Systems of government are defined in terms of sovereignty:
Fundamental governmental authority.
The right to govern a particular people or territory.
In a unitary state (or system) only the national government is sovereign.
Country may be divided into provinces, counties, etc. but they are only administrative subdivisions.
A confederation (or confederal system) is a government formed by sovereign states working together for common purposes.
Central government's powers are limited to those granted by the states.
U.S. under the Articles of Confederation.
Switzerland (until 1848).
The European Union (to an extent…)
A federal state (or federation) shares sovereignty between the national and subnational governments.
The nation and its units (states, provinces, etc.) may have both overlapping and non-overlapping areas of responsibility.
Many national powers (sometimes called delegated powers), including some of the enumerated powers of Congress.
Concurrent powers are shared between the state and federal governments.
Reserved powers are powers executed by the states alone; however, other powers are denied to the states.
Powers that can be exercised solely by the national government:
Conduct foreign relations, including issuing declarations of war.
Coin money and issue paper currency.
Regulate interstate commerce.
Regulate foreign commerce, including imposing tariffs and trade sanctions.
Provide for national defense.
Powers that can be exercised by both state and national governments:
Levy taxes; spend and borrow money.
Charter corporations and banks.
Make and enforce laws.
Eminent domain: take private property for public use, subject to compensation.
Powers that only the states may exercise:
Regulate time, place, and manner of elections.
Regulate intrastate commerce (commerce within the state).
Organize political subdivisions like counties, cities, and school districts.
Exercise police power over public health, safety, welfare, and morality.
Ratify amendments to the U.S. Constitution.
States may not…
issue currency, coin money, or declare anything other than gold or silver legal tender.
levy tariffs on imports or exports without Congress' approval.
enter into treaties or alliances with other countries.
enter into agreements with other states (known as interstate compacts) without Congress' consent.
pass bills of attainder, ex post facto laws, or abridge contracts.
States also have certain obligations to the other states, subject to exceptions:
Must give full faith and credit to the public acts of other states, such as court decisions and legal contracts. (However, note the public policy exception.)
Must respect the equal privileges and immunities of citizens of other states; cannot discriminate against non-residents.
Extradition of those suspected or convicted of crimes back to the state where they are wanted.
Supreme Court decided it had authority to mediate issues of dual sovereignty in McCulloch v. Maryland (1819):
Necessary and Proper Clause (or Elastic Clause): gives Congress authority to “make all laws which shall be necessary and proper to carrying into execution” the enumerated powers: additional powers known as implied powers.
Supremacy Clause: federal constitution and laws “supreme law of the land.”
Combined effect: Congress could go well beyond its enumerated powers, and states had to defer to expansion of federal power.
Congress can “regulate commerce… among the several states.”
Applied to state efforts to control trade between states in Gibbons v. Ogden (1824).
During the New Deal era, Supreme Court allowed Congress to regulate almost any action that might affect the national economy: NLRB v. Jones & Laughlin Steel (1937); Wickard v. Filburn (1942).
More recent example: medical marijuana case (Gonzales v. Raich, 2005).
Congress has the power to spend money providing for the “general welfare.”
When Congress gives money to states and local governments, it often requires states to do things in return.
Raising the drinking age to 21 (South Dakota v. Dole, 1987)
Motorcycle helmet laws
The Supreme Court has occasionally said the federal government has gone too far:
In the 1990s, the Supreme Court struck down parts of several laws on federalism grounds.
In 2012, the Court somewhat limited the spending power in National Federation of Independent Business v. Sebelius (PPACA case): states could not lose all federal funds for existing Medicaid recipients if they refused to expand the program.
Two constitutional amendments designed to protect state governments' authority:
Tenth Amendment (states and the people retain powers not delegated to the federal government).
Eleventh Amendment (sovereign immunity).
After McCulloch, some states argued in favor of the nullification doctrine: that states could refuse to follow federal laws they believed were unconstitutional.
Reflects older compact theory of federal–state relations.
Traditionally, relationship between state and national governments was understood as dual federalism: each government did its own thing, with little overlap in responsibilities.
The expansion of national government power during FDR's presidency produced a new arrangement: cooperative federalism (sometimes called marble cake federalism).
Rather than two separate “spheres” of power—the dual federalism model—powers of the state and national governments overlap. Reflects the nationalist theory of federal-state relations.
Political scientists who defined the term believed there would be genuine cooperation between state and national governments to design effective programs.
Instead, however, many of the new national programs gave states major administrative responsibilities but little input.
Congress has several options for getting the states to do things it is unable or unwilling for the federal government to do:
Categorical grant programs.
Block grant programs.
Using unfunded mandates.
Federal grants to a state or local government that include specific rules and regulations for the use of funds.
SNAP (“Food Stamps”).
No Child Left Behind.
States and some national politicians (former governors like Nixon, Carter, and Reagan) pushed for returning more powers to the states: devolution.
Block grants: federal grants with fewer “strings” attached.
“Community Development Block Grants”
Temporary Assistance to Needy Families (TANF).
Congress requires states to do things without providing the needed funding.
No Child Left Behind: required states to increase testing of students, but didn't pay to develop the needed tests.
REAL ID Act: required states to make driver's licenses/state IDs more secure, but states had to spend millions changing issuing processes.
Although states are “laboratories of democracy,” and national politicians often use rhetoric supporting devolution, they remain reluctant to give up control.
Politicians often are responding to public demands to “do something” about problems, even when state and local governments may be better equipped to solve them.
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