A Uniquely American System Unit 1 Lecture B FEDERALISM A Uniquely American System Unit 1 Lecture B

Federalism is a political system in which power is divided and shared between the national/central government and the states (regional units) in order to limit the power of government.

Federal System - divides government authority between a national and state governments Unitary System - places formal authority in the central government Confederal System - places authority in the hands of state governments.

The Roots of the Federal System The Framers worked to create a political system that was halfway between the failed confederation of the Articles of Confederation and the tyrannical unitary system of Great Britain. The three major arguments for federalism are: the prevention of tyranny; the provision for increased participation in politics; and the use of the states as testing grounds or laboratories for new policies and programs.

State - Centered federalism (Jefferson) vs Nation-Centered Federalism ( Hamilton)

The Powers of Government National Government - one of delegated powers. 3 types of delegated power: - enumerated (expressed) - implied - inherent

Enumerated powers - literally expressed Article I, section 8 lay and collect taxes, duties, and imposts provide for the common defense and general welfare of the United States regulate commerce with foreign nations, and among the states, and with Indian tribes coin money and regulate the value thereof declare war

Implied Powers- not literally stated but reasonably implied Article I, Section 8, clause 18 “necessary and proper clause” or elastic clause The necessary and proper clause has often been used to expand the powers of the national government.

Inherent powers Powers which belong to the national government by virtue of their existence

Reserved powers or “State Powers”- (police powers) Most of State powers come from the Tenth Amendment that says: "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."

Powers shared by the national and state governments Concurrent powers- Powers shared by the national and state governments

Denied Powers Article I, section 9 lays out powers denied to the central government. For example: give preference to ports of one state over another Article I, section 10 lays out the powers denied to the states. For example: enter into treaties, alliances, or confederations

The Supremacy Clause Article IV says that federal law is supreme. (So if the states and federal government argue, the feds win.)

The Evolution and Development of Federalism The allocation of powers in our federal system has changed dramatically over the years. The Supreme Court in its role as interpreter of constitution has been a major player in the redefinition of our Federal system. McCulloch v. Maryland (1819) Gibbons v. Ogden (1824) Dred Scott v. Sandford (1857)

McCulloch v. Maryland (1819) McCulluch was the first major decision by the Supreme Court under Chief Justice John Marshall about the relationship between the states and the national government. The Court upheld the power of the national government and denied the right of a state to tax the bank. The Court’s broad interpretation of the necessary and proper clause paved the way for later rulings upholding expansive federal powers.

Gibbons v. Ogden (1824) The Gibbons case centered on the conflict between the states and the powers of Congress. Could New York grant a monopoly concession on the navigation of the Hudson River? The Hudson River forms part of the border between New York and New Jersey and the U.S. Congress also licensed a ship to sail the Hudson. The main constitutional question in Gibbons was about the scope of Congress' authority under the Commerce Clause. In Gibbons, the Court upheld broad congressional power over interstate commerce.

Dred Scott v. Sandford (1857) The Supreme Court articulated the idea of concurrent powers and dual federalism in which separate but equally powerful levels of government is preferable, and the national government should not exceed its enumerated powers. The Taney Court held that Mr. Scott was not a U.S. citizen and therefore not entitled to sue in federal court. The case was dismissed and Scott remained a slave. Taney further wrote that Congress had no power to abolish slavery in the territories and slaves were private property protected by the Constitution.

STAGES OF FEDERALISM There have been FOUR STAGES OF FEDERALISM throughout American history. 1789 1937 1960 1970 1990 I. “DUAL II. “COOPERATIVE III. “REGULATED IV. “NEW FEDERALISM” FEDERALISM” FEDERALISM FEDERALISM

STAGES OF FEDERALISM STAGE 1: “Dual Federalism” (1789-1937) 1. Central government focused on promotion of commerce and distribution of resources. 2. States retain most remaining powers.

STAGES OF FEDERALISM Stage 1: Dual Federalism Power of the national government set forth in Article I, Section 8 of the Constitution Commerce clause “necessary and proper clause” McCulloch v. Maryland (1819) Gibbons v. Ogden (1824)

STAGES OF FEDERALISM STAGE 2: “Cooperative Federalism” (1937-?) Franklin Roosevelt’s “New Deal” sparks a revolution in national policy-making and an increased role for the national government altering the balance of federal power.

STAGES OF FEDERALISM STAGE 2: “Cooperative Federalism” In NLRB v. Jones and Laughlin Steel (1937), the Supreme Court expanded its interpretation of the commerce clause to allow the national government to regulate as well as promote interstate commerce.

STAGES OF FEDERALISM STAGE 2: “Cooperative Federalism” The New Deal’s expansion of the national government and the executive branch further empowered the national government at the expense of state autonomy.

STAGES OF FEDERALISM STAGE 2: “Cooperative Federalism” The national government would ensure state cooperation with federal policies by offering grants-in-aid. 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.

STAGES OF FEDERALISM STAGE 3: “Regulated Federalism” (1960s-?) As state and local governments came to depend on grant-in-aid support, the national government further intervened in state government decision-making by threatening to withhold such grants. This is also known as “COERCIVE FEDERALISM.”

STAGES OF FEDERALISM STAGE 3: “Regulated Federalism” To regulate speed limits within states, the national government threatens to withhold federal transportation dollars thus coercing states to comply with federal mandates.

Case study of the "Double Nickels“ The federal fifty-five-mile-per-hour speed limit was repealed in December 1995 after two decades. Twenty states (mostly Western ones) increased their speeds to seventy miles per hour or more. Montana imposed no daytime speed, and Nevada had no speed limits at all at anytime. Why were fifty-five-mile-per-hour speed limits imposed in the first place? To save gas after oil shortages in the 1970s. Insurance industry studies say fewer highway deaths at lower speeds. Same law removes helmet rules and zero alcohol tolerance rules. Uncle Sam: the carrot and the stick Federal government involved through highway construction funds (Federal Highway Trust Fund). To get federal funds, states kept lower speeds until Congress changed the law in 1995. President Clinton and Congress responded to states' complaints (the federal system and election politics in action).

STAGES OF FEDERALISM STAGE 4: “New Federalism” (1969-?) The waning in some respects of Franklin Roosevelt’s “New Deal” coalition and programs sparks a counter-federal trend, known as NEW FEDERALISM, that begins to return discretion to the state and local governments.

STAGES OF FEDERALISM STAGE 4: “New Federalism” The “new federalism” trend of returning discretion to the states began in the executive branch as the Nixon, Carter, and Reagan Administrations gave states a larger role in administering federal policies.

STAGES OF FEDERALISM STAGE 4: “New Federalism” The Republican takeover of Congress after the 1994 elections led to a series of policies where the federal government “devolved” power to the states. Welfare reform is a good example of such “devolution.”

STAGES OF FEDERALISM STAGE 4: “New Federalism” 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” to justify federal government involvement in the states.

STAGES OF FEDERALISM “we would have to pile inference upon inference in a manner that would … convert congressional authority under the Commerce 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 Changing Nature of Federalism Prior to the 1930s, many scholars used the analogy of a layer cake to describe federalism. Each layer had clearly defined powers and responsibilities. After the New Deal, the analogy of a marble cake seemed more appropriate because the lines of authority were much more mixed. This marble cake federalism is often called cooperative federalism and has a much more powerful national government. States have a cooperative role, as did many cities.

States are allowed to be different Can be wide variety in criminal statutes, punishments, etc . . .

1993 – Hawaii – gay marriage possible States are required to give “full faith and credit” to honor the “public acts, records, and judicial proceedings” of other states 1993 – Hawaii – gay marriage possible 1996 – Defense of Marriage Act – states don’t have to recognize same-sex marriage 1998 – Court rules that Missouri court can ignore Michigan court order to ban testimony

Citizens from one state have the same rights and the citizens of another Article 4, section 2 – privileges and immunities No discrimination between state residents and out-of-state residents, criminal extradition

Modern Problem? “competitive federalism” – states compete amongst each other to make themselves more attractive to business – can create a “rush to the bottom”

THE COSTS OF DIVIDED GOVERNMENT POWER Through federalism and the separation of powers, the Constitution sets up conflicts which act as barriers to collective action. Thus, when collective action is necessary and desirable, the government must overcome these barriers.

THE COSTS OF DIVIDED GOVERNMENT POWER 9/11 as a turning point: 2001-Present 9/11 increased the power of the federal government Unfunded Mandates: federal government requires programs or standards but does not provide funding to achieve them Federalism and the separation of powers provide impediments to the national government’s ability to meet the threat of terrorism, which requires swift and concerted national government power.

THE COSTS OF DIVIDED GOVERNMENT POWER FEDERALISM’S CHALLENGE: National, state and local governments must overcome their natural conflicts to work together to meet terrorist threats. SEPARATION OF POWERS CHALLENGE: The legislative, executive, and judicial branches must overcome the natural struggle between their various “ambitions” to act collectively.