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Transcript of Federalism
What is federalism?
Federalism is the division of power between a centralized authority and several other political subdivisions at the state and local levels, such that each component has a sphere of power that it exercises exclusively, while other powers are shared.
A brief history
The first "constitution" of the United States was the Articles of Confederation. This document provided for an extremely weak central government and virtually all the power was kept by the thirteen states. For example, the central government could not tax or draft an army.
Once people realized that The Articles of Confederation were ineffective, the founding fathers drew up what is now our current constitution, which provides for a much stronger central government. Many politicians were not fond of the new constitution and strongly opposed it. Thus the Federalist Papers - among other propaganda - were written in support of the proposed constitution.
Federalism is not the only model for the division of power, however. An example of a non-federal country is France. France has a "unitary" model of power, which means power is not shared between Paris and local authorities. All decisions and laws are made in Paris.
In the U.S., federalism primarily manifests in the reservation of power to each of the 50 states, and the powers explicitly granted by the constitution to the national (federal) government. Note that this is why the central U.S. government is called the “federal” government. The states also frequently delegate the powers reserved to them to various political subdivisions at the local level – for example, counties, townships, and municipalities.
Which branch of government has which power?
Every power of the federal government is listed in the constitution- these are called "enumerated powers". The enumerated powers listed in the Constitution are the only powers granted to the federal government.
Another limiting factor to the federal powers is The Bill of Rights - the federal government cannot deprive citizens of their constitutional rights.
Examples of enumerated federal powers:
Taxing and spending
This is, incidentally, the mechanism by which Supreme Court of the United States upheld "Obamacare” in 2012
Provide for the common defense
Regulation of interstate commerce
This is the most important. It is this clause which courts have utilized to allow federal regulation on a vast scale (the Civil Rights Act, drug laws, etc.)
States have plenary power, or general police power. State powers are not listed in the United States Constitution- the state is as powerful as its own constitution makes it, subject to the protections of individual rights cataloged in the U.S. constitutional amendments. This is explicitly codified in the U.S. Constitution by the 10th Amendment- that all powers not mentioned by the Constitution as federal powers are reserved to the states. Most state constitutions enumerate powers for the state government, or limit its powers through their own bill of rights, similar to the federal model.
Conflicts of laws
If there is a conflict between state and federal law, the federal law trumps the state law. This is due to the “supremacy clause” of the U.S. Constitution, which ranks federal law supreme relative to conflicting state law. This is called "preemption".
For example, Arizona’s immigration enforcement bill (SB 1070) was preempted by federal law.
What does this look like?
Congressional regulation under the interstate commerce clause
A mechanism by which most congressional regulation has been upheld as constitutional.
The subject of regulation simply must “affect” interstate commerce.
Interstate commerce clause
Federal “carrot/stick” strategies
In an area the federal government cannot regulate (for exapmle, legal drinking ages, or educational curriculum or standards) the federal government will either offer the states a "carrot" or a "stick" to incentivize the adoption of policy consistent with federal standards.
Utilizing the "carrot" strategy:
Race to the Top
– a grant program whereby the states whose stated educational standards and goals most closely align those proffered by U.S. Department of Education will get the most federal money to invest in their schools. Ohio is one such state.
Utilizing the "stick" strategy: The federal government may withhold federal highway money from a state for failure to adopt federal standards. These dollars are basic infrastructure maintenance money on which states rely. Federal government threatens to withhold this money from a state unless the state’s laws comport with federal standards. This is why the drinking age is 21 nationwide.
Both "carrot" and "stick" have been upheld as legitimate exercises of federal power.
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If you have questions, comments or concerns, please contact:
OCHLA Public Policy Officer
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