Federalism

Texas v. U.S. Constitution

Amendment Process 2/3 vote in state house and senate Explanation of amendments published twice in every newspaper (those recognized for state notices) Approval by a majority of voters

Why the Differences? Homogeneity Size History

Federalism Power divided or shared between – A central government – Smaller, regional governments Dual Sovereignty v. Cooperative Federalism – Concurrent jurisdiction

Benefits of Federalism Balance between – Small government More responsive to public More accountable (easier to watch!) More rapid action (esp. in 1700s) – Big government Pooled resources More diverse, so less concern w/ tyranny of majority

Constitutional Parameters: Powers of National Government Foreign affairs, generally Collect taxes and spend money for the common defense and general welfare Power to regulate interstate commerce Necessary and Proper Clause Enforce 13 th, 14 th, 15 th Amendments Supremacy Clause

Powers of the States Tenth Amendment: “reserved powers” Police power: power to regulate health, safety, welfare, and morals Protected by the Eleventh Amendment

Big Controversies! Necessary and Proper Clause Commerce Clause Federal use of the Spending Clause to coerce state behavior

Necessary and Proper Article I, Section 8 “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.”

What Does “Necessary” Mean? 1 a : of an inevitable nature : INESCAPABLE b (1) : logically unavoidable (2) : that cannot be denied without contradiction c : determined or produced by the previous condition of things d : COMPULSORY 2 : absolutely needed : REQUIREDINESCAPABLECOMPULSORYREQUIRED Merriam-Webster Dictionary

What Does “Necessary” Mean? “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” McCullough v. Maryland, 1819 NB: Nullification

Commerce Clause Article I, Section 8 “The Congress shall have the Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Why??

Commerce Clause Industrial revolution Great Depression – “Switch in Time that Saved Nine” Civil Rights movement Today – Federalization of criminal law – Courts may be imposing limits: Lopez

Power to Tax and Spend Remember the economic crisis under the Articles of Confederation! Raising money, then giving it back to the states, gives Congress – Control over how programs are implemented (categorical grants) – Power to promote broad policy objectives, effectively to legislate in areas not covered by Article I

Grants-in-Aid Categorical Grants – Problems: inefficient, “unfunded mandates” Block Grants and General Revenue Sharing – Problems: failure to meet national policy objectives, wasteful, “race to the bottom”

Conditional Funding Conditions on the receipt of federal funds to further "the federal interest in particular national projects or programs“ – If federal objective promotes general welfare – Unambiguous – “Reasonably related” – No independent constitutional bar

National Minimum Drinking Age Act of 1984 and South Dakota v. Dole Portion of highway funds S.D. allowed 19-yr-olds to buy “near beer” Sued, claiming – Provision ran afoul of 21 st Amendment – Condition re: drinking age not reasonably related to purposes of highway funding

Why Is Conditional Funding Effective? States depend on the money from the federal government If a state loses the federal funding, their citizens don’t pay lower taxes States don’t have political power to compensate for loss of federal money

2003 Figures Federal Govt. Receipts from Ind. Income Tax Per Capita State Taxes, Per Capita (National Average) State Taxes, Per Capita (Texas) $793,699 million $2, $1, $1,315.55

2003 Figures Federal Govt. Receipts (Per Capita) State Taxes, Per Capita (National Average) Federal Outlays to States (Per Capita) $2, $1, $1,334.32