Interpretations and debates around the constitution and federalism Flashcards
Define federal encroachment
An increase in the power of the federal government at the expense of state governments
When did federal encroachment begin?
In the cooperative federalism period
Why can the new federalism era be seen as a failure?
Because the case that the federal government is encroaching on the reserved powers is still extremely compelling
List the arguements in favour of the idea that the states retain their autonomy and sovereignty
- Laws vary across states
- Healthcare
- Electoral practises vary wildly
- Illegal immigration
- Handling national crises
- SC rulings support state over federal government
Give two examples of laws varying across states
- The death penalty is legal in 29 states but abolished in 21 states
- Taxation can be set at the state level alongside federal taxes. 7 states have 0% taxation while California has 13% taxation
How does healthcare favour states?
States have power over the provision of medical insurance following Obamacare
Explain electoral practises vary
Article I allows states to run their own elections and there is a wide variety of election processes. State governments can set their own district boundaries
How does the way illegal immigration is dealt with favour the states?
In some states their are sanctuary cities where state law prohibits local law enforcement agencies from helping federal government authorities from identifying illegal immigrants unless they have committed a serious crime. In 2018, the Department of Justice tried to sue California over its sanctuary city laws, but the ruling went against the Department of Justice, reinforcing the autonomy of the state
How did COVID demonstrate the importance of the 10th amendment?
Like in any other national crisis, elected governors were allowed to react in whatever way they saw fit. This is reflected by the fact that 32 states declared their own state of emergency before Trump declared the national state of emergency
Explain how the lockdowns showed state autonomy
- Seven states didn’t issue lockdown orders until this was imposed by the federal government
- Trump wanted to end lockdowns as quickly as possible but state governors had the final say on this, as well as other practicalities like the wearing of face masks
Explain how the 2016 US vs Texas case was a victory for the states
The SC struck down Obama’s executive order to implement his immigration reform programmes, ruling it to be unconstitutional due to its cost for the states
Explain how the 2012 Federation of Independent Business vs Sebelius case was a victory for the states
Obamacare stated that those would be covered by an expansion of the federally funded medicaid programme. States has to participate in this or lose their funding for medicaid. Many states argued under the case that this amounted to coercion rather than persuasion. The SC agreed and struck down this part of Obamacare
List the arguements that the federal government is challenging state authority
- Taxation and federal financing
- Healthcare
- Federal government encroachment on state issues
- Federal government encroachment on state response to national crises
- SC rulings favouring F over S
Explain how taxation and federal finances challenge state autonomy
State citizens have to pay federal income tax and the states themselves rely on support from the federal government when finances run low in response to unexpected circumstances
Give some examples of when the states have had to financially rely on the federal government during crises
- The F gave $120 billion of aid following Hurricane Kutrina in 2005
- Congress passed the American Recovery and Reinvestment Act following the great recession, which provided $787 billion of stimulus
- Despite state governors having some autonomy over how they responded to COVID, they will still dependent on the economic relief package signed in March 2020
Why does healthcare provision limit state autonomy?
Because it is heavily reliant on F funding
How did Obamacare threaten federalism?
The federal government provided most of the financing for subsidised coverage
Why was the 2012 National Federation of Business vs Sebelius case not that much of a victory for the states in practise?
Because even though it ruled that states could not be compelled to expand medicaid, all but 14 states have now expanded the programme and medicaid enrolment increased by 34% between 2013 and 2019
How has the federal government encroached on education?
- The 2002 No Child Left Behind Policy was a classic example of cooperative federalism, with the new law mandating that states test children annually
Explain how the F has encroached on national defence?
The department of homeland security was created in response to 9/11. It directed states and cities over how to respond terrorist and security threats. This federal dominant approach continued under Trump and Obama
How can Trump’s border wall be seen as an example of the federal government dominating at the expense of the states?
Because it limited the states ability to deal with immigration
Which agency do state governors rely on during times of national crisis?
Federal Emergency Management Agency
How did the F take an active role in helping deal with COVID?
The 2020 CARES Act was a $2.2 trillion economic stimulus package which attempted to combat the public health and economic damage caused by COVID
What is the state taking on a greater role in dealing with national crises an example of?
Cooperative federalism
How was the 2012 National Federation of Independent Business vs Sebelius ruling limited in upholding federalism?
Because it upheld the rest of Obamacare, giving the F considerable control over healthcare
Make the case that the US is still a federal nation
- All state members have federal income tax and the states financial rely upon the federal government
- Healthcare provision is heavily dependent on federal funding with the majority of states providing medicaid
- The federal government has mandated parts of education policy
- The department for homeland security coordinates responses to threats to the nation
- States depend on the federal government during times of national crisis. FEMA exists because the individual states can’t do what the federal government can do
- The SC has made rulings in favour of the federal government over the states
Make the case that the US is no longer a federal nation
- Laws vary significantly across the states, like with the death penalty, state taxes and the legal status of marijuana
- States control the provision of medical insurance
- Electoral practises vary from state to state
- Some states use sanctuary cities to prohibit local law officers from helping federal immigration officials
- During national disasters like COVID, state governors are allowed to respond in whatever way they see fit for the state
- The SC has made rulings in favour of the states over the federal government, like with the 2016 US vs Texas case
What attitude did the founding fathers have to democracy?
They feared majority rule riding roughshod over the minority - the natural ruling class to which they belonged. Founding Fathers like Madison and Washington were enslavers, showing that their attitude to democracy was culturally relative
What has happened to the constitution in terms of democracy?
It has evolved to become more democratic
List the ways in which democracy was limited in the original constitution
- Only the house was to be elected directly by the people, with the electorate limited to white property owning males over the age of 25
- Slaves counted as 3/5 of a person when counting population sizes to determine the allocation of congressmen to the states
- The senate was nominated by state legislatures rather than being directly elected. This meant conisderable influence was invested in unelected senators
- The president was elected by an electoral college whose members were nominated by state legislatures
- The constitution allows each state to draw up its own congressional boundaries of each district to give it an electoral advantage (gerrymandering)
Describe the ways in which the constitution has evolved to leave behind some of its more undemocratic elements
- The electorate has expanded and the property qualification has been dropped, with the franchise being expanded to women and racial minorities
- The 13th amendment abolished slavery and the 14th amendment gave formerly enslaved people full citizenship. The 1965 Voting Rights Act outlawed discrimination and literary clauses in elections, meaning black americans could vote
- ## The 17th amendment meant the direct election of senators following discontent
Why is debating the strength of the constitution not straightforward?
Because it depends on your political persuasion
How are conservatives likely to look at the constitution?
In a strict or literal fashion - they tend to look for what the founding fathers actually meant when framing the constitution. They tend to favour states rights over the federal government
How are liberals likely to look at the constitution?
They interpret it in a loose fashion - reading elements into the constitution that the founding fathers would have approved of. They tend to favour the power of the federal government over states rights
Make the case that the constitution being difficult to amend is a strength
The amendment process is clear and allows the constitution to be changed. The difficulty of the amendment process prevents changes being made on a whim. The constitution provided clarity on citizens rights and allows the SC to enforce this. Even though people point towards apparent outdated elements, they exist because they have lacked the support to be changed
Make the case that the constitution being difficult to amend is a weakness
The need for supermajorities and congress and the states to agree makes amendments nearly impossible. The 0.2% success rate shows how a tyranny of the minority can frustrate the democratic will of the majority. Thomas Jefferson said that each generation should be able to update the constitution every 20 years and pass it on to the next generation - this has not been the case
Make the case that the vagueness of the constitution is a strength
The SC can make interpretative amendments to ensure that the constitution remains contemporarily relevant
List three interpretative amendments that have allowed the constitution to remain relevant
- The 1973 Roe vs Wade case announced that the 14 amendment right to liberty included the right to have an abortion
- The 2015 Oberfegell vs Hodges judged that the 14th amendment included the right of same sex couples to marry
- The 2018 Carpenter vs US case ruled that accessing someone’s mobile phone location was equivalent to a 4th amendment search and required a warrant
Make the case that the vagueness of the constitution is a weakness
It can be argued that it has allowed for a broader interpretation of the constitution than the founding fathers envisaged. They think that the founding fathers would not have supported abortion or same sex marriage so a formal amendment is required here. The vagueness of article II has allowed the president to dominate government, especially in terms of foreign policy
Make the case that the protection of rights is a strength of the US constitution
The BoR and 14th amendment give legal protection to citizens based on the concept of individual freedom. This protects liberty and freedom from government control. While the original constitution was not perfect at protecting rights, it has been updated to improve rights protection
List the 4 main methods for updating the constitution
- Constitutional amendment
- Presidential leadership
- Legislation
- SC decisions