Government

Marijuana Power Point

· Legalization of marijuana is an example of federalism in action.

Federalism

· Two or more governments exercising power and authority over the same people in the same territory.

· The division of power between a central government and regional governments.

Theories and Metaphors

· In the United States, power is divided between the national government and the state governments.

· Dual Federalism = everyone has clearly defined powers

· One theory of federalism.

· This view says that the Constitution is a compact among sovereign states so that the powers of the national government and the states are clearly defined and clearly differentiated.

· Sovereign = independent

· Four essential parts of dual federalism:

· 1 – national government rules by enumerated (enumerated = specifically stated) powers only.

· 2 – national government has a limited set of constitutional purposes.

· 3- each governmental unit (the national government and the states government) is sovereign within its sphere.

· 4 – The relationship between the national and state governments is best characterized by tension rather than cooperation.

· The states are seen as equal to the federal government.

· States Rights – this is a key point of dual federalism.

· This is the idea that rights not specifically conferred on the national government by the US Constitution are reserved to the states.

· Means the national government rules by enumerated powers (supported by the 10th amendment – which says that says that the governmental powers not listed in the Constitution for the national government are powers that the states, or the people of those states, can have).

· Remember that in debates over state’s rights – you will hear about Congress’ implied powers – these are the powers that are not specifically stated in the Constitution to be reserved for the national government but the powers Congress needs to execute its enumerated powers.

· Implied Power Example:

· Congress has the enumerated power to coin money.

· Congress has the implied power to set up a national bank.

· Conservatives / Republicans are often associated with the theory of Dual Federalism.

· Richard Nixon – was a conservative and supported national government grants that returned money / power to the states.

· Ronald Reagan – was a conservative and embraced idea that we should restore a strong constitutional relationship between the states and national government.

· George Bush – conservative and embraced states’ rights.

· Cooperative Federalism = lots of overlap in power

· This view says that the Constitution is an agreement among people who are citizens of both the state and the nation – so there is much overlap between the powers of the states and the powers of the national government.

· Says that the national government and the state government should undertake functions jointly.

· Nations and states routinely share power.

· Power is not concentrated at any level of government or in any agency – argues that this gives the people and groups access to more influence.

· Liberals / Democrats are often associated with cooperative federalism.

· Lyndon B. Johnson – liberal - his “Great Society” and presidency is often thought of as an apex of national government activism. This was legislation that sought to eliminate poverty and racial injustice in the 1960s.

· Bill Clinton – liberal – saw the national government as having more potential for producing policy success.

· United States Constitutional Provisions that Tie into Federalism

· This is a Texas class but we are talking about FEDERALISM and how Texas interacts with the United States Government – so that is why we talk about the United States Constitution.

· Article VI of the US Constitution – also known as “The Supremacy Clause”

· THE BASIS FOR CONGRESS’ IMPLIED POWERS

· Be aware of this portion of the Constitution when studying Dual Federalism.

· This clause says that the US Laws and Constitution and Treaties are “The Supreme Law of the Land” so long as the federal government is acting in pursuit of the its constitutionally authorized powers.

· So Congress may act and argue it is constitutional per the Supremacy Clause and the states may argue their act interferes with states’ rights and Congress is overstepping its constitutionally authorized powers – Congress will then argue what they did was an implied power – a power they needed to use to carry execute their enumerated power.

· Article I – Section 8 – also known as “The Elastic Clause” or “The Necessary and Proper Clause”

· This article gives Congress the means to execute its enumerated powers – it is the basis for Congress’ implied powers.

· This is the clause we have discussed that gives Congress the powers to do “what is necessary and proper” to carry outs its enumerated (specifically stated) powers.

· Congress’ “catch all.”

· This is not always a bad thing - historically, the “Necessary and Proper Clause” has increased the scope of the national government in times of national crisis and national emergencies to allow the national government to take care of the states.

· The Great Depression

· National government exercised some control over the states through regulations attached to federal funding grants.

· National government offered money to the states to support relief efforts but states had to provide administration supervision or matching funds.

· This was a time of significance in terms of the way states thought about the national government solving their problems.

· The Constitution did not specifically authorize the national government to do this – they relied on the “Necessary and Proper Clause” to accomplish relief.

· Post September 11, 2011

· Federal government created the Department of Homeland Security – new department that united over 20 previously separate federal agencies.

· Quick expansion of the national government through legislation like the USA-Patriot Act.

· Bush signed it into legislation on October 26, 2011 (quickly after 9/11)

· Reduced the federal government’s restraints in terms of doing things to monitor terrorist activities (like reduced wire tapping requirements when investigating terrorism – changed immigration laws when investigating terrorists).

· Congress and Bush acted post-September 11 not based on specifically enumerated powers in the Constitution – but based on “the necessary and proper clause.”

· The Tenth Amendment

· Again – this says that the governmental powers not listed in the Constitution for the national government are powers that the states, or the people of those states, can have).

· Examples: the states determine rules for marriages, divorces, driving licenses, state taxes, rules for police and fire department – because these are not specifically given to the national government per the Constitution.

· But the power to coin money is specifically stated by the Constitution to be the power of the national government so the states do not do it.

· Article I, Section 8, Clause 3 – also known as “the Commerce Clause”

· This clause gives Congress the power to regulate commerce among the states.

· The interpretation of this clause has been a major factor in increasing or decreasing the national government’s power.

· In 1824 in Gibbons v. Ogden – the Supreme Court gave a broad interpretation of the Commerce Clause which increased national government power.

· In 1857 the Dred Scott decision said Congress had no power to prohibit slavery among the states – used a narrow interpretation of the Commerce Clause to hold this so increased state power.

· In 1937 the Court upholds FDR’s New Deal Legislation – so that again increased power of the national government.

How do you balance power between federal and national government?

· Now that you know the theory behind federalism – is the balance of power between the state government and national governments an easy thing to achieve?

· Remember that our United States Constitution is vague in some areas – which is good because it is flexible and has made this document last as long as it has.

· This ambiguity creates constraints and opportunities for politicians, citizens, interest groups – opportunities and ambiguities for the state governments and national governments.

· Who solves disputes when it comes to what is a national power and what is a state power?

· The judiciary branch solves these disputes.

· The courts settles disputes between the national and state governments by deciding whether certain acts are or are not constitutional.

· When studying constitutional law you can look historically whether the Supreme Court is a supporter of the national government or states’ rights. You do this by reading the court’s decisions during a certain time frame and seeing how they decide.

· Keep in mind the court changes when there are new judges appointed so the Supreme Court can change over time.

· 19th and early 20th century = Court mostly decided in favor of the states.

· 1937-1995 = Court tended to support the national government.

· 1995-present = Court has tended to favor states’ rights.

Ideology, Policy Making and American Federalism

· There are some key terms to be familiar with when studying federalism – you will see these terms in newspapers, on the internet, and hear politicians speaking about these terms.

· Preemption –

· The power of Congress to enact laws by which the national government assumes total or partial responsibility for a state government function.

· Vast majority of these laws deal with terrorism or environmental protection – really a modern idea.

· Example: the USA-Patriot Act post 9/11 prohibits the states to gives licenses to carriers of hazardous materials without a determination by the Secretary of Transportation that the person is not a security risk.

· The states have not challenged this law as unconstitutional because they recognize the need of the national government to have this knowledge.

Federalism and Electoral Politics

· When you think about politics note that there is a connection between national and state capital politics.

· Many politicians will use their state governments as jumping off points to enter the national government scene.

· Four of the last six presidents served as governors of their states.

· That kind of experience builds networks and fundraising capability.

LET’S REVIEW AND TALK ABOUT TEXAS:

Texas Within the Federal System

· Federalism = the division of power between a central government and regional governments.

· Texas works in cooperation with the federal government on certain issues:

· Example: some domestic policies like social welfare, transportation and environmental regulation.

· Where the US Constitution is silent the Texas constitution and other state constitutions will govern.

· Example: education – although the federal government has a role because they provide some federal funding, education is left up to the states.

· Remember THE SUPREMACY CLAUSE - Article VI of the United States Constitution provides that federal law is “the supreme law of the land.”

· This means if federal and state laws conflict then federal laws must be followed.

· Article I of the US Constitution PREVENTS the states from doing certain things – the states CANNOT:

· Coin money

· Enter into treaties

· Keep troops or navies

· Make war

· Levy separate import or export taxes on goods

· Article III of the US Constitution tells us that the states have no sovereign immunity from suits by other states or the United States (so states can sue each other and states can be sued by the United States) – EXAMPLE – United States sued Arizona re immigration laws.

· Article IV of the US Constitution requires states to have a “Republic form of government” (so states cannot become communist for example) and states are limited by the US Constitution from determining citizenship and how they control their borders.

· The Bill of the Rights of the US Constitution applies to the states per the 14th amendment.

· Under the 10th amendment – all powers not specifically given to the national government are state powers.

· Remember our discussions about the enumerated powers (specifically stated powers) of the federal government and those implied powers the federal government claims it has from the Constitution – so it is not always black and white what powers the states have and what the federal government has – hence lawsuits can happen to ask the judicial branch to interpret the US Constitution to figure it out.

· Some examples of powers that are agreed upon to be left to the states

· States can conduct their own elections

· States can determine voter qualifications (determine someone is not qualified to vote – that is done at the state level not by a national representative)

· Regulate intrastate commerce (commerce within their own state)

· Levy state taxes

· States have their own police powers = Texas government has the authority to maintain order in Texas, safeguard the health, morals, safety and welfare of its citizens – it does not have to call the national government every time it needs to exercise a police power.

· When you think about federalism – think about the fact that federalism grants powers to the national government that provide continuity, economic stability, and regulation of disputes among states.