National National Government

Government

StateState

Governments

Governments

Federalism – system of Federalism – system of government in whichgovernment in which power is power is shared by the national government and the fifty states.shared by the national government and the fifty states.

State GovernmentsState Governments

National GovernmentNational Government

Since 1787, the single most persistent source of Since 1787, the single most persistent source of political conflict has been the relations betweenpolitical conflict has been the relations betweenthe national and state governments.the national and state governments.[Fight in terms of [Fight in terms of “national interests” “national interests” v. v. “states rights”“states rights”]]

What is Federalism What is Federalism [This word is not in the constitution][This word is not in the constitution]??Federalism: a way of organizing a nation so that two or more levels of government have formal authority over the land & people.

• Why Is Federalism So Important?Why Is Federalism So Important?– Decentralizes our politics

• More opportunities to participate

– Decentralizes our policies• Federal and state governments

handle different problems.– States regulate drinking ages, marriage, and speed limits.

• States can solve the same problem in different ways and tend to be policy innovators.

Dual Federalism Dual Federalism a system of government in which both the states and the national government remain supreme within supreme within their own spherestheir own spheres, each responsible for some policies. It is like a layer cake layer cake and ended in the 1930s.

Only 11 Countries have Only 11 Countries have Federal SFederal Systemsystems.. TTheyhey are:are:1. U.S. 7. Brazil2. Australia 8. Canada3. Argentina 9. India4. Switzerland 10. Mexico5. Germany 11. Austria6. Malaysia

Dual Federalism – 1789-1930 – delegated powers delegated powers go to the federal government federal government and reserved powers reserved powers to the StatesStates, then there are powers shared by bothpowers shared by both.

Layer Cake Federalism – after Civil Warafter Civil War, this was an extension of Dual extension of Dual FederalismFederalism. Here, the national government national government exercised its power exercised its power independently from State governmentsindependently from State governments. Reconstruction dictated this approach.

Marble Cake Federalism - 1932-1960s. This was a cooperative federalism cooperative federalism that developed during the New Deal and until the Great Society. It resulted in greater growth of the federal government. The federal government becomes more intrusive in State government affairs. Public policy became more of a sharing Public policy became more of a sharing between the two, with the national government providing the moneynational government providing the money and the State State governments administering the programsgovernments administering the programs.

Creative Federalism – 1965 – increased the marble cake approach increased the marble cake approach of intergovernmental relationsintergovernmental relations. There was greater reliance on federal programs greater reliance on federal programs [Medicare, Medicaid, the War on Poverty, increased civil rights legislation]. It also created an era of further cooperation among the many levels of governmentfurther cooperation among the many levels of government. The following components describe the creative approach creative approach to federalism:

-sharing the costs between the national and State governments for programs that typically would fall under the purview of State control,

-guidelines and rules set down by the federal government in order for the States to reap the benefits of federally funded programs,

-providing for the dual administration of programs such as Medicaid, which has a shared approach financially as well as administratively.

Competitive Federalism – 1970s – 1980s -under Nixon in the 1970s1970s and Reagan and Bush in the 1980s1980s reversed the marble cake nature, creating a “new federalism,” “new federalism,” where the States were given more responsibilityStates were given more responsibility. The aim of competitive federalism was to offer States pieces of the marble cake but to have them accept it with conditions accept it with conditions and with a promise to develop programs on their own. Nixon was decentralizing many of the Great decentralizing many of the Great Society programsSociety programs. There were “strings” “strings” attached to federal money, such as if they were going to get money for highway repairsmoney for highway repairs, they would have to agree to limit highway speed limits to 55 mphlimit highway speed limits to 55 mph.

Fiscal Federalism – through different grant programs, slices up the marble slices up the marble cake cake into many different pieces, making it even more difficult to differentiate the functions of the levels of government. It can be classified in 3 major programs areas: categorical grants categorical grants – federal aid that meets the criteria of a specific category, block grantsblock grants which force States to bow to the dictates of the federal government in order to get aid, and revenue sharingrevenue sharing. All are aimed at assisting the States in areas of health, income security, education, employment, and transportation.

Devolution – the effort to transfer responsibility for many public programs transfer responsibility for many public programs and services from the Federal government to the Statesand services from the Federal government to the States.

Advocates of a strong federal system believe that State and local governments do not have the sophistication to deal with the major problems facing the country. They feel that local politicians are provincial in their point of view and would advocate sectional issues that do not take into account the interest of an entire nation. People favoring a strong federal system point to the inability of State and local governments to support the vast programs without an extensive tax base. They also feel that an elitist group would gain control and ignore the needs of the minority.

Critics of a strong federal system point to the fact that local leaders are most sensitive to the needs of their constituents. They also feel that States have a better ability to develop public policy that can be supported by a broad tax base. And critics point to the many demands made upon local governments by the federal government in order for the States to receive financial aid from the federal government.

It is important to have a strong relationship between the States and federal government. Such issues as a national drinking age, a national speed limit, and consistent emission standards in every State have emerged in the debate over which level of government is best suited to solve the problems facing the country.

Federalism is a form of government where smaller States agree to become members of a larger government.

• Federalism as a Madisonian device.

• A way to limit federal authority• The division of powers between

two sovereign governments

• Supremacy Clause• Enumerated Powers• Reserved Powers and

10th Amendment

• Concurrent Powers• Implied Powers

– McCulloch v. Maryland (1809)

• Madison writes in Federalist 10: • “It clearly appears, that the same advantage which

a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic--is enjoyed by the Union over the States composing it . . . The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States."

• James Madison, Alexander Hamilton, and John Jay, The Federalist Papers, (New York: Penguin Books, 1987), p. 128.

• •With Federalism the framers sought to limit the national government withWith Federalism the framers sought to limit the national government with

a 2a 2ndnd layer of State government. layer of State government. BUTBUT even they had different views on even they had different views on what federalism meant. Hamilton thought what federalism meant. Hamilton thought the the “national government” “national government” was was superior & Jefferson thought superior & Jefferson thought “the people” “the people” were the ultimate sovereigns.were the ultimate sovereigns.

James MadisonJames Madison

• Nullification and John C. Calhoun– 1832– Tariff of Abominations– Claimed issue: Claimed issue: “states

rights”– Real issue: Real issue: preference

of Northern business over southern business

John C. CalhounJohn C. Calhoun

–Claimed Issue: Claimed Issue: States Rights–Real Issue: Real Issue: slavery–secession studies verify slavery as the issue

17891789 19321932 19681968 19941994Dual Dual

[“Layer cake”][“Layer cake”]

FederalismFederalism

CooperativeCooperative[“marble cake”][“marble cake”]

FederalismFederalism

““Devolution”Devolution”[returning power[returning power

back to the Statesback to the Statesin the name of in the name of

unfunded mandates]unfunded mandates]

RepublicanRepublicanRevolutionRevolution

*Contract *Contract WithWith

AmericaAmerica

““Competitive”Competitive”New FederalismNew Federalism

Under NixonUnder Nixon

Fiscal FederalismFiscal Federalism

*Revenue sharing*Revenue sharing*Unfunded mandates*Unfunded mandates

[Fiscal Federalism is the[Fiscal Federalism is themanner in which governmentmanner in which government

offers assistance throughoffers assistance throughgrants to state & local govs.]grants to state & local govs.]

[*New Deal gives[*New Deal givesexpanded role expanded role for national gov.for national gov.

as they could as they could regulate & promoteregulate & promote

interstateinterstate commerce.commerce.Grants-in-aid Grants-in-aid

helped cooperationhelped cooperation]]

[National government[National governmentfocused on promoting focused on promoting

commerce and commerce and distributing resources.distributing resources.

States retain most States retain most remaining powers]remaining powers]

The icing [Fed G] The icing [Fed G] connects the layersconnects the layerswhile keeping them while keeping them

separate.separate.

20042004

DevolutionDevolutionG.W. BushG.W. Bush

*Social *Social SecuritySecurityReformReform

*Tax R*Tax Reformeform

““When they say the issue is federalism, When they say the issue is federalism, the issue is rarely federalism” the issue is rarely federalism”

1865

Dual Dual SovereigntySovereignty

1964

Creative Federalism Creative Federalism Under LBJUnder LBJ

*Great Society*Great Society

New FederalismNew FederalismUnder ReaganUnder Reagan

Fiscal FederalismFiscal Federalism*Grants*Grants

1980

““Layer Cake”Layer Cake” ““Marble Cake”Marble Cake”

Regulated FederalismRegulated Federalism New FederalismNew Federalism

Dual FederalismDual Federalism Cooperative FederalismCooperative Federalism

National government determinesNational government determinespolicies; State governments paypolicies; State governments pay

for and administer them.for and administer them.

State governments have moreState governments have moreflexibility to make policy andflexibility to make policy and

administer programs.administer programs.

National National governmentgovernment

mandates the mandates the ““recipe”.recipe”.

State governments State governments mandated to provide mandated to provide

the “ingredients”.the “ingredients”.

StateStategovernmentsgovernmentsprovide the provide the

““recipe”.recipe”.

National government National government provides “ingredients”.provides “ingredients”.

CooperateCooperateon someon somepolicies.policies.

Based on a pragmatic mixing of Based on a pragmatic mixing of authority and programs among the authority and programs among the nnationalational, state,, state, & & local governments.local governments.

Based on a clear delineation of Based on a clear delineation of authority and programs among authority and programs among the levels of government.the levels of government.

American FederalismAmerican Federalism[Marble Cake or Layer Cake?][Marble Cake or Layer Cake?]

Marble CakeMarble CakeLayer CakeLayer Cake

I prefer ice I prefer ice cream and pie cream and pie

over either layer over either layer or marble cake.or marble cake.

• FederalismFederalism represented a compromise, or “middle ground”,“middle ground”, between those who favored a centralized governmentcentralized government and those who wanted to keep a looser confederationlooser confederation.

• In federalism there is a division of powersdivision of powers between the national government and the States. Separation of powersSeparation of powers and federalism are a force for limited governmentforce for limited government.

• The division of powerdivision of power between the national government and the States produces a system in which both governments may have authority over the same area and the same people.

• In these cases, the “supremacy clause”“supremacy clause” of the Constitution says the State laws can’t conflict State laws can’t conflict with national lawswith national laws.

Federalism historyFederalism history is ais a history of the growth of national powerhistory of the growth of national power..TThe he expansion expansion of theof the national government rests national government rests on on 3 constitutional3 constitutionalpowerspowers: the : the war powerwar power,, the the power topower to taxtax & spend& spend for thefor the generalgeneralwelfarewelfare, and the , and the power topower to regulate interstate commerceregulate interstate commerce..

• Article I, Section 8 sets forth the “enumerated “enumerated powers that belong to the national level.”powers that belong to the national level.”

• The 10th Amendment to the Constitution reserves powers not granted to the national government to “the States or to the people.”“the States or to the people.”

• The “necessary and proper clause”“necessary and proper clause” of Article I, Section 8, opens the door to implied powers for the national government.

• Article VI includes the “supremacy clause”“supremacy clause” stipulates the national law supersedes conflicting State laws.

• MadisonMadison said, “The federal & State governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes.”

• U.S. GovernmentU.S. Government 11

• State GovernmentsState Governments 5050

• Local GovernmentsLocal Governments 87,85887,858

• County [3,0433,043]

• Municipal (city) [19,43119,431]

• Townships [16,50616,506]

• School Districts [13,52213,522]• Special Districts [35,35635,356] [regulate

water control, fire protection, conservation, sewage treatment, etc.]

• TotalTotal 87,90987,909

1. Define the concept of federalism.2. Identify the powers delegated to the National Government and reserved to the States.3. Identify the powers denied to the National Government and the States.Can you name three State or federal laws that affect you inyour day-to-day activities.

FederalismFederalism – a dual system of governmentdual system of government that provides two levels of two levels of governmentgovernment, [National government and the States] each with its own sphere of authority. Each operates over the same people and territory at the same time. Its major strengthmajor strength is that it allows local actions in matters of local concernlocal actions in matters of local concern and national action in matters of wider concernnational action in matters of wider concern.

The FramersFramers were advocates of limited governmentadvocates of limited government. They believed: a. that any governmental power threatens individual liberty, b. that therefore the exercise of governmental power must be curbed, c. that to divide governmental power is to restrict it and thus prevent its abuse.

Alexander Hamilton believedAlexander Hamilton believed that that people people could could shift their support shift their support between between State State and and federal levels federal levels of of governmentgovernment as as neededneeded to to keep the two in balance. keep the two in balance. ““If their rights are invaded by either, tIf their rights are invaded by either, they hey can make can make use of the other as the instrument of redress.”use of the other as the instrument of redress.”

States were thought to be responsible for poverty, States were thought to be responsible for poverty, public safety, health, and education.  public safety, health, and education.  

Alexander HamiltonAlexander Hamilton

Because of the constitutional vagueness, the Because of the constitutional vagueness, the COURTS have largely defined the division of COURTS have largely defined the division of authority between theauthority between the federal government and federal government and the States.the States.

• Federal lawFederal law says young men must register for the draft at age 18; most employers must pay their workers the minimum wage; & no one can be denied a job based on his race or ethnicity.

• State lawState law says that you must have a driver’s license in order to drive a car; it is illegal for anyone under age 21 to buy beer, wine, or liquor; only those who can meet certain requirements can vote in elections.

• Other examplesOther examples include:• New Jersey buses private school students New Jersey buses private school students as well as• public school students free of charge, but most States do not.• Most forms of gambling are legal in Nevada gambling are legal in Nevada but but • against the against the law in most other States.• North DakotaNorth Dakota is the only State not to require voter registrationnot to require voter registration.• Only in North CarolinaNorth Carolina does the governor not have power to governor not have power to

veto acts of the legislature veto acts of the legislature.• Federalism gives strength to union. If there is a natural disaster like a flood,

drought, winter storm, or earth quakeearth quake, the resources of the National Government and the other States may be mobilized to aid the stricken area.

• Like this!!!

There are Three Delegated [granted] Powers of the National Government

1. Expressed PowersExpressed Powers of the National Government – written in constitutionwritten in constitution.

2. Implied PowersImplied Powers of the National government – not written but implied in the implied in the constitutionconstitution by the elastic clauseelastic clause [“shall make all laws necessary and “shall make all laws necessary and properproper” (which means ” (which means “convenient and useful”“convenient and useful”)])]

3. Inherent PowersInherent Powers of the National Government – because of nationhood because of nationhood [like acquiring territory or deporting aliens]

Delegated PowersDelegated Powers

Expressed PExpressed Powersowers

[enumerated][enumerated]

Implied PowersImplied Powers[suggested][suggested]

Inherent PowersInherent Powers[historically possess][historically possess]

Written in the Constitution [17]

Elastic Clause:Necessary & Proper [thousands]

Just becauseit’s a nation [few]

Example:*Congress can coin money & declare war

Example:*Congress regulates

immigration and acquires territory

Example:*Congress buildsinterstate hwy sys

FEDERAL FEDERAL POWERSPOWERS

STATE POWERSSTATE POWERS

SHARED POWERSSHARED POWERS

• Regulate interstate and foreign trade• Create and maintain armed forces• Coin Money• Declare War• Admit new states• Conduct foreign policy• Make peace treaties•Establish a national court system•Make laws necessary and proper to carry out the foregoing powers•Issue patents/copyrights

• Regulate trade within state borders• Conduct Elections• Create local governments• Provide public safety• Establish laws about marriage & divorce• Control Education• Set time, place and manner of elections• Ratify amendments to the federal Constitution

• Raise Taxes• Build Roads• Create & impose penalties for crimes• Charter Banks• Provide for the public welfare• Establish courts• Borrow money

.

National National GovernmentGovernment

State State GovernmentGovernment

Delegated powersthe National Gov.

ConcurrentPowers Reserved powers

of the States

Powers denied boththe National Gov.

and the States

Powers deniedthe States

Powers deniedthe National Gov.

Powers Denied to theNational Government1. To deny freedom of religion, speech, press, or assembly.2. To conduct illegal searches or seizures.3. To deny any person a speedy and public trial.4. To deny any person a trial by jury.5. Can’t create a public school system for the nation.6. Can’t enact uniform marriage & divorce laws.7. Can’t set up units of local government.8. Can’t tax the States in carrying out duties.

Reserved Powers ofReserved Powers ofThe StatesThe States1. Can forbid persons 1. Can forbid persons under 18 to marryunder 18 to marry without parental consent.without parental consent.2. Can 2. Can forbid thoseforbid those under under 21 to buy liquor.21 to buy liquor.3. Can require licensing.3. Can require licensing.4. Can set up public 4. Can set up public school systems.school systems.5. Can set up local5. Can set up local government.government.6. Set conditions for 6. Set conditions for divorces.divorces.7. Permit certain forms7. Permit certain forms of gambling.of gambling.8. Can outlaw certain8. Can outlaw certain forms of gambling.forms of gambling.

Powers Denied To The States1. No State can enter into any treaty, alliance, or confederation.2. Can not print or coin money.3. Can not deprive any person of life, liberty, or property without due process of law.4. Cannot tax any of the agencies or functions of the national gov.5. State constitutions deny even more powers to the State.

The Exclusive PowersThe Exclusive Powers[Can be exercised only by the

National Government]

1. Coin money

2. Make treaties

3. Lay import duties

4. Regulate interstate commerce

The Supreme Law of the LandThe Supreme Law of the Land[The Constitution stands above all

other forms of law in the U.S.]

1. The Supremacy Clause creates

a “ladder of laws”“ladder of laws” in the U.S.

2. Constitution is on to topmost rungtopmost rung.

3. Acts of CongressActs of Congress come next.

4. Each State’s constitutionsState’s constitutions come next.

5. State statutesState statutes are on the next rung.

6. Local lawsLocal laws are at the base.

7. The Supreme Court is the Supreme Court is the “umpire”“umpire”

in the federal court system. They

reversed the Maryland courts in

the McCulloch v. Maryland case.

U.S. ConstitutionU.S. Constitution

Acts of CongressActs of Congress

State ConstitutionsState Constitutions

State StatutesState Statutes

City and County Charters/OrdinancesCity and County Charters/Ordinances

““Ladder of Laws”Ladder of Laws”

In 1819 In 1819 McCulloch v. MarylandMcCulloch v. Maryland, Chief Justice John Marshall , Chief Justice John Marshall considered considered whether Congress had the power to incorporate a whether Congress had the power to incorporate a bankbank. He also considered whether a State could . He also considered whether a State could tax the banktax the bank. .

He wrote: Since the Constitution had given Congress the He wrote: Since the Constitution had given Congress the power to power to “make all laws which shall be “make all laws which shall be necessary and necessary and properproper for carrying into execution of the forgoing power, the for carrying into execution of the forgoing power, the Bank of the United States was constitutional.”Bank of the United States was constitutional.” Also, the Also, the Maryland state tax of $15,000 violated the Maryland state tax of $15,000 violated the supremacy clausesupremacy clause, , because individual states cannot interfere because individual states cannot interfere with the with the operations operations of the of the national governmentnational government, whose , whose laws are supremelaws are supreme. The . The necessary and proper clause isnecessary and proper clause is used today to used today to justifyjustify federal federal action in education, health care, and welfareaction in education, health care, and welfare..

James McCulloch, of the 2James McCulloch, of the 2ndnd National Bank, refused National Bank, refused to pay the state of Maryland a to pay the state of Maryland a tax of $15,000 a yeartax of $15,000 a year because they were not chartered by the State. because they were not chartered by the State.

John MarshallJohn Marshall

[Supreme court affirms supremacy of national government][Supreme court affirms supremacy of national government]

The dispute in Gibbons concerned competing claims of rival steamship franchises. The state of New York gave Aaron OgdenAaron Ogden an exclusive license to operate steamboat ferries between New Jersey and New York City on the Hudson River. Thomas GibbonsThomas Gibbons, another steamboat operator, ran two ferries along the same route. Ogden sought an injunction against Gibbons in a New York state court, claiming that the state had given him exclusive rights to operate the route. In response, Gibbons claimed he had the right to operate on the route pursuant to a 1793 act of Congress regulating coastal commerce. The New York court found for OgdenNew York court found for Ogden and ordered Gibbons to cease operating his steamships; on appeal, the New York Supreme Court affirmed the order. Gibbons appealed to the U.S. Supreme Court, which reviewed the case in 1824.

Marshall ruled for GibbonsMarshall ruled for Gibbons, holding that New York's exclusive grant to Ogden violated the federal licensing act of 1793. In reaching its decision, the Court interpreted the Commerce Clause of the U.S. Constitution for the first time. The clause reads that "Congress shall have power to regulate commerce ... among the several States." According to the Court, the word "commerce""commerce" included not just articles in interstate trade but also the "intercourse" among the states"intercourse" among the states, including navigation.

Thomas Thomas GibbonsGibbons

Gibbons v. Ogden (1824) vastly expanded the powers of Congressexpanded the powers of Congress through a single clause in the Constitution: the Commerce Clause of Article I, Section 8. The Court ruled that under that clause Congress had powers to regulate any aspect of commerce Congress had powers to regulate any aspect of commerce that crossed state linesthat crossed state lines, including modes of transportation, and that such regulation preempted conflicting regulation by the states. Since Gibbons, the Commerce Clause has provided the basis for sweeping congressional power over many national issuessweeping congressional power over many national issues.

[A “National” license takes precedence over a “State” license][A “National” license takes precedence over a “State” license]

Next, the Court examined the clause's phrase "commerce among the several States," concluding that the word "among" means "intermingled with.“ Accordingly, Congress' Congress' power to regulate interstate commerce does not "stop at the external boundary power to regulate interstate commerce does not "stop at the external boundary line of each State, but may be introduced into the interior."line of each State, but may be introduced into the interior." In other words, Congress may pass any law that regulates commerce, so long as that commerce is not wholly confined within a single state, and its power to regulate such commerce is plenary. Under this interpretation of the Commerce Clause, Congress' clearly had the authority to regulate the commercial steamboat route between New York and New Jersey. It was assumed that the licensing act of 1793 did this and that the New York law in question was in conflict with it. Thus, the New York law was unconstitutionalNew York law was unconstitutional and New York's injunction against Gibbons was overturned. Thomas Gibbons was free to Thomas Gibbons was free to operate his steamshipsoperate his steamships.

Thomas GibbonsThomas Gibbons

Gibbons v. Ogden set the stage for future expansion of congressional powerset the stage for future expansion of congressional power over commercial activity and a vast range of other activities once thought to come within the jurisdiction of the states. After Gibbons, Congress had preemptive authority over the authority over the states to regulate any aspect of commerce crossing state linesstates to regulate any aspect of commerce crossing state lines. Thus, any state law regulating in-state commercial activities (e.g., workers' minimum wages in an in-state factory) could potentially be overturned by Congress if that activity was somehow connected to interstate commerce (e.g., that factory's goods were sold across state lines). Indeed, more than any other case, Ogden set the Ogden set the stage for the federalstage for the federal government's overwhelming growth in government's overwhelming growth in power affecting interstate commerce into the 20th centurypower affecting interstate commerce into the 20th century..

• Objectives:• 1. What are the obligations of the obligations of the

National Government National Government to the States under the Constitution?

• 2. What kinds of aid does aid does the the National National Government grant to the StatesGovernment grant to the States?

• 3. What kinds of aid do the Statesaid do the States provide the National Governmentprovide the National Government?

• The Constitution, in order to preserve the unionpreserve the union:• 1. requires the National GovernmentNational Government to guarantee certain guarantee certain

things to the Statesthings to the States.• 2. makes it possible for the National Government to do National Government to do

several things to the Statesseveral things to the States.

• 1. Guarantee of a Republican Form of Government.• A. This means a “representative government”“representative government”.• B. An example example of this was after the Civil War, Congress

declared that several southern States did not have republican form of governments. They had to ratify the 13th, 14th, and 15th Amendments and recognize the voting rights of African Americans.

• 2.2. Protection Against I Protection Against Invasion & nvasion & Domestic ViolenceDomestic Violence.• A. An invasion of any of the 50 Statesinvasion of any of the 50 States would

be treated as an attack on the U.S.• B. If a State cannot control domestic violence domestic violence

situationsituation, the U.S. will control the situation.• C. In the 1960s, there were several instances where federal federal

force had to restore order within a Stateforce had to restore order within a State.• D. The federal government will also aid States

when there are ravages of natureravages of nature, like floods, droughts, or forest fires.Like this!!!Like this!!!

Or this!!!Or this!!!

• 3. Respect for Territorial IntegrityRespect for Territorial Integrity• A. The National Government must recognize the legal legal

existence and the physical boundaries of each Stateexistence and the physical boundaries of each State..• B. Congress must B. Congress must include in both the House and Senateinclude in both the House and Senate

members chosen in each one of the States.members chosen in each one of the States.

• 4. 4. Admitting New States Admitting New States – 37 have been admitted.– 37 have been admitted.• A. A. Admission Procedure Admission Procedure involves the area desiring involves the area desiring

statehood petition Congress for admission. They pass an statehood petition Congress for admission. They pass an enabling act requiring the State to frame a constitution, enabling act requiring the State to frame a constitution, which is put to a popular vote in that State. If the voters which is put to a popular vote in that State. If the voters approve, then Congress passes an approve, then Congress passes an act of admissionact of admission and and the the President signs the actPresident signs the act..

• B. B. Conditions for AdmissionConditions for Admission examples are: examples are:• 1.) 1.) UtahUtah in 1896 was admitted if it in 1896 was admitted if it outlawed polygamyoutlawed polygamy..• 2.)2.) AlaskaAlaska in 1959 had to agree in 1959 had to agree not to claim title not to claim title

to lands legally held by any Native American to lands legally held by any Native American..

5. Cooperative Federalism Cooperative Federalism – intergovernmental cooperation for the purpose of joint problem solvingjoint problem solving. 1930’s to 1970’s1930’s to 1970’s

A. Federal Grants-in-AidFederal Grants-in-Aid. These are grants of federal money given to cities or other local units to carry out their functions. There are more than 500 programs in education, mass transit, highway construction, health care, on-the-job training, etc. Most carry “strings attached” “strings attached” [kind of like “bribery”“bribery”, such as:

1.) use the funds only for the purpose specified, 2.) make its own contribution, often of an equal amount, 3.) set up an agency and procedures to manage the grant, & 4.) obey the federal guidelines for which the aid is given. B. Block GrantsBlock Grants. These are grants to State and local

governments with more broadly defined purposes and fewer strings attached, so States had more power.

C. Revenue SharingRevenue Sharing. From 1972-1987, Congress gave $83 $83 billion to the Statesbillion to the States & other government units with virtually no strings attached. Fell victim to the large budget deficits of the 80s.

• Stated issue:Stated issue: “Interstate Commerce Power”

• Real Issue:Real Issue: FDR’s economic policies

• ““Switch in time that saved nine,”Switch in time that saved nine,” Justice Owen Roberts (in West Coast Hotel v. Parrish) joined a 5-4 majority opinion creating an expansive view of federal legislative power

Block grants are given to States for general purposes and allow state officials greater discretion over how funds will be spent.

Categorical grants are given to States for more specific purposes and most of the discretion remains in the hands of federal officials and officeholders.

The national government would ensure State cooperation with federal policies by offering grants-in-aid.

2005 Grants2005 Grants broken brokendown by research field.down by research field.

Health 3%Health 3%

Ed. & Ed. & TrainingTraining 8% 8%

Misc. 9%Misc. 9%

Income Security 38%Income Security 38%

Transportation Transportation and Highwaysand Highways

43%43%

Educ

atio

n &

Educ

atio

n &

Trai

ning

13%

Trai

ning

13%

Misc. 8%

Misc. 8%

Income Income Security Security

21%21%

Transportation Transportation & Highways& Highways

10%10%Community & Community &

regional regional development development

5%5%

Medicaid Medicaid 43%43%

19601960 20062006

The New Deal was the beginning of The New Deal was the beginning of Cooperative Cooperative [Shared][Shared] Federalism Federalism [ [1930’s-1930’s-]]

after after over 100 years over 100 years

[[1800’s -1930’s1800’s -1930’s] of ] of Dual FederalismDual Federalism.. The New Deal set forth a program that was dictated at the The New Deal set forth a program that was dictated at the national level but carried out at the state level. national level but carried out at the state level. TThe he new legislation new legislation included included massive job programs massive job programs that provided work for unemployed that provided work for unemployed Americans. Other programs, like Americans. Other programs, like Aid to Families Aid to Families with with Dependent Children (AFDC) Dependent Children (AFDC) & & Social SecuritySocial Security, , offered assistance to people who could offered assistance to people who could not work. not work.

Cooperative Federalism Cooperative Federalism meant the meant the StatesStates & & federal federal governmentgovernment came to be seen as came to be seen as partnerspartners..

In 1937, the Supreme Court threw out the old distinction In 1937, the Supreme Court threw out the old distinction between interstate and intrastate commerce, giving the between interstate and intrastate commerce, giving the national government more power.national government more power.

As State and local governments came to depend on grant-in-aid support, the national government further intervened in state government decision-makingintervened in state government decision-making by threatening to withholdthreatening to withhold such grants such grants. This is also known as “COERCIVE FEDERALISM.”“COERCIVE FEDERALISM.”

To regulate speed limitsregulate speed limits within States, the national government threatens to withhold federal withhold federal transportation dollarstransportation dollars thus “coercing”coercing” states to comply with federal mandates.

In 1984, the federal government denied highway funds to States that failed to raise failed to raise theirtheir drinking age to 21drinking age to 21.

What Wallace said:What Wallace said: “The unwelcomed, unwanted, unwarranted and force-induced intrusion upon the campus of the University of Alabama today of the might of the Central Government offers frightful example of the oppression of the rights, privileges and sovereignty of this State.” What Wallace meant:What Wallace meant:

• “Segregation now, segregation tomorrow, segregation forever.”

• Later in his career, Wallace sought African American votes and said, “I was wrong, those days are over.”“I was wrong, those days are over.”

The waning in some respects of Franklin Roosevelt’s “New Deal”“New Deal” coalition and programs sparks a counter-federal trend, known as NEW FEDERALISMNEW FEDERALISM, that begins to return discretion to the State and local governmentsreturn discretion to the State and local governments.

The “new federalism” trend of returning discretion to the states began in the executive branch as the Nixon, Carter, and Reagan AdministrationsNixon, Carter, and Reagan Administrations gave States a larger role in administering federal policies thru “block grants”“block grants”.

The Republican takeover of Congress after the 1994 elections led to a series of policies where the federal government “devolved”“devolved” power to the states.

Welfare reformWelfare reform is a good example of such “devolution.”

In United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court reversed its course by restricting its interpretation of what constituted “interstate commerce”“interstate commerce” to justify federal government involvement in the States.

“We would have to pile inference upon inference in a manner that would … convert congressional authority under the Commerce ClauseCommerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road …, but we decline to proceed any further.” --Chief Justice William Rehnquist, writing for the majority in United States v. Lopez (1995)

• The Claim:The Claim: a desire to devolve [““devolutiondevolution””] power to the states-- "the federal government did not create the states, the states created the federal government.“

• The Real Issue:The Real Issue: Cutting Government Spending

Definition: 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.

[$460 billion in grants every year][$460 billion in grants every year]

Because the federal system allocates major responsibilities for public policy to the states, policies often vary in different locations. This figure shows that the emotionally charged issue of welfare, different states have adopted quite different policies, ranging from $631 per month for a family of three $631 per month for a family of three in Alaska in Alaska to $154 in South Carolina$154 in South Carolina.

.

Diversity in Public Policy: State Welfare BenefitsDiversity in Public Policy: State Welfare Benefits

*Generous welfare benefits can strain a state’s treasury by attracting poor people from states with lower benefits.

Because the federal system allocates major responsibilities for public policy to the states, policies often vary with the different policies often vary with the different views of the populationviews of the population in different locations. The differences among public policies are especially dramatic in the criminal dramatic in the criminal justice systemjustice system. A conviction for first-degree murder in 38 states first-degree murder in 38 states may well mean the death penalty death penalty for the convicted murderer. In 12 other 12 other states and the District of Columbiastates and the District of Columbia, first-degree murderers are subject only to a maximum penalty of life behind barsmaximum penalty of life behind bars. Some people see diversity in public policy as one of the advantages of federalism. Others may argue that citizens of the same country ought to be subject to uniform penalties. So, should “whether you live” “whether you live” depend on “where you live”“where you live”?

The Downside of Diversity: spending on Public EducationThe Downside of Diversity: spending on Public Education

*New York New York spend an average of $12,408 $12,408 for each child in the public schools; in UtahUtah, the figure was $5,556$5,556.

Diversity in Public Policy: State Welfare Benefits

Fiscal Federalism: The Public Sector and the Federal SystemFiscal Federalism: The Public Sector and the Federal System

• October of 2003, President George W. Bush’s Administration announced

a new fiscal federalism plannew fiscal federalism plan, proposing to turn “at least six existing federal programs serving low-income families - Medicaid, housing, workforce development, child protection, transportation, and Head Start - into block grants,”

• Block grantsBlock grants allow the states to have a great deal of flexibility in spending money transferred to them from the national government.

• February of 2004, President Bush made an announcement at the White House that the “Defense of Marriage requires a “Defense of Marriage requires a constitutional amendment.”constitutional amendment.”

• A Constitutional AmendmentConstitutional Amendment would take the tradition power of the States to regulate family law and make it a national power.

• Categorical grantsCategorical grants, giving the national government more influence over the spending of federal aid to the States.

• OpposeOppose a constitutional amendment to ban it, maintaining the issue should be left to the States.

• 5. Other Forms of Federal AidOther Forms of Federal Aid. • A. FBI’s extensive helpFBI’s extensive help to State and local police.• B. “lulu payments”“lulu payments” – federal monies that go to local

governments that have large federal landholdings. This money is in “lieu of”“lieu of” [take the place of] property taxes the local governments cannot collect on the federal land.

• C. The army and air forcearmy and air force train each State’s National GuardNational Guard.

• 6. State Aid to the National GovernmentState Aid to the National Government. • A. State & local election officials conduct national electionsnational elections.• B. States process aliens into citizens, called naturalizationnaturalization.• C. State and local police pick up those who commit federal federal

crimescrimes.

Proposal to return social and economic programs from the federal government back to the Statesback to the States.

The huge national economic programs during the Depression and the huge effort to fight World War II gave the national government great new powersnational government great new powers.

This weakened the federal system. What we saw in Washington was the growth of hundreds of new growth of hundreds of new government agenciesgovernment agencies with huge new bureaucracies.

Local officials began looking to Washington for looking to Washington for solutionssolutions for almost everything. This was something new in America.

Ronald Reagan tried to reverse thisreverse this. His policies restored power to the Statesrestored power to the States and cities, & reduced the power of the central government in Washington.

DEVOLUTIONDEVOLUTION – rreturning power to the eturning power to the StatesStates.

Devolution was the effort to transfer responsibility for many public programs [welfare, health care, & job training] from the federal government to the States.

Advantages Disadvantages

1. Put Power “Closer to the People”

2. Innovation3. Efficiency4. Traditional interpretation

of the states’ power to regulate health, welfare and safety

1. Fiscal Responsibility of Congress

2. Oversight3. “Irresponsibility” of the

States4. Need to accomplish

national goals with federal dollars

Administratively, the devolution of welfare devolution of welfare has triggered second-order devolutionsecond-order devolution, a flow of money and power from the States to the local governments, and third-third-order devolutionorder devolution, the increased role of non-profit organizations and private groups in policy implementation.

• Up until the 1930s, the federal government’s role was limited and restricted by the Supreme Court.

• From the mid-1930s to the mid-1960s, Cooperative Federalism created a partnership between the national government and the States.

• Starting in the mid-1960s to the mid-1990s, national government began to be overly dominant in the federal system.

• The Reagan economic policy limited the federal fiscal role during the 1980s.

• The Republican Congress that took office in 1995 made some effort to restrain the use of unfunded mandates and reformed the welfare system.

• Federal Grants-in-Aid began to grow again in the 1990s.• In the mid-1990s, the Supreme Court began to reassert

limits on national power.• Lately, we’ve had competitive federalism where all

88,000 governments compete with each other over ways to put together packages of services and taxes.

Objective: Objective: How do several of the Constitution’s How do several of the Constitution’s previsions promote cooperation between and among the previsions promote cooperation between and among the States?States?

1. Interstate CompactsInterstate Compacts. There are over 200 agreements200 agreements between States and foreign countries. These compacts must have the consent of Congress. These first two compacts involve

all 50 States. A. Compact for the Supervision of ParoleesParolees and

ProbationersProbationers B. Compact on JuvenilesJuveniles allows sharing law-enforcing data. C. Compacts between States on conservationconservation of water, oil,

wildlife, and fish; forest fire protection; stream and harbor pollution; tax collections; motor vehicle safety; & the licensing of drivers.

• 2. Full Faith and CreditFull Faith and Credit. Article IV, Section 1Article IV, Section 1 of the Constitution says, “Full faith and credit shall be given in “Full faith and credit shall be given in each State to the public acts [laws], records, and judicial each State to the public acts [laws], records, and judicial proceedings [court action outcomes] of every other State.”proceedings [court action outcomes] of every other State.”

• A. Legal papersLegal papers in one State are normally valid in another.• B. Criminal convictionsCriminal convictions in one State is also valid in another.• C. Gay marriagesGay marriages in VT & MA are “civil unions”“civil unions” but other

States don’t have to recognize same sex “civil unions”.“civil unions”. [1996]• 1.)TwoTwo ExceptionsExceptions. The “faith”“faith” clause applies only to applies only to

civil matterscivil matters, not criminal matters. One State cannot enforce another’s criminal law. Also, a divorcedivorce can be granted only to a resident of the State that granted it. Another State cannot grant a divorce to a resident of another State.

• 2.) Residents outside of Nevada who get a “quickie divorce”“quickie divorce” there can be convicted of the crime of bigamous cohabitation.

• 3. Extradition Extradition.. Sending escaped suspects backSending escaped suspects back..• The Constitution says, The Constitution says, “A person charged in any State with treason, felony, “A person charged in any State with treason, felony,

or other crime, who shall flee from justice, and be found in another State, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.”be delivered up, to be removed to the State having jurisdiction of the crime.”

• In 1987, the Supreme Court overturned an 1861 ruling, saying In 1987, the Supreme Court overturned an 1861 ruling, saying in Puerto Rico v. Branstad, that the in Puerto Rico v. Branstad, that the federal courts can order federal courts can order an unwilling governor to extradite a fugitivean unwilling governor to extradite a fugitive. .

• 4. 4. Privileges and ImmunitiesPrivileges and Immunities..• The Constitution says, The Constitution says, “The citizens of each State shall be entitled to “The citizens of each State shall be entitled to

all privileges and immunities of citizens of the several States.” all privileges and immunities of citizens of the several States.”

• Or, Or, the the resident of one State cannot be discriminated in another.resident of one State cannot be discriminated in another.• That is, he can pass through or reside in any other State. He That is, he can pass through or reside in any other State. He

can use their courts, make contracts, buy, own, rent and sell can use their courts, make contracts, buy, own, rent and sell property, and marry in that State. property, and marry in that State.

FEDERALISM’SFEDERALISM’S

CHALLENGECHALLENGE::

National, state and local governments must overcome their natural conflicts to work together to meet terrorist threats.

SEPARATION OFSEPARATION OFPOWERS CHALLENGEPOWERS CHALLENGE::

The legislative, executive, and judicial branches must overcome the natural struggle between their various “ambitions” to act collectively.

• Delegated powersDelegated powers: expressed, enumerated, implied, and inherent in the Constitution. These are found in the Preamble, Article I Section 8, Article II, Article III, Article IV Section 4, and Article VI. ExamplesExamples include:

A. Treason

B. Counterfeiting

C. Disrupting postal service

D. Issues of interstate trade

• Interpretations by the Supreme courtInterpretations by the Supreme court. For example: Marbury v. Madison, 1803 and McCulloch v. Maryland, 1819.

• Rights incorporated from the 14Rights incorporated from the 14thth Amendment Amendment. Incorporation is the concept of federal rights being applied to State rights minimums. The key phrases used in most of such cases are the 14th Amendment requirements that States may not “deprive any person of life, liberty, or property without due process of law: nor…the equal protection of the laws.”

• Issues made federal by acts of Congress includeIssues made federal by acts of Congress include:

A. Kidnapping

B. Crossing State lines with intent to commit crimes

C. Threatening or attacking federal officials

D. Violating the civil rights of citizens

Basic National PowersBasic National Powers

• Reserved to the States: Reserved to the States: conduct elections, select local officials, and select electors

• Rights under the 10Rights under the 10thth Amendment Amendment• Traditional rights held by Sates. Traditional rights held by Sates. Examples include:

A. Business licenses

B. Marriage licenses

C. Legal practice licenses

D. Professional licenses

E. Civil laws not involving federal issues

F. Criminal laws not made federal

G. Educational rules

Basic State Powers

1789-Civil War1789-Civil War Dual federalism is dominant. States can define full citizenship.

Specific Court cases are used to define federal authority over

trade, interstate commerce, and banking.

Civil WarCivil War The 13th, 14th, and 15th amendments take from the States the

AmendmentsAmendments rights to allow slavery, define levels of citizenship, and to stop

[1860s][1860s] black men from voting.

PPostost R Reconstructioneconstruction States regain authority over status of citizens in areas of voting &

1876-early 1900s 1876-early 1900s segregation, formalized in the case of Plessy v. Ferguson, 1896.

New Deal & WWIINew Deal & WWII Federal authority over commerce is expanded during the New

[1930s & 1940s] [1930s & 1940s] Deal & legislation after the war. Ex: The Employment Act of 1946

Civil Rights EraCivil Rights Era With Brown v. Board of Education, the Civil Rights Act of 1964,

[1950s -1970s] [1950s -1970s] and The Great Society Programs, the federal authority over

civil liberties and public welfare is expanded.

Devolution EraDevolution Era With election of Reagan in 1980 & Republican majorities in Congress

[New Federalism][New Federalism] in 1994, efforts have grown to limit federal controls & influence. More

[1980s-Present][1980s-Present] control is given to States. More emphasis is being given to private

companies in areas of schooling and federal assistance..

• Federalism is a basic characteristic of American politics

• Since the beginning, federalism has been used as an rationale for preferring one policy over another

• Since the beginning, the real issues have been something other than federalism!

When they say the issue is federalism, the issue is rarely federalism.

To stop the terrorists, we need to account for the money. But there

are so many blind alleys, false leads, dead ends, and detours, I’m

afraid…

It’s hopeless.