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The constitutional framework of US government
federalism
25 markers to do: is federalism too powerful?
Key words:
Incorporated areas: the boundary of state authority
Pre-emption: the restriction of local or state law if it conflicts with state or statewide law
Local ordinance: law issued by a local govt
Municipal affair: activity local in nature that doesn’t interfere with statewide legislation
Punitive federalism: threaten states with the withdrawal of funds and other forms of retaliation
for non-compliance
introduction
State governments impact almost every aspect of a citizen's life, with their set up often mirroring
the federal government, eg a bicameral state congress, as in accordance with the constitution
requesting a republican form of govt. In spite of this mirrored set up, many argue that the federal
govt is more powerful/is not impacted by the states. The elastic clause has allowed congress to
expand their powers, and the sc keeps reinterpreting its 7k words.
Ao1 commerce clause v 10th amendment.
The 10th amendment means that all powers not granted to the federal govt are given to the
states.
Ao2: should in theory grant the states significant powers due to how limited the constitution is.
Ao3: abuse of the interstate commerce clause of the constitution has granted congress more
influence over the states. (‘regulate commerce among the several states’) meant to tackle
issues such as state protectionism. In Gonzales v Raich, the SC said that marijuana can be
banned under it as even if no goods are sold across states, it can have an indirect impact on
interstate commerce. Has allowed marijuana to be outlawed.
,AO2: As not in the constitution or to do with state-by-state activity, it means that this could be
seen as an abuse of the clause. Seen as a municipal affair.
Ao3: many states since 1996 have legalised marijuana e.g. thru ballot initiatives as they did not
want to commit resources to enforce the law. Furthermore, the interstate commerce clause has
been severely limited by the SC. When used to convict students carrying a handgun, the SC
struck it down arguing that it isn’t an essential part of economic activity. (US v Lopez)
Ao2: influence of the ISCC is overstated, especially considering states have and do ignore it
consistently.
Conclusion: states retain their power/influence
Ao1 policing powers v constitution
Supremacy clause / elastic clause means federal law takes precedent over state. Eg,
Americans with disabilities act (ADA) enforced reasonable adjustments for those with disabilities
in work.
Ao2: clause implies statewide law more important than state law, suggests that state law is
limited when in comparison to congress. Has little influence as a result.
Ao3; states have police powers (sovereign states powers) within incorporated areas which are
very powerful. Can act as a legislative laboratory, inc health—the Massachusetts 2006
healthcare reform law was a model for the aca
AO2: can influence statewide law in that sense, and policing powers have jurisdiction over many
significant areas. Means that state law is most what impacts a citizen's life not federal.
Ao3; federal law may pre-empt state law implicitly or explicitly, including those considered
policing powers like health. The ACA for instance enforced all Americans to have health
insurance.
Ao2: if constitutional and congress passes a law, such as the aca, it will always take precedent
and states have no freedom to properly deny it. Whilst this won’t influence a large proportion of
aspects of a citizen's life it still undermines state powers.
Conclusion: states are limited
Ao1 in crisis
,Principles of federalism are under strain in times of crisis largely due to budget—Louisiana state
revenue is $36.1 billion but damages from hurricane Ida was $70-80, means that states rely on
govt appropriations to help.
Ao2: reliance limits state autonomy, instead have to cooperate and act together. Instead, they
are interdependent.
Ao3 states remain sovereign so the federal govt has to wait for a request from a state governor
for assistance. EG, Biden implored the state of Florida to request help/federal assistance after
the Miami building collapse (“whatever help you want, what the federal govt can provide, we’re
waiting.”)
Ao2: means that state autonomy does take precedent which decentralises power away from the
statewide legislature.
Ao3 can issue executive orders in regard to significant powers. President Trump signed
Executive Order 13768, ‘Enhancing Public Safety in the Interior of the United States.’ to clamp
down on ‘sanctuary cities’ across the US, (penalties for pre-empting with national immigration
laws.) San Francisco; almost 8% of its population is comprised of undocumented immigrants,
the city would lose much of its workforce should mass deportation occur.
Ao2: the states can be imposed upon through the abuse of EO. Transitioning to an era of
punitive federalism. (definitions)
Conclusion: states do not always retain power.
9 mark questions:
“three ways federalism impacts govt”
1.) Legislative Labatories (Massachusetts)
2.) removes power (biden+flordia)
3.) represents views (eg marijuana)
“three ways federalism has been undermined”
1.) interstate commerce clause
2.) executive orders
3.) pre-emption
Cultural significance of federalism:
, Histories
‘Dual federalism’ early years of American history, federal and state governments operated
separately in distinct spheres, with similar levels of power.
‘co-operative federalism’(war/great depression), federal government used far broader readings
of its enumerated powers to greatly expand its size
Led to ‘coercive federalism’, in which the federal government intervene in state matters by
attaching conditions to irresistibly large grants.
‘new federalism’ (nixon) to shrink the size and cost of the federal government and return power
to the states.
Rational significance of federalism:
-people want state views to be represented. State governors want power. States want power to
decide.
Structural significance of federalism:
1.)10th amendment any powers not in const. Given to states
2.) Elastic clause – carry out laws necessary and proper for fulfilling enumerated powers
3.) commerce clauses
Is the us constitution fit for modern day?
Intro
Constitution meant to establish checks and balances, oversight, federalism, and outline the laws
of the land. Its argued that it fails to do this in modern day, largely due to the sc. On the other
hand its argued that the constitution is not outdated and rather vagueness is a good thing
It is not fit for the modern day at all in terms of its original intent but can be seen as good
unintentionally thru certain reinterpretations eg committees
Key words:
Domestic Emoluments clause (article II section I clause 7) designed to protect the presidents
independence. It states “the president shall not receive any other emoluments” which is a
benefit advantage or profit.
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