FEDERALISM

Disaster Relief• Who’s job was it to

clean up New Orleans and the rest of the coast after Katrina?

No Child Left Behind• Should the national gov’t step in to regulate

school performance?

1. The Roots of the Federal System

• The Framers worked to create a political system that was halfway between the failed confederation of the Articles of Confederation and the tyrannical unitary system of Great Britain.

• The three major arguments for federalism are:1. the prevention of tyranny;

2. the provision for increased participation in politics;

3. and the use of the states as testing grounds or laboratories for new policies and programs.

Federalism Defined

Federalism is a political system in which power is divided and shared between the national/central government and the states (regional units) in order to limit the power of government.

2. The Powers of Government in the Federal System

The distribution of powers in the federal system consists of several parts:– exclusive powers

– shared powers

– denied powers

– enumerated powers

– and implied powers.

Article I, Section 8

The enumerated/implied powers of the central government consist of the power to:

• lay and collect taxes, duties, and imposts• provide for the common defense and general

welfare of the United States• regulate commerce with foreign nations, and

among the states, and with Indian tribes• coin money and regulate the value thereof• declare war

Implied Powers

• The central government may make all laws which shall be necessary and proper for carrying into execution the enumerated powers.

• The necessary and proper clause has often been used to expand the powers of the national government.

State Powers• Most of State powers come from the 10th

Amendment that says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

• These are often referred to as reserve or police powers. States also have some powers that the central government also wields called concurrent powers such as the right to tax, borrow money, establish courts, and make and enforce laws.

• Obligations of the state governments− State Governments (Art. IV, Sec. 1&2)

• Full Faith and Credit Clause: each state must honor the laws and legal proceedings of other states, e.g., marriages, debts.

• Privileges and Immunities Clause: each state must grant to citizens of other states the same rights and privileges that they grant to their own citizens.

• Extradition: Governors must return suspects to the states in which they allegedly committed their crimes.

• Interstate Compacts: Agreements between state that alter their power relative to other states, requires consent of Congress.

Denied Powers

• Article I, section 9 lays out powers denied to the central/Federal government.– For example: give preference to ports of

one state over another• Article I, section 10 lays out the powers

denied to the states.– For example: enter into treaties,

alliances, or confederations

Enumerated Powers Reserved Powers

Concurrent Powers

Powers actually stated in the Constitution (aka Expressed or Stated)

State powers

10th Amendment – any powers not granted to the national government are reserved for the states.

Held by both national & state governments

Implied – not stated explicitly (Elastic Clause)

Inherent – not stated explicitly, but allowed by virtue of its being a national government

Decided by courts

Enumerated Powers Reserved Powers

Concurrent Powers

Defend the countryIssue drivers’ licenses

Levy taxes

Create marriage laws

Declare war

Make arrangements with foreign countries

Protect rights

Make laws

Coin money

Conduct electionsPunish law breakers

Create standards for schools

Relations among the States

• The Framers wanted a single country, not thirteen squabbling semi-countries.

• Article IV requires states to give “full faith and credit” to each others’ laws.

• States are also required to extradite criminals if asked by another state.

3. The Evolution and Development of Federalism

• The allocation of powers in our federal system has changed dramatically over the years.

• The Supreme Court in its role as interpreter of constitution has been a major player in the redefinition of our Federal system.– McCulloch v. Maryland (1819)– Gibbons v. Ogden (1824)– Dred Scott v. Sandford (1857)

Elastic Clause• Aka – “Necessary and Proper Clause”• Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power - To

make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

• Impossible to predict all powers Congress will need to function, sometimes we might have to allow Congress extra powers to fulfill their delegated powers

McCulloch v. Maryland (1819)

• McCulluch was the first major decision by the Supreme Court under Chief Justice John Marshall about the relationship between the states and the national government.

• The Court upheld the power of the national government and denied the right of a state to tax the bank.

• The Court’s broad interpretation of the necessary and proper clause paved the way for later rulings upholding expansive federal powers.

McCulloch v. Maryland (1819)

Background

• Bank of the US operated in Maryland

• Maryland did not want BoUS to operate in state, competition unwanted, unfair

• Maryland taxed the bank to put it out of business

• McCulloch, BoUS employee, refused to pay the state tax

McCulloch v. Maryland (1819)

• Is a Bank of the US Constitutional?

YES. The national gov’t has certain implied powers that go beyond delegated powers. US needs a national bank for borrowing, lending, holding minted money, etc. All of which are delegated powers.

McCulloch v. Maryland (1819)Can a state tax the federal gov’t?

-NO. The federal gov’t is supreme. Since the BoUS is constitutional, only the feds may tax it.

-John Marshall reaffirmed Supremacy Clause and Elastic Clause

-National (Federal) Gov gets STRONGER

Commerce clause• Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power

- To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

• Congress has used the elastic clause to stretch this power

• What is commerce? “Buying and selling of goods and services.”

• Congress given the power to regulate commerce between foreign countries and US as well as state to state… they control business law.

Gibbons v. Ogden (1824)• 1824 – aka “The Steamboat Case”

• Ogden received a state licensed monopoly to run a ferry across the Hudson River

• Gibbons also saw the potential of the traffic between NJ and NY and obtained a federal license.

• Ogden sued saying he had the valid state license, even though Gibbons had US license

Gibbons v. Ogden (1824)

• The Gibbons case centered on the conflict between the states and the powers of Congress.

• Could New York grant a monopoly concession on the navigation of the Hudson River? The Hudson River forms part of the border between New York and New Jersey and the U.S. Congress also licensed a ship to sail the Hudson.

• The main constitutional question in Gibbons was about the scope of Congress' authority under the Commerce Clause.

• In Gibbons, the Court upheld broad congressional power over interstate commerce.

Gibbons v. Ogden (1824)

Result – Gibbons wins

• Expanded national power in all areas of commerce law because nation overruled state in interstate trade issues

• Fed Gov’t gets STRONGER

• All trade today is primarily controlled by national law

Dred Scott v. Sandford (1857)

• The Supreme Court articulated the idea of concurrent powers and dual federalism in which separate but equally powerful levels of government is preferable, and the national government should not exceed its enumerated powers.

• The Taney Court held that Mr. Scott was not a U.S. citizen and therefore not entitled to sue in federal court.

• The case was dismissed and Scott remained a slave. • Taney further wrote that Congress had no power to

abolish slavery in the territories and slaves were private property protected by the Constitution.

The Civil War and Beyond

• Dual federalism remained the Supreme Court's framework for federalism even after the adoption of the Thirteenth, Fourteenth, and Fifteenth amendments.

• Dual federalism finally ended in the 1930s, when the crisis of the Great Depression demanded powerful actions from the national government.

Cooperative Federalism• Prior to the 1930s, many scholars used the analogy

of a layer cake to describe federalism. – Each layer had clearly defined powers and responsibilities.

2 FederalismsTWO METAPHORS…

• Dual Federalism – Layer Cake

Federal

State

Cooperative Federalism• Prior to the 1930s, many scholars used the analogy

of a layer cake to describe federalism. – Each layer had clearly defined powers and responsibilities.

• After the New Deal, the analogy of a marble cake seemed more appropriate because the lines of authority were much more mixed.

2 FederalismsTWO METAPHORS…

• Dual Federalism – Layer Cake

• Cooperative Federalism – Marble Cake

Federal

State

Cooperative Federalism• Prior to the 1930s, many scholars used the analogy

of a layer cake to describe federalism. – Each layer had clearly defined powers and responsibilities.

• After the New Deal, the analogy of a marble cake seemed more appropriate because the lines of authority were much more mixed.

• This marble cake federalism is often called cooperative federalism and has a much more powerful national government.

• States have a cooperative role, as did many cities.

2 Federalisms?

• OLD SCHOOL – Dual Federalism– Federal and state governments remain dominant

in their separate spheres of influence– Gibbons v. Ogden proved life is not that simple

• NEW SCHOOL – Cooperative Federalism– State and Federal governments work together to

solve complex problems

Federalism gets Creative which is called creative federalism• Federal grants: allocation of federal

money to the states for a specific purpose.

• Federal leadership saw these grants as a way to compel individual states to behave in ways desired by the national government. If the states refused to cooperate with the federal government, it would withhold funds.

Federal Grant-in-Aid Outlays, 1940-2005

Fiscal Federalism

• Fiscal means $

• Q – How do you get the states to do things they normally wouldn’t do?

• A – Money

• Q – What is the answer to any question ever asked?

• A – Money

Change in Spending

• Shift towards Federal Gov’t Spending

Federal State Local (City)

1929 17% 23% 60%

1939 47% 23% 30%

1960 64% 17% 19%

1997 66% 19% 15%

Figure 3.2

Fiscal Federalism The pattern of

spending, taxing, and providing grants in the federal system; it is the cornerstone of the national government’s relations with state and local governments.

Fiscal Federalism• Federal Grants to State and Local Governments (Figure 3.1)

Fiscal FederalismGrants-in-Aid• Money paid from one level of government to another to

be spent for a specific purpose • The Grant System: Distributing the Federal Pie

– Categorical Grants: Federal grants that can be used for specific purposes. They have strings attached. (States receive funds if state raised age to 21 and lowered BAC to .08)

• Project Grants- based on merit• Formula Grants: amount varies based on formulas

Fiscal Federalism• The Grant System: Distributing the

Federal Pie–Block Grants: Federal grants given

more or less automatically to support broad programs. (ex. Welfare reform)

–Grants are given to states & local governments

Fiscal Federalism• The Scramble for Federal Dollars

•$350 billion in grants every year

•Universalism- a little something for everybody

Fiscal Federalism• The Mandate Blues

•Mandates are the “strings” attached to federal money

•Unfunded mandates are requirements on state & local governments- but no money

Mandates

• A requirement that a state undertake an activity or provide a service

• Most apply to Civil Rights and the Environment

• Often times the states or local gov’ts have to pay the bill of the mandate set by Congress

Mandates

• 1986 – Asbestos Emergency Response Act, Handicapped Children’s Protection Act

• 1988 – Drug-free Workplace Acts, Ocean Dumping Ban Act

• 1990 – Clean Air Act• EX – Columbus, OH spends 23% of the city

budget trying to meet environmental mandates (including testing for pesticides used on rice and pineapple)

• EX – Public schools have to use Internet filtering or schools lose e-rate subsidies

Change in Spending

• Shift towards Federal Gov’t Spending

Federal State Local (City)

1929 17% 23% 60%

1939 47% 23% 30%

1960 64% 17% 19%

1997 66% 19% 15%

The Reagan Revolution

Shortly after taking office in 1980, former California Governor Ronald Reagan set to work enacting his vision of the “New Federalism” by drastically cutting federal domestic programs and income taxes in an attempt to reestablish the primacy of the states. For the first time in thirty years, federal aid to state and local governments declined.

The Devolution Revolution

Growth in power of the national government during the Clinton administration due to a Republican majority in both houses of Congress.

• Preemption: allows the national government to override state or local actions in certain areas.

• Unfunded mandates: laws that require states to comply with federal regulations or face civil and/or criminal penalties.

4. Federalism and the Supreme Court

• By the 1980s and 1990s, many Americans began to think that the national government was too big, too strong, and too distant to understand their concerns.

• The Supreme Court, once again, played a role in this new evolution of federalism. – For example: Since 1989, the Court has been

allowing states to introduce limitations on the right to an abortion.

State-by-State Report Card on Access to Abortion

Devolution Example

• Personal Responsibility and Work Opportunity Reconciliation Act of 1996

• Eliminated welfare and transferred the money to states as block grants

• States received wide latitude on how to administer “workfare” but with the knowledge that Congress was counting on anti-poverty spending”

• Strings attached: head of family must work or lose benefit; lifetime benefits limited to 5 years; unmarried mother < 18 only receive $ if stay in school and live with adult; immigrants ineligible for 5 years

Federalism is goodLiving under 2 governments is great…

• Built on compromise, promotes unity

• Gov’t duties can be split up

• Brings gov’t closer to people

• Allows for state gov’t to address issues in unique regions of the country

• Allows states to experiment with policy before enacting it at the federal level – Ex. Vermont’s free health care for children

Federalism is bad

Living under 2 governments is bad…

• States can impede progress of Nation

• States are unequal

• States have different policy

• Easier for states to be dominated by interest groups

The Policymaking System

• The process by which policy comes into being and evolves over time.