1. Copyright © Houghton Mifflin Company. All rights reserved.3 | 1

2. Chapter Three Federalism

3. Copyright © Houghton Mifflin Company. All rights reserved.3 | 3 Federalism: A Bold New Plan No historical precedent Tenth Amendment was added as an afterthought to clarify the limits of the national government’s power Elastic language in Article I: Necessary and Proper Clause expands federal power

4. Copyright © Houghton Mifflin Company. All rights reserved.3 | 4 Federalism and the American intergovernmental system A. Thousands of governments 1. There is 1 national government, 50 state governments, and more than 87,500 local governments of various types. 2. Types of local governments a) Municipal governments: the government units that administer a city or town. a) County governments: the government units that administer a county. b) School districts: the government unit that administers elementary and secondary school programs. c) Special districts: government units created to perform particular functions, especially when those functions are best performed across jurisdictional boundaries.

5. Copyright © Houghton Mifflin Company. All rights reserved.3 | 5 Governmental Structure Federalism: a political system where local government units can make final decisions regarding some governmental activities and whose existence is protected Unitary System: local governments are subservient to the national government

6. Copyright © Houghton Mifflin Company. All rights reserved.3 | 6 Figure 3.1: Lines of Power in Three Systems of Government

7. Copyright © Houghton Mifflin Company. All rights reserved.3 | 7 Question: Should the national government set standards for the nation?

8. Copyright © Houghton Mifflin Company. All rights reserved.3 | 8 Figure 3.1: Lines of Power in Three Systems of Government

9. Copyright © Houghton Mifflin Company. All rights reserved.3 | 9 Questions: What issues should be locally determined? What issues require national legislation and enforcement? What is the proper balance between uniformity and local autonomy?

10. Copyright © Houghton Mifflin Company. All rights reserved.3 | 10 Figure 3.1: Lines of Power in Three Systems of Government

11. Copyright © Houghton Mifflin Company. All rights reserved.3 | 11 Questions: People want to reform education. Which system would you want to use to make that process the easiest? You want people to be involved in their government? Which system would encourage that more, Unitary or Federal? What does a federal system tell us about the goals of the Framers?

12. Copyright © Houghton Mifflin Company. All rights reserved.3 | 12 Federalist #10 in my own words (read it and look at Federalist #51 again. Could you put it in your own words?). (This is part of our ongoing exploration of the Constitution and the Checks and Balances that are included in it). (Checks and Balances are separate from the concept of government being divided between national and state powers, i.e Federalism (another way to protect liberty)) Federalist Papers

13. Copyright © Houghton Mifflin Company. All rights reserved.3 | 13 Two Views of Federalism...

14. Copyright © Houghton Mifflin Company. All rights reserved.3 | 14 Dual federalism Dual federalism: a view that holds that the Constitution is a compact among sovereign states, so that the powers of the national government and the states are clearly differentiated (represented by the layer- cake metaphor).

15. Copyright © Houghton Mifflin Company. All rights reserved.3 | 15 Dual Federalism a) States are, in some ways, equal to the federal government. b) States’ rights: the idea that all rights not specifically conferred on the national government by the U.S. Constitution are reserved to the states. –What does this lead to? What does it justify?

16. Copyright © Houghton Mifflin Company. All rights reserved.3 | 16 Dual Federalism c) The national government rules by enumerated powers only (supported by the Tenth 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.” d) The role of the people is not clear in the dual federalism perspective.

17. Copyright © Houghton Mifflin Company. All rights reserved.3 | 17 Federalism Over Time Dual federalism: Both national and state governments are supreme in their own spheres, which should be kept separate Hard to make distinctions between state and federal spheres; distinctions between them were blurred But Supreme Court has strengthened states’ rights in several recent cases

18. Copyright © Houghton Mifflin Company. All rights reserved.3 | 18 In Practice, American Gov. is a Marble Cake

19. Copyright © Houghton Mifflin Company. All rights reserved.3 | 19 Cooperative federalism Cooperative federalism: a view that holds that the Constitution is an agreement among people who are citizens of both state and nation, so there is much overlap between state powers and national powers (represented by the marble-cake metaphor).

20. Copyright © Houghton Mifflin Company. All rights reserved.3 | 20 Evidence of the Marble Cake: a) National and state governments undertake functions jointly. b) Nations and states routinely share power. c) Power is not concentrated at any level of government or in any agency –fragmentation of responsibilities gives people and groups access to many venues of influence. d) Stresses the role of the national government, supported by an expansive view of the supremacy clause (Article VI)

21. Copyright © Houghton Mifflin Company. All rights reserved.3 | 21

22. Copyright © Houghton Mifflin Company. All rights reserved.3 | 22 How to read the Constitution? Differences in the theories of dual and cooperative federalism are based in Constitutional interpretation. How NOT to read the Constitution?

23. Copyright © Houghton Mifflin Company. All rights reserved.3 | 23 @

24. Copyright © Houghton Mifflin Company. All rights reserved.3 | 24 Questions: How do you think you read the Constitution? Are you a strict constructionist or do you read it as an activist? Will this change as we read more…we’ll see..

25. Copyright © Houghton Mifflin Company. All rights reserved.3 | 25 (Competing Argument): Tenth Amendment The Tenth Amendment says that “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.” –(1) Dual federalism postulates a capacious Tenth Amendment. –(2) Cooperative federalism confines the Tenth Amendment to a self-evident, obvious truth.

26. Copyright © Houghton Mifflin Company. All rights reserved.3 | 26 (Competing Argument): The elastic clause a) What is Necessary and Proper? (Article I, §8): gives Congress the means to execute its enumerated powers –basis for Congress’s implied powers (also called the necessary and proper clause). (1) Dual federalism postulates an inflexible elastic clause. (2) Cooperative federalism postulates suppleness in the elastic clause.

27. Copyright © Houghton Mifflin Company. All rights reserved.3 | 27 The elastic clause in practice… Increased the scope of the national government in times of crises and national emergencies. a) The Great Depression –(1) National government offered money to support state relief efforts, but states had to provide administrative supervision or additional funds. –(2) National government extended its power and control over the states through regulations attached to grants. –(3) Significant change in the ways Americans thought about their problems and the role of the national government in solving them

28. Copyright © Houghton Mifflin Company. All rights reserved.3 | 28 Questions: How has the elastic clause impacted the balance of power between the states and the national government?

29. Copyright © Houghton Mifflin Company. All rights reserved.3 | 29 Create a chart organizing the information from each side. Use the following topics: –Dual federalism –Cooperative federalism –Marble cake –Layer cake –States’ rights –National government supremacy –Clear differences between levels related to power and responsibility –Overlap between levels related to power and responsibility –Beliefs about 10 th Amendment, and Elastic Clause

30. Copyright © Houghton Mifflin Company. All rights reserved.3 | 30 Federalism’s dynamics The actual and proper balance of power between the nation and the states has always been a matter of debate. –1. The Constitution’s inherent ambiguities about federalism generate both constraints and opportunities for politicians, citizens, and interest groups. –2. Both elected and appointed officials often make policy decisions based on pragmatic considerations without regard to theory. –3. Public problems cut across government boundaries.

31. Copyright © Houghton Mifflin Company. All rights reserved.3 | 31 September 11, 2001 (1) Swift expansion of national power through such legislation as the USA PATRIOT Act (2) Creation of the Department of Homeland Security, a new department that united over twenty previously separate federal agencies

32. Copyright © Houghton Mifflin Company. All rights reserved.3 | 32 Voting Rights Act of 1965 The national government has also responded to needs the states and localities were unable or unwilling to meet. a) The Voting Rights Act of 1965: gives national government officials the power to decide whether individuals are qualified to vote and requires that qualified individuals be permitted to vote in national, state, and local elections. b) Act intrudes on political sovereignty of the states by replacing state officials with national examiners c) Constitutional authority rests in the Fifteenth Amendment (§2), which gives the power to enforce the amendment through “appropriate legislation.”

33. Copyright © Houghton Mifflin Company. All rights reserved.3 | 33 Judicial interpretation 1. Court settles disputes over the powers of the national and state government by deciding whether the acts of either are unconstitutional –a) In the nineteenth and early twentieth centuries, the Court often decided in favor the states. –b) 1937–1995: Court tended to support the national government –c) 1995–present: Court has tended to favor states rights, but not without exceptions

34. Copyright © Houghton Mifflin Company. All rights reserved.3 | 34 McCulloch v. Maryland 1816, The Second Bank of the United States 1818, MD passed law to impose taxes on the bank James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?

35. Copyright © Houghton Mifflin Company. All rights reserved.3 | 35 Above: The south façade of the Second Bank of the United States in August 2006. The Second Bank of the United States was located in Philadelphia, Pennsylvania, where its building, designed by the architect William Strickland, still stands as part of Independence National Historical Park. Chief Justice John Marshall

36. Copyright © Houghton Mifflin Company. All rights reserved.3 | 36 Decision Unanimous decision Congress had the power to incorporate the bank and MD could not tax instruments of the national government employed in the execution of constitutional powers Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme..." The Oyez Project, McCulloch v. Maryland, 17 U.S. 316 (1819), available at: http://www.oyez.org/cases/1792-1850/1819/1819_0/

37. Copyright © Houghton Mifflin Company. All rights reserved.3 | 37 Decision “the power to tax is the power to destroy” Overall, the court adopted a broad interpretation of the elastic clause and said that the Constitution was established by the people not the states.

38. Copyright © Houghton Mifflin Company. All rights reserved.3 | 38 Commerce clause The commerce clause: the third clause of Article I, §8 of the Constitution, which gives Congress the power to regulate commerce among the states. a) The Court’s interpretation of this clause has been a major factor in increasing or decreasing the national government’s power. b) Gibbons v. Ogden (1824): broad interpretation of commerce; increased national government power

39. Copyright © Houghton Mifflin Company. All rights reserved.3 | 39 Gibbons v. Ogden (1824) A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction. Laws like this one were duplicated elsewhere which led to friction as some states would require foreign (out-of-state) boats to pay substantial fees for navigation privileges. In this case a steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted, which forced him to obtain a special operating permit from the state to navigate on its waters.

40. Copyright © Houghton Mifflin Company. All rights reserved.3 | 40 Question Decision Did the State of New York exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce? Yes Regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power enumerated to and exercised by the Congress. The Oyez Project, Gibbons v. Ogden, 22 U.S. 1 (1824), available at: http://www.oyez.org/cases/1792-1850/1824/1824_0/

41. Copyright © Houghton Mifflin Company. All rights reserved.3 | 41 More Cases... Dred Scott (1857): Congress had no power to prohibit slavery in the territories; narrow interpretation of commerce; increased state government power Court upholds FDR’s New Deal legislation; increased national government power (1937) United States v. Lopez (1995): held that Congress exceeded its authority under the commerce clause in regard to legislation banning guns in school zones; increased state power Printz v. United States (1997): Court concluded that Congress could not require states to implement a regulatory scheme imposed by the national government; increased state power

42. Copyright © Houghton Mifflin Company. All rights reserved.3 | 42 Shifting scales? a) Ruled Texas law banning homosexual conduct between consenting adult was unconstitutional (2003) b) Bush v. Gore (2000): Court ordered halt to Florida ballot recounts, overruling the Florida courts http://www.oyez.org/cases/2000-2009/2000/2000_00_949/argument/

43. Copyright © Houghton Mifflin Company. All rights reserved.3 | 43 Positives and Negatives of Federalism Negative view: Federalism blocks progress and protects powerful local interests Positive view: Federalism contributes to governmental strength, political flexibility, and fosters individual liberty –Federalist #10: small political units allow all relevant interests to be heard –Federalism increases political activity

44. Copyright © Houghton Mifflin Company. All rights reserved.3 | 44 …and now for something completely different…

45. Copyright © Houghton Mifflin Company. All rights reserved.3 | 45 Grants in Aid Dramatically increased in scope in 20 th century Grants were attractive to state officials for various reasons Required broad congressional coalitions with wide dispersion of funds, because every state had incentive to seek grant money

46. Copyright © Houghton Mifflin Company. All rights reserved.3 | 46 Grants-in-aid: money paid by one level of government to another level, to be spent for a specific purpose. –a) Categorical grants: grants-in-aid targeted for a specific purpose by either formula or project. (1) Formula grants: categorical grants distributed according to a particular set of rules, called a formula, that specifies who is eligible for the grants and how much each eligible applicant will receive. (2) Project grants: categorical grants awarded on the basis of competitive applications submitted by prospective recipients to perform a specific task or functions.

47. Copyright © Houghton Mifflin Company. All rights reserved.3 | 47 In General... (3) Categorical grants tend to increase national power and decrease state power. (4) Categorical grants are for specific purposes defined by federal law; often require local matching funds

48. Copyright © Houghton Mifflin Company. All rights reserved.3 | 48 Broader Grants -b) Block grants: grants-in-aid awarded for general purposes, allowing the recipient great discretion in spending the grant money.

49. Copyright © Houghton Mifflin Company. All rights reserved.3 | 49 Broader Grants Block grants (sometimes called special revenue sharing or broad-based aid) devoted to general purposes with few restrictions—states preferred block to categorical grants

50. Copyright © Houghton Mifflin Company. All rights reserved.3 | 50 Figure 3.2: The Changing Purpose of Federal Grants to State and Local Governments Budget of the U.S. Government, Fiscal Year 2005, table 12.2.

51. Copyright © Houghton Mifflin Company. All rights reserved.3 | 51 Figure 3.3: Federal Grants to State and Local Governments, 1984-2004 Budget of the U.S. Government, Fiscal Year 2002, Historical Tables, table 6.1, and Budget of the U.S. Government, Fiscal Year 2005, table 12.1.

52. Copyright © Houghton Mifflin Company. All rights reserved.3 | 52 Ideology, policymaking, and federalism in practice Preemption: the power of Congress to enact laws by which the national government assumes total or partial responsibility for a state government function. –a) Preemption is a modern function; a majority of all preemptive acts was passed between 1970 and 1990. –b) Example: The Nutrition Labeling and Education Act of 1990

53. Copyright © Houghton Mifflin Company. All rights reserved.3 | 53 Types of preemption (1) Mandate: a requirement that a state undertake an activity or provide a service, in keeping with minimum national standards. (2) Restraint: a requirement laid down by act of Congress, prohibiting a state or local government from exercising a certain power. –a) Preemption costs state and local governments money and interferes with their ability to set priorities. –b) Use of unfunded mandates was constrained by the Unfunded Mandates Relief Act of 1995 (1) Required cost analysis of legislation (2) Required Congress to hold a separate vote specifically imposing a requirement on other governments without providing money to fulfill that requirement.

54. Copyright © Houghton Mifflin Company. All rights reserved.3 | 54 Liberal or conservative support Liberal or conservative support for mandates tends to depend on the ideology and the purpose of government action being considered –a) Conservatives may be less likely to support the states when the states’ relationship to business is adversarial. –b.) When the Federal Gov’t requires the states to do more, it increases the amount of gov’t that exists. Conservatives tend to favor less gov’t. –c) Federalism tends to be a secondary value, and is overshadowed by other primary values.

55. Copyright © Houghton Mifflin Company. All rights reserved.3 | 55 The Devolution Revolution Devolution proponents harbor a deep- seated ideological mistrust of federal government and believe that state governments are more responsive to the people Deficit politics encouraged devolution Devolution is supported by public opinion, but the strength of that support is uncertain

56. Copyright © Houghton Mifflin Company. All rights reserved.3 | 56 Ideology, policymaking, and federalism in theory 1. Conservatives are often associated with dual federalism. 2. Liberals are often associated with cooperative federalism. 3. Presidential actions since the 1960s seem to support these generalizations. –a) Lyndon Johnson: liberal; Great Society is often characterized as apex of national government activism –b) Richard Nixon: conservative; New Federalism call for block grants to return power to the states –c) Jimmy Carter: liberal; did not support the block grant approach –d) Ronald Reagan: conservative; sought to “restore a proper constitutional relationship” between the national government and the states –e) Bill Clinton: liberal; saw more potential for national government to produce policy success –f) George W. Bush: conservative; sought to embrace states’ rights in a tempered fashion

57. Copyright © Houghton Mifflin Company. All rights reserved.3 | 57 Professionalization of state governments 1. Since the 1960s, states have become more capable and forceful policy actors. –a) Governors and legislators employ better trained and more experienced policy staff. –b) Legislative sessions are longer and legislators receive higher salaries. –c) More highly qualified people are running for state office. –d) States have increased ability to raise revenue. –e) Bureaucrats are generally more highly educated. 2. Changes in national policy have also helped the states to develop. –a) Many grants-in-aid include capacity-building elements. –b) Example: the Elementary and Secondary Education Act catalyzed changes that improved states’ ability to make and administer education policy –c) more people are hired at the state level to carry out mandates and implement grants

58. Copyright © Houghton Mifflin Company. All rights reserved.3 | 58