Topic 3FederalismI. Different Ways to Divide Governmental PowerA. ConfederationB. Unitary GovernmentC. FederationD. Differences Based on Legal Allocation of PowerII. Legal Division of Powers in American Federal SystemA. National Govt. PowersB. Concurrent PowersC. State PowersD. Admission of new statesE. States’ RightsF. Obligations of StatesIII. Evolution of American FederalismA. Dual Federalism: federalism in theoryB. Cooperative Federalism: federalism in practiceC. New FederalismTopic 3FederalismA. Confederationi. A voluntary association of sovereign member statesa. Sovereign states enter into a contract (constitution)b. Delegate certain powers to a central government to deal w/ common problemsc. Central gov’t subordinate to regional governments1. Can exercise only powers delegated by unanimous consent of the regional gov’ts2. No direct power over citizens in the regional gov’tsd. Unanimous consent to change constitutione. Right to regional gov’ts to withdrawii. Examplesa. Articles of Confederationb. Confederate States of Americac. European Union (established by treaty in 1993)B. Unitary Governmenti. Power concentrated in a single central governmenta. Central gov’t may create subdivisionsb. Local gov’ts subordinate to central gov’tc. Most common form of gov’tii. Examplesa. Great Britainb. Relationship between U.S. State and cities/countiesC. Federationi. Constitutional division of power between central government and its parts (states, provinces)a. Each level has power independent of the otherb. Each level participates in amending the constitutionc. No right to withdrawii. Examplesa. U.S., Canada, Mexicob. European Union? (quasi-federation)c. China?D. Differences Based on Legal Allocation of Poweri. Division of power in all 3ii. Essential difference = HOW power is dividedII. Legal Division of Powers in American Federal SystemA. National Government Powersi. Enumerated powersa. Levy and collect taxesb. Borrow and coin moneyc. Regulate interstate commerced. National security: raise army and navy, declare warii. Implied powersa. “Necessary and proper” clauseb. Tax and spend for “general welfare”B. Concurrent Powersi. Overlap in powers of national and state gov’tsii. Both can tax and borrow moneyiii. Tension between national and state gov’tsC. State Powersi. 10th Amendment: “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.”ii. “Police powers”: power of states to pass laws for the health, safety, and morals of its citizensD. Admission of new statesi. The typical procedurea. Congress forms an incorporated territoryb. Residents petition Congress for admissionc. Enabling Act passed by Congress and signed by president1. Authorizes territory to draft a state constitution2. Must be approved by the residents in a referendumd. Territory becomes a state when state Constitution is approved Congress and signed by the Presidente. Immediately on equal footing with other statesf. Texas is a special caseii. Recent Discussiona. Puerto Ricob. Washington, DCiii. Political Conflictsa. Utah1. Multiple attempts 1849-18962. Controversy over plural marriage, party politicsb. Alaska and Hawaii (1959)1. Civil rights2. Party politicsE. States’ Rightsi. Protection against invasion and insurrectionii. republican form of governmentiii. Equal representation in the Senateiv. Equality of states after admissiona. No seniority: all states have same degree of sovereignty with the same rights and powersb. Boundaries cannot be changed without permission of:1. State or states concerned and2. Congressc. States have control over their internal affairs. Ex: placement of state capitol (Coyle v. Smith, 1911)v. States must agree to Constitutional amendments (38 out of 50)F. Obligations of Statesi. Recognize supremacy of US Constitution and lawsa. Article IV: “This Const., laws of the US made in pursuance thereof; and treaties shall be the supreme law of the land; and anything in the const. or laws of any state to the contrary notwithstanding.”b. Creates hierarchy of law1. US Constitution2. Federal laws and treaties3. State constitutions4. State lawsii. “Full faith and credit”a. Article IV: Each state must give “full faith and credit to the public acts, records, and judicial proceedings of every other state”b. Not criminal lawsc. Civil judgments, birth certificated. Marriage?iii. Interstate rendition: extradition of criminalsa. States cannot enforce criminal laws of other statesb. Article IV: “A person charged in any state w/ a crime, who shall flee & be found in another state, shall on demand of the exec. authority of the state from which he fled, be . . . removed to the state having jurisdiction. . . .”III. Evolution of American FederalismA. Federalism in Theory: Dual Federalismi. Clear line between national and state powersii. Federal and state governments are sovereign with separate and distinct responsibilities.B. Federalism in Practice: Cooperative Federalismi. Line between national and state responsibilities is blurryii. Shared responsibility requires cooperationiii. Early cooperationa. Land grantsb. Morrill Act of 1862iv. Grants-in-aida. Categorical grants (for narrowly-defined purposes; Head Start, highways)b. General Revenue Sharingc. Block Grants (for general gov’t functions; education, law enforcement)v. Problems with Cooperative Federalisma. Coordination and communicationb. Expensivec. Threats to state authority1. Matching funds, Strings attached, Cross-over sanctions2. Figure 3.4 State and Federal Spending as a Percent of GDP3. Figure 3.5 Changing Priorities in Grants-in-AidC. New Federalismi. Attempt to return to power and responsibility to statesa. Figure 3.6b. Sweeping welfare reform 1996c. Supreme court rulings supporting states’ rights1. Federal government could not force local law enforcement agencies to perform criminal background checks (Printz v. US 1997)2. Citizens could not use a federal law to sue a state in state court (Alden v. Maine 1999)ii. Problems and Controversiesa. Returning power to the states, also returned responsibility and the financial burdenb. Advantage of federal regulation: one set of standards vs. 50 separate state standardsc. Unfunded Mandates1. Federal statutes required to take on certain responsibilities without covering any of the costs2. Examples:- Handicapped access to public buildings- No Child Left