Federalism The complex interaction and relationship between the federal government and state governments

What is Federalism? Federalism – the distribution/sharing of power between national and state governments This is NOT about a complete separation of powers. That is a easy misconception to have.

Federalist #51 Defends the Constitution Explains why a strong gov’t is necessary “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Defends separation of powers between state and national gov’t

Powers Delegated Powers (enumerated powers) – powers given to Fed gov’t by Constitution directly Reserved Powers – state powers alone Concurrent Powers – shared powers by both Fed/State Prohibited Powers – denied from both Ex. Neither gov’t can tax exports

Defining Federalism Why is Federalism So Important? Decentralizes our political decision making Which government should take care of which problem? States can solve the same problem in different ways. Example: States set own tax and funding levels, certain states legalizing certain drugs.

Federalism is good Living under TWO governments is great… Built on compromise, promotes unity Brings government closer to the people Allows for state gov’t to address issues in unique regions of the country Allows states to experiment with policy before enacting it at the federal level – Ex. Vermont’s free health care for children

Federalism is bad Living under TWO governments is bad… States can impede progress of Nation States are unequal in how they treat people and provide services States have different policy Easier for states to be dominated by interest groups (factions)

Two Types of Federalism OLD SCHOOL – Dual Federalism Federal and state governments remain dominant in their separate spheres of influence NEW SCHOOL – Cooperative Federalism State and Federal governments work together to solve complex problems

Two Federalisms Dual Federalism – Layer Cake TWO METAPHORS… Dual Federalism – Layer Cake Federal State Cooperative Federalism – Marble Cake

Continued… Dual Federalism Definition: A system of government in which both the states and the national government remain supreme within their own spheres, each responsible for some policies. Like a layer cake Ended in the 1930’s

Continued… Cooperative Federalism Definition: A system of government in which powers and policy assignments are shared between states and the national government. Shared costs Shared administration States follow federal guidelines

Fiscal Federalism The Grant System: Distributing the Federal Pie $$ Categorical Grants: Federal grants that can be used for specific purposes. They have strings attached. Block Grants: Federal grants given more or less automatically to support broad programs. Grants are given to states & local governments

Grants-in-Aid types Money paid from one level of government to another to be spent for a specific purpose Categorical Grants - target specific purposes and “strings attached.” (States receive funds if they raised age to 21 and lowered BAC to .08) Gives more power to national government and reduces power of state leadership Block Grants – given for broad, general purposes and allow more discretion on how the money is spent (ex. Welfare reform) This gives more power to state governments to decide how money is spent**

Devolution Definition: Devolution is the return of power to the state governments A movement spearheaded by conservative leaders from the 1980’s onwards (Reagan!) Picking up more movement since 2010 republican control of Congress and 2016 election Idea is fueled by distrust of the federal government and the desire to save money by reducing the size of the “bloated federal government”

Devolution Example Personal Responsibility and Work Opportunity Reconciliation Act of 1996 Eliminated welfare and transferred the money to states as block grants States received wide latitude on how to administer “workfare” but with the knowledge that Congress was counting on anti-poverty spending” Strings attached: head of family must work or lose benefit; lifetime benefits limited to 5 years; unmarried mother < 18 only receive $ if stay in school and live with adult; immigrants ineligible for 5 years

Mandates A requirement that a state undertake an activity or provide a service Most apply to Civil Rights and the Environment Often times the states or local gov’ts have to pay the bill of the mandate set by Congress called unfunded mandate

Mandates 1988 – Drug-free Workplace Acts, Ocean Dumping Ban Act 1990 – American with Disabilities Act – will probably be on AP Test 1990 – Clean Air Act EX – Columbus, OH spends 23% of the city budget trying to meet environmental mandates (including testing for pesticides used on rice and pineapple) EX – Public schools have to use Internet filtering or schools lose e-rate subsidies

Change in Spending 17% 23% 60% 47% 30% 64% 19% 66% 15% 1929 1939 1960 Shift towards Federal Gov’t Spending Federal State Local (City) 1929 17% 23% 60% 1939 47% 30% 1960 64% 19% 1997 66% 15%

Two Very Important Constitutional Clauses Federalism and interacts between state/federal levels focus around these two landmark SC cases The Necessary and Proper Clause The Commerce Clause

Necessary and Proper Clause Article I, Sec. 8, Cl. 18 - "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Translation: Impossible to predict all powers Congress will need to function, sometimes we might have to allow Congress extra powers to fulfill their delegated powers

Talk/Turn/Share Brainstorm some examples that the government might utilize to expand its power under this clause

Required Supreme Court Case #1: McCulloch v. Maryland (1819) Facts of the case In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. The state appeals court held that the Second Bank was unconstitutional because the Constitution did not provide a textual commitment for the federal government to charter a bank.  Question(s) Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?

What did the Supreme Court determine in McCulloch v. Maryland? To carry out its economic power, Congress may reasonably decide to create a national bank The necessary and proper clause enables Congress to take actions not specifically listed in the Constitution States have the right to tax all economic activity within their borders

McCulloch v. Maryland (1819) Is a Bank of the US Constitutional? YES. The national government has certain implied powers that go beyond delegated powers. US needs a national bank for borrowing, lending, holding minted money, etc. All of which are delegated powers.

McCulloch v. Maryland (1819) Can a state tax the federal gov’t? -NO. The federal government is supreme. Since the Bank of US is constitutional, only the feds may tax it. - John Marshall reaffirmed Necessary and Proper Clause- result…National government gets STRONGER

Commerce clause Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power - To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Congress has used the ness/proper clause to stretch this power into regulating almost ALL activity within the US What is commerce? “Buying and selling of goods and services.” Congress given the power to regulate commerce between foreign countries and US as well as state to state… they control business law.

Required SC Case #2 United States v. Lopez (1995) Facts of the case Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun- Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?

United States v. Lopez (1995) 1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school, 12th grader Lopez carried a gun on to the property Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce” LIMITED National government power Example of what form of federalism?