Federalism How the circle and the squares get along

Disaster Relief Who’s job was it to clean up New Orleans and the rest of the coast after Katrina?

No Child Left Behind Should the national gov’t step in to regulate school performance?

What is Federalism? Federalism – Two or more governments exercise power and authority over the same people in the same territory OR… the relationship between the federal government (circle) and the state governments (squares)

Federalism Central US government State governments Federal System – powers are divided and/or shared between state and central governments (Current gov’t designed by framers)

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 governments

Expressed Powers Delegated (enumerated) Powers – given to the federal government by Constitution Article I, Section 8 – Congressional Article II, Section 2 – Presidential Article III – Judicial Amendments – 16 th (income tax) Key expressed powers Regulate Interstate/foreign commerce The power to levy war Power to tax and spend

Implied Powers “Elastic Clause” Aka – “Necessary and Proper Clause” Art. I, Sec. 8, Cl "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." Impossible to predict all powers Congress will need to function, sometimes we might have to allow Congress extra powers to fulfill their delegated powers

Inherent Powers Inherent powers derive from being a sovereign nation International law permits all nation-states the power to: –Make treaties –Wage war –Acquire territory

Reserved Powers Powers held solely by the states Guaranteed by the Tenth Amendment –Licensing doctors (and fishermen) –Establishing public schools & local governments –Police powers The authority to protect and promote public morals, health, safety, and general welfare

Concurrent Powers Powers exercised by BOTH national and state governments –Power to tax –Borrow money –Establish courts

Prohibited Powers Powers denied to one or both levels of government –The federal government cannot tax exports –The states cannot make treaties with foreign countries –Neither federal or state governments can impose a religious test for holding public office

LOOSE CONSTRUCTION Alexander Hamilton believed that the Constitution should be “the supreme law of the land”. Hamilton relied on the “necessary and proper” clause as support for broad interpretation. These are sometimes called “implied powers”.

STRICT CONSTRUCTION Supported by Thomas Jefferson who felt that the main threat to personal liberty would come from the national government, not the states. Jefferson’s preference for states rights was based on 10 th Amendment that reserves powers to the states. Louisiana Purchase???

McCulloch v. Maryland (1819) Background Bank of the US operated in Maryland Maryland did not want the Bank of the US to operate in state, the competition was unwanted, and deemed unfair Maryland heavily taxed the bank to put it out of business McCulloch, BoUS employee, refused to pay the state tax

McCulloch v. Maryland (1819) Is a Bank of the US Constitutional? YES. The national gov’t 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 government? -NO. The federal government is supreme. Since the Bank of US is constitutional, only the feds may tax it. -John Marshall reaffirmed Supremacy Clause and Elastic Clause -National (Federal) Gov’t gets STRONGER

Nullification John C. Calhoun (S.C.) argued that a state could nullify (refuse to recognize) an act of Congress that the state considered unconstitutional. This was tested in North v. South ( ) –The Civil War was a dispute over the relationship between Southern states and the National government –The doctrine of nullification was forcibly refuted, and the union deemed indissoluble

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 elastic clause to stretch this power 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.

Gibbons v. Ogden (1824) 1824 – aka “The Steamboat Case” Ogden received a state licensed monopoly to run a ferry across the Hudson River Gibbons also saw the potential of the traffic between NJ and NY and obtained a federal license. Ogden sued saying he had the valid state license, even though Gibbons had US license

Gibbons v. Ogden (1824) Result – Gibbons wins Expanded national power in all areas of commerce law because nation overruled state in interstate trade issues Fed Gov’t gets STRONGER All trade today is primarily controlled by national law

Commerce Clause Who cares? Why is it important? Gibbons v. Ogden ruling makes a loop hole giving Congress power to take control over any issue involving the movement of people, or things Fed gov’t power increased

United States v. Lopez (1995) Commerce clause quiz!!! 1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school, 12 year old 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

Gonzalez v. Raich (2005) Commerce clause quiz!!! Medicinal Marijuana Controlled Substance Act (1970) – US gov regulates the manufacture, importation, possession, and distribution of certain drugs Medicinal marijuana was legalized in California, but illegal to US government. Raich argued commerce clause should not take effect because 1) there was no business transactions and 2) there were no state border issues. Supreme Court ruled 6-3 against Raich saying that the federal government could trump state laws that permitted medicinal marijuana

2 Federalisms? OLD SCHOOL – Dual Federalism –Federal and state governments remain dominant in their separate spheres of influence –Gibbons v. Ogden proved life is not that simple NEW SCHOOL – Cooperative Federalism –State and Federal governments work together to solve complex problems

Dual Federalism

Cooperative Federalism

Fiscal Federalism Fiscal means $ Q – How do you get the states to do things they normally wouldn’t do? A – Money Q – What is the answer to any question ever asked? A – Money

Grants-in-Aid 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 state raised age to 21 and lowered BAC to.08) Block Grants – given for broad, general purposes and allow more discretion on how the money is spent (ex. Welfare reform)

Categorical Grants Main source of federal aid - grants that can be used only for specific purposes, or categories. State and local agencies can obtain categorical grants only by applying for them and by meeting certain qualifications. Categorical grants come with numerous “strings” (rules and requirements) attached that reduce or deny federal funds if certain local or state laws are not passed or if federal guidelines are not met. –nondiscrimination provisions –punitive cross-over sanctions –cross-cutting requirements

Categorical Grants Two types of categorical grants. Project grants - the most common type of categorical grant; awarded on the basis of competitive applications –Example: grants to university professors from the National Science Foundation Formula grants - distributed according to a formula; states and local governments automatically receive funds based on a formula developed from factors such as population, per capita income, or percentage of rural population –Example: Medicare, Aid for Families with Dependent Children, and public housing

Block Grants Used to support broad programs in areas like community development and social services. Complicated paperwork and restrictive federal requirements attached to categorical grants led Congress to establish block grants to support broad programs. States have greater discretion in deciding how to spend the money. –Welfare Reform

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 (unfunded mandates) –Example: Children’s Protection Act (1986) required access ramps and special buses but provided no funds

Mandates 1986 – Asbestos Emergency Response Act, Handicapped Children’s Protection Act 1988 – Drug-free Workplace Acts, Ocean Dumping Ban Act 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 Shift towards Federal Gov’t Spending FederalStateLocal (City) %23%60% %23%30% %17%19% %19%15% %22%24%

Devolution Devolution is the return of power and responsibility to the state governments Idea is fueled by distrust of the federal government and the desire to save money by reducing the size of the “bloated federal government” (money still comes from us) –Welfare Reform Act (1996) gave states money to implement their own welfare programs with wide discretion as to how to meet the goal

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

Federalism is good Living under 2 governments is great… Built on compromise, promotes unity Gov’t duties can be split up Brings gov’t closer to 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 2 governments is bad… States can impede progress of Nation States are unequal States have different policy Easier for states to be dominated by interest groups