President George W. Bush
was subject to considerable criticism for
failing to urge Republicans in Congress to
renew the ban.
The Budget Act and the Byrd Rule
Estate Tax and Other Tax Cuts of
2001
Sunshine Laws
State or federal law, also called
government in the sunshine law,
requires most meetings of regulatory
bodies to be held in public and most of
their decisions and records to be
disclosed.
Through sunshine laws, administrative
agencies are required to do their work in
public, and as a result, the process is
sometimes called "government in the
sunshine."
A law that requires open meetings
ordinarily specifies the only instances
when a meeting can be closed to the
public and mandates that certain
procedures be followed before a
particular meeting is closed.
The Freedom of Information Act
requires agencies to share information
they have obtained with the public.
Exceptions are permitted, in general, in
the interest of national security or to
safeguard the privacy of businesses.
Over seventy countries around the world
have implemented some form of freedom
of information legislation, which sets
rules on access to information or records
held by government bodies, the oldest
being Sweden's Freedom of the Press Act
of 1766.
A basic principle behind most freedom of
information legislation is that the burden
of proof falls on the body asked for
information, not the person asking for it.
Political Participation
Americans are less likely to vote than are
Europeans.
The reasons for this difference are
complex. First, the United States has an
almost bewildering number of elective
offices, an estimated 521,000 positions.
Voters' enthusiasm for elections is surely
deflated by the sheer volume of names
with which they must familiarize
themselves.
In Europe, in contrast, each voter
generally is confronted with only one or
two offices to fill per election, so that
electoral decisions do not impose a
burden upon the voter.
Even in Europe, however, voter apathy
increases with the number of elections.
A second explanation for the poor turnout
rate involves the mechanics of voting
procedures.
It is common in other countries for voting
to be compulsory by law and for
registration
to
be
carried
out
automatically by the government.
Mandatory voting would probably fail to
survive a constitutional challenge in this
country on First Amendment grounds;
just as people have a right not to speak
(like refusing to salute the flag), it would
seem
The weakness of political parties must
also be considered.
Unlike in the past, parties today lack the
patronage and welfare incentives to
mobilize voting blocs.
Political Participation
(cont’d)
Discussion Questions
1. Why is voter participation lower in the United States than in European
countries? Would one not expect voter participation to be higher here, because
more offices are up for election?
2. What have been the policy consequences of a broader electorate? Which
extensions of the suffrage have changed policy outcomes, and which have
mattered little?
3. What could be done to increase voter turnout? Would a program of reforms to
increase voting turnout need to focus on the cost of voting, the benefits, or both?
Which do current reform proposals do?
4. Why not simply make voting compulsory? If you do not want to use coercion
to induce voting, why not pay people to vote? If elections are a public good in
which all citizens have a stake, why should we depend on unpaid voluntary
action?
5. Why is a large turnout a good thing? We say, rightly, that we have free
speech in this country, even though most people have nothing particularly
controversial or interesting to say. Why is our country less democratic if people
simply choose not to vote?