American Government

Chapter 3 The Federal System

Although the first 2 chapters may not have been the most exciting to read, they are
extremely important. They act as a set up for the rest of the work we have to do for the
remainder of the course.
hapter ! showed us some very fine points of our govt structure. " would venture a guess
that many of you were not familiar with most of these concepts, or what type of govt runs
the #$. %emember that our formal govt structure has been in place through our
onstitution for almost 2&' years. (on)t you find it incredible that such a document has
only been modified 2* times during this time period and the first !+ Amendments ,-ill of
%ights. were added shortly after the onstitution was ratified/ "t is no wonder that our
onstitution is the oldest written document today of any governing body throughout the
world.
hapter 2 enlightened us about how the onstitution was developed over time. 0or a
while, the onstitution itself and the unity of the colonies were in grave danger. 1hat
was fascinating about this chapter were the notions of checks and balances, separation of
powers and ma2or3minority rule. "t was all developed to create a balance w3in the govt
structure, a strong govt, as well as a govt that gave much of its power to the people.
4ow that we have much of the technical basics about how our govt was formed along
with its operation, we can now open up a bit into broader areas. $till, we need to
remember the small details of what we have learned in the first 2 chapters. They do
influence what we learn for the rest of the course.
4ow, on to hapter &.
This chapter deals with federalism. 1hat is it/ 5ur text defines federalism as a system
in which the legal power of govt is divided b3w a central or nation govt and smaller units
of state govt, usually under the written authority of a constitution. 5ne way to
understanding federalism is to compare it with other ways of organi6ing govt.
A federal govt is somewhere b3w a unitary ,centrali6ed. govt and a confederation.
"n a unitary govt ,0rance, -ritain, "srael., the central govt has the ultimate authority over
its citi6ens.
"n a confederation, the limited powers possessed by the central govt are granted to it by
the state or provincial govts.
#nder federalism, neither the central govt nor the state govts exercise the total power of
govt. 7egal power is divided b3w them usually in a written constitution. Today, the word
federal is used to refer to an activity or institution of the national ,central. govt.
0ederalism refers to a system in which decisions and functions are divided b3w 2 levels of
govt. 0ederalism usually applies only to the nation)s internal or domestic affairs. #nder
federalism, different units of govt tend to have authority over different areas of life.
The federal govt makes decisions concerning some of the following broad national issues
such as8
a. 0oreign affairs.
b. 9ilitary affairs.
c. "nterstate commerce.
$tate govts usually have control over the following local matters8
a. :ducation.
b. %oad construction.
c. 5ther locali6ed services ,water, sewage, police, fire, etc..
Thus, the distribution of power in a federal system is less clear;cut because the powers of
various units overlap.
Although the onstitution does not directly mention city or other forms of local govts, we
know that there are many different types of govt structures throughout our country8
a. $tate.
b. ity.
c. Town.
d. <illage.
e. ounty.
f. Townships.
And special purpose govts such as8
g. $chool districts.
h. 1ater districts.
1ater district map located in "daho.
http833www.idwr.idaho.gov31ater9anagement3water(istricts35akley3images35akley&.2pg
Although it may appear simple, you can plainly see how complicated our govt systems
can be, especially if they share duties. And you thought 4= exists in its own world. "n
many ways, it does. >owever, as the course progresses, you)ll understand that 4= is
influenced by borough, state and federal relationships.
Federalism in the Constitution
The colonists fought long and hard to win their independence. The last thing they wanted
is to create another strong central govt. They already fought off an oppressive and
intrusive govt ,:ngland.. They didn)t want to create another one. The Articles of
onfederation actually distributed power among the independent states. >owever, there
were drawbacks. The confederation ,independent states. was unable to deal with the
problems that faced the new nation. Thirteen colonies often gave way to !& potential
decisions that could not be agreed upon.
Thus, a main purpose of the onstitutional onvention of !*?* was to create a stronger
central govt to help solve issues concerning all of the colonies. The end result was a
federal form of govt. Thus, the onstitution created a form of govt that delegated specific
powers to the national govt and reserved most of the remaining powers for the states. A
key word here is %:$:%<:(. @eep it in mind. 1e will deal with it shortly.
Powers of the National Government
The onstitution gives 2 basic types of powers to the national govt8 delegated powers and
implied powers.
Deleated Powers
A delegated power is defined as powers specifically granted by the onstitution to the
federal govt, especially those given to ongress. (elegated, when it comes to domestic
matters, is one of the most important powers ongress hasA the authority to tax and spend
and to regulate commerce.
The power to tax can also have other effects. 0or example, behavior can be regulated
through taxes. >ow is that/ "t can be done through sin taxes. These are taxes on things
such as alcohol and cigarettes. -asically, taxes on these items may discourage people
from using them. "f not, revenue is still raised no matter what.
"n 4ew =ork ity, which levies steep taxes of its own on tobacco products, a pack of
cigarettes would come with a tax of B'.?', making it the nation)s first city to break B'.
antismoking advocates said. That would bring the overall cost of a pack of premium
cigarettes above B!+ in many stores in the city.
,http833www.nytimes.com32+!+3+C3!D3nyregion3!Dtax.html.
7ook at the cigarette situation today. "n 4=, cigarettes are so heavily taxed. "t raises a ton
of revenue. >owever, are people Euitting because they can)t afford the cost anymore/ "t)s
hard to say. >owever, some believe that if you can)t stop the problem, then tax the living
hell out of it. 7ook at alcohol. Frohibition was placed in the onstitution ,!?
th

Amendment. to essentially make the #$ a dry ,alcohol free. country. "t didn)t work.
Frohibition was repealed ,negated. by the 2!
st
Amendment. $o, the mentality of the govt
was that if we can)t stop them, let)s tax the crap out of them. an you imagine how much
tax revenue is generated from alcohol/ 9any are trying to use the same mentality with
illegal drugs. 7egali6e them and tax it.
Tax stamp on a pack of cigarettes from the $tate of 1ashington to show that taxes were
paid. "n case you were thinking, buying untaxed cigarettes is against the law. The same
goes for loosiesA loose cigarettes.
http833liE.wa.gov3images3cigerette;stamps.2pg
Tax stamp commonly found on bottles of alcohol. This one contains a tax stamp from
Tennessee.
http833www.2ackdanielscollector.com3sitebuildercontent3sitebuilderpictures3F$GTennG$tampG%.2pg
Another delegated power is the power to regulate commerce. An example is the 0air
7abor $tandards Act of !D&? that set wage and hourly standards for workers engaged in
interstate commerce.
The ivil %ights Act of !DCH used the commerce clause to outlaw racial discrimination in
hotels, motels, and many restaurants.
5ther delegated powers are the authority of ongress to raise an army and navy, and to
declare war.
A delegated power of the president is to act on foreign affairs.
!mplied Powers
An implied power is a power given to ongress in the necessary and proper clause of
the onstitution. "t enables the federal govt to carry out its delegated powers by any
constitutional means. The clause is often cited to 2ustify the use of an unstated or
implied power as a means of carrying out an expressed power. As an example,
although the onstitution gives ongress the expressed power to raise an army and
navy, it does not say how that is to be done.
"imitations on the National Government
#p until this point, we)ve noted some of the many things that the onstitution allows.
-elieve it or not, there are things that the onstitution forbids the govt. $ome are8
a. -ills of Attainder ; 7egislative acts that single out certain people for
punishment w3o a 2udicial trial. -asically, this means 2 things. 0irst of all, you
generally can)t be punished w3o due process ,rights, trial, etc.. Also, it
prohibits making your status as a person a crime. 1hat does this mean/ =ou
can)t be arrested, nor can a law be made to punish you because you are
homeless, homosexual, possess a certain disease, alcoholic, drug addict,
etc...
b. :x post facto laws I =ou can)t make a law after the fact to punish someone.
"n plain :nglish, here is an example. $tarting at noon today, it will be illegal
for anyone to smoke in public. A police officer saw me smoking at !!am, ! hour
before the law went into effect. At !28+!pm, the police officer wants to
arrest me for smoking because he said it was against the law. >owever, he is
wrong. 1hen " was smoking at !!am, there was no law effective at that time on
the books. Thus, it was 5@ for me to smoke. onseEuently, if " was caught
smoking at !28+!pm, " can be arrested. 1hy/ -ecause the law was in effect for
! minute already. -ottom line I =ou can)t go back in time to make an act illegal even
though it may be illegal now. That)s what ex post facto means I after the
fact.
c. 1rit of habeas corpus I "n 7atin, it means bring us the body. "t prevents
people from being arrested arbitrarily, or if they are already in custody, they
are entitled to be brought before a court to show cause of why this person is being
detained.
d. The onstitution also bars the national govt from passing laws or engaging in
activities that would deny rights guaranteed by the onstitution. The main
limitations of this type are found in the -ill of %ights.
#eserved Powers of the States
The onstitution does allow powers to the states and the people. The !+
th
Amendment
declares that The powers not delegated to the #nited $tates by the onstitution, nor
prohibited by it to the states, are reserved to the states respectively, or to the people. This
is known as the reserved powers clause of the onstitution. "n plain :nglish, as long as
it is not prohibited ,or unconstitutional. by the onstitution, the states and the people can
make laws.
Although the onstitution is known as the law of the land, it does not contain criminal
laws except one ; Treason. Treason is a violation of the allegiance owed by somebody to
his or her own country, e.g. by aiding an enemy ,:ncarta (ictionary.. >owever, the
onstitution establishes the fundamental principles of all laws.
0or your information ,0="., the criminal code for the #$ govt ,federal laws. is known as
the #$ ode. 4ow, take a look at the onstitution. =ou will not see robbery, burglary,
assault, etc. "t is not a penal code. %emember, it sets the stage for fundamental principles
and rights. %emember this I 4o law whatsoever in the #$ can override the #$
onstitution or be contrary to it. The states may enact legislation under their reserved
powers w3o express authority from the #$ onstitution. >owever, they may not invade
areas that are assigned to the national govt such as foreign affairs and interstate
commerce.
Concurrent Powers
oncurrent powers are those that can be exercised by both the states and the federal govt.
A good example is the power is to tax and spend. "f you are a 4= resident, you are
lucky enough to pay & income taxes I federal, state and city. Think we)re not taxed
enough/ :ach 2urisdiction will certainly find creative ways to spend =5#% money.
Another concurrent power is eminent domain. 1hat this means is that the govt may take
property ,even yours. for public purposes. 5f course, the owner of the property must be
duly compensated. 0or example, your house lies right in the middle of a proposed
highway that would be crucial to connect a bride over the >udson %iver. The govt may
take your property and destroy it to make room for the highway.
A cartoon mocking eminent domain strictly for the use of increasing tax revenue. "s this
the true spirit of what eminent domain is about/ an you give some examples of what
eminent domain should be used for/
http833www.planeti6en.com3files3eminent;domain;cartoon.gif
"imitations on the States
ertain powers are denied to the states by the onstitution. As we covered before, some
are8
a. -ills of attainder.
b. :x post facto laws.
c. an)t act in the field of foreign affairs.
The due process and eEual protection clauses ,!H
th
Amendment. do place restrictions
upon the states.
a. The due process clause makes the -ill of %ights applicable to the states. -ottom
line I 4either the states or the federal govt can infringe upon the rights of the
citi6ens. 4o matter who we are or where we live in the #$, we are all guaranteed
a certain level of rights.
b. The eEual protection clause outlaws racial discrimination and most forms of
gender discrimination by the state govts.
!nterstate #elations
The onstitution also sets forth a number of important rules governing relations among
the states8
a. 0ull faith and credit clause I %eEuires the states to honor the final civil rulings of
other states such as marriages, divorce, final court 2udgments, etc. This does
not apply to criminal cases. 0or example, a marriage that is valid in 4ew =ork
will be recogni6ed in alifornia.
b. Frivileges and immunities clause I "t was determined that the clause does not
guarantee complete eEuality b3w citi6ens and non;citi6ens of a state. "t
protects only the fundamental rights that are basic to the maintenance and
well;being of the nation. Thus, a state may not discriminate against a non;citi6en
with respect to providing police protection and medical care. >owever, a doctor
or lawyer that is licensed to practice in one state does not have a constitutional
right to practice in another state w3o first meeting that state)s licensing
reEuirements.
c. "nterstate rendition clause I "n a nutshell, it deals with extradition. "f you commit
a crime in one state, and flee into another state, you will be extradited ,sent
back. to the state in which you committed the crime. 9ost criminals waive an
extradition hearing and return w3o any further problems. "f they don)t
waive extradition, a hearing is held to determine why the prisoner will be
sent back.
d. The onstitution makes it known that no state, w3o the consent of ongress, will
enter into any agreement or compact with another state. -asically, it permits
the states to settle mutual problems through the use of interstate compacts
,agreements b3w 2 or more states. These pacts are usually negotiated by
the states) governors and approved by their legislatures. The compact must
then receive the approval of the #$ ongress before it can go into effect.
$ome compacts were used for the following8
!. -oundary disputes.
2. Transportation issues.
&. :nvironmental concerns.
H. rime control matters.
'. <ariety of commercial problems.
e. 5ne of the largest and best;known interstate compacts is the one that created the
Fort Authority of 4= and 4J.
The Fort Authority of 4ew =ork and 4ew Jersey ,FA4=4J. is a bi;state port district,
established in !D2! ,as the Fort of 4ew =ork Authority. through an interstate compact,
that runs most of the regional transportation infrastructure, including the bridges, tunnels,
airports, and seaports, within the Fort of 4ew =ork and 4ew Jersey. This !,'++ sEuare
mile ,&,D++ kmK. (istrict is a region generally within 2' miles ,H+ km. of the $tatue of
7iberty in 4ew =ork >arbor.
http833en.wikipedia.org3wiki3FortGAuthorityGofG4ewG=orkGandG4ewGJersey
The Fort Authority has its own F( I The FAF( I Fort Authority Folice (epartment.
http833farm!.static.flickr.com3!!+32D?&!'**?GcHac+*bcf?.2pg
"n case there is a dispute b3w 2 or more states ,e.g. disputed boundary., the onstitution
gives the $upreme ourt original 2urisdiction. That is, the $upreme ourt sits as a trial
court to settle the problem. >owever, the $upreme ourt has heard relatively few types of
these cases in the course of the nation)s history.
$utual %&liations of the National and State Governments
The onstitution guarantees to the states a republican form of govt. %emember that
this is a form of govt, not a political party ,e.g. the %epublican Farty.. >owever, the
onstitution does not define specifically what a republican govt is or which branch of
govt has the duty of applying this provision. The #$ $upreme ourt has always taken the
position to avoid issues involving the so;called guarantee clause.
!. 0or example, the #$ $upreme ourt would not decide whether the provisions of
the 5regon onstitution which permitted direct legislation by the people through
the procedures known as initiative and referendum had denied the state a
republican form of govt.
2. The onstitution also reEuires the national govt to protect the states against
foreign invasion or internal violence. "t also provides that upon application of the
state legislature ,or the governor if the legislature cannot be convened., the #$
shall protect the states against internal or domestic violence. 1hat does this mean
in plain :nglish/ The federal govt shall protect any or all of the states from
foreign attack. "t will also provide federal troops ,essentially the military. to any
state that is experiencing citi6en uprisings, riots, or any other serious domestic
violence or civil unrest. "n addition, even if a state (5:$ 45T reEuest federal
assistance, the federal govt has the right to intervene within a state in matters of
domestic violence. The military or the state)s 4ational Luard can be mobili6ed.
The president can also act in regards to this via his own constitutional authority.
&. The onstitution does impose certain legal obligation upon the states8
a. 9aintain a republican form of govt.
b. Freserve the peace w3in its borders.
c. >old elections for members of ongress.
d. 0ill vacancies in their delegations to ongress.
e. hoose presidential electors ,:lectoral ollege members..
f. onsider proposals to amend the onstitution as necessary.
National Supremacy
"n a nutshell, it means that the laws and procedures under the authority of the #$
onstitution and under the authority of the #$ shall be the supreme law of the land.
>owever, the onstitution does provide that the states not be completely subordinate to
the national govt. "n other words, states do have Euite a lot of discretion. >owever, it does
prevent the states from exercising power in areas that the onstitution has assigned to the
federal govt ,international treaties, producing currency, etc.. As a bottom line, the states
cannot pass laws or establish policies that conflict with the onstitution, constitutional
acts of ongress, or valid national treaties. "f a conflict does arise, the state must give
way to the federal govt. A main function of the #$ $upreme ourt is to resolve conflicts
within the federal system. "n essence, it is the arbiter of American federalism.
5nly the federal government is allowed to produce money. "t is done through the #$
9int.
http833cobweb.ecn.purdue.edu3Mace3water3wmk3money.2pg
The $an 0rancisco 9int. There are C mints spread throughout the #$ with each having a
uniEue production specialty.
http833www.ustreas.gov3offices3management3curator3exhibitions3mintbldgs3images3introduction23sfportico&Gsm.2pg
Federalism in Theory and Practice
0rom its beginnings, the #$ has witnessed an ongoing struggle b3w those advocating a
stronger national govt v those wanting more power to the states.
The issue of slavery was ultimately decided on the battlefields of the ivil 1ar. The
victory of the 4orth led to the destruction of the slave system. "t also enabled ongress to
reconstruct southern society. "n addition, it also showed that the onstitution was a
national act and the states had no right to secede ,Euit or remove from. the #nion.
1hen 0ranklin %oosevelt was elected president in !D&2, the public had to deal with the
Lreat (epression. $oon afterward, legislation was passed for the first time imposing
federal regulation on important elements of the American economy I for example, labor;
management relations and stock3commodity exchanges. "n addition, ongress enacted a
broad range of economic and social legislation such as8
a. hild labor laws.
b. #nemployment insurance.
c. 9inimum wage3maximum hour legislation.
d. Aid for dependent children.
e. $ocial $ecurity.
1ith this intervention through the 4ew (eal, it changed the nature of the American
federal system. "t enables the federal govt to gain new power in regulating the American
economy and creating new agencies to regulate these new policies. The network of social
welfare programs provided a safety net for the American people in troubled times. $ome
of the programs were operated entirely at the national level. The $ocial $ecurity system is
funded by a national payroll tax administered by a national agency. >owever, some other
programs under the 4ew (eal involve cooperative efforts by the state and national govts
I the unemployment insurance system I which was created by ongress and funded and
administered by the states.
The term cooperative federalism soon came into being. "t is often used to describe the
relationship b3w the state and national govts that develops and administers programs.
ooperative federalism was based on the idea not all programs are best solved by
1ashington, (. This is why cooperative federalism was developed. Joint undertaking
b3w the federal and state govts along with the expansion of federal grants;in;aid, helped
to solve problems.
Lrant;in;aid is money that is given by a higher level of govt to a lower level to be used
for a specific program, such as highway construction. "t is a trickle down type of funding.
A categorical grant is funding for a specific and narrowly defined purpose. As opposed
to the above for general highway construction, it may be for specific construction to
prevent highway flooding through special storm drains.
9atching grants are funds from the federal govt that must be matched by state or local
govts on a dollar per dollar rate or a certain percentage.
The Growth of the Grant System
Lrants are not a new phenomenon. They have been around through much of American
history. A common use of land grants was for the establishment of public schools. Lrants
can start at virtually any level of govt. %emember our levels of govt8
a. 0ederal.
b. $tate.
c. ounty.
d. 7ocal.
5n the federal level, grants are given for a wide assortment of programs, especially in
areas such as8
a. :nvironmental protection.
b. Transportation ,airports, highways, mass transit..
c. :ducation.
d. :mployment.
e. $ocial services.
f. >ealth.
g. "ncome security.
h. <eteran)s benefits.
i. Administration of 2ustice.
The largest of the federal grants are given for health ,9edicaid. and income security
programs ,family support payments to states..
0ederal grants are often given to develop or expand alternative energy sources.
http833media.oregonlive.com3environmentGimpact3photo3wind;turbines;boyd2pg;ffbD2?&b?fH!badd.2pg
Centrali'ed Federalism
entrali6ed federalism is an approach that has a tighter control of the grant usually
reEuiring some form of compliance. A primary goal of centrali6ed federalism was to
persuade state and local govts to adopt programs that they might not have undertaken.
This approach was common in such areas such as8
a. ivil rights.
b. Job training.
c. 1elfare.
d. Transportation.
e. >ousing for the poor.
An example of this type of funding was the lowering of the national speed limit to ''
mph ,miles per hour. a while back. The federal govt would not provide highway funds to
states that did not comply with the lowering of the speed limit. Thus, in order to receive
highway funding, states were forced to comply. Thus, centrali6ed federalism is
centrali6ed govt.
The New Federalism
$tates and localities felt the national govt placed too many demands on grants and made
them excessively complex. They also felt that the grants were favoring the federal govt
and not necessarily fulfilling the needs of those receiving the funds. "t was believed that
federal officials were simply too far away and out of touch in understanding the uniEue
problems of states and localities. The last & decades or so brought about changes known
as the 4ew 0ederalism. 5ver time, it was agreed that block grants should replace
categorical grants;in;aid.
A block grant is a sum of money given by the federal govt to a state or local govt to be
used for a broad, general purpose. An example would be a block grant for any purpose
related to law enforcement as opposed to a grant;in;aid that would reEuire that the money
be spent for new police cars or police communications. $ee the difference I broad v
specific spending.
Another form of funding was general revenue sharing. "t was a system of financial aid
to the states and localities with no strings attached. Thus, the govts receiving the aid can
spend the money as they wished. Fres. %eagan opposed this type of aid and the program
ended in !D?C.
1hat do you think/ "s it good to 2ust give smaller levels of govt a big check with no
strings attached/ $hould there at least be some restrictions/ 1ould you give your
teenager an allowance with no conditions/ $hould there be some kind of mandate to your
child to at least save a portion of it/ Think about it. "n many ways, govt is very similar.
Living funds with no strings attached may lead to a great deal of waste and lack of
accountability.
The most significant change in the operation of the federal system came in the area of
public welfare, especially entitlement programs. 0or the most part, families with incomes
below a specified level were automatically eligible to receive benefits. This was prevalent
with the A0( ,Aid to 0amilies with (ependent hildren.. The program was replaced in
!DDC when ongress passed and Fres. linton signed the Fersonal %esponsibility and
1ork 5pportunity %econciliation Act. The block grants given to the states from the
federal govt were to be matched by the states. Although most federal regulations on the
use of the block grants ended, the law did set a five;year limit on the length of time any
family can receive welfare benefits. The basic premise of the law was to move people off
the welfare rolls and into 2obs. The states are allowed to establish their own programs to
achieve this goal. They used a variety of approaches such as 2ob training, providing
childcare, increasing educational opportunities, or any combination of these.
The election of (emocratic or %epublican presidents, as well as the political composition
of ongress, will have an effect on the character of federal legislation. #ltimately, the
direction of American federalism will depend on public attitudes toward govt. 1ill they
look at govt as the problem solvers or look more favorably to non;governmental
remedies.
The Supreme Court and Contemporary Federalism
"deally, the #$ $upreme ourt is supposed to be insulated from politics. %ealistically, it)s
not. "n !D&*, Fres. %oosevelt proposed legislation that would permit him to increase the
number of $upreme ourt appointees. Although he offered other motives for the change,
the real motive was to produce more 2udges that would be more agreeable to accept the
growth of national power through %oosevelt)s programs. 1hat do you think/ "f you were
president, why would you appoint someone that didn)t think similarly to you/ This is still
done today. 0or example, some $upreme ourt 2ustices delay their retirement because of
the president currently in office. 1hat does this mean/ "f the potential retiree is on the
liberal side and the current president is conservative, do you think the president is going
to replace the retiring 2udge with another liberal/ 0orget it. The spot will go to a
conservative 2udge. This is big reason why some $upreme ourt 2ustices hold out from
retiring.
%emember, the Fresident appoints $upreme ourt 2ustices and they serve for life. $o, if
you think the president doesn)t try to stack the deck I think againN To the victor go the
spoils. "f there is a $upreme ourt opening, the current president has the choice of whom
to appoint.