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1Seeming Paradoxes? John Kincaid Lafayette College Easton, Pennsylvania American FederalismSeeming Paradoxes?John KincaidLafayette CollegeEaston, Pennsylvania
2Biblical Root of Federalism From the Latin foedusMeaningCovenant
3Federal Theology Covenant Theology The first federal political ideas articulated in North America were those of the Puritans’ Reformed ProtestantCovenant TheologyFederal Theology
4Articles of Confederation, 1781 “Whereas the Delegates of the United States of America, in Congress assembled, did … agree to certain articles of Confederation and perpetual Union between the States of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations ….”Preamble
5Powers of Confederal Government War, peace, treaties, and alliancesAppoint all U.S. land and naval officersBuild and equip a navySend and receive ambassadorsDecide rules for capture on land or waterGrant letters of marque and reprisalTry piracies and felonies committed on the high seasSettle inter-state boundary disputesRegulate value of coinageFix standard of weights and measuresRegulate trade with Indians outside statesEstablish post offices and postal ratesBorrow money or emit bills of credit on U.S.
6Articles of Confederation, 1781 Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.Article I
7U.S. Federal Constitution, 1788 “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”Preamble
8Principal Federal Powers CommerceForeign affairs and defense
9Federal Commerce Powers Borrow moneyRegulate interstate, foreign, and Indian commerceEnact uniform naturalization lawsEnact uniform bankruptcy lawsCoin money and regulate its valueFix national weights and measures standardsPunish counterfeiting of securities and coinEstablish post offices and post roadsGrant patents and copyrightsCreate courts inferior to the Supreme Court
10Federal Foreign Affairs & Defense Powers Define and punish piracies and felonies on high seas and offenses against law of nationsDeclare warGrant letters of marque and reprisalMake rules for captures on high seasRaise and support armiesProvide and maintain a navyGovern land and naval forcesCall up militia to execute federal laws, suppress insurrections, and repel invasionsOrganize, arm, and discipline militiaGovern D.C. and territories
11James Madison“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”Federalist 45
12Tenth Amendment“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.”
13Common View of Federal System as “Levels” Federal a.k.a. National GovernmentState GovernmentsLocal Governments
14Federal System as Matrix of Governments CommerceStatesSocial WelfareCivil RightsLocal GovtsDefense and Foreign Affairs
15Expansive Federal Power Clauses Necessary and proper clause (Article I, Section 8) a.k.a elastic clause, implied powers clause, sweeping clauseSupremacy clause (Article VI)
16Dual Federalism,Federal and state governments occupy separate spheres of sovereign power and should not interfere with each otherU.S. Constitution does not grant federal government authority to fund state internal improvements (i.e., infrastructure)“national government is one of enumerated powers only; Also, the purposes which it may constitutionally promote are few; Within their respective spheres the two centers of government are “sovereign” and hence “equal”; and The relation of the two centers with each other is one of tension rather than collaboration.” Edward S. Corwin
17Debate Over Nature of the Union Federal Constitution as Compact among the StatesFederal Constitution as Covenant of the People
18War of Northern Aggression Civil WarWar Between the StatesWar of Northern Aggression620,000 Deaths
19Fourteenth Amendment, 1868“No State shall … abridge the privileges or immunities of citizens of the United States;… deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”Section 1
20Texas v. White, 1869“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”
21Dawning of Federal Power Interstate Commerce Commission Act, 1887Sherman Anti-Trust Act, 1890Federal Bankruptcy Act, 1898Pure Food and Drug Act, 1906Meat Inspection Act, 1906Theodore Roosevelt’s New Nationalism, 1910Federal Reserve Act, 1913Woodrow Wilson’s New Freedom, 1913Clayton Anti-Trust Act, 1914
22Power-Booster Amendments Sixteenth Amendment, 1913 authorized federal income taxSeventeenth Amendment, 1913 provided for election of U.S. senators by voters in each state
24FDR’s New Deal EraVast expansion of federal power into private-sector economyRise of social welfare as federal responsibilityFew intrusions into traditional prerogatives of state and local governments
25New Deal Cooperation Increased federal aid Little federal supervision Maintenance of dual regulation and taxation of banking, securities, communications, public utilities, and othersContinuance of state regulation of insuranceFederal-law exceptions for state and local governments (e.g., Social Security Act of 1935 and Fair Labor Standards Act of 1938)
26Historic ReversalsReversal of fiscal fortunes: federal spending as percent of all own-source government spending increased from 25% in 1929 to 51% by 1939 and 70% by 1959; local share dropped from 54% in 1929 to 28% in 1939 and 16% in 1959; state share was 21% in both 1929 and 1939 but only 14% by 1959.Tenth Amendment “states but a truism” United States v. Darby, 1940
27Cooperative Federalism, 1932-1968 Virtually all public functions are shared, not divided, federal-state-local responsibilitiesPower is distributed in a non-centralized (rather than decentralized) manner, making it nearly impossible to identify a single locus of decision-making powerFederalism is not a zero-sum game; increased federal power does not necessarily decrease state powersChaotic non-centralized political parties mediate conflict and facilitate systemic IGR consentIGR bargaining and negotiation produce systemic cooperation and collaboration that minimizes IGR coercionFederal, state, and local officials are colleagues, not adversaries“the American system is … one government serving one people.”
28Coercive FederalismContemporary era of federalism ( present) in which the major political, fiscal, statutory, regulatory, and judicial practices entail centralization, state and local cooptation, and the imposition of many federal dictates on state and local governments.
29Rise of Coercive Federalism During the Late 1960s Civil Rights Movement,Nationalization of U.S. Bill of Rights,Rise of national television by 1960sSupreme Court’s “one person, one vote” reapportionment decisions, 1964Triumph of primary elections over smoke-filled rooms after 1968Democratic National Convention, 1968Collapse of traditional confederated party system,
30Rise of Coercive Federalism During Late 1960s Rise of social movements demanding nationwide equality and national policies to remedy spilloversRise of institutional lobbying in Washington, D.C.Rise of state and local public employee unions and associationsInterstate mobility and massive migrationsCollapse of bicommunal federalism,
31Confederate States of America States under CSA control States and territories claimed by CSA without formal secession and/or controlSource: accessed July 1, 2008.
32Official Support for Coercive Federalism Democrats and Republicans in Congress and the White HouseDemocrats and Republicans in state legislatures, governors’ mansions, county courthouses, city and town halls, and school boards
33Characteristics of Coercive Federalism Federal AidShift of federal aid from places to persons
34Summary Comparison of Total Outlays for Grants to State and Local Governments, 1940-2015 * are estimated.Source: Executive Office of the President, The Budget for Fiscal Year 2011, Historical Tables (Washington, DC: U.S. Government Printing Office, 2010), pp
35Federal Grants-in-Aid to State and Local Governments for Persons and Places as Percentages of Total Grants,* are estimated.Source: Executive Office of the President, The Budget for Fiscal Year 2011, Historical Tables (Washington, DC: U.S. Government Printing Office, 2010), pp
36Consequences of Federal Aid Shift from Places to Persons Place-based aid for infrastructure, economic development, education, criminal justice, government administration, etc. has declined steeplyState budgets have been locked into programs involving rising federal regulation and escalating state matching costs (e.g., Medicaid)Federal aid to local governments has declined significantly
37Characteristics of Coercive Federalism Federal AidShift of federal aid from places to personsIntrusive conditions of aid (i.e., crossover and crosscutting conditions)Increased earmarking
38Characteristics of Coercive Federalism PreemptionUnder the supremacy clause of the U.S. Constitution (Article VI, Para 2), a federal law prevails over any conflicting state laws.
39Types of PreemptionExplicit/Express: Congress states explicitly in a statute that it intends to preempt incompatible state laws.Implied: The courts or federal agencies assume preemption if [a] a federal law and a state law are in direct conflict or [b] a state law hinders the achievement of a federal-law objective.
40Degrees of PreemptionTotal (or Occupy-the-Field) Preemption prohibits state action in the field occupied by federal law.Partial Preemption allows state action, usually equal to or greater than the regulatory standard set by federal law.
41Source: U.S. Advisory Commission on Intergovernmental Relations, Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues. Washington, DC: ACIR, September 1992.
42Source: U.S. Advisory Commission on Intergovernmental Relations, Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues. Washington, DC: ACIR, September 1992 and National Academy of Public Administration, Beyond Preemption. Washington, DC: NAPA, May 2006.
43Characteristics of Coercive Federalism MandatesDirect federal orders requiring state or local governments to execute federal policy rules under pain of possible civil or criminal penalties.
44Growth of Mandates 1 enacted in 1931 1 enacted in 1940
45Mandate Relief Unfunded Mandates Reform Act, 1995 Eleven mandates exceeding UMRA threshold enacted since 1995UMRA does not apply to some policies such as civil rights
46Conditional Mandates REAL ID Act, 2005 State participation is voluntary and federal aid is providedBut, if a state does not participate, its residents’ driver’s licenses will be invalid for any federal-government purpose, such as boarding an airplane, riding Amtrak, applying for federal benefits (e.g., Medicaid and Medicare), opening a bank account, buying a firearm, and entering a federal building.
47Federal Rules Affecting State and Local Governments, 1994–2007 Source: Clyde Wayne Crews, Jr., “Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State” (Competitive Enterprise Institute, 2008), p. 24. Accessed July 18, 2008, Data compiled from “The Regulatory Plan and Unified Agenda of Federal Regulatory and Deregulatory Actions,” Federal Register, various years’ editions; and from online edition at
48Characteristics of Coercive Federalism TaxationTax Reform Act of 1986: elimination of state sales tax deduction and limits on tax-exempt private-activity bondsQuill Corp v. North Dakota, 1992Internet Tax Non-Discrimination Act, 2007Lack of concern about federal tax-code changes on state and local taxesPresumption that Congress has constitutional authority to levy a sales tax or VAT
49Characteristics of Coercive Federalism Demise of Federal IGR InstitutionsDismantling of OMB IGR Office in early 1980sDecline of U.S. Senate and House IGR committeesDismantling of IGR unit in GAO in early 1990sDeath of U.S. Advisory Commission on Intergovernmental Relations ( )Politicization of agency IGR offices
50Characteristics of Coercive Federalism Decline of Political IGR CooperationDecline of willingness of elected and politically appointed federal officials to cooperate regularly with elected state and local officials as co-equal representatives of the peopleWashington, D.C., view of state and local governments as merely lobbyistsNGA is just “another liberal lobbying group” (Americans for Tax Reform)Senator Carl Levin (D-MI): “There is no political capital in intergovernmental relations” 1989.
51Characteristics of Coercive Federalism Federalization of Criminal Law
52Crimes in the U.S. Constitution … the Constitution of the United States … delegated to Congress a power to punish  treason,  counterfeiting the securities and current coin of the United States,  piracies and felonies committed on the high seas, and  offenses against the laws of nations ….”Thomas Jefferson, Kentucky Resolutions, 1798
5344504000330030004Source: John S. Baker, Jr., “Revisiting the Explosive Growth of Federal Crimes,” Legal Memorandum 26 (Washington, DC: Heritage Foundation, June 16, 2008): 1-8.
54 Table 1A Is your state/province treated with the respect it deserves in the federal system of government? Yes No All Canadian Respondents 45.4% 48.0% 43.1% 47.9% 46.7% 50.3% All U.S. Respondents Canadian Regions Atlantic Provinces Quebec Ontario Manitoba/Saskatchewan Alberta British Columbia Canadian Federal Political Parties Alliance Bloc Quebecois Conservative Green and Others Liberal New Democratic PC Sources: Author Reference Deleted 2002; Author Reference Deleted 2005; Author Reference Deleted 2008; and authors’ 2009 survey. Note: Percents exclude “Don’t know” and “No Answer” responses.
55Table 1B Is your state/province treated with the respect it deserves in the federal system of government? Yes No All Canadian Respondents 45.4% 48.0% 43.1% 47.9% 46.7% 50.3% All U.S. RespondentsU.S. Regions New England Mid-Atlantic East North Central West North Central South Atlantic East South Central West South Central Mountain Pacific Sources: Author Reference Deleted 2002; Author Reference Deleted 2005; Author Reference Deleted 2008; and authors’ 2009 survey. Note: Percents exclude “Don’t know” and “No Answer” responses
56Table 2 Trust and confidence in the various orders of government, 2002-2009 Canada United States MexicoFederal GovernmentGreat Deal/Fair % % % % % % % % % %Little/NoneState/Provincial GovernmentsFairLittle/NoneLocal GovernmentsFairLittle/NoneNote: Percents do not add to 100 due to exclusion of “Don’t Know” and “No Answer” responses.
57Table 3 From which level of government do you feel you get the most/least for your money? Most for MoneyCanada United States MexicoFederal % % % % % % %Province/StateLocalNoneDK/NANote: In 2004 and 2009 “none” and “Don’t know” responses were combined.Least for MoneyCanada United States MexicoFederalProvince/StateLocalAll of the AboveNoneDK/NANote: “all of the above” was not a response option in 2007
58Canada United States Mexico 2003 2007 2003 2007 2003 Needs More Power Table 4 Which level of government has too much power / needs more power today?Canada United States MexicoHas Too Much PowerFederal % % % 51.7% % % 65.4% 54.9%Province/StateLocalAll of the AboveNone of the AboveDon’t Know/NACanada United States MexicoNeeds More PowerFederal % % % % %Province/StateLocalAll of the AboveNone of the AboveDon’t Know/NASources: Author Reference Deleted et al. 2003; Author Reference Deleted 2008; and authors’ 2009 survey.
59Table 5A Responses to the federalism culture questions and scale of federal culture Canada Mexico United States1. A federal form of government is preferable.Strongly Agree % % % 16.6% % 27.2%Somewhat AgreeSomewhat DisagreeStrongly DisagreeDK/NATotalsSig=.000; cc=.2752. A country in which everyone speaks the same language is preferable.Strongly AgreeSomewhat AgreeSomewhat DisagreeStrongly DisagreeDK/NASig=.000; cc=.2833. Having a strong leader in government is preferable.Strongly AgreeSomewhat AgreeSomewhat DisagreeStrongly Disagree `16.8DK/NATotalsSig=.000; cc=.217
60Table 5B Responses to the federalism culture questions and scale of federal culture Canada Mexico United States When making decisions, government is better off limiting discussion. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree DK/NA Totals Scale of Federalism Attitudes based on “strong” or “somewhat” pro-federalism responses to the three attitudinal questions asked above each year. 0 (least pro-federal) 4.6% 5.1% 10.8% 6.3% 5.1% 6.5% (most pro-federal) Mean Score Sig=.000; cc=.126