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Federalism

federalism
division of power between national and state gov
3 types of federalism
dual federalism
“marble cake” federalism
“new” federalism
dual federalism
“layer cake”
national and state gov. have specifically designed roles
used until civil war (1st 100 years)
federal gov has enumerated powers and states have everything else
“marble cake” federalism
there are defined layers between state and federal gov.
federal gov. began taking state’s powers (against 10th amendment)
aka cooperative federalism
used after civil war
“new federalism”
federal gov. handing powers back to the states
didn’t really work after Reagan in the 1980’s
devolution
giving powers back to the states
What kinds of nations use federalism?
big populations and a lot of land
alternatives to federalism
unitary systems or confederation
unitary system
national gov. has all the power
confederation
states retain all the power with a weak national gov.
Why does the US use Federalism?
winner by default because the Articles of Confederation failed and strong national gov. faulted
benefits of Federalism
checks possible tyranny: national gov. only has powers stated in the constitution and the states have the rest
unity w/o uniformity: states can have their own identity/culture with common bonds
encourages experimentation: if national gov. is scared to try something, states can try it first (ex.- WA, CO w/ marijuana
provides training for politicians: politicians practice making decisions at lower levels
gov. and people are kept close: people have access to local and state officials
What is the basic framework of the national gov?
the constitution
enumerated powers
stated in the consitution
implied powers
powers inferred from enumerated powers
necessary and proper clause
Congress can make laws they deem necessary and proper as long as they are related to enumerated powers
inherent powers
presidential powers not listed in the constitution (usually foreign policy)
What are the key powers of the National gov?
national supremacy
war power
power to regulate interstate and foreign commerce
power to tax and spend
national supremacy
(Article 6- Supremacy Clause) national law trumps state laws
nullification
idea that states ignore national laws if they think they’re unconstitutional, but nothing to base it on
war power
only national gov has power to declare war
interstate and foreign commerce
most economic activity
Gibbons vs. Ogden case
Ogden creates a ferry service and has permission from NY to exclusively run from NY to NJ, but Gibbons gets permission from national gov. to run exclusive ferry service from NY to NJ.
Ogden argues that NY gave him permission and there is nothing in the constitution that says the national gov could give Gibbons permission
Gibbons says it is interstate commerce
Gibbons vs. Ogden ruling
Who has power to regulate interstate commerce? national gov.
What happens when state and national laws conflict?
supremacy clause
Gibbons vs. Ogden impact
defines that only US gov regulates interstate commerce and says that federal law overrides state law
Gonzales vs. Raich case (2005)
California allows medical Marijuana, but it is illegal nationally.
Raich has cancer and is allergic to opium, doctor says the only thing that could ease pain.
Someone calls cops on her for having Marijuana, but she is complying with the state law.
DEA shows up and she is arrested for possession bc it is illegal federally.
Raich argues that federal gov. doesn’t have authority to make laws about Marijuana bc it isn’t in the Constitution
Gov. says it’s interstate commerce
Gonzales vs. Raich ruling
Ruled as interstate commerce bc by growing her own Marijuana she caused a ripple effect on what would’ve been interstate economic activity
Gonzales vs. Raich impact
the National gov could get away with anything by calling it interstate commerce
Affordable Care Act (Obamacare)
(People couldn’t pay for health care/insurance, so hospitals had to overcharge)
1. Required businesses to to provide health insurance to full time employees if they have 50 or more employees
2. People can’t be denied health insurance bc of preexisting conditions
3. Insurance benefits couldn’t be capped
4. Required every American to have health insurance by 2014 or be fined
National Federation of Independent Business vs. Sebelius (2012) case
NFIB says Obamacare is unconstitutional to force people to purchase insurance
Gov says it’s interstate commerce
National Federation of Independent Business vs. Sebelius (2012) ruling
Ruled that it doesn’t violate the consitution, but it isn’t interstate commerce.
It’s the power to tax (for not buying insurance)
National Federation of Independent Business vs. Sebelius impact
Supreme court trying to send message to Congress that interstate commerce isn’t a blank check to do anything
McCulloch vs. Maryland (1819) case
People and states say that national gov doesn’t have power to create a national bank
Maryland passes a law requiring a tax on all banks within the state that weren’t established by the state
US bank was the only one
McCulloch (runs US bank in Maryland) said they weren’t paying bc it was unconstitutional for a state to tax the federal gov
McCulloch vs. Maryland ruling and impact
1. Does US gov have right to create national bank? Yes it is an implied power (bc of power to coin money, tax, borrow money)
2. Can Maryland put a tax on the national gov? No, bc of the Supremacy clause
3. What happens when state and national law conflict? National law overrides state law
Concurrent powers
Powers that both national and state gov can exercise (ex.- tax, establishing courts, passing laws)
Full Faith and Credit Clause
Article 4: states must respects each others legal documents
Defense of Marriage Act
1. Defines marriage as between a man and woman
2. States don’t have to honor same sex marriage licenses from other states
US vs. Windsor (2013) case
Windsor and her wife had a Canadian and a NY marriage license
Her partner dies and Windsor has to pay large tax on inheritance from her wife
She challenges 1st provision of DOMA as unconstitutional
Says it violates 5th and 14th amendments (equal protection clause- they aren’t being treated the same as straight people)
US vs Windsor ruling
US agrees with Windsor and federal gov. must honor states marriage licenses – US must mirror states policies
Obergfell vs Hodges (2015) case
several same sex couples (Obergefell) felt 2nd provision of DOMA was unconstitutional and violated 14th Amendment (Due Process Clause says that gov can’t deny life, liberty, or property) by denying liberty
Obergefell vs. Hodges ruling
In order for gov to deny “liberty” they must have a compelling reason
Supreme COurt said that all states must issue and recognize same sex marriage licenses
Examples of Interstate Commerce
Gibbons vs. Ogden
Gonzales vs. Raich
NFIB vs. Sebelius
Examples of Congress’s Power to tax and spend
McCulloch vs. Marlyand
Examples of Full Faith and Credit Clause
US vs. WIndsor
Obergefell vs. Hodges
Interstate compacts
agreement between states to settle a dispute that must be approved by Congress
Example of Interstate Compact
NY/NJ Port Authority- Group that maintains roads, bridges, waterways, tunnels, etc that go from NY to NJ and receives money from both states
centralist position
believe in a very strong national gov w/ broad powers
decentralist postion
strong supporters of the 10th Amendment and believes national gov should stick to enumerated powers
techniques of federal control
federal grants and mandates
federal grants
federal gov gives out more than $600 billion per yr to the states
Why does the federal gov. give out federal grants?
-to manipulate the states into doing things by giving grant money
-for states to solve local problems (ex.-roads, education)
-to help equalize the state’s resources
-so states will take on projects that federal gov doesn’t want to
types of federal grants
categorical-formula
block
project
Categorical-formula grants
federal gov gives states money but has a lot of conditions or a specific purpose and an expiration date
-like a gift card rather than cash
ex.-special education in rural counties
-can lead to wasteful spending
block grant
few restrictions and broad purpose
ex.- education
-like cash, not a gift card
project grant
made available to an individual or group
ex.- research (medical research)
ex.- Pell Grants: grants for college if parents don’t meet certain financial criteria
Federal Mandates
laws that require states to take action and are usually unfunded
ex.- Americans with Disabilities Act, No Child Left Behind Act
Americans with Disabilities Act
1. can’t discriminate against handicapped in hiring practices if otherwise qualified for the job
2. states have to make all public facilities handicap accessible
Problems with ADA
states didn’t have enough money to carry out provision 2
No Child Left Behind Act
1. Teachers have to be highly qualified
2. By 2014, 100% of students will read at or above grade level
3. required schools show progress each year (standardized test scores meeting requirements)
Problems with No Child Left Behind
it costs too much money that school didn’t have
types of mandate/penalties
direct orders
cross-cutting requirements
crossover sanctions
preemptions
direct orders
must be complied with under threat of criminal or civil sanction (do it or go to jail)
cross-cutting requirements
if states don’t comply with even a portion, then they get all of their funding cut off
crossover sanctions
permits federal money in one program to influence state and local policy in another
ex.- if states don’t raise legal drinking age, they get their highway funds cut off
preemption
federal gov purposely creates law that conflicts with state gov so that the Supremacy Clause kicks in
Welfare Reform Act (1996)
gave states money to come up with their own welfare policy with 2 conditions:
1. people can’t get more than 2 consecutive years of benefits
2. people can’t get more than 5 years of benefits in their lifetime
-after 5 years of federal money, state gives benefits
Clean Air Act (1990)
gives EPA power to regulate what goes into the air
Civil Rights Act of 1990
says you can’t discriminate against people on the basis of race, gender, or ethnicity
Barron vs. Baltimore (1833) case
Barron lived and owned a dock business in the city of Baltimore.
Baltimore was expanding (digging up dirt and trees, etc.) and dumped the waste in the water at Barron’s dock and ships couldn’t dock there
Baltimore wouldn’t compensate Barron
Barron sues Baltimore for violating 5th Amendment (Eminent Domain: gov must compensate you if they take your property)
Barron vs. Baltimore ruling
Supreme Court rules in favor of Baltimore because the Bill of Rights only protects you from the federal gov, not the states and Maryland’s Constitution didn’t have an eminent domain provision
Barron vs. Baltimore impact
Up until this case, everyone just assumed that US Constitution protects you from national and state gov, but John Marshall says otherwise (forcing selective incorporation and due process clause – 100 yrs later)
14th Amendment Due Process Clause
says that states can’t deny you life, liberty, or property without due processes of the law
What is liberty defined as?
freedoms of the Bill of Rights
selective incorporation
Supreme Court would apply a freedom to protect you from both federal and state governements

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