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| Federalism: What does it do | Limit gov. by dividing it into 2 levels, National and State (both with sufficient indep. to compete with eachother thus restraining the power of both |
| Separation of Powers: What does it do | Limit power of national gov. by dividing gov. against itself (by giving legislative, executive, and judicial branches separate functions thus forcing them to share power) |
| What does federalism mean? | That national gov. is not only significant decision-making body in America= The 50 indiv. states are not agencies of the national gov. but instead have good deal of power in their own rights |
| What does the separation of powers mean? | That within the national gov. there is no neat decision-making hierarchy= Each of the 3 branches of gov. exercises power over the other 2 |
| Federalism and Separation of Powers: Result | Complicate policy making= If gov. power were arranged neatly and simply in a single hierarchy, decisions could be made more easily and more efficiently but this is not what Framers wanted |
| Framers: Complexity | Framers thought that complexity, multiple checks, and institutionalized second-guessing (while messy) would allow more interests to have a voice and would eventually produce better results= Also, complex decision processes might preserve liberty and prevent tyranny |
| Oregon: 1994 | Voters of the state of Oregon approved a ballot measure authorizing physicians to assist terminally ill patients who wish to commit suicide= Under state law (which survived a 1997 repeal effort) a physician amy prescribe a lethal dose of medication for a patient requesting it if 2 doctors agree that the indiv. is within 6 months of dying from an incurable disease (more than 200 patients have done this) |
| Reaction to Oregon state law in 2001 | US Attorney General John Ashcroft said that physician-assisted suicide was not a legitimate medical procedure and that any physician administering federally controlled drugs for such a purpose would be in violation of the federal Controlled Substances Act and would be prosecuted by the federal government |
| The Controlled Substances Act | (Enacted by Congress in 1970) Gives federal gov. authority to regulate the manufacture/possession/distribution of different drugs= The drugs used for assisted suicide (in Oregon) were among those falling under federal regulation |
| Oregon's reaction to Attorney General and result | State of Oregon quickly announced its intention to oppose Attorney General Ashcroft's order= Oregon, joined by many physicians/pharmacists/terminally ill patients brought suit in US District Court= Court ruled in favor of the state and declared that attorney general had no authority under the Controlled Substances Act to prohibit doctors from prescribing drugs for use in assisted suicides |
| US Court of Appeals for the Ninth Circuit | Affirmed the district court's opinion (in the Oregon case) |
| US Supreme Court and Oregon Suicide Law | (2006) Court ruled that federal gov. had power to regulate drugs but not power to overrule state laws determining how those drugs could be used so long as the drugs were not prohibited by federal law |
| Oregon Suicide Law: Analysis | Case illustrates both federalism and separation of powers= An executive official of fed. gov (attorney general of the US) told state of Oregon that its law was inconsistent with federal statute and that physicians who followed the state law would be prosecuted by the federal gov.= In most countries, regional governments are simply administrative units of the national gov. and a decision by the equivalent of the attorney general would end the matter= In the US though, states have much sovereign power= The state of Oregon chose to oppose the federal gov. and defended its policy against the attorney general's ruling |
| How did Oregon defend itself? | Used the Separation of Powers= The federal courts have power to examine acts of Congress and decision by the executive and decide whether they are consistent with law and the Constitution= Oregon appealed for help to the federal judiciary and eventually the federal courts ruled against the federal government's executive branch in favor of the state |
| Gonzales Case | (Oregon Suicide Law vs. Attorney General) Court ruled that while Congress does have power to regulate use of drugs, states also have power to decide how those drugs will be used within their jurisdiction= Thus the institutions of federalism and the separation of powers interacted to produce a particular outcome that would not have occurred anywhere else in the world |
| The great achievement of American politics is... | The fashioning of an effective constitutional structure of political institutions= Although it is an imperfect/continuously evolving work in progress, this structure of law and political practice has served pwoeple well for more than 2 centuries by managing conflict, providing inducements for bargaining and cooperation, and facilitation collective action= The only 1 failure was the crule practice of slavery which ended after destructive civil war but the basic configuration of institutions first formulated in Philadelphia in 1787 survived Civil War (although it was severely scarred by it) and has otherwise stood the test of time |
| Institutional Arrangements | Institutional arrangements like federalism and the separation of powers are part script and part scorecard |
| Federalism and Separation of Power: Importance | As 2 of the most important features of the constitutional structure, they serve to channel and constrain political agents first by limiting their jurisdictional authority and then by pitting them against each other as political competitors |
| Dividing and Separating: Framers | Thought that leaving political authority unobstructed/undivided would invite intense competition of a winner-take-all variety where the winners would be in a position to tyrannize while the losers would either submit or (with nothing else to lose) be tempted to mount violent opposition |
| Divide-and-Separate Principle | Adopted by framers and was implemented as federalism and the separation of powers and consisting of checks and balances= Allowed the framers to create jurisdictional arrangements |
| How does the Constitution reflect the jurisdictional arrangements made by the Framers? | It encourages diversity in the political actors occupying the various institutions of gov. by requiring that they be selected at diff. times, from diff. constituencies, and by diff. modes (chiefly various forms of election and appointment)= Also, the Constitution allocates the consideration of different aspects of policy to different institutional arenas |
| Reason for diversity in the political actors occupying the various institutions of gov. | This diversity (it was believed) would prevent a clique/narrow slice of the political elite from dominating all the institutions of gov. at the same time |
| Activities explicitly mentioned in the Constitution | Coinage of $, declaration of war are assigned to Congress= Matters relating to the execution and implementation of the law are delegated to the president and the executive bureaucracy= Other activities like adjudicating disputes between states were made the preserve of the judicial branch |
| Activities not explicitly mentioned in the Constitution | Are reserved to the states |
| Through a jurisdictional arrangement, the Framers sought... | A balance where there is the capacity for action but power is not so concentrated as to make tyranny likely |
| Amazing thing about the American political institutions | They are not finite/carved in granite= While the Constitution initially set broad framework for division of authority between the national gov. and the states and the division of labor among the branches of the national gov., much adaptation/innovation took place as these institutions themselves were bent to the purposes of various political players (e.g. politicians, US Supreme Court) |
| Politicians | (Political Player) Are goal oriented and constantly explore the possibilities that their institutional positions and political situations provide them with |
| US Supreme Court | Political Player who has helped shape the current jurisdictional arrangements and sharing of power= Has been central player in settling the ongoing debate over how power should be divided between the national gov. and the states and between Congress and the president |
| Federalism | Division of powers and functions between the national gov. and the state gov.= Limits national/state power by creating 2 levels of gov. (National Gov. and State Gov.) each with much sovereignty and thus the ability to restrain the power of the other |
| History of the States | States existed as former colonies before independence= Were virtually autonomous units for 13 years under the Articles of Confederation (in effect, the states had retained too much power under the Articles [problem that led directly to Annapolis Convention in 1786 and to the Constitutional Convention in 1787])= Under Articles, disorder within states was beyond the reach of the national gov and conflicts of interest between states were not manageable (EX: States were making their own trade agreements with foreign countries and companies which might then play off 1 state against another for special advantages= Some states adopted trade tariffs and further barriers to foreign commerce that were contrary to the interests of other states= Taxes and other barriers were also being erected between the states) |
| States after the ratification of the Constitution | States continued to be more important than the national gov.= For nearly a century and a half, virtually all of the fundamental policies governing the lives of Americans were made by the state legislatures, NOT by Congress |
| US and Federalism | US was 1st nation to adopt federalism as its governing framework= With federalism, Framers sought to limit national gov. by creating a 2nd layer of gov. in the states |
| Bill of Rights: What did it reinforce? | American federalism recognized 2 sovereigns in the original Constitution and reinforced the principle in the Bill of Rights by granting a few EXPRESSED POWERS to the national gov. and reserving the rest to the states |
| Expressed Powers | Notion that the Constitution grants to the fed. gov. only those powers specifically named in its text |
| Article I, Section 8 | Is where the expressed powers granted to the national gov. are found= These 17 powers include powers to collect taxes, coin $, declare war, regulate commerce= Also contains the IMPLIED POWERS (important source of power for the national gov.) |
| Implied Powers | ("Necessary and Proper Clause" of Article I, Section 8) Powers derived from the "Necessary and Proper Clause" which enable Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"= Supreme Court did not allow Congress to exercise the power granted in this "necessary and proper clause" until several decades after the founding= Powers are not specifically expressed but are implied through the expansive interpretation of delegated powers |
| Necessary and Proper Clause | (Article I, Section 8) Is where the "Implied Powers" are derived from= This doctrine allowed the national gov. to expand considerably the scope of its authority although the process was slow |
| Supremacy Clause | (Article VI) Affirms the power of the national government= Makes all national laws and treaties "the supreme Law of the Land" |
| 10th Amendment | (1 way the Framers sought to preserve a strong role for the states) Says that the powers the Constitution does not delegate to the national gov. or deny to the states are "reserved to the States respectively, or to the people"= The Antifederalists (feared that a strong central gov. would encroach on indiv. liberty) constantly pressed for such an amendment as a way of limiting national power= Federalists agreed to the amendment because they did not think it would do much harm (given the powers the Constitution already granted to the national gov.) |
| Reserved Powers Amendment | (a.k.a. 10th Amendment) Alternate name for the 10th Amendment because it seeks to reserve powers to the states (e.g. coercion) |
| Reserved Powers | Most fundamental power retained by the states is COERCION (the power to develop and enforce criminal codes, administer health/safety rules, and regulate the family via marriage/divorce laws)= States have the power to regulate individuals' livelihoods (i.e. if you are a doctor/lawyer/plumber/barber you must be licensed by the state)= Even more fundamental, the states had the power to define private property (private property exists because state laws against trespass define who is and who is not entitled to use a piece of property [EX: if you own car/bike/etc., your ownership isn't worth much unless the state is willing to enforce your right to possession by making it a crime for anyone else to use/drive/etc. your possession without your permission])= These are fundamental matters and the powers of the states regarding such domestic issues are much greater than the powers of the national gov. (even today) |
| Police Power | State's authority to regulate these fundamental matters= Includes state's power to regulate health, safety, welfare, morals of its citizens |
| Policing | Is what states do= They coerce you in the name of the community in order to maintain public order (this was exactly the type of power the founders intended the sates to exercise) |
| Concurrent Powers | Authority possessed by both state and national gov.= They retain and share some power to regulate commerce and affect the currency (EX: by chartering banks, granting/denying corporate charters, granting/denying licenses to engage in a business/practice a trade, regulate quality of products/conditions of labor) |
| Concurrent vs. Exclusive Power | Issue has come up throughout history but whenever there has been a direct conflict of laws between the federal and the state levels, the issue has been resolved in favor of national supremacy |
| Article IV | Consist of the obligations among the states= The obligations were meant to promote national unity= Requires each state to recognize actions and decisions taken in other states as legal and proper (shows how Framers aimed to make the states less like independent countries and more like parts of single nation) |
| Full Faith and Credit Clause | (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 (EX: If couple married in NY [marriage being regulated by state law], CA must recognize that marriage even though couple was not married under CA state law) |
| "Full Faith and Credit Clause" and Same-Sex marriage issue | 1993, Hawaii Supreme Court prohibited discrimination against such marriage except in very limited circumstances= Many thought Hawaii would fully legalize gay marriage but after long political battle Hawaii passed constitutional amendment in 1998 outlawing gay marriage= December 1999, Vermont Supreme Court ruled that same-sex couples should have same rights as heterosexuals= Vermont legislature responded with new law that allowed gay men/lesbians to form "civil unions" |
| Civil Unions | (Allowed/created/passed by Vermont Supreme Court) Not considered legal marriages= Allow same-sex couples to receive most of the benefits of marriage (e.g. eligibility for a partner's health insurance, right to inherit from his/her estate, right to transfer property) |
| Defense of Marriage Act | Passed by Congress (who was eager to show its disapproval of gay marriage) and declares that states will not have to recognize a same-sex marriage even if it is legal in another state= Also Says that the federal gov. will not recognize gay marriage (even if it is legal under state law) and that gay marriage partners will not be eligible for the federal benefits (e.g. Medicare, Social Security) normally available to spouses= More than 35 states have passed "Defense of Marriage Acts" which define marriage as a union between a man and woman only (passed because of potential effect the Vermont decision could have on other states) |
| States recognition of other state laws | Although many state laws are observed in a normal/routine way in sister states, laws that affect what have come to be called "Values" may be exempt from comity (or taken off the table altogether by an amendment to that effect in the US Constitution) |
| Why is it not clear whether the full faith and credit clause requires states to recognize gay marriage? | Because the Supreme Court's past interpretation of the clause has provided exceptions for "Public Policy" reasons: If states have strong objections to a law, they do not have to honor it |
| Supreme Court Case involving former engineer for General Motors | (Case involved full faith and credit clause) Michigan court order had prevented former engineer for General Motors from testifying against the company= Engineer (who left company on bad terms) later testified in a Missouri court about a car accident in which a woman died when her Chevrolet Blazer caught fire= General Motoros challenged his right to testify arguing that Missouri should give "full faith and credit" to the Michigan ruling= Supreme Court ruled that the engineer could testify and that court system in 1 state cannot hinder other state courts in their "service for the truth" |
| Comity Clause | (Article IV, Section 2) Seeks to promote national unity= Provides that citizens enjoying the "privileges and immunities" of 1 state should be entitled to similar treatment in other states |
| Privileges and Immunities | (Article IV, Section 2) Provision from Article IV, Section 2 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 |
| Privileges and Immunities: Alaska | 1970s, Alaska passed law that gave residents preference over nonresidents in getting work on state's oil/gas pipelines= Supreme Court ruled law illegal because it discriminated against citizens of other states |
| Privileges and Immunities: Prisoner and Alabama | 1952, when inmate escaped from Alabama prison and sought to avoid being returned to Alabama on grounds that he was being subjected to "cruel and unusual punishment" there, Supreme Court ruled that he must be returned (according to Article IV, Section 2)= This example highlights difference between the obligations among states and those among different countries |
| Privileges and Immunities: France | 1990s, France refused to return American fugitive because he might get death penalty (which does not exist in France)= Constitution clearly forbids states from doing similar stuff |
| Powers reserved to the states | Are most of the truly coercive powers of government= Constitution does, however, impose significant limitations |
| Privileges and Immunities Clause: State Power | (Limits State power) Says that 1 state cannot discriminate against a person residing in another state= But most prominent application of this clause is EXTRADITION (any person in any state who shall free from Justice to another state, shall on Demand be delivered up to the State having Jurisdiction [Article IV, Section 2]) |
| Article I, Section 10: State Power | (Limits State power) Says that "no State shall without the Consent of Congress enter into any Agreement or Compact with another state" |
| Compacts | Are a way for 2 or more states to reach a legally binding agreement about how to solve a problem that crosses state lines)= In early years of Republic, states turned to compacts mainly to settle border disputes= Today they are used for wide range of issues but are very important in regulating the distribution of river water, addressing environmental concerns, and operating transportation systems that cross state lines (EX: Port of New York Authority) |
| Port of New York authority | Was a compact formed between NY and NJ in 1921= Without it such public works as the bridge connecting different areas, the expansion/integration of the NY port area, and the expansion/integration of the 3 major airports and countless approaches and transfer facilities could not have been financed/completed= 1972, name of the agency was changed to the "Port Authority of NY and NJ" |
| Local Government | Occupies peculiar/important place in American system= Status of American local gov. is unique in world experience= Local government has no status in the American Constitution= State legislatures created local governments and state constitutions/laws permit local gov. to take on some of the responsibilities of the state gov.= Most states amended their own constitutions to give their larger cities HOME RULE= Local governments, however, enjoy no such recognition in the Constitution (Local gov. have always been mere conveniences of the states) |
| Home Rule | Guarantee of noninterference in various areas of local affairs= Is the ower delegated by the state to a local unit of gov. to manage its own affairs |
| When/why did local governments become administratively important? | Early years of Republic because states possessed little administrative capability= They relied on local gov. (cities/counties) to implement the laws of the state= Local gov. was an alternative to a statewide bureaucracy |
| Dual Federalism | (Is what America's federal system before the 1930s could have been characterized as) 2 layered system, National and State, in which the states and their local principalities do most of the governing= Is considered the "Traditional System" because almost nothing about our pattern of gov. changed during 2/3 of our history (with exception of the 4 years of Civil War after which we returned to the traditional system) |
| Dual Federalism: National and State | The 2 tiers were functionally diff. from each other |
| Conflict in dividing responsibilities between national and state under Dual Federalism | Have been debatse every generation over how to divide responsibilities between the 2 tiers [because the Constitution delegated a list of specific powers to the national gov. and reserved all the rest to the states, leaving much room for interpretation because of the final "elastic clause of Article I, Section 8] |
| Most remarkable thing about the history of US federalism | Federalism remained dual for nearly 2/3 of US history with the national gov. remaining steadfastly within a "strict construction" of Article I, Section 8 |
| Commerce Clause | (Article I, Section 8) Provides the best example of the potential elasticity in Article I, Section 8= Delegates to Congress the power "to regulate commerce with foreign Nations, and among the several States and with the Indian Tribes= This clause can be interpreted broadly/narrowly= Supreme Court embraced the broad interpretation throughout most of the 19th century (but Congress chose not to take the Court's invitation to be expansive) |
| McCulloch vs Maryland | (1st and most important case favoring national power) Issue was whether Congress had power to charter a bank (Bank of US [Created by Congress in 1791 over Thomas Jefferson's constitutional opposition) because the power to create banks was not found anywhere in Article I, Section 8= Chief Justice John Marshall said that such a power could be "IMPLIED" from the other specific powers in Article I, Section 8, plus the final clause enabling Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"= Thus the Cour created the potential for significant increases in national gov. power |
| McCulloch vs Maryland: 2nd Question of National Power | Question of whether Maryland's attempt to tax the bank was constitutional arose= Marshall and Supreme Court took side of national government saying that a legislature representing all the people (Congress) could not be taxed out of business by a state legislature (Maryland) representing only a small portion of the American people= This opinion was accompanied by Marshall saying "The power to tax is the power to destroy" |
| McCulloch vs Maryland: What was recognized/reinforced? | Supremacy clause was recognized/reinforced in this case by the Supreme Court= Whenever a state law conflicts with a federal law, the state law should be deemed invalid because the Laws of the US shall be the supreme Law of the Land" |
| Gibbons vs Ogden | Reinforced the nationalistic interpretation of the Constitution (due to McCulloch vs Maryland)= Issue was whether state of Ny could grant monoply to Robert Fulton's steamboat company to operate an exclusive service between NY and NJ= Aaron ogden had secured his license from Fulton's company while Thomas Gibbons (former partner of Ogden's) secured a competing license from the US gov.= Chief Justice Marshall argued that Gibbons could not be kept from competing because the state of NY didnot have the power to grant this particular monopoly |
| Gibbons vs Ogden: What was necessary for Marshall to reach his decision? | To reach his decision, was necessary for Marshall to define what Article I, Section 8 meant by "Commerce among the several States"= Insisted that the definition was comprehensive but added that the comprehensiveness was limited to that commerce which concerns more states than 1= This opinion created what was later called INTERSTATE COMMERCE |
| Gibbons vs Ogden: Interstate Commerce | Although case was important, exact meaning of interstate commerce remained uncertain for long time of constitutional discourse= However, what was certain was that interstate commerce was source of power for national gov. as long as Congress sought to improve commerce through subsidies, services, and land grants |
| Interstate Commerce in the 19th century | In 19th century when national gov. sought to use its power to regulate the economy rather than merely promote economic development, concept of interstate commerce began to operate as a restraint rather than as a source of national power= Any effort by the federal gov. to regulate commerce in areas like fraud, production of impure goods, use of child labor, existence of dangerous working conditions/long hours was declared unconstitutional by Supreme Court as violation of concept of interstate commerce |
| National Gov. regulation of the "factory" and the "workplace" | Cant regulate these areas (since theya re inherently local because the goods produced there had not yet passed into commerce and crossed state lines)= Any effort to enter these local workplaces was an exercise of police power (a power reserved to the states)= No one questioned power of national gov. o regulate certain kinds of businesses because they involved interstate commerce= But in 20th century, most other efforts by Congress to regulate commerce were blocked by Supreme Court's interpretation of federalism with the concept of interstate commerce as the primary barrier |
| Supreme Court and Commerce Clause in 1937 | Court threw out old distinction between INTERstate and INTRAstate commerce (converting commerce clause from barrier to source of power)= Court started refusing even to review appeals challenging acts of Congress that protected the rights of employees to organize and engage in collective bargaining, regulated amount of farmland in cultivaton, extended low-interest credit to small businesses/farmers, restricted activities of corporations dealing in the stock market, and many other laws that contributed to the construction of the "Regulatory State" and the "Welfare State" |
| Cooperative Federalism | (System since 1930s) Refers to supportive relations, sometimes parternships, between national gov. and state/local gov.= Comes in form of federal subsidization of special state/local activities (these subsidies are called GRANTS IN AID) |
| Grants in Aid | Subsidies/funds given by Congress to state/local gov.= Although many of these state/local programs would not exist without the federal grant in aid, the grant in aid is also an important form of federal influence |
| Grant in Aid: Purpose | Kind of bribe/"carrot" whereby Congress appropriates $ for state/local gov. with condition that $ be spent for particular purpose as defined by Congress |
| Why does Congress use Grant in Aid | Because it does not have political/constitutional power to command local gov. to do its bidding (when you cant command, $ is useful) |
| Grants in Aid are also mechanisms that help... | (a.k.a. Categorical Grants in Aid) Coordinate the separate activities of all those states/local gov. with a common set of standards or policy principles in circumstances when a multiplicity of these things would undermine the purposes of the policy= 1930s, this approach was applied to cities (Congress set national goals [e.g. public housing/assistance to unemployed] and provided grants-in-aid to meet them) |
| Grants for Urban Development | (Categorical Grants in Aid) WWII temporarily stopped distribution of these grants but after war, Congress resumed provision of grants for urban development/school lunches |
| Categorical Grants in Aid | Funds given by Congress to states and localities that are earmarked by law for specific categories like education/crime prevention= Value increased from $2.3 billion in 1950 to $434 billion in 2006= Sometimes Congress requires state/local gov. to match the national contribution dollar for dollar but for some programs (EX: interstate highway system) the congressional grant in aid provides a significant % of the cost |
| Nationwide speed limit of 55 mph | Was not imposed on indiv. drivers by an act of Congress= Congress instead bribed the state legislatures by threatening to withdraw the federal highway grants in aid if the states did not set that speed limit= 1990s, Congress began to ease up on states allowing them under certain conditions to go back to the 65 mph (or higher) limit without losing their highway grants |
| Categorical Grants created before the 1960s | Helped the states perform their traditional functions (i.e. education/policing)= In the 1960s, however, the national role expanded and the # of categorical grants increased dramatically |
| Grants authorized during the 1960s | Announced national purposes much more strongly than did earlier grants= Central to that national purpose was need to provide opportunities to the poor |
| Project Grants | (Many of the categorical grants enacted in 1960s were Project Grants) Require state/local gov. to submit proposals to fed. agencies |
| Project Grants vs. Formula Grants | Formula Grants used a formula (composed of elements like need and state/local capacities) to distribute funds= Project Grants made funding available on a competitive basis (fed. agencies would give grants to the proposals they judged best) |
| Project Grants: Result | Because federal agencies would give grants to the proposals they judged best, the national gov. got much control over which state/local gov. got $, how much they got, how they spent it |
| Morton Grodzins | (Important scholar of the history of federalism) Characterized shift to post-New Deal cooperative federalism as a move from "layer cake federalism" to "marble cake federalism" in which the line distinguishing intergovernmental coop. and sharing has blurred making it hard to say where the national gov. ends and the state/local gov. begin |
| When was the high point of grant-in-aid policies? Describe | High point in 1970s and the federal aid contributed 25%-30% of the operating budgets of all the state/local gov. in the country (Federal aid has decreased since then) |
| Developments from the 1960s to now have... | Moved beyond cooperative federalism to "REGULATED FEDERALISM" |
| Regulated Federalism | Some areas, national gov. regulates the states by threatening to withhold grant $ unless state/local gov. conform to national standards |
| Where are the most notable instances of regulated federalism? Why is this important? | In areas of civil rights, poverty programs, environmental protection= This focus reflects a shift in federal regulation away from oversight/control of strictly economic activities toward SOCIAL REGULATION= In these instances, the national gov. provides grant in aid financing but sets conditions the states must meet to keep the grants |
| Social Regulation | Intervention on behalf of individual rights and liberties, environmental protection, workplace safety, etc. |
| Setting National Standards | National gov. policy to provide grant in aid financing only if/after a state meets certain conditions that the national gov. sets (states must meet the conditions to keep the grants) |
| Asbestos Hazard Emergency Act of 1986 | (Example of "Setting National Standards") Requires school districts to inspect for asbestos hazards and remove them from school building when necessary |
| Americans with Disabilities Act of 1990 | (Example of "Setting National Standards) Requires all state/local gov. to promote access for the handicapped to all gov. buildings |
| Net effect of national standards | State/local policies are more uniform nationwide |
| What do national regulations and standards provide? | Coordination across states and localities and solve collective-action problems |
| Unfunded Mandates | National standards/programs imposed on state/local gov. by the fed. gov. without accompanying funding or reimbursement= Were created in response to states' complaints that mandates took up so much of their budgets that they were not able to set own priorities (these burdens became major part of the rallying cry that produced the Republican Congress elected in 1994 and its Contract with America) |
| Unfunded Mandates Reform Act (UMRA) | (1 of first measures adopted by Republican 104th Congress in 1995) Was an act to limit unfunded mandates= Considered triumph of lobbying efforts by state/local gov. and was hailed as both symbol and substance of a renewed congressional commitment to federalism |
| UMRA: What did it do | Under law, any mandate with an uncompensated state and local cost estimated at greater than $50 mill a year (as determined by the "Congressional Budget Office") can be stopped by a point of order raised on the House or Senate floor |
| "Stop, Look, and Listen" | Requirement created under the UMRA= Forced COngress to take positive action to own up to a mandate and its potential costs |
| UMRA: Result | (Has not been revolutionary) 1996 (first full year UMRA was in effect) only 11 bills included mandates exceeding the $50 mill threshold (EX: minimum wage increase, parity for mental health and health insurance, mandated use of Social Security #'s on driver's licenses, extension of the federal Occupation Safety and Health Administration's standards to state/local employees= Most of these bill were modified in the House to reduce their cost |
| The Primary Impact of UMRA | Did not come from the affirmative blockage of mandate legislation but rather from its effect as a deterrent to mandates in the drafting and early consideration of legislation |
| UMRA: Why is it not revolutionary | Does not prevent members of Congress from passing unfunded mandates (only makes them think twice before they do)= The act exempts many areas from coverage= States must still enforce antidiscrimination laws and meet other requirements in order to get federal assistance |
| UMRA: What does it represent | Major effort to move the national-state relationship to the state side (George W. Bush made this shift in focus a key feature of his electoral campaign of 2000 and his legis. agenda of 2001) |
| No Child Left Behind (NCLB) Act | Most loved item in his domestic policy agenda= Is a very expensive unfunded mandate (is thus inconsistent with his desire to shift the national-state relationship more to the states) |
| NCLB: What did it do | Set a national standard for steady improvement in students' performance on standardized tests and punishes schools whose students fail to improve= Also set rules for educating disabled students and presents detailed requirements that "fail to recognize the tapestry of educational challenges faced by teachers in the nation's 15,000 school districts" |
| Result of Bush's Promise that NCLB would provide $ for compliance | Brought him support from his leading Democratic voice of opposition in Senate (Senator Edward Kennedy) but so far the cost of NCLB has been borne mainly by the states |
| Mandate Monitor | Published by the National Conference of State Legislatures (NCSL)= Itemizes the "gap" in funding it claims is directly due to Congress's failure to appropriate the support necessary to comply with unfunded mandates= Made as a result of high level of opposition lobbying of Congress/president by state gov. representatives |
| Mandate Monitor: Result | Produced list of 15 major federal programs= Largest was educational [NCLB and Americans with Disabilities], state drug costs, and the Department of Homeland Security= These programs have contributed to a total "COST SHIFT" from the fed. gov. to the states= Although measurement of these gaps can be criticized, the scale of unfunded/underfunded mandates is undeniable (responsibility for this enormous shortfall is not attributed only to the party in power) |
| Federalism in US today | Tug of war between those seeking more uniform national standards and those seeking more room for variability from state to state= Is a struggle over federalism's script and scorecard (over who does what and how the diff. activities are structured and sequenced) |
| New Federalism | Efforts to reverse the trend toward national standards and reestablish traditional policy making and implementation (Nixon and Reagan used/named/created New Federalism) |
| Nixon and Reagan | Made national policies meant to return more discretion to the states |
| Examples of Nixon and Regan's New Federalism policies | Nixon's revenue sharing and Reagan's block grants |
| Block Grants | Consolidated many categorical grants into 1 larger category leaving the state/local gov. more discretion to decide how to use the $ |
| Nixon, Reagan, and George H. W. Bush wanted to do what? | Wanted to return somewhat to a traditional notion of freedom of action for the states= Called it New Federalism but their concepts/goals were much closer to the older Traditional Federalism (that predated the 1930s) |
| Bill Clinton | Adopted the New Federalism of Nixon and Reagan while expanding federal grant activity= Signed URMA and the Personal Responsibility and Work Opportunity Reconciliation Act |
| Personal Responsibility and Work Opportunity Reconciliation Act | Goes further than any other act of Congress in past 60 years to relieve states of national mandates, funded or unfunded= Replaced the 61 year old pogram of Aid to Families with Dependent Children (AFDC) and its education, work, and training program with block grants to states for Temporary Assistance for Needy Families (TANF) |
| Devolution | Strategy of delegating to the states more and more authority over a range of policies that had until then been under national gov. authority, plus providing the states with a substantial portion of the cost of these programs= Although some national standards remain, devolution has revolutionized the place of the states in the national welfare system= Since mid-1990s, has been quite consequential for the national-state tug of war |
| By changing welfare from a combined federal-state program into a block grant to the states... | Congress gave the states more responsibility for programs that serve the poor |
| Arguments for Devolution | States can act as "laboratories of democracy" by experimenting with many approaches and thus find 1 that best meets the needs of their citizens= (As states have changed their welfare programs due to the new law, they have indeed designed diverse approaches) |
| George W. Bush= What does he support | Although sometimes compared with Reagan, he has not been an unwavering supporter of small national gov., new fed., and states' rights= Ony many important matters dear to him, Bush has been closer to spirit of NEw Deal and "Regulated Federalism" in terms of both direct expansion of the national gov. ("compassionate conservatism") and increasing imposition of national standards on the states (takes the form of mandates) |
| Federal Power during the 19th Century | remained limited= 10th Amendment was used to bolster arguments about states' rights |
| States' Rights | In their extreme version claimed that the states did not have to submit to national laws when they believed the national gov. had exceeded its authority= Arguments for states' rights were voiced less often after Civil War but Supreme Court continued to use the 10th Amendment to strike down laws that it thought exceeded national power (including Civil Rights Act passed in 1875) |
| Federal Power and States' Rights in 20th century | 10th Amendment appeared to loose force= Reforms began pressing for national regulations to limit power of big corporations and preserve health/welfare of citizens= Supreme Court approved some and struck down others (EX: struck down law combating child labor saying that the law violated 10th Amendment since only states should have power to regulate conditions of employment) |
| By late 1930s, Supreme Court approved such an expansion of federal power that... | The 10th Amendment seemed irrelevant (1941, Justice Harlan Fiske Stone said 10th Amendment was simply a "Truism" that it had no real meaning) |
| 10th Amendment in recent years | Recent revival of interests in 10th Amendment and important Supreme Court decisions limit fed. power= Recent Court rulings signal move toward much more restricted fed. gov. |
| Renewed Interest in States' Rights vs. Fed. Power | Stems from conservatives who believe that strong fed. gov. encroaches on individual liberties= Believe freedom is better protected by returning more power to the staes through the process of devolution |
| State Sovereign Immunity | (11th Amendment concept) Legal doctrine says that states are immune from lawsuits by private individuals/groups claiming that the state violated a statute enacted by congress |
| United States vs Lopez | Fueled further interest in the 10th Amendment= Court, stating that COngerss had exceeded its authority under the commerce clause, struck down a federal law that barred handguns near schools= Was first time since New Deal that Court had limited congressional powers |
| Supreme Court Case: Seminole Indians vs Florida | Further limited power of fed. gov. over the states based on the 11th Amendment= Ruling prevented Seminole Indians from suing state of Florida in federal court= 1988 law had given Indian tribes right to sue a state in federal court if the state did not negotiate in good faith issues related to gambling casions on tribal land= Court's ruling signaled a much broader limitation on national power by raising new questions about whether individuals can sue a state if it fails to uphold federal law |
| Printz vs US | (Important decision involving relationship between fed. and state gov.) Court struck down a key provision of the "Brady Bill" (made by Congress to regulate gun sales)= Court said that fed. gov. can't require states to administer/enforce fed. regulatory programs |
| Brady Bill | Made to regulate gun sales= State and local law enforcement officers required to conduct background checks on prospective gun purchasers= Was struck down by Court |
| City of Boerne vs Flores | Court ruled that Congress had gone too far in rstricting power of states to enact regulations they deemed necessary for the protection of public health/safety/welfare |
| 1999 Court's ruling on another 11th Amendment case further strengthened the doctrine of state sovereign immunity by finding that... | The federal system established by our Constitution preserves the sovereign status of the States= The generation that designed/adopted our federal system considered immunity from private suits central to sovereign dignity |
| US vs. Morrison | Court invalidated imported provision of 1994 "Violence Against Women Act" (permitted women to bring private damage suits if their victimization was "gender-motivated")= Although this 1994 act did not add any new national laws imposing liability/obligations on the states, Court held the act to be an unconstitutional exercise of Congress's power |
| "Morrison" and "US vs Lopez" | Although "Morrison" is a narrow decision on federalism, when it is coupled with "US vs Lopez", there is a trend toward questioning need for fed. intervention in US society (trend continued with 2006 "Gonzales vs Oregon") |
| Court under John Marshall | Was a nationalizing court= The developments put federalism and the Court directly in the line of fire |
| Court under Roger Taney | Most extreme denationalizing period, virtually invented idea of states' rights, as slavery and its extension were endangering the Union |
| Court in place when FDR was first elected | Was very anti-national= Declared virtually all the novel New Deal programs unconstitutional= The Court also, after FDR landslide 1936 reelection, followed public opinion into the longest/most profound pro-nationalizing era (the national government was allowed to expand but not at the expense of the states) |
| Court in place today | Only remarkable thing about current era has been the moderation and patience of the Burger and Rehnquist Courts in turning the tendency back toward the states |
| Roberts Court | Surely tak us further back toward state level |
| Baron de Montesquieu | Creator of the idea of separation of powers= Said that "there can be no liberty where the legislative and executive powers are united in the same person or if the power of judging be not separated from the legislative and executive powers" |
| James Madison: Separation of Power | Quoted Montesquieu when talking about the concept= From Montesquieu/Madison's reasoning/quote, many of Madison's contemporaries argued that there was not enough separation among the 3 branches, and Madison had to backtrack to insist that complete separation was not required |
| How have Americans made the separation of powers effective | Have made it self-enforcing by giving each branch of gov. the means to participate in, and partially/temporarily obstruct, the workings of the other branches |
| Checks and Balances | Means by which each branch of gov. interacts with the others (EX: presidential power to veto legislation passed by Congress; power of COngress to override the veto by a 2/3 majority vote; power of Congress to impeach the president; power of the Senate to approve presidential appointments; power of the president to appoint the members of the Supreme Court and other federal judges with Senate approval; power of Supreme Court to engage in judicial review) |
| Framers: Checks and Balances | Framers sought to guarantee that the 3 branches would use the checks and balances as weapons against one another by giving each branch a different political constituency (Direct/popular election of members of House; Indirect election of senators [until 17th Amendment]; Indirect election of the president [still exists, at least formally]; appointment of federal judges for life) |
| What is the best characterization of the separation-of-powers principle | Separated institutions sharing power |
| Legislative Supremacy | Although each branch was to be given adequate means to compete with the other branches, it is clear that within the system of separated powers the framers provided for Legislative Supremacy by making Congress the preeminent branch= Legislative Supremacy made the provision of checks and balances in the other 2 branches all the more important |
| Most important indication of the intention of legislative supremacy | Made by framers when they decided to place provisions for national powers in Article I (= "The Legislative Article") and to treat powers of national gov. as powers of Congress= Founders also provided for legislative supremacy in decision to give Congress sole power over appropriations and to give House of Reps. the power to initiate all revenue bills |
| In a system based on the "rule of law"... | The power to make the laws is the supreme power |
| Article I, Section 8 | (Article I is called the "Legislative Article") Provides that Congress shall have Power to lay and collect Taxes, borrow $, regulate Commerce |
| Madison: Legislative Supremacy | (Recognized it as part of a package of the separation of powers) Said not possible to give each department equal power of self-defense= In a republican gov., legis. authority predominates and the remedy for this is to divide the legislature into diff. branches and to render them by different modes of election and different principles of action (as little connected with each other as the nature of their common functions and their common dependence on the society will admit) |
| Problem/solution to legislative supremacy | (From Madison's view) Congress was so likely to dominate the other branches that it would have to be divided against itself (into House and Senate)= Thus, can be said that the Constitution provided for 4 branches, not 3 |
| Presidential Government | Replaced/gotten rid of legislative supremacy after 1937 (however relative power position of the executive and legislative branches since that time has varied) |
| Degree of conflict between the President and Congress | Changed with the rise/fall of political parties and has been very tense during periods of divided government |
| Divided Government | When 1 party control the White House and another controls the Congress (has been the case since 1969) |
| Role of the Judicial Branch in the separation of powers | Depends on the power of judicial review (is not provided for in the Constitution but asserted by Marshall0 |
| Judicial Review | Review of the constitutionality of acts of president/Congress is rare= From Civil War to 1970, 84 acts of Congress were held unconstitutional (in whole/part) but there were long periods of complete Supreme Court respect to the Congress (interrupted by flurries of judicial review during times of social upheaval [EX: Blocking of almost entire New Deal program])= Remained calm as the Court made great reversals until 1983 when the Court declared the legislative veto unconstitutional |
| Legislative Veto | (Deemed unconstitutional) Practice where congress authorized the president to take action but reserved the right to rescind presidential actions with which it disagreed |
| Gramm-Rudman Act | (Struck down in 1986) Mandated a balanced budget= Court said the act delegated too much power to the comptroller general (=leading accountant general), a leading congressional official, to direct the president to reduce the budget |
| Court under William H. Rehnquist | Court became much more activist (less deferential to Congress) after his elevation to chief justice (1986)= All of the cases altered some aspect of federalism by declaring unconstitutional all or an important portion of an act of Congress and the end of this episode of judicial activism against Congress is not over |
| Supreme Court since the New Deal period | Has been much more kind toward the president (with only 5 major confrontations) |
| Steel Seizure Case of 1952 | (Major confrontation between Court and Pres.) Court refused too permite Truman to use "emergency power" to force workers back into the steel mills during the Korean War |
| US vs Nixon | (Major confrontation between Court and Pres.) Court declared unconstitutional Nixon's refusal to respond to a subpoena to make available the infamous White House tapes as evidence in a criminal prosecution= Court said that although executive privilege did protect confidentiality of communications to and from the president, this protection did not extend to data in presidential files/tapes linked to criminal prosecutions |
| Executive Privilege | Claim that confidential communications between the president and the president's close advisers should not be revealed without the consent of the president |
| During the heat of the Clinton scandal, the Supreme Court... | Rejected the claim that the pressures/obligations of the office of president were so demanding that all litigation but the most exceptional cases should be deferred until the end of the president's term |
| Line Item Veto Act of 1996 | Supreme Court sturck it down on grounds that it violated Article I, Section 7 which prescribes procedures for congressional enactment, and presidential acceptance/veto of statutes= Court held that any such change in the procedures of adopting laws would have to be made by amendment to the Constitution, not by legislation |
| Rasul vs BUsh | (5th Confrontation between the Court and the President) Came after 9-11-2001 but because of the terrorism scare, it was the least restrictive of the 5= Court held that the estimated 650 enemy combatants detained without formal charges at the US Naval Station at Guantanamo Bay, Cuba had the right to seek release through a writ of habeas corpus= However, the Rasul decision left a big escape hatch by relegating to the lower district courts the decision, case by case, of whether to actually grant the writ |
| Writ of Habeas Corpus | Court order demanding that an individual in custody be brought into court and shown the cause for detention= Is guaranteed by the Constitution and can be suspended only in cases of rebellion or invasion |
| Separation of Powers: Deference and the future | Deference to the president is not necessarily a permanent condition= However, more and more activities of the executive branch are being put beyond the reach of the courts and if the more conservative justices display the same deference as the liberal justice, discretionary executive power will be increasingly difficult to harness as a constructive participant in the separation of powers= Eventually, such deference will unbalance the check and balances |
| What is the American system of limited government based on? | Federalism, separation of powers, individual rights) |
| Describe the 1st Century and a half of US government | Because Constitution specifically restrained the power of the national gov. to regulate the economy and because Dual Federalism recognized 2 sovereigns (national and state gov.), the states were free to do most of the fundamental governing |
| When/why did the power and role of the States change? | Began to change during/after New Deal as the national gov. began to exert more influence over the states through grants-in-aid and mandates |
| National Power in the last decade | Has been a countertrend to the growth of national power as Congress has opted to devolve some of its powers to the states= Most recent/notable instance of devolution was the welfare reform plan of 1996 |
| Problem that arises with devolution | Programs that were once uniform across the country (because they were national government's responsibility) can become highly varialbe with some states providing benefits not available in other states |
| Variation | Can be considered 1 of the virtues of federalism but there are dangers in large variations and inequalities in the provision of services and benefits in a democracy |
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