Ap Us Gopo Ch 3: Federalism

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Separation of Powers

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separation of legislative, executive, and judicial powers within any government (central or regional)

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Division of Powers

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division of powers between national and regional governments; federalism

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Federalism

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a way of organizing a nation so that two or more levels of government have formal authority over the same land and people; a system of shared power between units of government; denoted by “DIVISION OF POWERS”

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Unitary System

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a system in which sovereignty is wholly in the hands of the national government, so that the states and localities are dependent on its will; most governments today are unitary

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Confederation

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one in which states are sovereign and the national government is supreme and in other matters the states are supreme

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Intergovernmental Relations

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The workings of the federal system- the entire set of interactions among national, state, and local governments

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Supremacy Clause

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Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits.

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Tenth Amendment

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Any powers not delegated to the national government or denied the States are RESERVED to the States or to the people respectively.

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Reserved Powers

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powers not expressly stated or implied in the Constitution are given (RESERVED) to the STATES by the 10th Amendment; mostly POLICE POWERS (health, safety, welfare); MANY in number, but smaller in scope than the federal government’s express powers

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McCulloch vs. Maryland

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(1819) DOCTRINES: implied powers and national supremacy; CONSTITUTIONAL CLAUSES: Article I, Section 8 (ELASTIC CLAUSE or “Necessary and Proper” Clause) & Supremacy Clause. KEY QUESTION: Can the federal government charter a bank since banks are not mentioned in the Constitution? ANSWER: Yes! According to MARSHALL, the power is implied by expressed powers like lay and collect taxes, etc. (“Ample powers = ample means.”) KEY QUESTION: Can Maryland tax the federally chartered bank? ANSWER: NO! A Maryland law required federally chartered banks to use only a special paper to print money, which amounted to a tax. William McCulloch, the cashier of a Baltimore Branch of the bank refused to use the paper, claiming that the states could not tax the Federal Government. The Court declared the Maryland law unconstitutional, commenting, "...the power to taxes implies the power to destroy..."

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Enumerated Powers

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EXPRESSED powers specifically given (DELEGATED) to Congress in the Constitution. They are FEW in number, but LARGE in scope, including the power to make war & peace, lay and collect taxes, coin money, regulate foreign and interstate commerce, and declare war.

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Implied Powers

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powers of the national government which are not specifically mentioned or ENUMERATED, but which are deemed "Necessary and Proper" in order to exercise EXPRESSED POWERS; According to C.J. Marshall in McCulloch, “ample powers = ample means”; derived from Art. 1, Sec. 8, Cl. 18 - the ELASTIC Clause.

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Inherent Powers

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Powers of the Constitution is presumed to have delegated to the National Government because it is the government of a sovereign state within the world community.

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Concurrent Powers

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powers held by both national and state governments; separate, but simultaneous over same land and people

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Elastic Clause

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Article I, Section 8, of the Constitution, which allows Congress to make all laws that are "necessary and proper" to carry out the powers of the Constitution; some stretch it so that it becomes the “convenient and expedient” clause

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Gibbons vs. Ogden

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(1824) The Court upheld broad congressional power over interstate commerce. The Court's broad interpretation of the Constitution's commerce clause paved the way for development of a national economy (by striking down the state issued monopoly and allowing competition) and later rulings upholding expansive federal powers. Originally the case was about ship licensing on the Hudson River- both the NY State Legislature gave exclusive rights to Robert Fulton and Congress and also issued a license. By the time it reached SCOTUS, the question regarded the nature of congress's authority under the Commerce Clause

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U.S. v. Lopez

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(1995) SCOTUS struck down the federal Gun Free School Zones Act, which forbade the possession of firearms in public schools, because it exceeded Congress’s constitutional authority to regulate commerce

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U.S. v. Morrison

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(2000) SCOTUS ruled that the power to regulate interstate commerce did not provide Congress with the necessary authority to enact the 1994 Violence Against Women Act, which provided a federal civil remedy for gender-motivated violence

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Printz v. the U.S./Mack v. the U.S.

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(1997) SCOTUS voided the federal mandate Congress issued in the Brady Handgun Violence Prevention Act, requiring that the chief law enforcement officer in each local community conduct background checks on prospective gun purchasers -- an unfunded legislative mandate

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Full Faith and Credit

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A clause in Article IV, Section 1, of the Constitution requires each state to recognize the official documents and civil judgments rendered by the courts of other states; “the rub” in same sex marriage cases.

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Extradition

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

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Privileges and Immunities

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States are prohibited from unreasonably discriminating against residents of other states (Article IV)

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Dual Federalism

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Layer Cake Federalism; doctrine holding that the national government is supreme in its sphere, the states are supreme in theirs, and the two spheres should be kept separate

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Cooperative Federalism

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Marble Cake Federalism; a system in which national and state government have shared or overlapping powers (share costs, administration, and even blame); FDR's New Deal legislation established this system in the US.

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Fiscal federalism

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The pattern of spending, taxing, and providing grants in the federal system; it is the cornerstone of the national government's relations with state and local governments.

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Matching Funds

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A standard operating procedure in fiscal federalism whereby Washington foots part of the bill, but states or cities that want to get their share must pay part of the costs. (They must put down “earnest money.”)

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Standard Operating Procedures (SOPs)

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Cooperative federalism involves: 1. Shared costs, 2. Federal guidelines, 3. Shared administration

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Picket Fence Federalism

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A model of federalism in which specific programs and policies (depicted as vertical pickets in a picket fence) involve all levels of government - national, state, and local (depicted by the horizontal boards in a picket fence).

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Categorical Grants

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federal grants for specific purposes or categories of state and local spending, such as building an airport; come with strings attached (conditions)

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Project Grants

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Federal categorical grants given for specific purposes and awarded on the basis of the merits of applications

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Formula Grants

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Federal categorical grants distributed according to a formula specified in legislation or in administrative regulations.

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Block Grants

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money from the national government that states can spend within broad guidelines determined by Washington

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Entitlements

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guaranteed by formula grants to all those who qualify like Medicare, Pell Grants, or the Free and Reduced School Lunch Program and, therefore, constitute the NONDISCRETIONARY or UNCONTROLLED spending which accounts for about 2/3 of the federal budget

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Nondiscretionary or Uncontrolled Spending

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Federal spending on entitlements, which accounts for about 2/3 of the federal budget

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Universalism

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federal grant distribution follows the principle of universalism: something for everybody!

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Devolution

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the transfer of powers and responsibilities from the federal government to the states

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Grants-in-aid

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money given by the national government to the states

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Mandates

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terms set by the national government that states must meet whether or not they accept federal grants

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Unfunded Mandates

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costly things which Congress, the federal courts, or the federal executive agencies require states and localities to do but for which they provide no money (i.e., ADA requires handicapped accessibility, but does not pay for ramps)

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S.D. v. Dole

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South Dakota sued federal Transportation Secretary Elizabeth Dole, arguing that when the federal government threatened to take back 10% of federal highway funding from states that refused to lower their speed limits, the federal government exceeded its authority and impinged on reserved powers by engaging in a form of blackmail. SCOTUS said, nope; “greenmail” with federal tax dollars is okey-dokey!

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Nullification

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the right of a state do declare null and void a federal law that in the state’s opinion, violates the Constitution; states’ rights point of view expressed by Madison and Jefferson in the VA & KY Resolutions in response to the Alien and Sedition Acts and by John C. Calhoun on behalf of Southern states prior to Civil War, which determined once and for all that the federal union is indissoluble and that states cannot declare acts of Congress unconstitutional (in spite of what folks at the 10th Amendment center think)

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Heart of Atlanta Motel

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Case in which SCOTUS said the Congress indeed has the power (under the 14th Amendment and the Commerce Clause) to pass nondiscrimination regulations and apply them in the States

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14th Amendment

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Due Process Clause and Equal Protection Clause give the federal government a “door” opening powers to regulate the states because they say, “No STATE shall deny any PERSON the right to…”

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Gonzales v. Raich

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(2005) SCOTUS ruled that the federal Controlled Substances Act, which conflicted with California’s Compassionate Use Act permitting medical marijuana, was appropriate because local use affected the national supply and demand of/for the drug

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Granholm v. Heald

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(2005) SCOTUS ruled that when Michigan allowed in-state wineries to ship out-of-state, but did not allow out-of-state wineries to ship in state, it was in violation; although states can regulate importation of alcohol, they cannot favor one state over another

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Affordable Care Act

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(ACA) SCOTUS distinguished economic activity, non-economic activity, and forced economic activity when applying the commerce clause. It upheld ACA (Congress can regulate existing econ. activity), but said that the commerce clause does not permit the federal government to force individuals to participate in commerce

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Cross-cutting Requirements

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federal requirements extended to all activities supported by federal funds (usually two types: either CIVIL RIGHTS or ENVIRONMENTAL)

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Cross-over Sanctions

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the federal government may use federal funds in one program to influence state and local policy in another one (i.e., Reagan administration’s denial of federal highway construction funds to states that did not raise their legal drinking age to 21)

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Civil Rights and Environmental Protection

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the two areas to which most federal mandates (cross-cutting requirements) apply

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Americans with Disabilities Act

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(1990) required all public facilities to be handicapped accessible

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Revenue Sharing

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Nixon recognized that large metropolitan areas have more in common with each other than with the rest of the state or their state capitals; the Nixon administration advocated sharing revenue directly with large cities and localities to address these needs which states were ignoring (NY City went bankrupt in the 1970s)

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New Federalism

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Reagan’s three “D’s”: Devloution, Deregulation, and Decrementalism

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Devolution

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Reagan advocated cutting the size of “big government” (federal) by devolving or handing power down to the lowest level of government practical; this just grows state and local government size because people like government programs and want the states to continue to provide these goods and services when the programs are handed over

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No Child Left Behind

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(2001) imposed education requirements on states and expanded the size of the federal Dept. of Ed. (under Pres. George W. Bush)

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Regulated Federalism

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With the expansion of Medicare into prescription drug coverage and the institution of No Child Left Behind programs, Pres. George W. Bush’s “compassionate conservatism” changed the direction from the “devolution revolution” of Reagan back toward more government regulation

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Two external events that slowed down the “devolution revolution”

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9/11 (2001) terrorist attacks and Hurricane Katrina (2005)

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Eminent Domain

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found in the Takings Clause of the 5th Amendment, this principle permits government, including state and local, to take private property for “public use” but must provide “due process’ and “just compensation”

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Kelo v. New London, CT

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(2005) SCOTUS ruled in favor of the local government, stating that the eminent domain question was best settled at the local level; after this ruling, many states passed laws more narrowly defining “public use”

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Privileges and Immunities Clause

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(Article IV, Sec 2) one state must extend the “privileges and immunities” of citizenship to American citizens of another state; out of state college tuition does NOT violate this because state schools are supported by state taxes

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DOMA (Defense of Marriage Act)

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federal law which restricted gay couples’ equal access to federal benefits offered to other married couples (e.g., social security and tax benefits)

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U.S. v. Windsor

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(2013) Because NY law recognized same sex marriage, SCOTUS ruled against DOMA, stating that it created “two contradictory marriage regimes within the same state.” But it did NOT say that bans of same sex marriage violate the 14th Amendment’s equal protection clause

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Obergefell v. Hodges

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(2015) SCOTUS ruled that the Constitution guarantees a right to same sex marriage, saying what it did NOT say in Windsor – that state bans violate the 14th Amendment’s equal protection clause

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Arizona v. U.S.

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(2012) SCOTUS ruled that parts of the Arizona immigration law that required law enforcement officers to determine the immigration status of anyone detained or arrested if there’s reason to believe the person may not have legal residency preempted federal law. But it permitted state and local law enforcement to investigate a person’s immigration status

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“Sanctuary City”

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a major metropolitan area whose police policy is not to inquire into a person’s immigration status (leaving that up to the Feds) because that interferes with neighborhood policing and local business

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“Anchor Baby”

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derogatory term used to denote the child of parents who are NOT citizens but who came to the U.S. to give birth in order for their child to be born a U.S. citizen (e.g., Mexicans who cross the border illegally and Chinese “birth tourists” who enter legally)

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Colorado, Washington, Oregon, Alaska, and the District of Columbia

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areas in which recreational use of marijuana is legal under state/local law

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Conditions under which the DOJ has agreed not to interfere with state laws legalizing marijuana use

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1. bans use by minors & gangs, 2. keeps use within state boundaries, 3. enforces laws against drugged driving & violence with use of other illegal drugs

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Scrutiny

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the federal government’s levels of analysis and standards for reviewing questions of discrimination (violations of due process and equal protection); LEVELS – Strict, Intermediate, and Ordinary

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Strict Scrutiny

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required if a FUNDAMENTAL RIGHT is concerned or discrimination is on the basis of an INHERENTLY SUSPECT classification (like race or religion); the BURDEN OF PROOF is on the state; it must demonstrate that the regulation achieves 1) a COMPELLING GOVERNMENTAL PURPOSE/INTEREST (e.g., national security) and does it by 2) the LEASE RESTRICTIVE MEANS

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Intermediate Scrutiny

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Used for SUSPECT CLASSIFICATIONS like gender; does the classification bear a SUBSTANTIAL relationship to an IMPORTANT governmental goal?

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Ordinary Scrutiny

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Used when no fundamental right is in question and for classifications which are not suspect (like age); RATIONAL BASIS TEST: does the classification have a rational relationship to a LEGITIMATE governmental goal; burden of proof on individual who complains

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Rational Basis Test

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the policy stands if there’s a rational relationship to a LEGITIMATE governmental goal

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Inherently Suspect Classification

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One for which there’s rarely a good reason to classify and discriminate (e.g., race, religion, ethnicity, economic/social class)

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“Creeping categorization”

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Although the federal government occasionally attempt to shrink its size (as in the “devolution revolution”) by handing money and responsibility for programs over to states through block grants, congress passes a regulation here and one there and pretty soon what was a block grant looks a lot more “categorical and CONDITIONAL.”

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Strict Construction

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narrow and fairly literal interpretation of the Constitution and federal and state statutes; favored by advocates of JUDICIAL SELF-RESTRAINT and JUDICIAL PARSIMONY

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Broad Construction

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loose interpretation of Constitution and federal and state statues preferred by activists who advocate JUDICIAL ACTIVISM

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Advantages of Federalism

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multiple points of access for citizens, diversity of policies to accommodate local interest, states = 50 federal laboratories experimenting with policy, efficiency

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Disadvantages of Federalism

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confusing and complex; small but motivated groups can block will of majority, diversity results in inequality, accountability becomes blurred