Federalism and Intergovernmental Relations

1
Federalism and Intergovernmental Relations

• In the United States, federalism is
  simultaneously three systems
• Federalism is a constitutional/legal system
• Federalism is a cultural system
• and,
• Federalism is a political system

2
Federalism as a Constitutional/Legal System

• As a constitutional or legal concept, federalism
  refers to a system of government in which
  constitutional powers are divided between two
  levels (national and state). Review material on
  federalism from previous treatment of the U.S.
  Constitution (i.e., 6 characteristics of
  constitutional federalism).
• The U.S. Constitution creates (or acknowledges)
  two levels of government
• The national government is a government of
  delegated (enumerated) powers
• The states are governments of reserved powers
  10th Amendment.

3
The Nature of the National Governments
Constitutional Powers

• Whatever constitutional powers the national
  government possesses are delegated by the
  Constitution. However, throughout the 200 years
  of our constitutional history, there has been
  some question as to the extent of the powers
  actually delegated. As a matter of fact, the
  national government two types of delegated
  powers
• expressly delegated powers (those specifically
  mentioned in the Constitution)
• and
• implied delegated powers (those that are
  delegated by the Elastic Clause - Article I,
  section 818).

4
The Evolution of Constitutional Federalism in
the United States

• There two distinct periods of development of
  intergovernmental relations (IGR) - that is,
  relations between the national and state
  governments - in the United States since the
  Constitution was ratified in 1789
• 1789 to (roughly) 1900 this period was
  characterized by conflict or antagonism between
  the two levels
• 1900 to the present this period has been
  characterized more by cooperation between the two
  levels, although occasionally conflicts still
  emerge

5
Federalism in the 19th Century

• Whereas the federalism of the 19th century was
  marked by constitutional/legal conflict between
  the two levels of government, the Supreme Court
  played a pivotal role in the evolution of
  constitutional federalism. There were two
  dominant interpretations of federalism during
  this period.
• 1801 - 1835 The Marshall Court -- National
  Federalism
• 1835 - 1863 The Taney Court -- Dual Federalism
• Some historians and constitutional law scholars
  argue that, even though Roger Taney left the
  Court in 1863, his philosophy of dual
  federalism continued to dominate decisions of
  the Supreme Court until at least the turn of the
  20th century. Still others contend that the
  Taney philosophy underlay the decisions of the
  Supreme Court until the 1930s, particularly in
  cases dealing with interstate commerce.

6
Comparison of the Marshall and Taney
Interpretations
Interpretation of
Doctrine of Implied Powers
Relationship between 2 Levels
Constitutional Interpretation
Emphasizes the Supremacy Clause Article VI, par
2 - National supremacy ...it has been
contended that if a law passed by a
state....comes into conflict with a law passed by
congress (sic) in pursuance of the constitution
(sic), they affect.... each other as equal
opposing powers. But the framers....foresaw this
state of things, and provided for it, by
declaring the supremacy not only of itself, but
(also) of the laws made in pursuance of
it. (Gibbons v Ogden, 1824
John Marshall (1801-1835) National Federalism
Broad constructionist we (the Supreme Court)
are not restrained....from construing the words
of the Constitution defining the judicial power
in their true sense. We are not bound to
construe them more restrictively than they
naturally import....There is nothing so
extravagantly absurd....as to require the words
which import this power should be restricted by a
forced construction.... Cohens v Virginia, 1821
Emphasizes the Elastic Clause Article I, section
818 ....there is no phrase in the instrument
(the Constitution) which like the articles of
confederation (sic) excludes incidental or
implied powers and which requires that
everything granted shall be expressly or minutely
described.... (McCulloch v Maryland, 1819
Emphasizes the reserved powers 10th
Amendment ....every power delegated to the
national government must be expounded in
coincidence with a perfect right in the states to
all that they have not delegated in coincidence
too, with the possession of every power and right
necessary for their existence and
preservation.... (Abelman v Booth, 1859
De-emphasizes the Supremacy Clause Article VI,
par 2 - Dual sovereignties ....This judicial
power was justly regarded as indispensable, not
merely to maintain the supremacy of the laws of
the United States, but also to guard the states
from any encroachments upon their reserved rights
by the general government. So long as this
Constitution shall endure, this tribunal must
exist with it, deciding....the angry and
irritating controversies between
sovereignties.... Abelman v Booth
Strict constructionist ....the Constitution
speaks not only in the same words, but with the
same meaning and intent with which it spoke when
it came from the hands of the framers.... Dre
d Scott v Sanford, 1857
Roger Taney (1835-1863--1900) Dual Federalism
7
Another Illustration Missouri v Holland 1920

• Facts of the case By a treaty of 1916 the
  United States and Great Britain undertook the
  regulation and protection of birds migrating
  between Canada and various parts of the United
  States. An Act passed by Congress in 1918 gave
  effect to the treaty by establishing closed
  seasons and other rules. The state of Missouri
  pursued legal remedies to prevent the game warden
  of the United States Holland from enforcing the
  act.
• The constitutional issue Does Congress have the
  constitutional power to establish hunting seasons
  and other rules? The state of Missouri claimed
  that under the 10th Amendment the authority to
  establish hunting rules is a power of the state,
  because the power is not specifically delegated
  to Congress.
• The decision of the Supreme Court The Supreme
  Court ruled that the act of Congress was
  constitutionally valid and enforceable by
  Holland.
• The reasoning behind the decision Article II,
  sec. 2 of the Constitution specifically delegates
  the treaty-making power to the president.
  Article VI, par. 2 declares the supremacy of the
  Constitution, treaties made under the authority
  of the United States, and acts of Congress made
  in pursuance of the Constitution. Additionally,
  Article VI, par. 2 requires that the Judges in
  every State shall be bound thereby, any Thing in
  the Constitution or Laws of any State to the
  Contrary notwithstanding. Since the treaty is
  made under the constitutional authority of the
  United States, laws made by Congress pursuant to
  the treaty are the supreme law of the land.
  Furthermore, Article I, sec. 818 gives Congress
  the power to make all Laws which shall be
  necessary and proper for carrying into Execution
  the delegated powers of Congress and all other
  Powers vested by this Constitution in the
  Government of the United States, or any
  Department or Officer thereof. Whereas the
  president is an officer of the United States
  government, and the Constitution delegates the
  treaty-making power to the president, Congress
  may make laws that are necessary and proper to
  execute the treaty of 1916. In the Supreme
  Courts view, the Act of 1918 is a necessary and
  proper means to execute the provisions of the
  treaty.
• Implications of the case Although the relations
  between the national government and the state
  governments has been characterized more by
  cooperation during the 20th century than by
  legal/constitutional conflict, constitutional
  controversies over federalism occasionally come
  before the Supreme Court. Missouri v Holland is
  a good representation of the Courts general
  position on federalism during the 20th century.