Exam 2 Study Guide - POLS 1101 - Evans PDF

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POLS 1101: American Government (Fall 2017 - Online) Dr. Michael Evans Study Guide for Exam 2 Chapter 5: Federalism 

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What makes a federal system, like that of the United States, different from a confederacy and unitary national government? Confederacy ->central government that was too weak (“government over governments” Federal -> “government over individuals” too (central+national) Not unitary because the national government may enact and enforce laws in ONLY certain areas of public policy + exclusive state power “reserved power”+ doesn’t have authority to alter states’ legal powers and/or redraw state boundaries whenever it pleases What is judicial review? Why has it been important for the development of federalism over time? Judicial review= Authority of courts to whether an act of government is constitutional or unconstitutional When the U.S. Supreme Court declares a government action or law unconstitutional, all lower courts and government officials in the country (both federal and state) are understood to have a duty to abide by that ruling. Make sure to understand how the Article VI Supremacy Clause and Tenth Amendment help to define American federalism. o The U.S. Constitution “delegates” powers to the federal government in two ways: through enumerated powers (legislative powers specifically granted to Congress) and implied powers (powers that are implied by the text of the Constitution but not specifically listed in it)  Where in the Constitution are most of Congress’ enumerated powers listed? Article I, Section 8 of the Constitution  What is the Necessary and Proper Clause? What are “amendmentenforcing provisions”? How are they sources of implied powers? N&PC = Congress has authority to make laws that are “necessary and proper” for executing the enumerated powers AEP = Provisions of six constitutional amendments (13th, 14th, 15th, 19th, 23rd, and 26th) that grant Congress authority ("with appropriate legislation") to enforce the rights guaranteed by the amendments (implied powers) o What are “reserved powers”? Reserved Powers = Areas of public policy over which only state governments have authority. (Contrast with Concurrent Authority) What is meant by “the police power”? (HINT: It is not about police officers.) What does it have to do with the constitutional law of American federalism? Are there any constitutional limits on the police power of the state governments? Police Power = Authority of government to make laws and regulations in order to promote the health, safety, welfare, and morals of the people State governments have the police power whereas the federal government does not.

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States’ police power is subject to constitutional limits -> although states may enact laws to promote the health, safety, welfare, and morals of the people, they may not violate constitutionally-protected civil liberties or civil rights What advantages of forming unions (like the European Union or the U.S. union) are pointed to by pro-unionists? What disadvantages do anti-unionists (e.g., secessionists) point to? Pro-unionists: When united, relate to each other through political and legal processes -> less prone to violence + Better achieve forge fair and mutually beneficial economic arrangements, immigration policies, and environmental pollution controls Anti-unionists: The loss of autonomy and self-determination that comes from membership Make sure to understand the five kinds of arguments (discussed in the textbook) made in favor of greater national government power and the four kinds of arguments made in favor of less national government power. *Greater National Government Power: Preserving the union: Strong national government + Weaker state government -> Stability Creating uniformity: Able to make and enforce uniform rules, standards, and a single currency Providing National Public Goods: Such as security from foreign threats, prevents state governments to free-ride Protecting minority rights: State governments established and maintained an oppressive system of racial segregation Preventing “Races to the Bottom”: Federalism can lead toward “healthy competition” between the states for people and businesses (threat of exit) *Less National Government Power: Protecting liberty: High oppressive government Accommodating diverse values and interests: State power (Legalize gambling) Policy Experimentation Fostering democratic citizenship Generally speaking, has the power and authority of the national government increased or decreased over time? Increased What impact did each of the following have on the development of federalism during the Progressive Era? o The Supreme Court’s doctrine that the regulation of economic production is a power reserved exclusively to the states. The Constitution delegated to Congress authority to regulate interstate commerce but not economic production -> Declare unconstitutional: Sherman Antitrust Act, Keating-Owen Child Labor Act, Child Labor Tax Law, Progressive Income Tax o 16th, 17th, 18th, and 19th Amendments 16th: Provided Congress with authority to tax income -> control over the power of the purse -> get state governments to implement national programs that the federal government could not feasibly/constitutionally implement on its own 17th: Requiring popular elections of U.S. Senators -> stripped state governments of their control over who served in the U.S. Senate

18th: Nationwide ban on “the manufacture, sale, or transportation of intoxicating liquors” -> states were disallowed from using their police power to regulate alcoholic beverages however they saw fit 19th: Disallowed the states from prevent someone from voting simply for being a woman

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In 1937, in upholding New Deal programs, the Supreme Court offered a revolutionary new interpretation of the Constitution, which had the effect of granting the federal government extensive authority to regulate the economy and enact the modern welfare state. o What “the substantial effects doctrine” is, how it replaced the older way of interpreting the Commerce Clause, and why this matters for the federal government’s authority to regulate the economy Substantial effects doctrine: If an economic activity has a substantial effect on interstate commerce, then Congress may regulate it under the authority of the Commerce Clause. ->Massive increase in the federal government’s authority to regulate the economy (wages, the rights of workers to unionize, and the safety of working conditions) o How the Court interpreted the spending clause—which says Congress has power to tax and spend “to promote the general welfare”—in such a way as to allow for Social Security and other welfare state programs Congress’s authority to spend for the “general welfare” allowed it to provide benefits to particular groups if Congress believed doing so would alleviate a social problem of national scope o How liberals, conservatives, and libertarians agree and disagree over the legacy and value of the New Deal with respect to the development of the federal government’s power and authority. Liberals: It was wise and proper, though, some, particularly social democrats, regret that it do not go further in securing what FDR called the “Second Bill of Rights.” Most conservatives: It put the federal government on a long-term path to growing out of control Libertarian: Unnecessary, ineffective, improper, and harmful Federal government spending spiked to very high levels during World War II. After plummeting immediately after the war, it went back up (although not to World War IIlevels). What two factors does the textbook point to as reasons for the continued high levels of federal government spending after World War II? Assuring military (Korean + Vietnam War) Lyndon Blain Johnson’s “Great Society” initiatives (Medicare + Medicaid) What is meant by “cooperative federalism”? Why is it referred to as “marble cake federalism”? How does it differ from “dual federalism” (AKA layer “layer cake federalism”)? Cooperative federalism: More intermingling Dual federalism: States: focused on providing social services, regulating individual behavior, promoting the health, safety, welfare, and morals of their people. The federal

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government: focused on foreign affairs, regulating relations between the states, and coordinating efforts at internal improvements o What are “categorical grants”? How do they differ from the other major kind of grant-in-aid (i.e., “block grants”)? Categorical grants: A type of federal grant-in-aid that provides relatively strict and specific guidelines on how the state or local government receiving the money must spend it Block grants: A type of federal grant-in-aid that specifies a general purpose but gives state or local governments a lot of freedom in deciding how to spend the money to achieve that purpose o What does it mean to say that the increased use of categorical grants during LBJ’s administration led American federalism to move further from dual federalism and more toward cooperative federalism? States allowed the federal government to define and oversee implementation of many aspects of public policy that had previously been carried-out with little or no federal government involvement (urban development, education, and preserving the environment) Generally speaking, what did civil liberties and civil rights have to do with an increase in the federal government’s influence over state government’s during the 1950 and 1960s? Greater federal government role in protecting the rights of individuals from state government abuse and historically oppressed groups—especially African Americans Libertarians and conservatives were strong critics of many aspects of LBJ’s Great Society programs. Why did they think the federal government’s activities during this period was better described as “coercive federalism” than “cooperative federalism”? What did this critique have to do with “unfunded mandates”? Conservatives and libertarians: surpass the legitimate role of the federal government Coercive federalism: federal government dictated policy to the states instead of working as a co-equal partner alongside them Unfunded mandates: Federal regulatory or spending requirements placed on states that states need to pay for with their own funds -> Federal regulatory requirements did not provide the funds necessary for the states to meet the requirements. Why, after three decades of decline, did the national debt double during the 1980s? The tax cuts significantly reduced revenue to the federal government, but spending actually increased (Military spending in an effort to defeat the Soviet Union in the Cold War+ federal government can easily borrow money to pay for spending programs) Working with Republicans in Congress, what did President Bill Clinton do to “welfare” (also known as AFDC) in order to devolve greater authority for that program back to the states? Was it he or the Republicans in Congress who opposed doing the same with Medicaid? Converted the AFCD categorical grant program into a new block grant program called Temporary Assistance for Needy Families (TANF). Under this new approach to welfare, states were granted significant flexibility in deciding how to use the funds for running programs directed at meeting the program’s four general goals

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When Congress passed a bill that would have converted Medicaid into a block grant program, Clinton vetoed the bill. Between 1968 and 2000, a great deal of effort was put into reducing the size and influence of the federal government by President Nixon, President Reagan, Congressional Republicans, and President Bill Clinton. According to the textbook, were these efforts mostly successful or unsuccessful? Unsuccessful: the amount of regulatory activity by federal agencies has continued to increase the amount sent by the federal government to the states has shown no sign of declining Make sure to understand what is meant by the claim that, at least since the beginning of the 21st century, neither party is committed to “principled federalism.” When it comes to the war on drugs, Democrats and not Republicans have proven to be the party of “states’ rights.” Republicans supported nationwide education program called No Child Left Behind-> President Obama, the Democrat, signed Every Student Succeeds Act in 2015 -> ended the nation-wide testing requirements of No Child Left Behind and devolved most responsibility for school standards back to the states. On many issues the parties have also continued to align in their traditional ways over questions of states’ rights versus federal power. However, when they do, it appears to be due to policy preferences and not principled federalism According to the textbook since the beginning of the 21st century, what two concerns seem to have contributed to an enduring increase in the federal government’s size and power? The threat of terrorism and the rising cost of healthcare. According to the textbook, looking ahead to the future of federalism, why are population aging and the rising costs of healthcare increasingly putting pressure toward greater federal government spending? Unless something is changed, the national debt will continue to grow. How are Republicans and Democrats currently differing in their approaches to this challenge? One way to reduce the burden of healthcare costs on the federal budget is for the federal government to take on a greater role in health insurance. Republican: opposition to tax increases of any kind Democrats: insisted on a mix of moderate spending cuts and significant tax increases (particularly on wealthier Americans)

Chapter 6: Civil Liberties A. From the sections called “The Nature, and Multiple (and Changing) Constitutional Sources, of Civil Liberties” and “Judicial Enforcement and Interpretation of Civil Liberties,” make sure to know and understand the following… a. Do constitutions protect civil liberties against infringement by private individuals (or businesses) or do constitutions only protect against infringement by government?

All civil liberties: they all place legal obligations on government (and only on government) b. Did civil liberties listed in the Bill of Rights of the U.S. Constitution apply to actions taken by state governments prior to the Civil War? Did they apply to actions taken by the federal government prior to the Civil War?

Before the Civil War, it was understood that the U.S. Constitution only protected the freedom of speech and other civil liberties from interference by the U.S. federal government. c. What is judicial review? What does it have to do with how civil liberties are enforced in practice?

Enabled someone whose civil liberties were violated by a state government to go to federal court to get the state action declared unconstitutional d. What is “Incorporation”? What does it have to do with the Due Process Clause of the 14th Amendment?

Court declares a civil liberty from the Bill of Rights to be protected against state government abuse through the Due Process Clause of the Fourteenth Amendment. i. What’s the difference between “selective incorporation” and “total corporation”? Which approach has the U.S. Supreme Court used? Selective incorporation (Court): Gradual process by which the Supreme Court has chosen (one case and one right at a time) which civil liberties from the Bill of Rights to incorporate through the Fourteenth Amendment Due Process Clause Total incorporation: The idea that all of the civil liberties protected by the Bill of Rights should automatically be incorporated into the Due Process Clause all at once.

e. These two concepts are closely tied to the Due Process Clause of the 14th Amendment: (1) Incorporation and (2) Unenumerated Constitutional Rights. What’s the difference between those two constitutional sources of civil liberties?

Both are similar in that they involve protecting “liberty” (from the Due Process Clause of the Fourteenth Amendment) against actions taken by state governments Incorporation is about those rights explicitly listed in the text of the Constitution—specifically, in the Bill of Rights

Court’s protection of unenumerated constitutional rights involves rights nowhere explicitly mentioned anywhere in the text of the Constitution. B. How does the textbook define “religious freedom”? What is the name of the first two clauses of the First Amendment that are the constitutional basis of religious freedom in the United States? a. Liberals and conservatives disagree over many things when it comes to the interpretation of the Establishment Clause. What, according to the textbook, do they agree about? Who (liberals or conservatives) tend to think the Establishment Clause requires a strict “separation of church and state”? Who (liberals or conservatives) tend to think the Establishment Clause allows government to accommodate religion so long as it does not force anyone to participate in religious activities against their will and does not promote one religion over another? b. What is strict scrutiny? What does it have to do with the so-called Sherbert Test? i. According to the textbook, an act of Congress (the Religious Freedom Restoration Act) provides greater protection for the free exercise of religion against federal government infringement than does the Free Exercise Clause of the First Amendment. Why? C. A baseline rule of the Supreme Court’s approach to the freedom of expression is that government may not (with a few clearly defined exceptions) enact “content-based restrictions” on expression (especially if the expression is political). a. What does Oliver Wendell Holmes’ notion of a “marketplace of ideas” have to do with the Court’s insistence that content-based restrictions are almost always in violation of the constitutional right to free expression? b. According to the Supreme Court, which of the following forms of expression are entitled to less First Amendment protection than ordinary forms of political expression: - flag burning; slander of public figures; obscenity; student speech (in public schools); hate speech; the spending of money on political campaigns; “fighting words;” expression that merely promotes (but is unlikely to actually produce) lawless action; content-neutral restrictions on the time, place and/or manner in which ideas are expressed; expression that promotes, and is likely to incite or produce, imminent lawless action; libel of public figures? D. Is it liberals or is it conservatives who tend to favor gun rights more than gun control? How do proponents of gun rights differ from proponents of gun control in how they interpret the Second Amendment? a. According to recent U.S. Supreme Court decisions, does the Second Amendment protect a right for individuals to own firearms for self-defense? Or does it only instead protect the right for persons to own guns for purposes of serving in a “well-regulated militia”?

b. Has the U.S. Supreme Court incorporated the Second Amendment under the Due Process Clause of the 14th Amendment? E. Civil liberties pertaining to criminal justice establish rules and procedures that the executive and judicial branches must follow when investigating, accusing, convicting, and punishing criminal suspects and convicts. a. What, according to the textbook, is the purpose (or “aim”) of these rules and procedures? b. Generally speaking, how do liberals and conservatives tend to differ in how they interpret civil liberties pertaining to the criminal justice system? c. Why, according to the textbook, is the incorporation of criminal justice rights under the 14th Amendment “especially important.” F. What, according to the textbook, is “the primary purpose” of the 4th Amendment? a. What does “reasonable expectation of privacy” have to do with how the Supreme Court has interpreted the 4th Amendment? b. Do searches always require warrants in order to be lawful? c. What is the exclusionary rule? What is its purpose? Why are a growing number of constitutional scholars, ...