Federalism --What is federalism? --Constitutional origins of federalism --Evolution of federalism in American history

Federalism Defined 1. Definition of Federalism Same people and territory are included in both levels of government (think citizenship) The nation’s constitution protects units at each level of government from encroachment by the other unit Each unit is in a position to exert some leverage over the other ALTERNATIVES: unitary and confederal forms 2. Origins of the federal form of government Philosophical Decentralizes power Protects geographic minorities Political Concession by nationalists to supporters of states’ rights

Federalism in the Constitution 3. Why the question? Who has the power? The Constitution, in places, is very clear: A. Enumerated (or delegated) powers—powers clearly granted to the national government Coining money Regulating interstate commerce Making treaties National defense B. Supremacy clause—National laws trump conflicting state laws. BUT the Constitution in places is ambiguous: A. Implied powers of the national government—found in the “necessary and proper” clause (elastic clause) B. Conflicts with the Reserved Powers of the states, found in Amendment X. Powers seem to overlap.

Evolution of Federalism 4. Evolution of the Meaning of Federalism—(think of a pendulum) A. National Supremacy: John Marshall and the Federalist Supreme Court McCulloch v. Maryland (1819) Gibbons v. Ogden (1824) B. Interposition/Nullification (mid-1800s): Roger Taney and the Democratic Supreme Court States’ Rights Doctrine C. Reasserting National Supremacy (1860s) Civil War and the 14th Amendment (incorporation) D. Dual Federalism (late 1800s – 1930s): “Home Rule” Layer Cake Metaphor

Evolution of Federalism E. Reasserting National Supremacy—Fiscal Federalism ($$$) Marble Cake Metaphor The “Carrot and the Stick”—making the donkey go… The Carrot: Forms of Aid Categorical Grants Block Grants Revenue Sharing The Stick: Unfunded Mandates Refining the Marble Cake Metaphor—Picket Fence Federalism F. Limiting National Supremacy (1990s) Lopez v. US (1995) Gun-Free Schools Act Brzonkala (2000) Violence Against Women Act G. Extending National Power? (today) NFIB v. Sebelius (2012) Affordable Care Act

Growth of Federal Power 5. Historical Growth of Federalism—Nationalization 2 Events Increased the National Government’s influence in the federal relationship: A. Great Depression Federal government spent more $ to try to get the country out of depression (Keynesian economic theory) B. Great Society Programs Programs like Medicaid and Medicare; “War on Poverty” Post LBJ—trend away from national domination “Devolution” Reagan