Chapter 3

Chapter Overview

A federal system is one in which the constitution divides powers between the central government and the sub divisional governments – states or provinces. Alternatives to federalism are unitary systems.

A federal system checks the growth of tyranny, allows unity without uniformity, encourages experimentation, permits power sharing between the national government and the states, and keeps government closer to the people.

Alternatives to federal systems are unitary systems in which all constitutional power is vested in the central government and loose compacts among sovereign states.

In the twenty-first century, nations are experimenting with forms of federalism because of the demand for greater autonomy by ethnic groups and others such as the countries of Western Europe have formed a European Union.

In the United States, the national government has the constitutional authority, stemming primarily from the national supremacy article (clause), from its powers to tax and spend and to regulate commerce among the states to tax and spend, and from its war powers, to do what Congress thinks is necessary and proper to promote the general welfare and to provide for the common defense. These constitutional pillars have permitted tremendous expansion of the functions of the federal government.

Congressional authority extends to all commerce that affects more than one state. Commerce includes the production, buying, selling, renting, and transporting of goods, services, and properties. The "Commerce Clause" is Article I, Section 8, Clause 3 of the U.S. Constitution. It gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." These few words confer on the federal government a constitutional justification for regulating a very wide range of human activity since few, if any, aspects of today’s economy affect commerce only in one state.

States must give full faith and credit to each other’s public acts, records, and judicial proceedings; extend to each other’s citizens the privileges and immunities it gives its own; and return fugitives from justice.

The "Full Faith and Credit Clause" is Article VI, Section 1, of the U.S. Constitution. This article maintains that state courts must enforce the judgments of courts in other states and accept their public records and acts as valid. This clause became controversial in 1998 when courts in Hawaii permitted same-sex marriages. With presidential support, Congress passed the Defense of Marriage Act, which relieved other states from any obligation to honor Hawaiian gay marriages.

The federal courts umpire the division of power between the national and state governments. The Marshall Court, in decisions, such as Gibbons v. Ogden and McCulloch v. Maryland, asserted the power of the national government over the states and promoted a national economic common market. These decisions also reinforced the supremacy of the national government over the states.

Today debates about federalism are less often about its constitutional structure than over whether action should come from the national or state and local levels. Recent Supreme Court decisions favor a decentralist position and may presage (signal) a major shift in the court’s interpretation of the constitutional nature of our federal system.

The major instruments of federal intervention in state programs have been various kinds of financial grants-in-aid, of which the most prominent are categorical-formula grants, project grants, and block grants. The national government also imposes federal mandates and controls some activities of state and local governments by direct orders, cross-cutting requirements, cross-over sanctions in the use of federal funds, total preemption, and partial preemption.

Over the past 200 years there has been a drift of power (accrued) to the national government, but recently Congress has been pressured to reduce the size and scope of national programs and to shift some existing programs back to the states. While responsibility for welfare has been turned over to the states, the authority of the national government has increased in many other areas.

Defitinions:

Devolution revolution: the effort to slow the growth of the federal government by returning many functions to the states.

Federalism: constitutional arrangement whereby power is distrubited between a central government and subdivisonal govts, called states in the US. The national and subdivisonal governments both exercise direct authority over individuals.

Unitary system: constitutional arrangement in which power is concentrated in a central government.

Confederation: constitutional arrangement in wich sovereign nations or states, by compact, create a central government but carefully limit its power and do not give it direct authority over individuals.

Express powers: powrs specifically granted to one of the branches of the national government by the constitution.

Implied powers: powers inferred from the express powers that allow congress to carry out its functions.

Necessary and proper clause: Clause of the constitution (article I, section 8, clause 18) setting forth the impied powers of congress. It states that congress, in addition to its express powers has the right to make all lawas necessary and proper for carrying out all powers vested by the constitution in the national government.

Inherent powers: the powers of the national government in the field of foreign affairs that the Supreme Court has declelared do not depend on the constitutional grants but rather grow out of the very existence of the national government.

Commerce clause: the clause in the constitution (article I, section 8, clause 3) that gives congress the power to regulate all business activites that cross state lines or affect more than one state or other nations.

Federal mandate: a requirement imposed by the federal government as a condition for the receipt of federal funds.

Concurrent powers: powers that the constitution gives to both the national and state governments, such as the power to levy taxes.

Full faith and credit clause: clause in the constitution (article IV, section 1) requiring each state to recognize the civil judgements rendered by the courts of the other states and to accpt their public records as valid.

Extradition: legal process whereby an alleged criminal offender is surrendered by the officals of one state to officials of the state in which the crime is alleged to have been committed.

Interstate compact: an agreement among two or more states. The constitution requires that most such agreements be approved by Congress.

National supremecy: constitutional doctorine that whenever conflict occurs between the constitutionally authorized actions of the national government and those of a state or local government, the actions of the federal government prevail.

Preemption: the right of a federal law or regulation to preclude enforcement of a state or local law or regulation.

Centralists: people who favor national action over action at the state and local levels.

Decentralists: people who favor state or local action rather than national action.

States’ rights: powers expressly or implicitiy reserved to the states and emphasized by decentralists.

Sample tests:

The existence of both national and state governments makes a system federal.

False

Supporters of "our federalism" believe that the power of the federal government is limited in favor of the broad powers reserved to the states.

True

An advantage of a federal system in 1789 as well as in the twenty-first century is that it would check the power of a single-interest majority.

True

Federalism encourages experimentation that can be adopted by other states and the national government.

True

In recent years more people are involved in local and state politics than in national affairs, and confidence in state governments has decreased while respect for national agencies has increased.

False

The four constitutional pillars-the national supremacy article, the war power, the commerce clause, and most especially, the power to tax and spend for the general welfare-have permitted a tremendous expansion of the functions of the national government.

True

Gibbons v. Ogden stems from a dispute over the right of a state to tax a bank created by the national government.

False

Under Article IV, Section 2, states may choose not to extend to citizens of other states the privileges and immunities granted to their own citizens.

False

The case of McCulloch v Maryland began as the result of the state of Maryland levying a tax against the Bank of the United States.

True

In the case of McCulloch v Maryland the national government contended that the power to create a bank is not one of the express powers of the national government and thus unconstitutional.

False

Justices Ginsburg, Breyer, Souter and Stevens resist the movement back to a states' rights interpretation of our federal system.

True

Categorical-formula grants are the most recent of federal grants with few strings attached.

False

Revenue Sharing, begun in 1972, has proven to be the most popular and enduring federal grant program.

False

The Americans with Disabilities Act (1990) called on states and localities to spend millions, which would be reimbursed by the federal government.

False

The only two major achievements of the devolution revolution are the 1996 reform of welfare and the repeal of national speed limits.

True

During the first two years of President George W. Bush's administration, federal authority was expanded with:

the passage of the U.S. Patriot Act.

In which of the following court decisions did the Court put constraints on the power of Congress?

Congress may not authorize individuals to sue states to enforce federal laws.

Which of the following definitions is incorrect?

Marble cake federalism views the Constitution as giving limited powers to the national government.

A system of government in which sovereign nations, through a constitutional compact, create a central government but carefully limit the power of the central government and do not give it the power to regulate the conduct of individuals directly is called _______________.

a confederation

The quote "(If) factious leaders…kindle a flame within their particular states,"(national leaders can check the spread of the) "conflagration through the other states" comes from:

The Federalist, No.10.

Which of the following statements about the formal constitutional framework of our government is correct?

The national government has only those powers delegated to it by the Constitution (with the exception of the inherent power over foreign affairs).

The powers to tax citizens and businesses, to borrow and spend money, to establish courts, to pass and enforce laws, and to protect civil rights are powers:

shared by the national state governments.

The article of the Constitution that allows national laws and regulations of federal agencies to preempt the field so that conflicting state and local regulations are unenforceable is:

Article VI.

The Supreme Court case that defined "commerce" to allow for the national regulation of economic activities was:

Gibbons v. Ogden

When the Supreme Court upheld the Civil Rights Act of 1964, the Court cited the ___________________ as a reason for its decision.

commerce clause

Which of the following is not a power prohibited to the states?

taxing incomes

Today, the protection states have from intrusions by the national government comes primarily from:

the political process because senators and representatives elected from the states participate in the decisions of Congress.

The Defense of Marriage Act may well be challenged in the courts for going beyond the power of Congress to provide states with an exemption from their constitutional obligation under the ____________ clause.

full faith and credit

In the case of McCulloch v. Maryland which of the following participants of the case argued that the power to incorporate a bank was not expressly delegated to the national government and that the necessary and proper clause gives Congress only the power to choose those means and pass those laws absolutely essential to the execution of its expressly granted powers?

Maryland

In the case of McCulloch v. Maryland Chief Justice John Marshall ruled that

no state can use its taxing powers to tax a national instrument.

Which of the following would not support the following position: "The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole."

Centralists

Which of the following would support the following position: The national government is an agent of the people, not of the states, because it was the people who drew up the Constitution and created the national government.

Centralists

Except to enforce rights stemming from the _____________ Amendment, Congress may not authorize individuals to bring legal actions against states in order to force their compliance with federal law in either federal or state courts.

Fourteenth

The four purposes of ____________ are to attack national problems yet minimizing the growth of federal agencies, to supply state and local governments with revenue, to establish minimum national standards, and to equalize resources among the states.

grants

Which of the following did not foster the growth of "Big Government" in the Twentieth Century?

settlement of the American West

Defense of Marriage Act (DOMA) page 54>

Flexibility Partnership Demonstration Act of 1999 page 56

Timeline: American Federalism page 56

Definitions of Federalism page 58

Global perceptions: the government controls too much of our daily l lives? Page 59

Picture comparison of Federalism and Confederation page 60

Why Federalism? page 60-62

Minorities and women in the workforce page 61

FYI: number of governments in the US page 62

Federal division of powers page 62

4 Constitutional pillars page 63

powers of the National Government page 63

FYI: an expanding nation page 64

Constitutional limiits and obligations of the states page 65

Three different approaches to Federalism page 67

Do we need a more restricted government in Washington? Page 68

McCulloch vs. Maryland page 68

Thinking it through: centralists vs. decetralists page 69

4 purposes of grants page 71

Peple and politics: Rehnquist page 72

Grants page 72 &73

New techniques of Federal Control page 74