1. FEDERALISM Chapter 3

2. Forms of Government: Confederate Government: Federal Government
Unitary Government
All powers are held by a single, central agency.
Confederate
Government:
An alliance of independent states
Federal Government
The powers of government are divided by a written Constitution between a central (federal) government and regional (state, constituent) gov’ts.
Unitary- national or central govt has ultimate power – hands out what power it wants to subnational gov’ts – such as, the colonists under BR control, BR today
Confederation = opposite of unitary / states only give certain powers to the central govt. Switzerland is a modern example – so is UN, EU
Only 11 (out of the approximately 190 nations in the world) have federal systems (countries large in size and population). Canada, Mexico, Brazil, India, Switzerland, Germany
Most governments in the world today have unitary governments, in which all power resides in the central government. – British , French for example can do whatever they want with local governments whereas Congress canNOT abolish/redraw states lines. States get their authority from the CONSTITUTION, not Congress. In unitary govt, voters elect ONLY the central govt officials whereas in Federalism, voters elect both central and state (regional).

3. FEDERALISM: More Definitions:
A decentralization or DEVOLUTION of government; a “sharing of the wealth” and gov’t power.
Two or more levels of government have formal authority over the same area and people…another system of checks & balances!
The federal system decentralizes our politics and our policies (in addition to our politics)
With more layers of govt, there are more opps for political participation.
Almost every policy the national government has adopted had its beginnings in the states – they are the innovators (child labor, minimum wage, unemployment, civil rights,…..)
States are responsible for most public policies dealing with social, family and moral issues – and they can be testing grounds for new policies that can become national issues. Unemployment compensation started in Wisconsin; air pollution control started in CA
Candy Lightner and MADD proves that the national government can also influence state policy – federal requirement that states raise drinking age to 21 to be able to receive federal highway funds.
What obligations does fed. govt have toward the states?
protect the states against violence and invasion
NOTE: THE WORD ‘FEDERALISM’ IS NOT IN THE CONSTITUTION.
Do state gov’ts influence the federal gov’t?
Does the federal gov’t influence state gov’ts?
What obligation does the federal gov’t have to state gov’ts?

4. Why was federalism the only real choice for the framers?
Citizens too spread out to have a unitary gov’t
No other practical choice since transportation & communication systems too primitive to allow governing from a central location
The Confederation had clearly failed.
American’s loyalty to state gov’ts was stronger than it was to the U.S. government
If they tried to abolish state governments, the Constitution would not have been ratified.
Eighteenth century Americans had little experience in thinking of themselves as Americans first and state citizens second – it was just the opposite.
So state traditions and local power retained while, at the same time, establishing a strong national gov’t capable of handling common problems

5. Types of Powers EXPRESSED (delegated, enumerated):
Powers exclusive to federal government, stated specifically in Constitution
Only Congress makes law, declares war, establishes Army & Navy, regulates commerce, coins money, grants copyrights & patents, admits new states, Post Office, etc.
Basically 4 types in the Constitution: powers to national gov’t (expressed & implied); powers to state gov’ts (reserved); concurrent powers; and prohibited powers.

6. Implied Powers
Additional powers of federal gov’t that are implied to make Congress’ expressed powers work
Source: Elastic Clause
Congress may pass any law “necessary and proper” for carrying out its expressed powers
IRS is a good example
Explain – what expressed power does it reflect?
National Bank issue
Congress establishes a civil service system to hire federal workers.

7. Inherent Powers
a special category of national powers – not implied – that simply derive from fact that U.S. is a sovereign nation
So… only federal gov’t makes treaties with other nations, wages war, acquires territory, determines citizenship laws

8. Reserved Powers RESERVED- states rule! 10TH AMENDMENT
Powers not delegated to federal government in Constitution nor prohibited to the states are reserved to the states
10TH AMENDMENT
if power is not stated in Constitution, states get the power
States have power to regulate intrastate commerce, conduct elections / establish rules, provide for the public safety, establish local governments

9. Concurrent Powers
Powers that are shared by federal and state governments
Tax
Borrow Money
Create Banks
Establish courts
Education?

10. Are the activities below powers of the federal gov’t, state governments, or both?
Issue driver’s licenses
Determine length of the school year
Maintain the Air Force & Coast Guard
Clean up water pollution in rivers & lakes
Tax individual & corporate income
Set up the process early voting in presidential elections
Establish a lottery system

11. Supremacy Who rules in a conflict?
Art VI- Supremacy Clause
Provides that supreme law of the land is made up of:
THE CONSTITUTION
Laws of the federal government
Treaties of the U.S.

12. Four historical events have settled the issue of federal/state supremacy:
Doctrine of implied powers (McCulloch)
Definition of the commerce clause (Gibbons)
The Civil War
The Civil Rights Movement

13. “The power to tax is the power to destroy.”
McCulloch v. Maryland, 1819
Supremacy clause & implied powers of national government upheld
State of Maryland tried to tax the Baltimore branch of the newly-rechartered Bank of the U.S.
McCulloch (cashier at Bank) refused to pay the tax
States may not tax a federal agency
“Elastic clause” gives Congress the Necessary and Proper powers (implied powers) to enact policies to run the country (the Bank!)
McCulloch v Maryland (1819) – the case that first brought the issue of state versus national power before the Supreme Court
In this case, the Supreme Court ruled that national policies take precedence over state policies: Chief Justice John Marshall wrote that “the government of the United States, though limited in its power, is supreme within its sphere of action.”
The Court also ruled that the Constitution gives Congress certain implied powers – THE BANK! (based on the provision granting Congress the power to “make all laws necessary and proper for carrying into execution the foregoing powers”) that go beyond the enumerated powers that are specifically listed in Article I, Section 8 (chart page 71)

14. More implied power… Commerce power: Gibbons v. Ogden
John Marshall again
If interstate or international commerce is involved, Congress – not the states - rules!
Commerce defined VERY broadly
Waterways, airwaves, airspace, the internet, etc.
Commerce power was expanded by the courts for years.
BUT… in U.S. vs. Lopez, 1995, the Court held that a FEDERAL law which forbade the possession of firearms in public schools exceeded Congress’ constitutional authority to regulate commerce and said that guns in a school zone have nothing to do with commerce

15. Gibbons v. Ogden, The Steamboat Case
NY granted a monopoly to steamboat operator Ogden; monopoly was extended across the Hudson River to NJ
The issue of the case is whether a state’s power can extend across state lines
Marshall said NO:
ANYTHING that crosses state lines (such as the steamboat in this case) becomes “interstate commerce” which is controlled by the federal government. NY cannot control commerce in NJ.

16. Civil War
A struggle between power of national and state governments
Militarily settles the issue that the federal government is supreme
Civil Rights
A struggle of national/state power over the issue of equal rights.
Decided in favor of the national government.
the policy issue was equality.
In 1954, the Supreme Court held that school segregation was unconstitutional (Brown v Board of Education of Topeka, Kansas)
The conflict between the states and the national over equality issues was decided in favor of the national government: throughout the 1960s, the federal government enacted laws and policies to end segregation in schools, housing, public accommodations, voting, and jobs.

17. Article IV: Obligations of States to Each Other
FULL FAITH & CREDIT
States must recognize each other’s public Acts, records and judicial proceedings
Contracts……marriage licenses?
EXTRADITION
PRIVILEGES & IMMUNITIES
Citizens entitled to same in all states
For ex., same police protection, pay same rate of sales tax, etc.
But…..what about college tuition?
RETURN OF ESCAPED SLAVES
Full Faith and Credit – States are required to give full faith and credit to the public acts, records, and civil judicial proceedings of every other state. Without it, people could avoid obligations – go across state lines to avoid loans, etc.
Marriage certificates, for ex.
HI – gay marriages had been allowed; fed. Gov’t passed Defense of Marriage Act which permitted states to disregard gay marriages if they chose to
Section 3 of the law—the part that defines marriage for federal purposes as the union of a man and a woman—was ruled unconstitutional by a federal district court judge in July 2010.[3][4] This decision was appealed in October 2010.[
Extradition – States are required to return a person charged with a crime in another state to that state for trial or imprisonment.
Privileges and Immunities of citizens – Citizens of each state receive all the privileges and immunities of any other state in which they happen to be.
For ex., pay the same sales taxes, entitled to same police protection, etc.
BUT, are exceptions – out of state tuition for example
Issue never clarified by Sup.Ct. but generally, the more fundamental the right, the more obligation state has to provide it to all.

18. Dual or Cooperative Federalism?
Dual Federalism (“layer cake federalism”) – a form of federalism in which states and the national government each remain supreme within their own spheres. – powers of federal gov’t are interpreted very narrowly.
Cooperative Federalism (“marble cake federalism”) – a form of federalism with mingled responsibilities and blurred distinctions between the levels of government. (ie. National Defense Education Act, Elementary and Secondary Education Act, Interstate Highway System)
State

19. From Dual to Cooperative Federalism:
Dual ruled first, then moved toward cooperative
Republican Revolution of 1994 saw more power to the states
Move now is to give more power back to federal government
The American federal system leaned toward dual federalism before the national government began to assert its dominance. Since then, we have moved from dual to cooperative federalism.
In 1995, the Republican Party gained a majority in both houses of Congress for the first time since the 1950s.
A major belief of the Republican Party is less government interference in the business of the states.
The “Republican Revolution” of 1995 – led by Newt Gingrich – caused Congress to pass legislation that reduced the overall power of the national government in favor of the states. (such as social/welfare & environmental programs)
Since then, a more moderate Congress has reasserted the federal government’s authority
One excellent example of cooperative federalism is in education. Feds stepped in during Cold War. “No child left behind…” .

20. What symbols are used & what do they represent?
What point of view is the cartoonist expressing?

21. Three standard operating procedures for cooperative federalism:
Shared costs - states and cities can get federal funds for projects if they share some of the costs
Federal guidelines – Most federal $ come with strings attached (drinking age & federal $ for highways)
Shared administration – education?

22. FISCAL FEDERALISM
Federal pattern of spending, taxing, and providing grants
Grant-In-Aid programs have been around for 200+ years. This money is the major method used by Feds to influence states.
TWO TYPES OF FEDERAL AID – categorical & block grants
#1 Categorical grants – MAIN source of federal aid. States have to apply for them. Specific $$ for specific purpose (category) with strings attached. (A common “string” is a non-discrimination provision in hiring, promotions, etc.)
(1) Project grants - competitive requests
(2) Formula grant- automatic if you meet the formula -- Medicare, welfare, etc.
Fiscal federalism is the cornerstone of the national government’s relations with state and local governments.
PRIMARY WAY THE FEDERAL GOV’T INFLUENCES STATE POLICY!!
Common string for categorical grants = a nondiscrimination provision. Another example, environmental impact statements for construction projects.
CROSS-CUTTING = a condition on one federal grant is extended to all activities supported by federal funds – regardless of the source of the funds. For ex., Title VI of Civil Rts. Act 1964: bars discrimination on basis of race, etc. so… if college discriminates illegally in one program (sports), it could lose ALL federal $ it receives for ANY purpose.
Categorical grants (the 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 meeting certain qualifications.

23. Sanctions with Grants Cross-Over Sanction
Using federal $ in one program to influence state policy in another program (drinking age/highways)
Cross-Cutting = a condition on one federal grant is extended to all activities supported by federal funds – regardless of the source of the funds.
For ex., Title VII of Civil Rts. Act 1964: bars discrimination on basis of race, etc. so… if college discriminates illegally in one program (sports), it could lose ALL federal $ it receives for ANY purpose.
Fiscal federalism is the cornerstone of the national government’s relations with state and local governments.
Common string for categorical grants = a nondiscrimination provision. Another example, environmental impact statements for construction projects.
CROSS-CUTTING = a condition on one federal grant is extended to al l activities supported by federal funds – regardless of the source of the funds. For ex., Title VI of Civil Rts. Act 1964: bars discrimination on basis of race, etc. so… if college discriminates illegally in one program (sports), it could lose ALL federal $ it receives for ANY purpose.
Categorical grants (the 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 meeting certain qualifications.

24. #2 - Block grants – for social welfare programs such as law enforcement, community development, health services. Money for general areas of social welfare, rather than for a specific program. Have less strings attached; states help decide how to spend the $. More automatically granted
Mandates - Feds dictate specific guidelines – if don’t comply, penalized or lose the $. . .
….Medicaid
Unfunded mandates. . .Laws w/o funding
Clean Air Act, Disabilities Act, Desegregation
Block grants – used to support broad programs in areas like community development and social services. (These are given almost automatically)
In response to complaints about the cumbersome paperwork and restrictive federal requirements attached to categorical grants, Congress established block grants to support broad programs.
States have discretion in deciding how to spend the money.
There are some occasions when states would prefer not to receive some federal aid – such as when Congress extends a program that is administered by the States and only partly funded by the national government – an under funded mandate. This means that the states have to budget more funds for the project in order to receive federal grant money. (e.g., MEDICAID)
Of even greater concern to states are unfunded mandates. These require state and local governments to spend money to comply with laws such as the Clean Air Act of 1970 and the Americans with Disabilities Act of 1990 with no financial help from the federal government that enacted the laws. In addition, federal courts create unfunded mandates for state regarding school desegregation, prison construction, and other policies. In 1995, Congress passed a law that would make it more difficult for Congress to pass unfunded mandates (a product of the Contract with America of the Republican Party).

25. Note:
When it comes to fiscal federalism…. not all states are treated equally. It’s the role of the politician to take care of one’s constituents! With a budget in the trillions, there is plenty to fight for!

26. REVIEW: MAKE SURE TO UNDERSTAND the difference between Federalism & Separation of Powers:
POWER OF GOVERNMENT

27. FEDERALISM: division between LEVELS of government: national & state
POWER OF GOVERNMENT
POWER OF GOVERNMENT
-NATIONAL
POWER OF GOVERNMENT
-STATE

28. SEPARATION OF POWERS (done by each level):
-NATIONAL
Legislative
Executive
Judicial
-STATE
Judicial
Legislative
Executive