Chapter 3: Federalism and the Separation of Powers

How has the constitutional structure of political institutions served the American people well for more than two centuries?

1) Managing conflict 2) Providing inducements for bargaining and cooperation 3) And facilitating collective action

What were some of the barriers being erected between the states during the articles of confederation?

1) States were making their own trade agreements with foreign countries and companies, which would then play the states against each other. 2) Some states adopted trade tariffs and further barriers to commerce that were contrary to the interests of other states. 3) Tax barriers between the states.

The separation of powers deliniates the authority of the executive branch, Congress, and the courts, giving each ________, ________, and _________.

1) a degree of control over the agenda 2) the power to affect decisions 3) the ability to block the actions of the others (veto powers)

What are the Four Views of Federalism?

1. Dual Federalism 2. Cooperative Federalism 3. Regulated federalism 4. New Federalism

Hammer v. Dagenhart.

1918. The Supreme Court struck down a statue prohibiting the interstate shipment of goods manufactured with the use of child labor. The Court declared that the intent of Congress had been to outlaw the manufacture of the products in question and declared that the statutory language was merely a ruse.

Who carried copies of the 10th Amendment with him to read at rallies?

1996 Republican Presidential candidate Bob Dole.

Grants-in-aid.

A general term for funds given by congress to state and local governments. It is an important source of federal influence (kind of a bribe or a "carrot). Congress appropriates money for state and local governments with the condition that the money be spent for a particular purpose as defined by Congress. It is an example of the fact that institutions shape policies.

State Sovereign Immunity.

A legal doctrine holding that states cannot be sued for violating an act of congress. States are immune from lawsuits by private individuals or groups claiming that the state violated a statute enacted by congress.

The institutions established by authoritarian regimes are usually designed to concentrate power in the hands of _______.

A small group of leaders who determine what will be considered, make the final decisions, and seek to block the actions of others.

Define Cooperative Federalism.

A type of Federalism existing since the New Deal era, in which grants-in-aid have been used strategically to encourage states and localities (without commanding them) to pursue nationally defined goals. Also known as intergovernmental cooperation. The system of cooperative federalism gave the federal government far greater control over the domestic political agenda.

The political institutions in democratic states are usually designed to _______.

Allow a variety of groups to participate in decision making and provide at least a measure of agenda and veto power to a number of actors.

Why have federalism and the separation of powers given rise to the federal pork barrel, to the defense subcontracting system, and to grants-in-aid and other forms of policy that reflect the dispersion of decision, agenda, and veto powers?

Ambitious politicians have developed a variety of strategies for overcoming the many impediments to policy change. Most commonly, those seeking to promote a new program may try to find ways of dispersing the program's benefits so that other politicians controlling institutional veto powers will be persuaded that it is in their interest to go along. Example: Federal officials often secure state cooperation with national programs by offering the states funding (called grants-in-aid) in exchange for their compliance.

American federalism recognized two sovereigns in the original Constitution and reinforced the principle in the Bill of Rights by granting _________ and __________.

American federalism recognized two sovereigns in the original Constitution and reinforced the principle in the Bill of Rights by granting a few expressed powers to the national government and reserving the rest to the states. Thus, the constitution defined the jurisdiction of each level of government.

Article I, Section 10

Another potential limit on states. Article I, Section 10 provides that "no state shall, without the consent of congress,... enter into any Agreement or Compact with another state.

Aside from the expressed powers granted to the national government, what else does Article I, Section 8 of the Constitution also contain?

Article I, Section 8 also contains the implied powers that enable Congress "to make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers."

Where are the expressed powers granted to the national government found? What do these powers include?

Article I, Section 8 of the constitution. These 17 powers include the powers to collect taxes, coin money, declare war, and regulate commerce.

Where is the "elastic" clause found in the constitution?

Article I, Section 8. Also known as the Necessary and Proper Clause.

Article IV, Section 2

Article IV, section 2 is also known as the comity clause and like the Full Faith and Credit clause it also seeks to promote national unity. It provides that citizens enjoying the privileges and immunities of one state should be entitled to a similar treatment in other states.

Where in the Constitution does it describe the obligations the states have to each other?

Article IV. These obligations were intended to promote national unity. The framers aimed to make the states less like independent countries and more like parts of a single nation by requiring the states to recognize actions taken in other states as legal and proper.

How did political scientist Morton Grodzins characterize the shift to Post-New Deal cooperative federalism?

As a move from "layer cake federalism" to "marble cake federalism."

National Labor Relations Board v. Jones & Loughlin Steel Company

At the issue was the National Labor Relations Act, known as the Wagner Act, which prohibited corporations from interfering with the efforts of employees to organize into unions, to bargain collectively over wages and working conditions, and to go on strike and engage in picketing. The newly formed National Labor Relations Board (NLRB) had ordered Jones & Loughlin to reinstate workers fired because of their union activities. It reached the supreme court because Jones & Loughlin argued that their activities were local and therefore beyond the government's reach. The court disagreed because Jones & Loughlin was a arge corporation with subsidiaries and suppliers in may states therefore it was inherently involved in interstate commerce and hence subject to congressional regulation.

Why does Congress use grants-in-aid?

Because it does not have the political or constitutional power to command local governments to do its bidding.

Why for many years did the Supreme Court declare any effort by the federal government to regulate commerce in such areas as fraud, the production of impure goods, the use of child labor, or the existence of dangerous working conditions unconstitutional?

Because regulation in these areas would mean the federal government was entering the factory and workplace, areas inherently local because the goods produced there had not yet been passed into commerce and crossed state lines. The court held that regulation in these areas constituted police power, a power reserved to the states.

Why did local governments become administratively important in the early years of the Republic?

Because the states possessed little administrative capability. They relied on local governments - cities and counties - to implement the laws of the state.

How does the separation of powers seek to limit the power of the national government?

By dividing government against itself - by giving the legislature, executive, and judicial branches separate functions, thus forcing them to share power.

Article IV Section 1

Calls for "Full Faith and Credit" among states, meaning that each state is normally expected to honor the "public Acts, Records, and Proceedings" that take place in any other state. Example, states must recognize a marriage license from another state (except in homosexual marriages).

The framers feared that concentrating power in a small number of hands would threaten ________.

Citizen's liberties.

The most fundamental power retained by the states is that of _________.

Coercion. The power to develop and enforce criminal codes, administer health and safety rules, and regulate the family via marriage and divorce laws. THE STATES HAVE THE POWER TO REGULATE INDIVIDUALS LIVELIHOODS.

Define Compact.

Compacts are a way for two or more states to reach a legally binding agreement about how to solve a problem that crosses state lines. In the early years of the republic, states turned to compacts primarily to settle border disputes. Today with the support of the federal government they are used for a wide range of issues but are especially important in regulating the distribution of river water, addressing environmental concerns, and operating transportation systems that cross state lines.

What does Congress do more often than prohibit compacts?

Congress attaches conditions to its approval of proposed interstate compacts.

What is the name given to the system that prevailed after the 1930s?

Cooperative Federalism.

Congress forced FDR to recognize the continuing importance of the states by __________.

Crafting a number of programs in such a way to encourage the states to pursue nationally set goals while leaving them some leeway to administer programs according to local values and needs.

New Deal

Created by FDR. Depended on governmental power to regulate the economy and to intervene in every facet of American Society.

DOMA (1996)

Declared that states will NOT have to recognize a same-sex marriage legally contracted in another state.

Defense of Marriage Acts

Define marriage as a union only between a man and a woman.

Aside from the interruption of the civil war, the state's rights coalition ________, _______, and _______.

Dominated Congress, affected presidential nominations, and influenced judicial appointments which required Senatorial acquiescence. During this time the Supreme Court turned away from John Marshall's way of thinking and favored a state's rights interpretation of the constitution (specifically the commerce clause).

Before the 1930s, America's federal system could have been characterized as one of ___________.

Dual federalism.

The Necessary and Proper clause/doctrine allowed the national government to _______.

Expand considerably the scope of its authority.

Define Block Grant.

Federal funds given to state governments to pay for goods, services, or programs, with relatively few restrictions on how the funds may be spent.

Wickard v Filburn

Federal rules controlling how much of any given commodity local farmers might grow.

What are two of America's most important institutional features?

Federalism and the separation of powers.

What does Federalism assign and who does it assign it to?

Federalism assigns agenda-setting, decision-making, and veto powers to the federal government and the 50 states.

What does Federalism seek to do and how does it go about doing it?

Federalism seeks to limit government by dividing it into two levels, national and state, each with sufficient independence to compete with the other, thereby restraining the power of both.

Categorical Grants-in-Aid.

Funds given by Congress to states and localities and that are earmarked by law for specific categories, such as education or crime prevention. Sometimes Congress requires the state or local governments to match the national contribution dollar for dollar.

Project grants.

Grant programs in which state and local governments submit proposals to federal agencies and for which funding is provided on a competitive basis.

Formula grants.

Grants-in-aid in which a formula is used to determine the amount of federal funds a state or local government will receive.

New York's governor, George Clinton, opposed the idea of a stronger national government mainly because _________.

He enjoyed his position as the chief executive of what amounted to be an important independent nation.

What did Justice Harlan Fiske Stone declare in 1941 about the 10th amendment.

He stated that the tenth amendment was simply a "truism," that it had no real meaning.

Most states amended their own constitutions to give their larger cities __________.

Home rule.

Give an example when the federal government has blocked a proposed interstate compact.

In 1939, FDR vetoed a bill that would have granted consent in advance to states to enter into compacts relating to fishing in the Atlantic Ocean. In 2001, Congress refused to allow the renewal of a compact among the several New England states that regulated milk prices.

In his decision, Marshall insisted that the definition of the commerce clause was _________, but added _________. What did his opinion later give rise to?

In his decision, Marshall insisted that the definition of the commerce clause was "comprehensive" but added that the comprehensiveness was limited "to that commerce which concerns more states than one." This opinion gave rise to what later came to be called interstate commerce.

In what decade did the national role expand and the number of categorical grants increase dramatically?

In the 1960s. The grants authorized during the 1960s announced national purposes much more strongly than did earlier grants.

America's public policies are shaped by the institutional arrangements through which ______ must flow.

Individual efforts.

Does local government have any status in the Constitution?

Local government has no status in the American Constitution. STATE legislatures created local governments, and STATE constitutions and laws permit local governments to take on some of the responsibilities of the state government.

Many of the constitution's framers, particularly Alexander Hamilton, had hoped to create something close to a __________ and to ___________.

Many of the constitution's framers, particularly Alexander Hamilton, had hoped to create something close to a unitary national government and to circumscribe severely the power of the individual states.

What was the first and most important case favoring national power?

McCulloch v. Maryland. The issue was whether congress had the power to charter a bank, in particular the Bank of the United States (created by Congress in 1791 over Thomas Jefferson's constitutional opposition), because no express power to create banks was found anywhere in Article I, Section 8. Chief Justice John Marshall, speaking for the supreme court, answered that such a power could be implied from the other specific powers in Article I, Section 8. The ruling essentially said that if a goal was allowed in the constitution and congress's chosen means to achieve the goal was not prohibited by the constitution, then congress should act.

FDR was eager to expand the power of the ________.

National government.

Define Unfunded Mandates.

National standards or programs imposed on state and local governments by the federal government without accompanying funding or reimbursement.

What side did Marshall and the Supreme Court take when deciding whether Maryland's attempt to tax the bank was constitutional?

Once again, Marshall and the Supreme Court took the side of the national government, arguing that a legislature representing all of the people (Congress) could not be taxed out of business by a state legislature (Maryland) representing only a small portion of the American people. "The power to tax is the power to destroy."

Define Implied Powers.

Powers derived from the necessary and proper clause (Article 1, Section 8) of the Constitution. Such powers are not specifically expressed but are implied through the expansive interpretation of delegated powers.

Define Reserved Powers.

Powers, derived from the Tenth Amendment to the Constitution, that are not specifically delegated to the national government or denied to the states; these powers are reserved to the states

Roosevelt's efforts provoked sharp conflict between the ______ and the _______.

President and the federal judiciary.

Briefly describe how New Federalism came about.

Presidents Richard Nixon and Ronald Reagan called their efforts to reverse the trend toward national standards and reestablish traditional policy making and implementation the "new federalism." They helped craft national policies whose purpose was to return more discretion to the states.

Why does private property exist?

Private property exists because state laws against trespass define who is and who is not entitled to use a piece of property.

The states have the power to define __________.

Private property.

What are the two types of categorical grants?

Project grants and formula grants.

Which federalism replaced cooperative federalism?

Regulated Federalism.

Describe regulated federalism.

Regulated federalism enhances the national government's power. National government determines policies; state governments pay for and administer them. The most noticeable instances of regulated federalism are in the areas of civil rights, poverty programs, and environmental protection (social regulation).

The apportionment of powers between the federal government and the states has _______ over time.

Shifted. In recent decades, the presidency has increased in power relative to Congress, and the federal government has grown in jurisdiction relative to the states.

During the Jacksonian period, a _______ coalition developed in the Congress.

State's rights. Among the most important members of this coalition were state party leaders who often had themselves appointed to the Senate where they jealously guarded the powers of the states they ruled.

Local government was an alternative to ________.

Statewide bureaucracy. Today, local governments and state bureaucracies both compete and cooperate with one another.

Define Sovereignty.

Supreme and independent political authority.

Important examples of regulated federalism are ______________.

The Asbestos Hazard Emergency Act of 1986 and the Americans with Disabilities Act of 1990. The net effect of these national standards is that state and local policies are more uniform from coast to coast.

Who has at time acted as the arbiter in the debate over the distribution of powers between national and state governments?

The Supreme Court.

Which amendment did the Antifederalists repeatedly press for in the Bill of Rights? Why?

The Tenth Amendment because they feared a strong central government would encroach on individual liberty. They felt that this amendment would limit national power.

What does UMRA stand for?

The Unfunded Mandates Reform Act (UMRA) 1995. UMRA was considered a triumph of lobbying efforts by state and local governments, and it was "hailed as both symbol and substance of a renewed congressional commitment to federalism." Under this law any mandate with an uncompensated state and local cost estimated at greater than $50 million a year can be stopped by a point of order raised on the House or Senate floor. UMRA does not prevent members of Congress from passing unfunded mandates, it only makes them think twice before they do.

Define Concurrent Powers.

The authority possessed by BOTH state and national governments, such as the power to levy taxes.

Commerce Clause.

The clause found in Article I, Section 8, of the Constitution, which delegates to congress the power "to regulate Commerce with foreign nations, and among the several states, and with the Indian tribes." This clause was interpreted by the Supreme Court to favor national power over the economy.

What clause was at the issue in the Gibbons v. Ogden case?

The commerce clause.

Who establishes the decision rules that determine the relationship between federal and state power?

The courts.

What problem lead directly to the Annapolis Convention in 1786 and the Constitutional Convention in 1787?

The fact that the states had retained too much power relative to the national government. Under the Articles, conflicts and interests between states were not manageable by the national government.

What was the great achievement of American politics in the eighteenth century?

The fashioning of an effective constitutional structure of political institutions.

Gibbons v. Ogden (1824)

The important but relatively narrow issue was whether the state of New York could grant a monopoly to Robert Fulton's steamboat company to operate an exclusive service between New York and New Jersey. Aaron Ogden had secured his license from Fulton's company whereas Thomas Gibbons, a former partner of Ogden's, had secured a competing license from the U.S. government. Chief Justice Marshall argued that Gibbons could not be kept from competing because the state of New York did not have the power to grant this particular monopoly affecting other state's interests.

What is one important way in which political institutions vary?

The manner in which they distribute decision, agenda, and veto powers.

Define Home Rule.

The power delegated by the state to a local unit of government to manage its own affairs. A guarantee of noninterference in various areas of local affairs.

Define Police Power.

The power reserved to the government, to regulate the health, safety, and morals of its citizens.

Define State's Rights.

The principle that states should oppose increases in the authority of the national government. This view was most popular before the Civil War.

Full Faith and Credit clause

The provision in Article IV, Section 1 of the constitution requiring that each state normally honors the public acts and judicial decisions that take place in another state.

Privileges and Immunities

The provision in Article IV, Section 2 , of the constitution stating that a state cannot discriminate against someone from another state or give its own residents special privileges. This clause also regulates criminal justice among the states by requiring states to return fugitives to the states from which they have fled.

Define Eminent Domain.

The right of the government to take private property for public use, with reasonable compensation awarded for the property.

Most of the truly coercive powers of government are reserved to the _________.

The states, although the Constitution does impose some significant limitations.

In addition to the expressed powers and implied powers, where else does the constitution affirm the power of the national government?

The supremacy clause (Article VI), which makes all national laws and treaties "the supreme law of the land."

Define Federalism.

The system of government in which a constitution divides power between a central government and regional governments. This limits national and state power.

Define Dual Federalism.

The system of government that prevailed in the United States from 1789 to 1937 in which fundamental governmental powers were shared between the federal and state governments, with the states exercising the most important powers. A two layered system where the jurisdiction of the states was greater than that of the federal government.

What is the tenth amendment also referred to as? Why?

The tenth amendment is also called the reserved powers amendment because it aims to reserve powers to the states.

Policing is what states do, they ________.

They coerce their citizens in the name of the community in order to maintain public order.

The states retain and share some power to regulate _____ and affect the ______.

They retain and share some of the power to regulate commerce and affect the currency. For example, by chartering banks, granting or denying corporate charters, and regulating the quality of products or the conditions of labor.

What is one way that the framers sought to preserve a strong role for the states? Which amendment?

Through the tenth amendment to the constitution. The tenth amendment presents a decision rule, or general principle governing decisions, stating that the powers the constitution does not delegate to the national government or deny the states are "reserved to the states respectively, or to the people."

Federalism gives the states the power to _____ many national government efforts.

Veto.

Why were the framers forced to accept the idea that states would continue as important entities?

Well established popular identification with the 13 states and the fact that each of the states had a well-established set of governmental institutions staffed by legislators, judges, and executive officials who had no desire to see their power and autonomy submerged in a new national government.