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     Chapter 3
 O’Connor and Sabato
American Government:
Continuity and Change
In this chapter we will cover…
  1. The Roots of the Federal System
  2. The Powers of Government in the Federal
  3. The Evolution and Development of
  4. Federalism and the Supreme Court
 1. The Roots of the Federal System
• The Framers worked to create a political
  system that was halfway between the failed
  confederation of the Articles of Confederation
  and the tyrannical unitary system of Great
• The three major arguments for federalism are:
  1. the prevention of tyranny;
  2. the provision for increased participation in politics;
  3. and the use of the states as testing grounds or
     laboratories for new policies and programs.
        Federalism Defined

Federalism is a political system in
 which power is divided and shared
 between the national/central
 government and the states
 (regional units) in order to limit the
 power of government.
 2. The Powers of Government
      in the Federal System
The distribution of powers in the federal
 system consists of several parts:
  – exclusive powers
  – shared powers (concurrent powers)
  – denied powers
  – enumerated powers (Article I, sec.8))
  – and implied powers (elastic clause)
            Article I, Section 8
The enumerated powers of the central government
 include the power to:
     • lay and collect taxes
     • provide for the national defense and make
       regulations for the military
     • regulate commerce with foreign nations, among
       the states, and with Indian tribes
     • coin money and regulate the value thereof
     • declare war
     • establish post offices
     • issue copyrights and patents
           Implied Powers
• The central government may make all
  laws which shall be necessary and
  proper for carrying into execution the
  enumerated powers.
• The necessary and proper clause has
  often been used to expand the powers of
  the national government (elastic clause).
                  State Powers
• Most come from the Tenth Amendment that
  says: "The powers not delegated to the United
  States by the Constitution, nor prohibited by it to
  the States, are reserved to the States respectively,
  or to the people."
  – These are often referred to as reserve or police
    powers (affecting health, safety, and morals)
• Concurrent powers such as the right to tax,
  borrow money, establish courts, and make and
  enforce laws are powers shared with national
            Denied Powers
• Article I, section 9 lays out powers denied
  to the central government.
   – For example: give preference to ports of
     one state over another
• Article I, section 10 lays out the powers
  denied to the states.
   – For example: enter into treaties,
     alliances, or confederations
    Relations among the States
• The Framers wanted a single country, not
  thirteen squabbling semi-countries.
• Article IV requires states to give “full
  faith and credit” to each others’ laws and
  legal proceedings.
• States are also required to extradite
  criminals if asked by another state.
• States recognize drivers’ and marriage
  licenses, custody rulings, etc.
        3. The Evolution and
       Development of Federalism
• The allocation of powers in our federal system
  has changed dramatically over the years.
• The Supreme Court in its role as interpreter of
  constitution has been a major player in the
  redefinition of our Federal system.
  – McCulloch v. Maryland (1819)
  – Gibbons v. Ogden (1824)
  – Dred Scott v. Sandford (1857)
   McCulloch v. Maryland (1819)
• McCulloch was the first major decision by the
  Supreme Court under Chief Justice John Marshall
  about the relationship between the states and the
  national government.
• The Court upheld the power of the national
  government to establish a national bank and denied the
  right of a state to tax the bank. “The power to tax is
  the power to destroy.”
• The Court’s broad interpretation of the necessary and
  proper clause paved the way for later rulings
  upholding expansive federal powers.
         Gibbons v. Ogden (1824)
• The Gibbons case centered on the conflict between the
  states and the powers of Congress.
• Could New York grant a monopoly concession on the
  navigation of the Hudson River? The Hudson River
  forms part of the border between New York and New
  Jersey and the U.S. Congress also licensed a ship to sail
  the Hudson.
• The main constitutional question in Gibbons was about
  the scope of Congress' authority under the Commerce
  Clause (Article I, sec. 8: “to regulate commerce with
  foreign nations, and among the several states, and with
  the Indian tribes”)
• In Gibbons, the Court upheld broad congressional
  power over interstate commerce.
    Dred Scott v. Sandford (1857)
• The Supreme Court articulated the idea of dual
  federalism in which separate but equally powerful
  levels of government is preferable, and the national
  government should not exceed its enumerated powers.
• The Taney Court held that Mr. Scott was not a U.S.
  citizen and therefore not entitled to sue in federal court.
• The case was dismissed and Scott remained a slave.
• Chief Justice Roger Taney further wrote that Congress
  had no power to abolish slavery in the territories and
  slaves were private property protected by the
  Constitution. MO Compromise was unconstitutional.
    The Civil War and Beyond
• Dual federalism remained the Supreme
  Court's framework for federalism and the
  prevailing notion in the Reconstruction
  and Progressive Eras.

• Dual federalism finally ended in the 1930s,
  when the crisis of the Great Depression
  demanded powerful actions from the
  national government.
             Cooperative Federalism
• Prior to the 1930s, many scholars used the analogy of a
  layer cake to describe federalism.
   – Each layer had clearly defined powers and responsibilities.
• By the New Deal, the analogy of a marble cake seemed
  more appropriate because the lines of authority were
  much more mixed. National government becomes major
  player in domestic policy. There is major shift in money
  from federal government to state/local governments.
• Marble cake federalism is often called cooperative
  federalism and has a much more powerful national
  government. States have a cooperative role, as did cities.
• Grants-in-aid monies flooded states for public works
  projects, work programs, relief agencies (alpabetocracy)
Federal Grant-in-Aid Outlays, 1940-2005
   Creative (Regulated) Federalism
• Increase in Categorical Grants: allocation of
  federal money to the states for a specific
  purpose (e.g., poverty programs, welfare,
Federal leadership saw these grants as a way to
  compel individual states to behave in ways
  desired by the national government. If the
  states refused to cooperate with the federal
  government, it would withhold funds (e.g.,
  interstate highway funds & speed limit)
New Federalism: Reagan Revolution
Drastic cuts in federal domestic programs and
 income taxes in an attempt to reestablish the
 primacy of the states. For the first time in
 thirty years, federal aid to state and local
 governments declined. His idea was that
 federal government had gotten too big.
 States should have more responsibility and
        Issues during 1980’s-90’s
• Revenue sharing & matching funds
• Block grants: monies allocated to states for
  broad purpose, such as education or poverty,
  with few regulations on administering funds
• Unfunded mandates: laws that direct states &
  localities to comply with federal regulations,
  e.g., clean air laws & public access for disabled
• State budgetary constraints: recession,
  constitutional requirement for balanced budget
• Intergovernmental lobby groups: NGA, USCM
        The Devolution Revolution
 Devolution = delegation of power & responsibility
 Clinton Era reaction to growth in power of the national government
 due to Republican majority in both houses of Congress
• President Clinton: responsibility to administer
  federal programs as chief executive
• SOH Gingrich: roll back scope of federal
  government and give back of power to the states
• Contract with America: shift responsibilities to
  states; Unfunded Mandate Reform Act of 1995
• Gore’s Presidental Task Force on Reinventing
  Government - traditional Republican issue
4. Federalism and the Supreme Court
• Poll after poll showed that Americans
  began to think that the national government
  was too big, too strong, and too distant to
  understand their concerns.
• U.S. Supreme Court, once again, played a
  role in interpreting this new form of
• Cases involving abortion, gun control,
  environment, use of commerce clause,
  right to sue.
        Rehnquist Court
    Reinterpreting Federalism
• Generally handing back power to the states
• Majority pro-states’ rights; 5-4 decisions
• Webster v. Reproductive Health Services
  (1989) and Casey v. Planned Parenthood
  (1992): states can restrict abortion laws
• U.S. v. Lopez (1995): federal law cannot
  regulate guns within 1000 of a school BUT
• Bush v. Gore (2000): upheld deadline for
  selection of electors; struck down FL SC
   Summary – Key Points to Remember

• Federalism is an important concept of the American
  system of government meant to limit the power of the
  national government.
• The notion of Federalism has changed drastically since
  the New Deal in the 1930’s.
• In the 1960’s and 1970’s the scope of federal domestic
  policies and programs increased steadily.
• In the 1980’s Reagan began a rollback of federal
  funding for programs and funding to states.
• In the mid-1990’s Republican Congress promised to
  reduce the size and scope of the national government
  and “return power to the states.”

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