Chapter 4 Government 1

Chapter 4 Government 1

• The U.S. Constitution was written by the framers to divide power geographically. Power would be divided between the National Government and the States. The Constitution divided government authority by giving the national government certain specified powers, reserving all other powers to the state or to the people. In addition, the national and state governments share some powers. Finally, the Constitution specifically denied some powers to each level of government.

Federalism—a form of government in which power is divided between a central government and several formerly independent regional (state & local) governments. For our purposes, we are talking about the division of Federal and State governments (Washington, D.C. to Montgomery)

• Federalism’s major strength is to allow local action in local concerns and allow national action in areas of wider concern.
• Legal gambling in Nevada
• Busing private and public schoolchildren in New Jersey
• Nebraska is only state with unicameral legislature
• State liquor stores in Alabama (ABC Stores)

• The chief advantage of federalism is it allows and encourages local choice in many matters, and also provides strength that comes from union.

1. Natural disasters
2. National defense
3. Foreign affairs

Division of Powers—provisions by the U.S. Constitution that separates power between the National Government and the States. The national and state governments share some powers, and the Constitution specifically denies some powers to each level of government.

Delegated Powers—powers that are granted (expressed, implied, inherent) to the National Government by the U.S. Constitution.

Expressed Powers (Enumerated Powers)—delegated powers of the National Government which are given to it literally by the U.S. Constitution. These powers are directly stated in the Constitution. The Constitution “says it.” Most of these powers are found in the first three articles.

1. Levy and collect taxes
2. Coin money
3. Declare war
4. Raise an army and navy
5. Regulate commerce
6. Grant patents
7. Grant pardons

Implied Powers—delegated powers of the National Government which are understood. These powers spring from and are dependent on the powers that are stated (expressed powers) in the Constitution. The basis for the implied powers is the Necessary and Proper Clause (“Elastic Clause”).

1. Armed forces draft
2. Interstate highway system
3. Creation of NASA
4. Regulate nuclear power plants

“Elastic Clause” (Necessary & Proper Clause)—found in Article I, Section 8, Clause 18. It gives the basis for the implied powers.

• “The Congress shall have the 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 and Department of Officer thereof.”

Inherent Powers—delegated powers of the National Government that are not expressly granted by the Constitution, but exist because the U.S. government exists.

1. Regulate immigration
2. Deport aliens
3. Acquire territory

3 WAYS POWERS ARE DENIED TO THE NATIONAL GOVERNMENT

1. Expressed in the Constitution—powers are denied to the federal government because it is expressed (stated) in the Constitution. Most of these are expressed in Article I, Section 9 and in Amendments 1-8.
2. Levy taxes on exports
3. Writ of Habeas Corpus shall not be suspended, except in rebellion or invasion
4. Development of nobility
5. Make no law establishing a religion

1. Silence in the Constitution—powers are denied because the Constitution is silent on the matter. Remember the National Government only has the power given to it by the Constitution.

1. Creation of public school systems
2. Marriage & divorce laws
3. Establish local governments

1. Nature of the Federal System—powers are denied because of the nature of the federal system.
2. Can’t tax state or local governments in carrying out their governmental functions

Reserved Powers—those powers that belong strictly to the States. These are not explicitly listed, but are guaranteed in the 10TH Amendment.

1. Marriage & divorce laws
2. Prohibition laws
3. License for certain professionals
4. Public school systems
5. Gambling laws
6. Conducting elections

Denied Powers of the States—the Constitution also denies certain powers to the States just as it does to the National Government. Most of these are found in Article I, Section 10 and the 13TH, 14TH, 15TH, 19TH, 24TH, and 26TH Amendments.

1. Make treaties
2. Print money
3. Deprive any person of life, liberty, or property without due process

Exclusive Powers—those powers that belong strictly to the National Government.

1. Coin money
2. Make treaties
3. Tax imports

Concurrent Powers—those powers held by both the National Government and the States. These powers are not exclusively given to the National Government through the Constitution but they are not denied to the States either.

1. Power to tax
2. Define and punish crimes
3. Maintain courts

• The U.S. Constitution established the system of federalism. The two levels of government (national & state) are bound to conflict. The Framers of the Constitution knew this and thus wrote the Supremacy Clause.

Supremacy Clause(Article VI, Section 2)—it states what the final rule of law would be. It establishes a “ladder of laws.” It states that the Constitution is the “law of the land.”

• U.S. Constitution→National acts and treaties→Federal law→State constitutions→State laws→Local laws

• “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”—Supremacy Clause of U.S. Constitution

McCulloch v. Maryland (1819)—the first clash between state law and federal law. In 1816, Congress authorized the creation of a national bank, one branch of which was subsequently located in Baltimore. The Maryland legislature, in an attempt to protect its own banks from competition, levied a tax of 2 percent on all notes issued by any bank operating in Maryland not chartered by the state. McCulloch, the cashier of the Baltimore branch of the Bank of the United States, was convicted under the statute for refusing to pay the tax. The Supreme Court reversed his conviction. Marshall viewed the case within the framework, of two questions: Did Congress have the power to charter the bank? If so, did the states have the power to tax an instrumentality of the federal government? Marshall maintained that although the specific authority to charter a bank was not found in the Constitution, it could be reasonably implied form the specifically enumerated Power of Article I, Section 8, in conjunction with the power of Congress to make all laws that are necessary and proper to execute the enumerated powers. He went on to hold that Maryland could not tax the bank because in the event of conflict between normally valid federal and state laws, the federal law must take precedence under the supremacy clause of Article VI. Marshall thus promulgated two major rules: the doctrine of implied powers and the concept of national supremacy, both of which gave impetus to the expansion of the national government at the expense of the states.

• Summary ofMcCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579 (1819). Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state. The statute provided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state. The statute set forth the fees to be paid for the paper and established penalties for violations. The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (D), the cashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act. The state court found for Maryland and McCulloch appealed. Does Congress have the power under the Constitution to incorporate a bank, even though that power is not specifically enumerated within the Constitution? Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution? Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8). No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution. The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution which excludes incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate and plainly adapted to that end, and which are not prohibited, may be employed to carry it into effect pursuant to the Necessary and Proper clause. The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means of carrying into effect other powers which are sovereign. It may be exercised whenever it becomes an appropriate means of exercising any of the powers granted to the federal government under the U.S. Constitution. If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. The Bank of the United States has a right to establish its branches within any state. The States have no power, by taxation or otherwise, to impede or in any manner control any of the constitutional means employed by the U.S. government to execute its powers under the Constitution. This principle does not extend to property taxes on the property of the Bank of the United States, nor to taxes on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State. Reversed; judgment for McCulloch.

• The U.S. Supreme Court acts as the umpire of the federal system.

• In the words of Justice Oliver Wendell Holmes, “I do not think that the United States would come to an end if we [the Court] lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.”

• The National Government is required to “guarantee to every State in this union a republican form of government.” This is stated in Article IV, Section 4. When Congress allows senators and representatives from a state to take their seats in Congress, it is in effect ruling that the state has a republican form of government. The only extensive use of this guarantee came after the Civil War. Some Southern states had refused to ratify the Civil War Amendments (13TH, 14TH, 15TH Amendments) and Congress ruled these states did not have a republican form of government. Congress refused to seat the senators and representatives from those states until those states had ratified the Civil War Amendments.

• The National Government must protect the States “against invasion…and against domestic violence.” This is stated in Article IV, Section 4.

Foreign Invasion—an attack by a foreign power on one state is considered an attack on the United States.

• Example: If Alabama is invaded by Cuba then the U.S. government would look at the situation as all 50 states were being invaded.

Domestic Violence—the President has authority to send in federal troops when state officials ask for help. The President also has authority to send in federal troops if a federal law has been broken, even if the state objects.

• Example: In summer of 1967 President Johnson sent troops to Detroit to help control racial unrest and rioting. This was done after Michigan’s governor declared that Detroit police and the Michigan National Guard could not cope with the violence.
• Example: 1957 President Eisenhower to integrate Central High School in Little Rock, AR and 1963 President Kennedy to integrate the University of Alabama.

Territorial Integrity—the National Government has the obligation to respect the territorial integrity of each state. The national government cannot use territory that is part of an existing state to create a new state unless the national government has permission from the legislature of the stat involved.

Grant-in-aid (Federal Grant)—when federal land and money is given to state (also local) governments. The money or land usually has strings attached to it. Provides money for education, mental health, urban development.

• Example: Morrill Act (1862) (LandGrantSchool Act). ,gave land to states for “land grant” universities [Auburn, Mississippi State, etc…].
• The Morrill Act of 1862 was also known as the Land Grant College Act. It was a major boost to higher education in America. The grant was originally set up to establish institutions in each state that would educate people in agriculture, home economics, mechanical arts, and other professions that were practical at the time. The land-grant act was introduced by a congressman from Vermont named Justin Smith Morrill. He envisioned the financing of agricultural and mechanical education. He wanted to assure that education would be available to those in all social classes. There were several of these grants, but the first passed in 1862. This bill was signed by Abraham Lincoln on July 2. This gave each state 30,000 acres of public land for each Senator and Representative. These numbers were based on the census of 1860. The land was then to be sold and the money from the sale of the land was to be put in an endowment fund which would provide support for the colleges in each of the states. The land-grant has improved the lives of millions of Americans. This was not the case in the early stages. At the time the grants were established, there was a separation of races. In the South, blacks were not allowed to attend the original land-grant institutions. There was a provision for separate but equal facilities, but only Mississippi and Kentucky set up any such institution. This situation was rectified when the Second Morrill Act was passed and expanded the system of grants to include black institutions. The Morrill Acts have become a major educational resource for our nation. This program is available to all people who are in search of higher education. Over the years it has proven to be an important part of our educational system. This Act changed the course of higher education. The purpose of education shifted from the classical studies and allowed for more applied studies that would prepare the students for the world that they would face once leaving the classroom. This Act also gave education support directly from the government. The Morrill Act changed the face of education and made room for our growing and ever changing country and ensured that there would always be money to finance educational facilities and that there would be continual government support of these institutions.

Block Grants—money given to states (also local) governments that have more general purposes and fewer strings attached. The state typically has considerably more choice over how the money will be spent.

Interstate Compacts—a written agreement between two or more states. States can have agreements between each other if they are approved by Congress. This is stated in Article IV, Section 1. These usually deal with air and water pollution, toll bridges, and transportation.

• Interstate compacts represent an opportunity for multistate cooperation, reinforcing state sovereignty and avoiding federal intervention. The emergence of broad public policy issues that cross jurisdictional boundaries present new governing challenges to state authorities. Compacts enable the states – in their sovereign capacity – to act jointly and collectively, generally outside the confines of the federal legislative or regulatory process while respecting the view of Congress on the appropriateness of joint action. Unlike federal actions that impose unilateral, rigid mandates, compacts afford states the opportunity to develop dynamic, self regulatory systems over which the party states can maintain control through a coordinated legislative and administrative process. Compacts enable the states to develop adaptive structures that can evolve to meet new and increased challenges that naturally arise over time. Interstate compacts are contracts between two or more states creating an agreement on a particular policy issue, adopting a certain standard or cooperating on regional or national matters.