12.2a Federalism and Seperation Flashcards
Federalism
Articles I-IV of the constitution sets out the powers of the states and the federal government.
The 10th Amendment gives all powers not given to the federal government in the Constitution to the states.
Federalism - Effective
Each state has its own fully working government with 3 branches - a governor (executive), state Congress (legislature) and supreme court – and can legislate on a wide variety of matters.
States have the power to ratify amendments to the Constitution, and so have the power to change the foundational document on which all US law is based.
Protections, rights and some taxes are different in many states.
For example, Oregon does not have a sales tax.
Federalism - Ineffective
The powers given to the federal government versus the states is the vaguest area of the constitution and over time the powers of the federal government have expanded significantly.
Most states do NOT have year-round legislatures, so do NOT have the ability to create law year-round compared to Congress.
Congress can issue mandates that the state governments have to follow.
Separation of powers
This is the idea, heavily influenced by the writing of John Locke, that no one branch of government should have too much power. The constitution contains several checks and balances to ensure this is the case.
Separation of powers means that the 3 branches of government – legislature, executive, judiciary – are totally separate.
When Barack Obama and Joe Biden became President and Vice President (executive branch) they had to give up their seats in the Senate (legislative branch).
Checks and balances
These are powers given to branches of government to check the other branches and the decisions and actions they are made.
Checks and Balances are often exclusive powers of one branch.
This ensures that no branch of the government acts with unchecked power, and prevents too much power lying with one branch - which helps avoid a despotic government.
For example, the President (executive) appoints justices to the Supreme Court but they have to be approved by the Senate (legislative).
Checks and balances for each branch
The president can choose to veto a law passed by Congress, but if Congress has a supermajority (2/3) they can override the president’s veto.
Congress has the power of the purse, can declare war, can override presidential vetoes, and give ‘advice and consent’ on executive appointments.
The executive has the power of the presidential veto and executive orders, and can make executive appointments.
The supreme court can declare laws and executive actions unconstitutional.
Separation - Effective
Executive orders can be nullified by Congress, as Congressional laws are more significant than executive orders.
The Supreme Court is able to strike down laws as being unconstitutional, and their ability to do this has not changed or been hindered.
Recent attempts by the executive to change the structure of the Supreme Court in order to help pass legislation have been blocked by Congress.
The President is unable to fire judges, and very few have been impeached.
Separation - Ineffective
The President is the de facto leader of their party, and so has power over their legislative agenda.
The process of separation of powers means that legislation is slow to pass, if it passes at all.
Congressional gridlock is common.
Increased use of executive orders has bypassed the legislative process through Congress, concentrating power in the hands of the President.
Seperation - Ineffective
The nature of the appointment process for the judicial branch means that separation of powers is not always effective.
The President can appoint judges for political gain.
If one party has a majority in the Senate, they can deny a nomination, or refuse to hold confirmation hearings.
For example, the Senate under majority leader Mitch McConnell in 2016 refused to hold confirmation hearings for President Obama’s nominee Merrick Garland.
Judges with political views may not adequately check the actions of an executive they support.
