An Investigation of
American Federalism
Panch Rishi Dev Sharma
Assistant Professor, University of Lucknow
Federalism in USA
• Federalism is a basic structural feature of the American
political system that has generated a great deal of conflict
throughout American political history.
• Federalism involves multiple layers of government with
shared powers amongst them and powers unique to each of
the levels of the government.
UNITED STATES OF AMERICA AND ITS FEDERAL STRUCTURE
Federalism as a concept
• The term federalism describes a system of the government in
which sovereignty is constitutionally divided between:
- a central governing authority and
- constituent political units (like states or provinces).
• The power to govern is shared between the national and state
governments, creating what is often called a federation.
Federalism in USA
1. Federalism is based on multiple layers of government and on
the shared powers between states and nation
2. American federalism can be divided into three different levels.
These are national or federal government, the states, and the
local governments
3. The basic structure of unitary political systems is one central
government with local administrative branches
4. The American system can be described as a system of divided
government.
Powers in Federalism
- Delegated Powers (enumerated powers) – powers given to Fed
gov’t by Constitution
- Reserved Powers – state power alone
- Concurrent Powers – shared
- Prohibited Powers – denied from both
- Ex. Neither gov’t can tax exports
Elastic Clause
Aka – “Necessary and Proper Clause”
Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power - To
make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof."
Impossible to predict all powers Congress will need
to function, sometimes we might have to allow
Congress extra powers to fulfill their delegated
powers
Sources of American federalism
1.The tenth amendment of the Constitution
2.The fourteenth amendment
3.The grant of unique powers of various levels
of government under the Constitution.
4. Numerous Supreme Court decisions (e.g.,
McCulloch v. Maryland in 1819, financial powers
of central and state banks).
The importance of the Tenth Amendment of the Constitution of the USA
The Tenth Amendment of 1791
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
POWER* - collocations
1. the exercise of power by...
2. the division of power between...
3. the allocation of powers... / to allocate power to...
4. the power to do something...
5. to delegate powers to somebody
6. to give powers to somebody
*power = ovlast
a) Translate into Croatian.
b) Write sentence examples with those collocations.
Allocation of powers* on three levels…
1. Exclusively national/federal powers
2. Exclusively state powers
3. Concurrent powers
Allocation of powers - national level…
- To make treaties / enter into international agreements
- To decide about declaring war / peace
- To run a uniform monetary system (to coin money)
- To establish an army and navy
- To regulate commerce between states and
international trade
- To establish post offices and issue postage
- To make laws necessary to enforce the
Constitution
Allocation of powers - national level…
- To make treaties / enter into international agreements
- To decide about declaring war / peace
- To run a uniform monetary system (to coin money)
- To establish an army and navy
- To regulate commerce between states and
international trade
- To establish post offices and issue postage
- To make laws necessary to enforce the
Constitution
Allocation of powers - state level…
- In accordance with the 10th Amendment –
→ all powers not delegated to the federal level
Establish local governments
Issue licences (driver, hunting, marriage, etc.)
Regulate intrastate (within the state) commerce
Conduct elections
Ratify amendments to the U.S. Constitution
Provide for public health and safety
Exercise powers neither delegated to the national government or
prohibited from the states by the U.S.Constitution (For example,
setting legal drinking and smoking ages.)
Allocation of powers – concurrent
powers…
Setting up courts
Creating and collecting taxes
Building highways
Borrowing money
Making and enforcing laws
Chartering banks and corporations
Spending money for the betterment of the general welfare
Taking (condemning) private property with just compensation
Related
McCulloch v. Maryland (1819)
Background
Bank of the US operated in Maryland
Maryland did not want BoUS to operate in state, competition
unwanted, unfair
Maryland taxed the bank to put it out of business
McCulloch, BoUS employee, refused to pay the state tax
McCulloch v. Maryland (1819)
Is a Bank of the US Constitutional?
YES. The national gov’t has certain implied powers that go beyond
delegated powers. US needs a national bank for borrowing,
lending, holding minted money, etc. All of which are delegated
powers.
McCulloch v. Maryland (1819)
Can a state tax the federal gov’t?
-NO. The federal gov’t is supreme. Since the BoUS is
constitutional, only the feds may tax it.
-John Marshall reaffirmed Supremacy Clause and Elastic Clause
-National (Federal) Gov gets STRONGER
Commerce clause
Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power
- To regulate commerce with foreign nations, and
among the several states, and with the Indian tribes.”
Congress has used the elastic clause to stretch this
power
What is commerce? “Buying and selling of goods and
services.”
Congress given the power to regulate commerce
between foreign countries and US as well as state to
state… they control business law.
Gibbons v. Ogden (1824)
1824 – aka “The Steamboat Case”
Ogden received a state licensed monopoly to run a ferry across the
Hudson River
Gibbons also saw the potential of the traffic between NJ and NY and
obtained a federal license.
Ogden sued saying he had the valid state license, even though
Gibbons had US license
Gibbons v. Ogden (1824)
Result – Gibbons wins
Expanded national power in all areas of commerce law because
nation overruled state in interstate trade issues
Fed Gov’t gets STRONGER
All trade today is primarily controlled by national law
Commerce Clause
Who cares? Why is it important?
Gibbons v. Ogden ruling makes a loop hole giving Congress
power to take control over any issue involving the movement of
people, or things
Fed gov’t power increased
United States v. Lopez (1995)
Commerce clause quiz!!!
1995 – “Gun Free School Zone” law banned possession of a firearm
within 1000 feet of a school, 12 year old Lopez carried a gun on to
the property
Declared law unconstitutional – “nothing to do with commerce” –
carrying a weapon through a school zone is too much of a stretch for
“commerce”
LIMITED National government power
Gonzalez v. Raich (2005)
Commerce clause quiz!!! Medicinal Marijuana
Controlled Substance Act (1970) – US gov regulates the
manufacture, importation, possession, and distribution of
certain drugs
Medicinal marijuana was legalized in California, but
illegal to US government. Raich argued commerce clause
should not take effect because 1) there was no business
transactions and 2) there were no state border issues.
Supreme Court ruled 6-3 against Raich saying that the
federal government could trump state laws that permitted
medicinal marijuana
Mordern Federalisms in USA and
in India
TWO METAPHORS…
Dual Federalism – Layer Cake
Federal
State
• Cooperative Federalism – Marble Cake
