Which One is a Fake Law?

The law in Vermont still states that a married

woman must get her husband’s permission before
she gets dentures.
In 1895, a law was created in Missouri stating that
yellow margarine was not to be sold.
In 1955, a law in Kentucky stated that no one could
eat beer and pretzels at the same time.
The Florida state constitution mandates that
pregnant pigs must not be kept in cages.
Federalism
 Three Systems of Government

Federation: 2 or more levels of government have

formal authority over the same area of people
 (US, Canada, Germany)
Confederation: the national government is weak and
most or all of the power is in the hands of its
components.
 (US under Articles)
Unitary System: All power resides in the central
government.
 (France, UK, Japan)
 Why Federalism?

The need for a national government

 Domestic security and market regulation
 Inter-state feuding

Colonies wanted/needed state power

 farapart, loyal to state
 Primitive transportation and communication
systems
 Why does it matter?

Decentralizes our politics

More opportunities for political participation
Enhances judicial power
National Government can’t directly regulate certain
issues
 But they can influence states
 American Federalism

A multiplicity of governing levels and units

•1
•50
•89,476
 Understanding Federalism

Advantages
 More participation
 Increased access
 Diversity of policies
Disadvantages
 States differ in resources
 # of governments
 Local interest can sometimes win over a national majority
opinion
 State Power

Most come from the Tenth Amendment that says:

• Called Reserve Powers

 State Powers

Issue licenses
Regulate intrastate (within the state) businesses
Establish local governments
Ratify amendments to the Constitution
 State Power (cont.)

Constitution also gives states:

 Equal representation in Senate
 Responsible for state and national elections
 National Popular Vote Plan
 Continuation (states can’t be chopped up)
 States: Obligations to Each Other

Full Faith and Credit

Privileges and Immunities
 “The citizens of each state shall be entitled to all
privileges and immunities of citizens in the several
states.”
 Exceptions-out-of-state tuition, voting
Interstate Compact (Article 1, Section 10)
 "nostate shall enter into an agreement or compact
with another state" without the consent of Congress
 States: Obligations to Each Other (cont.)

Extradition
 “Aperson charged in any state with treason,
felony, or other crime, who shall flee from justice,
and be found in another state, shall on demand of
the executive authority of the state from which he
fled, be delivered up, to be removed to the state
having jurisdiction of the crime.”
 National Government

Enumerated Powers
 Article 1, Section 8
 National Gov

Print money
Regulate interstate (between states) and
international trade
Make treaties and conduct foreign policy
Declare war
Provide an army and navy
Establish post offices
Constitution said Natl. Gov. must
 Protect states from violence and invasion
 Concurrent (shared) Powers

Collect taxes
Build roads
Borrow money
Establish courts
Make and enforce laws
Charter banks and corporations
Spend money for the general welfare
Take private property for public purposes, with just
compensation
What if there is a dispute between
a state and the national
government?
 Natl. Supremacy

 Supremacy Clause-Article VI
The following are the supreme law
of the land
• The constitution
• Laws of the national government
• Treaties
 Establishing Supremacy

1. Implied Powers

 McCulloch v. Maryland
 Bank of U.S.
 Enumerated and implied powers
 Elastic clause
2. Commerce Power
 Gibbons v. Ogden
 What is under the commerce power?
3. The Civil War-not as much about slavery
4. The Struggle for Racial Equality-Brown v Board
 McCulloch v. Maryland

Background
Bank of the US operated in Maryland
Maryland did not want BoUS to operate in state,
competition unwanted, unfair
Maryland taxed the bank to put it out of business
McCulloch, BoUS employee, refused to pay the state
tax
 McCulloch v Maryland (cont.)

Is a Bank of the US Constitutional?

YES. The national gov’t has certain implied powers
that go beyond delegated powers. US needs a
national bank for borrowing, lending, holding
minted money, etc. All of which are delegated
powers.
 McCulloch v Maryland (cont.)

Can a state tax the federal gov’t?

-NO. The federal gov’t is supreme. Since the BoUS
is constitutional, only the feds may tax it.

-John Marshall reaffirmed Supremacy Clause

and Elastic Clause
-National (Federal) Gov gets STRONGER
 Elastic Clause

Aka – “Necessary and Proper Clause”

Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power

to make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United States,
or in any Department or Officer thereof."
 Commerce

Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power

to regulate commerce with foreign nations, and
among the several states, and with the Indian tribes.”
Congress has used the elastic clause to stretch this
power
What is commerce? “Buying and selling of goods and
services.”
Congress given the power to regulate commerce
between foreign countries and US as well as state to
state… they control business law.
 Gibbons v Ogden

1824 – aka “The Steamboat Case”

Ogden received a state licensed monopoly to run a
ferry across the Hudson River
Gibbons also saw the potential of the traffic between
NJ and NY and obtained a federal license.
Ogden sued saying he had the valid state license,
even though Gibbons had US license
 Gibbons v Ogden (cont.)

Result – Gibbons wins

Expanded national power in all areas of commerce law
because nation overruled state in interstate trade issues
Fed Gov’t gets STRONGER
All trade today is primarily controlled by national law
Who cares? Why is it important?
Gibbons v. Ogden ruling makes a loop hole giving
Congress power to take control over any issue involving
the movement of people, or things
 Other Supreme Court Cases

U.S. v Lopez
 Gun-Free School Zone Act of 1990
 Supreme Court ruled that Act was unconstitutional
Gonzalez v. Raich
 Controlled Substance Act (1970)
 Medical Marijuana in California
 Supreme Court ruled that the national government
trumped state law
OLD SCHOOL – Dual Federalism
 Federal and state governments remain dominant in their
separate spheres of influence
 Gibbons v. Ogden proved life is not that simple
NEW SCHOOL – Cooperative Federalism
 State and Federal governments work together to solve complex
problems
From Dual to Cooperative Federalism
 The Move Towards Cooperative Federalism

New demands arose because of the Great Depression of

the 1930s
Franklin Roosevelt was elected president in 1932
promising to do something
After Nixon, Government felt it was doing too much,
began to back off
 Grant programs and federal funding
 Strings attached
 Fiscal Federalism

MONEY
the expenditure of federal funds on programs run in
part through state and local governments.
 Everyone Wants Some Money

 Categorical Grants: A federal grant of money to states for a

specific activity.
 Project grants-competitive applications
 Formula grants-formula basis

 Block Grants: broad grants given by the federal government to

state governments for specific areas (health; education), but
leaving it to the states to determine how it is spent.
 Strings Attached

Cross-over sanctions & cross-cutting

requirements

(Unfunded) Mandates: laws passed by the

federal government dictating that state or
local governments must comply with federal
regulations (e.g., air/water standards) under
threat of civil/criminal penalties or loss of
federal funds.
 Grant activity

Examples
Write your own!
 Review Game

Round One: Powers, shoot into correct basket

Round Two: Questions from test
Round Three:
Tiebreaker: Number of govs from 2007 census
without going over