1. Lecture and Materials Week 2: Federalism September 7, 2017
State Politics
Lecture and Materials
Week 2: Federalism
September 7, 2017

2. Tonight’s Agenda Discussion of All the King’s Men
Discussion of Cross to Bear
Lecture on Federalism between States and Federal Government
Federalist Papers
South Dakota v. Dole
NFIB v. Sebelius
Schneier, et. al. Chapter 2

3. All the King’s Men What themes do you see related to state politics?
Do you think a politician in a state or locality today could get as powerful as Willie Stark?
What about in the recent past?
How much of the corruption in the film do you think takes place today?
Are there any politicians (besides Huey P. Long) that Willie Stark reminds you of?

4. Edwin Edwards From Avoyelles Parish- Marksville
A Cajun Catholic with an Anglo name
First modern Catholic governor of the state
Put together a coalition of Cajuns and African-Americans
One of the few southern white politicians to vote for civil rights legislation as a US House member
Longest serving governor in state history
6th longest in US History
Convicted of corruption after his fourth term

5. David Duke Started out as a Democrat Member of the Klan Had a nose job
Switched parties in 1989
Lost races for State Senate and others
Won a seat in the State House from Metairie in 1989
GOP nominee for Governor in 1991, and Senate in 1990
Member of the Klan
The Klan member next door
“White rights”
Had a big problem with “The Jews”
Had a nose job

6. Buddy Roemer
First elected as a conservative Democratic House member from the Shreveport area in 1980
Had previously worked for the Edwards campaign
His father worked for Edwards and was a powerful political consultant, and later convicted of corruption charges
Wins the 1987 Governor election after Edwards declines to advance to the runoff
Had ambitions of being President
Had problems his first term with taxes and spending cuts
And divorced while in office
Switches parties in 1991

7. Sen. J. Bennett Johnston and the 1990 Senate Race
Johnston had ran and lost a narrow runoff race to Edwards in 1971
But won a Senate seat easily the next year in 1972
Was a Protestant from Shreveport
Running for a 4th term in 1990 and was considered vulnerable, but many stayed out of the race and Dutch Morial had died
Duke decides to run shortly after his State House election
Allegations of Duke as a womanizer
St. Sen Ben Baggert (R-New Orleans) pulls out at the last minute to try to prevent a runoff
Johnston wins 54-44
Duke wins 55% of the white vote

8. The 1991 Race for Governor Heats Up
Duke had done well with the Long, Edwards populist white base
Big government the boogey man, no longer big business
Early polls showed Roemer and Edwards the favorites; Duke far back
Roemer looks like the favorite
Duke hopes for a runoff with Roemer to get the Edwards populist vote
Contribution limits hit Duke and Edwards hard

9. The Louisiana Primary Started by Edwards in the mid 1970s
All candidates appear on the same primary ballot, regardless of party
The top two finishers, regardless of party meet in a runoff a month or so later
Unless one person gets a majority in the first round
Voting on Saturdays (except for national election day)
Helped the state Republican Party develop Treen elected in 1979
Can lead to runoffs that would not happen if their were party nominations

10. Back to Roemer Roemer switches to the GOP on March 11
Had thoughts of running for President in 1996
Had burned bridges with Democrats
But not beloved by the GOP he loses the caucus endorsement to Clyde Holloway
He uses a lot of out of state handlers for his campaign
He eschews the locals

11. Abortion Politics
There was talk that Roe v. Wade might be overturned soon
Roemer was seen as on the pro-life side
Louisiana is seen as a very anti-abortion state with its makeup
Rep. Woody Jenkins filed a bill to make abortion second degree murder with no rape and incest exceptions (10 year sentence)
The law easily passed
Roemer vetoed it due to the lack of exceptions
With the help of North Louisiana members in the Senate, the veto was sustained
Eventually a bill with exceptions passes, but Roemer vetoes again
This helps him lose the more religious vote

12. Redistricting
White Republicans and Black Democrats turned out to be allies
Why?
Max black plan
Punish enemies, protect populist Democrat member
The controversial redistricting plan doesn’t seem to hurt Roemer

13. Federalist #15 By Hamilton-
“The Insufficiency of the Present Confederation to Preserve the Union”
Speaks of what he sees as the failures of the Articles of Confederation
Federal laws were not enforceable against states
“The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option”
“The last stage of national humiliation”
Requirement of unanimity

14. Federalist #44 By Madison He wants limits on state powers
“Restrictions on the Authority of the Several States”
He wants limits on state powers
Article 1, Section 10- Specific limits
States not conducting their own foreign policy
Coinage of money
Oath to the constitution
Residual clause (necessary and proper)
Supremacy Clause

15. Federalist #45 By Madison
“The Alleged Danger From the Powers of the Union to the State Governments Considered”
Looks at which powers are best suited to states and the national governments
States and local- ordinary issues, internal order
National- War, liberty, protections of states against other states, commerce, taxes
State governments more powerful during times of peace
National governments more powerful during times of war

16. Federalist #46 By Madison-
"The Influence of the State and Federal Governments Compared”
Compares the roles of state and national government
“I propose to compare the federal and state governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former.”
Madison proposed keeping a peacetime military very small at the national level while state militias would be larger
Parts about being armed often cited by gun rights groups today

17. New York in the Federal System
If New York were its own country, it would be the 11th largest economy in the world
Roughly the size of Canada

18. Federalism Types of federalism
Dual
This is the states’ rights argument
The states empower the national government
They see the 10th Amendment as reserving most powers to states
Each supreme in its own sphere
Cooperative
The necessary and proper clause and Supremacy Clauses are controlling and are to be read broadly
The people empower the national government, not the states
The 10th Amendment is not an additional grant of power to the states
Are there powers reserved for the federal government?

19. Constitutional Basis of Federalism
Key terms
Enumerated powers
National Supremacy Clause
Preemption
Exclusive powers
Concurrent powers
Implied powers
Necessary and proper clause
General welfare clause
More terms
Full faith and credit clause
Privileges and immunities clause
10th Amendment
14th Amendment
17th Amendment

20. Eras of Federalism 1789 to 1933 Dual federalism
State’s rights; powers of Congress limited
1933 to 1964 Cooperative federalism
Federal government sending money to the states; New Deal
1964 to 1980 Centralized federalism
Great Society; federal government fills in state responsibility, grants, mandates
1980 to 2002 New Federalism
Reagan era; block grants; devolution
2002 to present Ad hoc federalism
Policy diffusion based on issue No Child Left Behind, ACA, marijuana legalization

21. Money Fiscal federalism
Money flowing from the federal government (29% of state budgets)
More for New York (Medicaid)
Grants in Aid
Sometimes has strings
Unfunded/underfunded mandates
This can work to counties/cities/towns too
Devolution and block grants
But New Yorkers pay more in taxes than we get back from the federal government
Federal courts/US Attorneys
Interstate compacts

22. South Dakota v. Dole (1987) South Dakota v. Dole (1987) Background
In 1984, Congress gives the Secretary of Transportation the ability to withhold a portion of federal highway funds from states that did not raise their drinking age to 21
Many states including New York had lower drinking ages
It was designed to reduce the number of underage drinkers and highway fatalities
South Dakota allowed the sale of near-beer (3.2) to those at 19
It was not an outlier on this- most states had not adopted a 21 drinking age
Question
Did Congress exceed its spending powers, or violate the Twenty-first Amendment, by passing legislation conditioning the award of federal highway funds on the states' adoption of a uniform minimum drinking age?

23. South Dakota v. Dole- II Arguments
For South Dakota (law is unconstitutional)
States have long had the local police power to control alcohol within its borders
The 21st Amendment gives them additional powers
States are not merely subdivision of the federal government
Federal regulation of the state drinking age violates both the 10th and 21st Amendment

24. South Dakota v. Dole- III
Arguments
For Elizabeth Dole and the United States
This was passed in response to alcohol related deaths by underage drivers
This does not set a minimum drinking age for states this is only a financial incentive to do so
It is within the authority of Congress to place conditions on the awarding of federal funds
The amount of federal funds withheld under this law is minimal for those that choose not to comply and is therefore not coercive

25. South Dakota v. Dole- IV
Chief Justice Rehnquist writes for a 7-2 majority
Congress can attach strings to spending to states
“The power of Congress to authorize expenditure of public monies for public purposes is not limited by the direct grants of legislative power found in the Constitution”
The power is not unlimited under the spending power and these limitations are set
The spending must promote "the general welfare";
The condition must be unambiguous;
The condition should relate "to the federal interest in particular national projects or programs";
The condition imposed on the States must not in itself be unconstitutional; and
The condition must not be coercive

26. South Dakota v. Dole- V More from Rehnquist
The first three are undisputed for the federal government
The purpose of the law was safe interstate travel
This was frustrated by varying state drinking ages
The 21st Amendment does not pose a problem either
This is indirect
If South Dakota raises its drinking age, who is harmed?
This is also not coercive
It loses only 5% of its highway funds for non-compliance
This is more encouragement than coercion

27. South Dakota v. Dole- VI Two differing dissents
O’Connor, J. dissenting
This is more of a congressional attempt to regulate liquor, which is prohibited
This is barred by the 21st Amendment
Congress cannot insist on highway safety for states to change their laws
Could this power be used to make states move their capitals?
This is not an enumerated power
She looks to the Butler case
Brennan, J. dissenting
He bases his dissent on the 21st Amendment overriding this

28. National Federation of Independent Business v. Sebelius (2012)
Background
This involves the individual mandate and the Medicaid expansion
States that did not expand Medicaid would lose all their Medicaid money
The expansion would cover eventually 90% of the new enrollees
Individuals not exempted that did not have insurance must pay a fine on their taxes
Questions:
Was the penalty for not having insurance a tax exceed its Taxation Power?
Did the Medicaid expansion provision violate principles of federalism?
There was also a severability issue as well

29. National Federation of Independent Business v. Sebelius- II
Arguments
For the NFIB (overturn the ACA)
A penalty is not a tax
One cannot uphold the unconstitutional mandate by calling it a tax
Congress intended this to be a penalty and not a tax
Congress may not use the spending power to commandeer the legislative power of states
The ACA is an abuse of the spending power
Approval of the ACA would mean the spending power has no bounds

30. National Federation of Independent Business v. Sebelius- III
Arguments
For Sebelius and the Obama Administration (uphold the law)
It is a tax because it raises revenue and is enforced by the IRS
It is based in part on income level
Taxes can have regulatory objectives as well as revenue raising
The fact that the word penalty is used do not mean that it is not a tax
Congress may fix the terms which it appropriates federal funds
Congress has changed the Medicaid system several times since enactment
The Medicaid expansion is so generous that most states will choose to participate, making it non-coercive

31. National Federation of Independent Business v. Sebelius- IV
Chief Justice Roberts, ruling for the Court
5-4 on the tax provision, 7-2 on the Medicaid expansion
First the penalty for not having insurance
It is administered by the IRS and could generate $4 billion by 2017
Just because it is called a penalty does not mean it may not be a tax
Fees and surcharges can be part of the taxation power
In Drexel Furniture, the tax was 10% a heavy burden punitive and enforced by the Department of Labor, not the IRS so this was a penalty
In this case, the penalty is far less than the cost of purchasing insurance
It is enforced by the IRS, but is not allowed the power of criminal prosecution to enforce it

32. National Federation of Independent Business v. Sebelius- V
More from Chief Justice Roberts
More on the tax provision
This is designed to affect individual conduct and this is allowed
He mentions the high cost of tax in cigarettes
While it tries to induce those to purchase insurance but without negative legal consequences for not doing so
Four million are estimated to pay the tax rather than buy insurance
But none will be declared “outlaws”

33. National Federation of Independent Business v. Sebelius- VI
More from Roberts
He then addresses the apportion issue
Article 1, Section 9, Clause 4 on head and direct taxes required to be apportioned among states in proportion of their population
Roberts says it is not a direct tax it is based on income
The federal government has the power to impose a tax for those that fail to buy health insurance

34. National Federation of Independent Business v. Sebelius- VII
More from Roberts
He moves onto the Medicaid expansion (This is a 7-2 decision)
The penalty for not complying with the expansion is loss of all Medicaid funds
Congress can impose conditions on spending but may not coerce or commandeer states
Pressure cannot turn into compulsion states must have to have a legitimate choice
Forcing states to do this would be against the federal nature of our system
One must worry when Congress uses its spending power to implement a federal policy it could not impose directly under its enumerated powers
South Dakota v. Dole only involved taking away 5% of highway funds
Medicaid makes up over 20% of most state budgets, funded 50%-83% by the feds
Congress cannot penalize states with threat of all their Medicaid money
States have to have a legitimate choice on whether to implement the Medicaid expansion
This made Medicaid expansion optional the remainder is constitutional, without this penalty

35. National Federation of Independent Business v. Sebelius- VIII
Justice Ginsburg, concurring in part, concurring in judgment in part, and dissenting in part
Joined by Sotomayor, and Kagen and Breyer in part (not on Medicaid provision)
This focuses on the Medicaid expansion
She would uphold the Medicaid provision
This applies only to Medicaid money, not threats to take away others
She thinks the get things backwards Congress is the one tasked with the spending power, not the states
States have no right to these funds to start with
She does agree with him on the severability provision

36. National Federation of Independent Business v. Sebelius- IX
Joint dissent of Scalia, Kennedy, Thomas, Alito
They would throw out the entire law
The disagree on the tax provision
They accuse the Court of re-writing the statute it is a penalty they call it that
Medicaid issue
The taking away all Medicaid money as a penalty goes too far
It would have to find a way to make up 20% of its budget
This is coercion and commandeering of states to implement this program no choice