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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?