American Federalism Chapter 3

Defining Federalism Section 1

Defining Federalism Constitutional arrangement whereby power is distributed between a central government and subdivisional governments (eg., states). The national and the subdivisional governments both exercise direct authority over individuals. 267 definitions

Defining Federalism Dual Federalism Views the constitution as giving a limited list of powers to the national government, leaving the rest to sovereign states Cooperative Federalism Federalism as a cooperative system of intergovernmental relations in delivering goods and services to the people Marble Cake Federalism “As the colors are mixed in a marble cake, so functions are mixed in the American federal system” Competitive Federalism Views the levels of government as being in competition to provide packages of services and taxes

Defining Federalism Permissive Federalism Powers are shared, but state power rests upon the permission and permissiveness of the national government “New Federalism” Presumes that the power of the federal government is limited in favor of the broad powers reserved to the states

Alternatives to Federalism

Federalism and Confederation

Why Federalism? Check Growth of Tyranny U.S. associates federalism with freedom If your party loses control in national election you still have state and local Disadvantages Difficult for national government to carry out a program of action State governments can frustrate the policies of Congress

Why Federalism?

Unity Without Uniformity National politicians and parties do not have the burden of working out every issue Ex. abortion, same- sex marriage, gun control, capital punishment, etc.

Why Federalism? Encourages Experimentation States are “laboratories of democracy” Justice Louis Brandeis If program fails damage is limited If program is a success it can be adopted nationally Georgia - 18 year old vote California - emissions Wisconsin - welfare Massachusetts - healthcare for all

Why Federalism? Provide Training & Opportunities “Practice” for state and local politicians baltimoresun.com/sarah-palin-governo_797905c.jpg

Constitutional Structure of American Federalism Section 2

Constitutional Framework National government has only those powers delegated to it by the Constitution The national government is supreme States have powers not delegated to national government Some powers are specifically denied List

Powers of the National Government Delegated Powers (Express Powers) INTERSTATE COMMERCE Regulate INTERSTATE COMMERCE Appropriate Funds Implied Powers Necessary & Proper Clause Necessary & Proper Clause Article I, Section 8, Clause 3 “Make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested…in the Government of the United States” Create banks

Powers of the National Government Inherent Powers Because we are a sovereign nation the national government possess powers that sovereign nations should have Acquire territory

Powers of the National Government: National Supremacy Article VI “The Constitution, and the Laws of the United States…shall be supreme Law of the Land” All national and state officials swear an oath to the Constitution Conflicting state and local regulations are unenforceable Conflicting state and local regulations are unenforceable

Powers of the National Government: War Power National government is responsible for protecting the nation from external aggression Requires troops in the field and industrial might National government has the power to do almost anything not in direct conflict with constitutional guarantees

Powers of the National Government: Interstate and Foreign Commerce COMMERCE CLAUSE COMMERCE CLAUSE Article I, Section 8 “…to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Congressional authority extends to all commerce that affects more than one state Production, buying, selling, renting, and transporting of goods, services, and properties FEW aspects of our economy today affect commerce in only one state Thus few things are outside the scope of the national government’s constitutional authority

Powers of the National Government: Gibbons v. Ogden (1824) Gibbons v. Ogden (1824)

Powers of the National Government: Gibbons v. Ogden (1824) Gibbons v. Ogden (1824) Marshall Court affirmed the broad authority of Congress over interstate commerce New York argued that states may also regulate commerce Just as levying taxes is a concurrent power Asserted national interests over state interests Basis for subsequent growth in congressional power

Powers of the National Government: Gibbons v. Ogden (1824) Gibbons v. Ogden (1824) Court had to answer: May both Congress and the states regulate interstate commerce? If a conflict arises who prevails? John Marshall defined interstate commerce as “intercourse that affects more states than one” So broad it now applies to lottery, prostitution, radio, TV, internet, etc. Unlike taxes Congress’ power over interstate commerce is complete and overrides conflicting state law

Powers of the National Government: Interstate and Foreign Commerce United States v. Lopez (1995) United States v. Lopez (1995) Limited congressional power Struck down Gun Free School Zone Act Could not possess a firearm within 1,000 fett of a school Court did not find a substantial connection between violence in schools and the national economy Gonzales v. Raich (2005) Gonzales v. Raich (2005) Increased congressional power Court upheld Congress’ power to criminalize marijuana even for medical purposes, which 10 states allowed Court held that the aggregative impact of individual marijuana usage had a substantial connection to and would undercut the regulation of marijuana in interstate commerce

Powers of the National Government: Power to Tax and Spend Congress may not pass laws solely to promote the general welfare They can tax and spend Federal Mandates Example Congress cannot regulate education directly Congress can appropriate money to support education and attach conditions to its grants States do not have to follow No Child Left Behind Regulations but in turn they could not accept federal money States do not have to follow No Child Left Behind Regulations but in turn they could not accept federal money

Powers of the States 10th 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” Reserve Powers Create schools and local governments Concurrent Powers Levy taxes

Interstate Relationships: Full Faith and Credit Article IV, Section 1 “ Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Requires states to: to enforce civil judgments and accept public records of other states Does not require states to: enforce criminal law and legislation of other states

Interstate Relationships: Privileges & Immunities Article IV, Section 2 “ The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Interstate Relationships: Extradition Article IV, Section 2 “ A Person charged in any State with Treason, Felony, 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, be delivered up, to be removed to the State having Jurisdiction of the Crime.”

The Federal Courts & Federalism Section 3

McCulloch v. Maryland (1819)

McCulloch v. Maryland (1819) First chance to define the division of state and federal power Facts of the Case The Constitution says nothing about establishing a national bank, yet congress chartered 2 banks and provided initial capital Maryland imposed a tax on one bank in an attempt to put them out of business The branch cashier, James William McCulloch, refused to pay the Maryland tax

McCulloch v. Maryland (1819) Questions Presented Does the national government have the implied power, under the necessary and proper clause, to charter a bank and contribute capital to it? If the bank was constitutional, could a state tax it? Was a state action that conflicted with a national government action invalid under the supremacy clause?

McCulloch v. Maryland (1819) Conclusion Unanimous decision Doctrine of implied national powers Chief Justice John Marshall held that if establishing such a bank aided the national government in the exercise of its designated powers, then the authority to set up such a bank could be implied Doctrine of national supremacy No state could use its taxing power to tax an arm of the national government

McCulloch v. Maryland (1819) Significance Doctrine of Implied National Power Doctrine of national supremacy If case had went the other way the national government would have been denied powers needed to deal with the problems of an expanding nation

Federal Courts and the Role of the States 14th Amendment guarantees “due process” and “equal protection” of the laws Has grown to allow federal judges IMMENSE power to review activities of state/local governments Almost every action of by state and local officials is now subject to challenge in federal court

Centralists vs. Decentralists Centralism Supporters: Chief Justice John Marshall, Presidents Abraham Lincoln, Theodore Roosevelt, and Franklin Roosevelt, and the Supreme Court for most of its history Position: The central government should be denied authority only when the Constitution clearly prohibits it from acting Decentralism Supporters: Anti-Federalists, Thomas Jefferson, Supreme Court from 1920s to 1937, and Presidents Ronald Reagan and George W. Bush Position: Views the Constitution as a compact among states that gives the central government very little authority

Supreme Court and the Role of Congress Shift in court ideology from 1937 to 1990’s Return to older view of federalism More narrow view of commerce and necessary and proper clause 5-4 vote to ban state from imposing congressional term limits U.S. v Morrison Violence against women act did not significantly impact interstate commerce despite costing the national economy $3 Billion annually

Regulatory Federalism Section 4

Regulatory Federalism Federal grants are one of the most potent tools for influencing policy at state and local levels 4 purposes of grants 1. Supply state/local government with revenue 2. Establish minimum national standards 3. Equalize resources among states 4. Attack federal problems yet minimize the growth of federal agencies

Types of Federal Grants: Categorical-Formula Grants Congress appropriates funds for a specific purpose Allocated by formula Subject to federal conditions such as matching funds Examples: School lunch, airports, highways, Medicaid

Types of Federal Grants: Project Grants Congress appropriates a specific sum Allocated to state/ local governments and nongovernmental agencies Based on applications Similar to a college scholarship Examples: Universities and research institutes

Types of Federal Grants: Block Grants Broad For prescribed activities Welfare, child care, education, social services, preventive care Few (if any) strings attached

Types of Federal Grants In 1996 there was a shift from categorical grants to block grants 2 types of categorical grants: Formula grants Project grants Block grants Far more flexible Purposes of Federal Grants to State and Local Governments

Politics of Federal Grants The Republican “Contract with America” called for devolution— the transfer of political and economic power to the states For example: Welfare

The Politics of Federal Grants: Devolution

Federal Mandates Unfunded Mandates Reform Act of 1995 Part of the Newt Gingrich/Republican lead Contract with America Requires Congress to evaluate and constrain the unfunded mandate Has been largely unsuccessful in restraining mandates Ex. No Child Left Behind

New Techniques of Federal Control Direct Orders States must comply or face criminal and/or civil action Ex. Equal Employment Opportunity Act Cross-Cutting Requirements Establish conditions that extend to all activities supported by federal funds Ex. Civil Rights Act of 1964

New Techniques of Federal Control Crossover Sanctions Permit the use of federal money in one program to influence state/local policy Ex. 15% cut in highway funds if a state has a drinking age lower than 21 Total & Partial Preemption Ex. Homeland Security increased the responsibilities of first responders while providing only a fraction of the necessary funds

The Politics of Federalism Section 5

The Growth of National Gov’t Why has the power of the national government grown over the last two centuries? Industrialization & Economic Growth Great Depression World War II Political leaders’ promotion of federal initiatives