Table of Contents
Benefits Provided by Federalism
Federalism is a principle that is largely misunderstood, disliked, or even often ignored by scholars, including the students of law. Nevertheless, answering the question of why care about federalism underlines the reasons why federalism should be treated as very important. According to Young, there are certain benefits that federalism provides. The first benefit that federalism provides is that it defends liberty (Young, 2015). Federalism defends liberty through the individual states acting as voices of opposition and dissent against the central government’s attempt to limit the liberties of both individuals and states as provided for in the constitution. There are different ways in which states can protect the individual liberties guaranteed in the constitution. First, States can provide a ‘rallying points’ for opposing different policies formulated by the federal government, which threaten the individual liberties (Young, 2015). Secondly, States are highly effective in defending the individual liberties against the oppressive federal government policies, because they are institutions with power. Therefore, States are able to voice the concerns the people better that the individual persons of private organizations that could be advocating for such liberties (Young, 2015). In addition, States are also able to defend individual liberties which are threatened by the federal government policies, through adopting noncooperation with such policies, regulations, and laws (Young, 2015). Therefore, the presence of the two levels of government is critical in ensuring that the State governments are able to check on the excesses of the federal governments and take measures that incapacitate the federal government from implementing such excesses.
The other major benefit of federalism is that it provides the minorities an opportunity to have their way, in situations where generally only the majority could have their way. The majorities forming the federal national government could have an opportunity to implement their policies their way. However, States enable the minorities to have their way because even though they are not majorities in the national government, the minorities also stand an opportunity to implement their policies if they happen to be the majority at the state levels (Young, 2015). For example, while the issue of same-sex marriage remained highly unfavorable at the national government level, different states were able to enact their laws that recognized such marriages. In this respect, the minority who could not have ordinarily won the same-sex battle recognition at the national government level were able to have their way at the state level (Young, 2015). Therefore, federalism is very important for enabling the minorities to have a voice, where their voice would ordinarily not be heard. The opportunity given to the minorities to have their way by federalism is unique because it does not simply entail mere dissent, but rather ‘dissenting by deciding,’ because the minorities oppose the majority’s position by implementing their own decisions (Young, 2015).
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Federalism also creates the benefit of safeguarding democracy against the threat and dangers of totalitarianism and authoritarianism. Democracies face the danger of losing freedoms when a particular group within a jurisdiction is able to secure a permanent lock-in power (Young, 2015). Therefore, if a certain group were able to control the national government in the absence of the State governments, such a group would be able to impose its will on the rest of the citizenry. However, federalism provides a safeguard against such an occurrence, by providing an opportunity for the groups that are out of power at the national level to exercise their powers at the state levels (Young, 2015).
“Concurrent Jurisdiction” as Described by Young
The concept of “concurrent jurisdiction” as described by Young refers to the system and structure of governance where both the federal government and the State governments are now able to regulate most subjects, with each having none or very few zones of exercising exclusive powers (Young, 2015). Traditionally the federal and the State governments exercised dual jurisdiction with each level of government having control over certain exclusive powers and areas of jurisdiction. However, in the contemporary system of governance, the dual jurisdiction structure has given way to the current ‘concurrent jurisdiction’ structure. Under this contemporary structure, each level of government is involved in matters and affairs that were traditionally reserved for the other level. For example, while the federal government regulated matters of foreign trade and immigration exclusively, the states have now gained a share in regulating these matters as well (Young, 2015). Equally, while the States were solely responsible for regulating matters such as education and family law, the federal government has now gained a fair share of its control in these matters.
One example in which “concurrent jurisdiction” operates within the Homeland Security enterprise is in the terrorism intelligence gathering and responding and foiling terrorist attacks. Under such homeland security operations, the FBI and the CIA are the federal body that is mandated to undertake the intelligence gathering, investigations, and foiling of terror activities (DHS, 2006). However, the FBI and the CIA cannot be effective while working in isolation from the State law enforcement agencies. Therefore, these federal law enforcement bodies have partnered with the State, local and tribal law enforcement in such intelligence gathering, foiling and response of terror activities (DHS, 2006).
The other example in which “concurrent jurisdiction” operates within the Homeland Security enterprise is on the issue of immigration enforcement and control. The federal law enforcement agencies such as the CIA, the FBI, and the Coast Guard are agencies mandated to oversee the enforcement and control of illegal immigration (Office of the Inspector General, 2003). However, such control and enforcement of immigration measures by the federal agencies cannot effectively address the illegal immigration challenges effectively. Therefore, homeland security (DHS) has partnered with the States and local authorities and law enforcement in immigration enforcement and control (Office of the Inspector General, 2003).
Summary of Chapter 13
Federalism has established a system and structure of governance in the United States, where the federal government and the State governments reserve certain powers to act. One of the key areas here federalism has placed a role distinction is in the area of law enforcement. The cornerstone of federalism in relation to law enforcement is ensuring the protection of the rights and freedoms unambiguously and without any restrictions or interference from the federal government (Corn et al., n.d.) The original intention of federalism was to create a national government with limited regulatory powers and authority, with most of such powers being conferred to the State level governments. Therefore, federalism created a dual-functionalism structure in law enforcement, where the federal government reserve the powers to play the function of providing national security, while the State governments reserve the function of implementing criminal law (Corn et al., n.d.).
The separation of the criminal justice function of the State governments and the national security function of the federal government is meant to ensure that the abilities of the State governments to secure the welfare and liberties of their people is not interfered. Nevertheless, in the contemporary United States society, the federal government has greatly encroached into the State government territory of criminal justice execution (Corn et al., n.d.). The major ways in which the federal government has come to encroach on the criminal justice function of the State governments is through attached strings and conditionality on the support and facilitation granted to the States’ for their law enforcement funding.
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Federalism therefore situates the military under the auspices of federal government, while the police forces are structured as regulatory enforcement authorities of the State governments. However, federalism also recognizes the need for cooperation and collaboration between the federal and state agencies, especially in relation to disaster management. Such cooperation has been the major focus of laws such as the Stafford Act has vested the powers of emergency and disaster response management jointly on the federal and the State governments (Corn et al., n.d.). Therefore, under this law, the Federal Emergency Management Agency (FEMA) is established as the coordinating organ of the federal government that coordinates cooperation with the first responders from the State governments and other local authorities and agencies in disaster response and management (Corn et al, n.d.). Nevertheless, even in disaster response, federalism has restricted the scope of the federal government mainly to the natural catastrophes, as well as to other disasters such as explosions, fires and floods (Corn et al, n.d.).
Review of Doyle’s two articles and Hattem’s News Report
The USA PATRIOT Act was passed on the wake of the 9/11 terrorist attack, creating key counterterrorism laws, while also changing the federal government’s surveillance powers significantly (Hattem, 2015). The law was enacted with the stated objective of enabling the law enforcement agencies to track down and punish those who had committed the attack, and also protect against similar future attacks (Doyle, 2002). One of the major powers given to the federal government by the USA PATRIOT Act is the power to trace and intercept the communications of terrorists, as an avenue for meeting both foreign intelligence gathering, and law enforcement purposes (Doyle, 2002). Under these powers, the law enforcement agencies were given the powers to gather and share evidence of both wire and electronic communications they deemed necessary for enhancing law enforcement and preventing terrorist activities (Doyle, 2001). The wiretapping and intelligence gathering through communications interception extend the powers of the federal government security agencies not only to track certain suspicious communications but also to spy on conceivable communication both locally and internationally. Therefore, the law granted the federal government sweeping surveillance powers (Hattem, 2015).
The other major powers granted to the federal government by the USA PATRIOT Act is the power to tighten the immigration laws of the US by closing the borders against terrorists’ entry, while also enforcing the immigration measures to eject the terrorists in the United States from the country (Doyle, 2002). The powers to control entry of terrorists into the United States conferred by the USA PATRIOT Act are far-reaching, considering that they entail the powers to detain for extended periods or deport anyone suspected of engaging in terrorism activities (Doyle, 2001).
The enactment of the law also gave the federal government more powers through granting the government the powers to create new federal crimes and enact their respective punishments, while also creating new punishments for other existing federal crimes (Doyle, 2001). The new punishments entail the confiscation of the property and assets of anyone or any institution or organization found to be engaging in terrorist-related activities. The federal government was also granted the powers to enforce forfeiture to any of the parties associated with terrorism, as well as the overseas detention of individuals accused of violating the US terrorism or security laws (Doyle, 2002). The federal law enforcement agencies also got more financial powers to spend limitlessly on the terrorism investigation and apprehension operations, including payment of rewards for information and other relevant security intelligence information sharing (Doyle, 2001). The appropriations of the federal security agencies on different terrorism prevention-related operations were also increased significantly.
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In addition to creating new federal crimes relating to terrorism, the USA PATRIOT Act further adjusted the existing criminal legal procedures, with a particular focus on the elongation of the terrorist duration of hold without trial (Doyle, 2001). The signing of the act into law also conferred on the federal government the powers to enact and enforce even more stringent money-laundering laws, as a measure targeting to incapacitate the channels of funding terrorism activities. The powers to enforce the money-laundering regulations did not only empower the law enforcement to investigate monetary transactions for different institutions and individuals but also to enforce strict records and bookkeeping measures on diverse institutions (Doyle, 2002).
Impact of the USA PATRIOT Act on the Balance Between Federal and State Powers
The USA PATRIOT Act impacts the relationship between the federal government and the state governments regarding the balance of powers in various ways. First, the enactment and signing of the Act into law extends and expands the presidential powers beyond the constitutionally mandated powers, especially by extending the presidents war powers significantly (Russo, 2015). The outcome of this extension is that the President has now the executive powers to override every right to liberty guaranteed by the constitution on the US citizens under the guise of security measures against terrorism (Jaeger, Bertot & McClure, 2003). The dangers posed by the extended executive power orders is that they are powers to create and enact laws that are outside of the constitutional provisions, thus tilting the balance between federal and state powers in favor of the federal government (Jaeger, Bertot & McClure, 2003). For example, the wiretapping and communications interception powers granted to the federal government override the constitutionally guaranteed right to privacy and other key civil liberties. The outcome is that the role of States in safeguarding the liberties of the citizens as one of the benefits of federalism is completely eroded (Russo, 2015).
The State governments’ powers were also diminished by the passing of the USA PATRIOT Act, considering that the States lost the powers and authorities to control their citizens. The federal government taking over the powers to exercise and enforce immigration measures such as unlimited detention and deportation of the individuals suspected to be illegally in the United States, or perceived to have terrorism connections (Russo, 2015). Further, the border patrol provisions of the law increase the federal agencies security patrols of the United States borders (Jaeger, Bertot, & McClure, 2003). The outcome is that the law creates an avenue for the federal security agencies to patrol the states and undertake activities of criminal law enforcement, notwithstanding the existence of the States’ law enforcement authorities.
- Corn et al, “Chapter 13”.
- Doyle, C. (2001). Terrorism: Section by section analysis of the USA PATRIOT Act. Washington, DC: Congressional Research Service.
- Doyle, C. (2002). The USA PATRIOT Act: A legal analysis. Washington, DC: Congressional Research Service.
- Hattem, J. (2015). Obama signs NSA Bill, renewing Patriot Act powers. The Hill.
- Jaeger, P., Bertot, J., & McClure, C. (2003). The impact of the USA Patriot Act on collection and analysis of personal information under the Foreign Intelligence Surveillance Act. Government Information Quarterly, 20, 295–314.
- Office of the Inspector General. (2003). The Federal Bureau of Investigation’s Efforts to improve the sharing of intelligence and other information.
- Russo, L. (2015). A comparative analysis of the USA PATRIOT Act of 2001 to the USA FREEDOM ACT of 2015: Balancing security with liberty. HIM 1-62.
- Young, E. (2015). Federalism as a constitutional principle. University of Cincinnati Law Review, 83, 1057-1082.