Federalism & Separation of Powers PP

Federalism

a guaranteed division of power between national (federal) and sub-national (state) governments. American federalism was the product of compromise between the states and the new national government.

Separation of Powers

a strict separation of legislative, executive, and judicial institutions.

Critics of American government argue

that the division of power—both federally and in terms of the separation of powers—constitutes a weakness of the political system.

Federal balance of power remained contested and paradoxical throughout American history and was at the heart of struggles throughout American history such as:

the ability of states to "nullify" federal laws; the Civil War; the power of the central government in the New Deal; the "rights" of states versus the rights of citizens in the civil rights movement.

State Government Powers (Reserved powers)

"police powers" (the powers to regulate the health, safety, and morals of its citizens) Tenth Amendment

Stage 1: Dual Federalism

Central government focused on promotion of commerce and distribution of resources. States retain most remaining powers. allowed for a relatively clear delineation of power between national, state, and local governments.

Madison's Constitutional Design

Checks & Balances

LEGISLATIVE

Congress House and Senate

Article I, Section 8, of the Constitution set forth several powers of the national government, including:

"Necessary and proper clause" Commerce clause McCulloch v. Maryland (1819) Gibbons v. Ogden (1824)

National Government Powers (Implied powers)

"necessary and proper" powers the national government gains due to their implication in the Constitution

Stages of Federalism

Dual Cooperative Regulated New

State Powers

Education Intrastate commerce Police powers Conduct elections Amendment X: Reserved powers Taxation (concurrent) Make laws (concurrent)

Stage 2

Franklin Roosevelt's "New Deal" sparked a revolution in national policy making and an increased role for the national government, altering the balance of federal power.

Following Montesquieu

Antifederalists argued for a strict separation of the legislative, executive, and judicial functions.

Separate Institutions Sharing Power

As Neustadt observed, American government actually creates separate "departments" of government that compete over comingled, or shared, powers.

Stage 3: Coercive Federalism

As state and local governments came to depend on grant-in-aid support, the national government further intervened in state government decision making by threatening to withhold such grants.

The Constitution as an Institutional Solution

Bicameralism The creation of a strong executive to counter Congress

Coercive Federalism Example

To regulate speed limits within states, the national government threatens to withhold federal transportation dollars, thus coercing states to comply with federal mandates.

Federalists won the struggle over ratification.

True

Madison

He believed that the chief goal of the Constitution's separation of powers was to overcome the legislative dominance he expected & feared.

EXECUTIVE

President Bureaucracy

JUDICIAL

Supreme Court Other federal courts

Stage 2: Cooperative Federalism (NLRB v. Jones and Laughlin Steel (1937))

Supreme Court expanded its interpretation of the commerce clause to allow the national government to regulate as well as promote interstate commerce, allowing for an expansion of national government power and a blurring of the lines of authority between national and state government.

In United States v. Lopez (1995) & United States v. Morrison (2000)

Supreme Court reversed its course by restricting its interpretation of what constituted "interstate commerce" to justify federal government involvement in the states.

Congress

The Republican takeover of Congress after the 1994 elections led to a series of policies where the federal government "devolved" power to the states.

Stage 4

The waning in some respects of Franklin Roosevelt's New Deal coalition and programs sparked a counter-federal trend, known as new federalism, that began to return discretion to the state and local governments.

In the 1990s both Congress and the federal courts joined the new federalism revolution.

Truee

Who makes up the executive branch?

UK-Westminster System: PM & Cabinet elected by the majority party in the legislature US-Presidential System: Separately Elected President, Cabinet nominated by the President

Executive and Legislative Removal Powers

UK-Westminster System: Parliament dissolves the executive through a vote of no confidence, forcing new elections. US-Presidential System: Congress cannot remove president (normally). The president cannot dissolve congress.

Federal Powers

War Interstate commerce Currency Foreign affairs Taxation (concurrent) Make laws (concurrent)

What is a good example of such "devolution."?

Welfare reform

Block grants

are given to states for general purposes and allow state officials greater discretion over how funds will be spent.

Categorical grants

are given to states for more specific purposes, and most of the discretion remains in the hands of federal officials and officeholders.

National Government Powers (Expressed powers)

collect taxes coin money declare war

And, again in 2007 and 2008, Democratic Congresses

confronted George W. Bush's administration over executive branch information and public policy more generally.

The cooperative federalism instruments of federal grants-in-aid to state and local governments

continue to constitute an important part of state and local governments' budgets.

Still, the framers of the Constitution sought to

create a political system in which collective action was sometimes difficult to achieve. Separation of powers and federalism help curb "tyranny of the majority."

The New Deal's expansion of the national government and the executive branch

further empowered the national government at the expense of state autonomy.

Checks and Balances

giving each branch of government a share of the others' power. This violates the strict interpretation of separation of powers.

In Separation of Powers, Federalism

separates government power between the national, state, and local governments, separation of powers divides government power between the legislative, executive, and judicial branches.

A Republican Congress

struggled for policy control and eventually impeached Bill Clinton.

Democratic Congresses

struggled with the Nixon and Reagan White Houses for control over war and spending powers.

Through federalism and the separation of powers,

the Constitution sets up conflicts which act as barriers to collective action.

Under "cooperative federalism,"

the national government would ensure state cooperation with federal policies by offering grants-in-aid.

New Federalism

trend of returning discretion to the states began in the executive branch as the Nixon, Carter, and Reagan administrations gave states a larger role in administering federal policies.

Divided government

when one party controls the White House and the other party controls at least one chamber of Congress—exacerbates the tensions between the branches. Under these circumstances, when collective action is necessary and desirable, the government must overcome these barriers.