Federalism

Preemption and Devolution

The Basic Idea of Federalism

• Multiple simultaneous governments– share and exert power over citizens

• Balance multiple enduring potential factions– Distinct sources of representation among elected

officials– Public participation in all levels of government

• Foundations– McCulloch v. Maryland (1819)– Gibbons v. Ogden (1824)

The Tension • Preemption

– The assumption of powers by central government

• Legislative• Executive• Regulatory

– Previously held by states– Reinforced by Supremacy Clause in

Article 6• Devolution

– The transfer of powers from central government

• Legislative• Executive • Regulatory

– Return powers to states• Recognize reserved state powers

– Reinforced by Amendment 10

State A State CState B

Federal Gov’t

Interpretations of Vertical Federalism

• Dual Federalism– Prevailing interpretation before 1861– Sharing power=dividing power

• Distinct spheres of authority• Neither states nor federal gov’ts cross the line• Spheres of authority inviolable

– Debate over division of power• Directly leads to Civil War

• National Supremacy (clearly Not Federalism)– Post Civil War Preemption

• Southern states’ constitutions suspended• Southern region divided into military administrative districts

– Reconstruction• Terms set for states to rejoin the US• Reconstructing federalism

• Debate continues into the 20th Century– Progressives v.– States’ Rights advocates

States

Federal Govt

Interpretations of Vertical Federalism

• Cooperative Federalism– The “New Deal”: 1933-1941– Focus shifts from questions of power

• Who has what power, where? (the Dual Federalism question)

– To questions of policy• What is to be done? (The Cooperative Federalism question)

– Sharing power=dividing labor over the same project• Every level of government works together• Every level has specific roles in implementing policy

– Method• Categorical federal grants• Grants-in-aid• Federal, state programs & projects

Cooperative Federalism 1: The Picket Fence

• Franklin Roosevelt’s interpretation of federalism

• Federal government role– Create programs – Categories of programs– Appropriate funds– Disperse funds to state programs in

federal categories• State government role

– Apply for federal grants– Implement policy– Distribute funds to programs

according to federal guidelines– Create specific programs that fit

federal categories• Local government role

– Apply for federal and state grants– Contract with citizens to implement

policy– Administer federal and state policy on

local level – Staff local cooperative agencies

Federal Govt

States

Local

Specific programs

Cooperative Federalism 2: The “Marble Cake” and the “Great Society”

• Lyndon Johnson’s interpretation of federalism

• Federal government role– All of Roosevelt’s points PLUS– Issue conditions for states to receive federal

funds– Determine the level and limits of direct federal

involvement in programs• State government role

– Apply for federal grants– Implement policy– Distribute funds to programs according to

federal guidelines– Ensure compliance with federal mandates

• Local government role– Apply for federal and state grants– Contract with citizens to implement policy– Administer federal and state policy on local

level – Staff local cooperative agencies

• Effects– Varying levels of federal government

involvement in specific programs

Federal Govt

States

Local

Specific programs

Critique of Cooperative Federalism• Of Roosevelt’s “Picket Fence”

– preempts state power to define state programs

• Of Johnson’s “Marble Cake”– preempts state ability to use

administrative discretion– Lines between local, state, and

federal governments blurred• Cooperative Federalism leads

to “Creative Federalism”– Not Federalism at all– States reduced to administrators

of federal mandates• Funded mandates• Unfunded mandates

– Violates Amendment 10

New Federalism

• Alternative to the “Great Society” • Emphasizes discretionary role of states in public policy

– Proponents believe states know better than the federal government how to meet their citizens’ needs.

• Reasserts state power– Sharing power=ensuring administrative discretion at state level

• Federal government gives states tools to implement policy• States determine how to implement policy according to their state’s needs• States serve as “laboratories for public policy experiments”

– Method• Federal block grants• State-defined special regulatory districts• Home-rule charters (pre-existing)

• In the 1990s, 10% of all federal funding was disbursed in block grants

• Federal government retreated from New Federalism after 2001

Critique of New Federalism

• Places undue power in state hands– Violates Supremacy Clause

• Results in inconsistent public policy– Federal government becomes subject to state

discretion– Permits states to mismanage federal funds

• Devolution resurrects Dual Federalism– Didn’t we fight a civil war over this?