Federalism I. What is Federalism?



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Federalism

I. What is Federalism?

  • Federalism
  • OR
  • The relationship between the federal government and the state governments

American Federalism includes the central, federal government in Washington DC and the local units of governments, such as the state government in Tallahassee, Florida, the County government, and municipal city government in NSB

  • (national government, federal government, central government, the government & government in Washington DC all mean the same thing)
  • federal government does not mean the same thing as federalism

How do governments around the world organize themselves differently?

II. Comparison of Types of Governments

  • Unitary: all policy made at the central level
    • local governments can be abolished/altered by national government, don’t have authority over any significant government policies, only implement decisions
  • Confederal system: policy-making concentrated in the states at the local level
  • Federal System: policy-making shared b/w central govt. & states
  • Uncle Joe says, “Unitary is cool”
  • “State’s
  • Rights!”
  • “Let’s be good sharers”

British Colonial Rule

  • Powerful British Government
  • Political Subunits (Colonies)
  • Unitary System – all power flows from one central government

Nations with Unitary Government (blue)

Articles of Confederation

  • 1781 – 1789 – RIP
  • Confederate System – power concentrated in political subunits (states) with a weak central government (typically unite for a common goal)

European Union 27 member Confederacy of European States

Constitution

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

What do Canada, United States, Brazil, Russia, South Africa, South Korea, Australia, Germany, and Belgium have in common?

Difference is in the geographic distribution of power

  • _____________________________________________________
  • I
  • I
  • I
  • I
  • I
  • Federalism
  • Confederation
  • Unitary
  • All in one
  • central location
  • Shared between a
  • central government
  • and state governments
  • Dispersed,
  • local control
  • by states
  • Anarchy
  • Dictator

How did the Constitution centralize more power than the Articles of Confederation Complete the chart on page 33

What does the Constitution say about federalism?

  • The word is never mentioned!

III. Constitutional Underpinnings of Federalism

  • Thomas Jefferson:
  • the
  • federal gov’t. is a product
  • of an agreement among
  • states
  • Alexander Hamilton:
  • the national gov’t. is superior,
  • and thus its powers ought to be
  • broadly defined (Art. VI, the
  • “supreme law of the land”)

Federalist #51

  • Defends the Constitution
  • Explains why a strong government 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 the division of powers between state and national government
  • Why didn’t the Framers spell out state powers (or personal liberties, for that matter)?
  • 1. The federal government will have only those powers enumerated to it by the Constitution in Article 1, Section 8
  • 2. 10th Amendment, an afterthought: “the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”--Reserved powers clause

Different Types of Powers

  • Delegated Powers (enumerated or expressed powers) – powers given to Federal government by the Constitution
    • taxes, regulate commerce with foreign nations, and among the states, coin money, declare war, post offices, & provide for the common defense and general welfare
  • Reserved Powers – state power alone
  • Concurrent Powers – shared by both
  • Denied Powers – prohibited from both
    • Ex. Neither gov’t can tax exports

Implied Powers: Elastic Clause

  • Aka – “Necessary and Proper Clause”
  • Art. I, Sec. 8, Cl. 18 - "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

Okay, so there’s a relationship between national and state governments. What about STATE and STATE? (Horizontal Federalism)

  • The Framers wanted a single country, not 13 squabbling semi-countries.
  • 3 obligations:
    • “full faith and credit” (Article IV, Section 1)
      • states must give this to public acts, records, and civil judicial proceedings of other states, like Marriages and Driver’s license
    • Extradition
      • States have to return a person charged with a crime to the state in which they are charged
    • “Privileges and immunities” (Amendment XIV, Section 1, Clause 2)
      • Citizens of a state receive these of any state they’re in

How did the federal government come to dominate the state governments when they were intended to be more coequals?

IV. NATIONAL SUPREMACY

  • What established the national government as superior to the states, once and for all?
  • Four events:
    • McCulloch v. Maryland & “implied powers”
    • Civil War
    • New Deal
    • Civil Rights movement

Four Clauses that have significantly contributed to the growth of Federal Power over the States

  • 1. Supremacy Clause
  • –Led to conflict over States’ Rights advocates and proponents of a Strong National govt.
  • •2. Necessary and Proper Clause
  • –Conflict between Strict and Loose Constructionists
  • –Conflict also between States’ Rights advocates and proponents of a Strong National govt.
  • –Direct Conflict with the 10th Amendment
  • 3. Commerce Clause
  • 4. General Welfare Clause

McCulloch v. Maryland (1819)

  • Background
  • Bank of the US operated in Maryland
  • Maryland did not want BUS to operate in state, competition unwanted, unfair
  • Maryland taxed the bank to put it out of business
  • McCulloch, BUS 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 gov’t?
  • -NO: The federal gov’t is supreme. Since the BUS is constitutional, only the feds may tax it.
  • -John Marshall reaffirmed Supremacy Clause and Elastic Clause
  • -National (Federal) Gov gets STRONGER

Slippery Slope: Implied powers

  • Article I, Section 8, the “necessary and proper clause”:
    • Congress has the power “to make all laws necessary and proper for carrying into execution the foregoing powers”
  • As opposed to enumerated powers (the ones actually spelled out in the Constitution), implied powers can be hard to define and limit

Is this right?

James Madison, 1792

  • "If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America."

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, examples:
  • •Commerce Clause has been used by the federal government to greatly expand National powers.
  • –New Deal legislation during the 1930’s
  • –National Minimum Wage Laws
  • –Regulation of Public Airwaves (radio and TV) through the FCC
  • –Civil Rights Act of 1964
  • –Use against sex offender who fail to register
  • –Regulation of controlled substances (drugs)

How has federalism changed over time?

V. Two Versions of Federalism

  • OLD SCHOOL – Dual Federalism
    • Federal and state governments remain dominant in their separate spheres of influence
  • NEW SCHOOL – Cooperative Federalism
    • State and Federal governments work together to solve complex problems

2 TWO METAPHORS…

  • Dual Federalism – Layer Cake
  • Cooperative Federalism – Marble Cake
  • Federal
  • State

Dual Federalism

  • AKA “layer cake federalism”
    • states and national government remain supreme within their own spheres
  • So this means there is:
    • INTERSTATE commerce (which Congress can regulate; e.g., transporting items between states)
    • INTRASTATE commerce (which only states can regulate; manufacturing, insurance, farming, etc.)
  • The inside is filled with governmental goodness…and nougat!!

Change over time

  • difference has gotten extremely complex, blurred lines between the national and state
  • eventually, everything is interstate commerce, subject to federal regulation, and so dual federalism is (mostly) dead
  • Cooperative Federalism (AKA “Marble-cake federalism”)

How does federalism work today?

VI. 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 99/100 questions ever asked?
  • A – Money

Grants-in-Aid

  • Money paid from one level of government to another to be spent
  • Categorical Grants
  • issued by Congress that may be spent only for narrowly-defined purposes.
  • About 90% of federal aid dollars are spent in categorical grants.
  • Categorical grants are the main source of federal aid to state and local government
  • Distributed either on a formula basis or a project basis
    • For project grants, states compete for funding; the federal government selects specific projects based on merit.
    • Formula grants, on the other hand, are distributed based on a standardized formula set by Congress.
  • Examples
    • Head Start
    • Interstate Highway system
    • Medicaid
    • Food Stamps

Block Grants

  • The federal government issues large sums of money to a state or local governments.
  • Grants do not have specific provisions on how the money is to be spent.
  • It is up the state or local government to decide who is eligible for the specific grant.
  • Individuals do not directly receive the block grant.
  • Given for broad, general purposes and allow more discretion on how the money is spent
  • Increases State Power
  • Examples:
    • Education programs
    • Law enforcement
    • Welfare Reform
    • Substance Abuse Treatment Programs
    • Community Development Projects-HUD

State Welfare Benefits

Mandates

  • Direct states or local governments to comply with federal rules under threat of penalties or as a condition of receipt of federal money
  • Funded
    • national government provides money
  • Unfunded
    • National government gives directives to the states but provides no funds.
    • Most apply to Civil Rights and the Environment
  • Examples: Busing to integrate schools in the 1970s, Clean Air Act (1970), Clean Water Act (1985), Asbestos Emergency Response Act & Handicapped Children’s Protection Act (1986), Clean Air Act & American with Disabilities Act (1990), NCLB (2002)

EX – Columbus, OH spends 23% of the city budget trying to meet environmental mandates (including testing for pesticides used on rice and pineapple)

  • 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

Effects of mandates

Change in Spending

  • Shift towards Federal Gov’t Spending
  • Federal
  • State
  • Local (City)
  • 1929
  • 17%
  • 23%
  • 60%
  • 1939
  • 47%
  • 23%
  • 30%
  • 1960
  • 64%
  • 17%
  • 19%
  • 1997
  • 66%
  • 19%
  • 15%

The Public Sector and the Federal System

Cross-over sanctions

    • do this or pay your own way
    • ex., raise drinking age or federal highway construction funds are cut off (basically, federal extortion)

How has some of the power been returned to the states in the past 20 years?

VII. Devolution

  • Devolution is the return of power to the state gov
  • Idea is fueled by distrust of the federal gov and the desire to save money by reducing the size of the “bloated federal government”

Devolution: the attempt to devolve onto states the functions of national govt. (ex., welfare, health care, job training, etc.)

  • Devolution: the attempt to devolve onto states the functions of national govt. (ex., welfare, health care, job training, etc.)
    • block grant: favorite tool of devolution—money in general areas that states can use at their discretion, within broad Cong. guidelines
  • Not an official block grant
  • Devolve! Decentralize!
  • Centralize! Federalize!
  • Washington, DC: A “Devolved” Government!

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

United States v. Lopez (1995)

  • 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

What are some current issues with federalism?

VIII. Case Studies in Federalism

  • Same-sex marriage
  • Abortion Laws
  • Drug Laws
  • Disaster relief
  • Education
  • Welfare funding

Marriage

  • President Clinton signed the Defense of Marriage Act (DOMA) -- HR 3396 or Public Law No. 104-199 -- on 21 September 2000. It defines marriage as an act between heterosexuals and frees one state from being required to honor the same-sex marriage conducted in another state. As of this writing, 39 states have laws based on DOMA; 18 of those are amendments to the state constitution.

Marriage Protection Amendment

  • In 2004 and 2006, President Bush proposed a Constitutional Amendment called the Marriage Protection Amendment that would define marriage in the US as a union of one man and one woman.
  • Review
    • For this Amendment to be ratified, by what fraction would it need to pass?

US v. Windsor, 2013

  • SCOTUS ruled that U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.
  • The federal government now recognizes gay marriage, but not state governments
  • Background
    • Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Ontario, Canada in 2007.
    • Spyer died in 2009, leaving her entire estate to Windsor.
    • Windsor sought to claim the federal estate tax exemption for surviving spouses.
    • She was barred and had to pay $363,053 in estate taxes.

Obergefell v. Hodges, 2015

  • Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
  • Requires all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions.
  • Prior to Obergefell, thirty-six states, the District of Columbia, and Guam already issued marriage licenses to same-sex couples
  • In June 2013, following the U.S. Supreme Court's decision in United States v. Windsor, James Obergefell and John Arthur, a same-sex couple, decided to get married to obtain legal recognition in Maryland.
  • After learning that their state of residence, Ohio, would not recognize their marriage, they filed a lawsuit alleging that the state discriminates against same-sex couples who have married lawfully out-of-state.
  • Because one partner, John Arthur, was terminally ill and suffering from ALS they wanted the Ohio Registrar to identify the other partner, James Obergefell, as his surviving spouse on his death certificate, based on their marriage in Maryland
  • Loving v. Virginia

Gonzales v. Raich (2005)

  • 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 &
    • 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

Disaster Relief

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

Public Education

State Welfare benefits

Is federalism good for the US?

  • IX. Conclusion

Federalism is good

  • Living under 2 governments is great…
  • Built on compromise, promotes unity
  • Government duties can be split up
  • Decentralizes politics and gives more opportunities to participate
    • Hard for political parties / interest groups to dominate ALL politics
  • Allows for state government to address issues in unique regions of the country
  • Allows states to experiment with policy before enacting it at the federal level (policy innovators)
    • Ex. Vermont’s free health care for children
  • States can be a means to check the power of the federal government

Federalism is bad

  • Living under 2 governments is bad…
  • States can impede the progress of the Nation
  • States will unequal laws, people will be treated differently across the nation
  • States have different policy, promotes conflict
    • Too many levels of government - too much money, inefficient
  • Easier for states to be dominated by interest groups
  • States Rights a code word for racism & slavery? True or false

Debate Resolution:

  • “Federalism is no longer necessary because most important issues are either national or global in scope. The world is a different place than in 1787. The US would be better off if the states served as administrative districts, as in unitary government.”
  • 1 True, Go Unitary 5-Unsure 9-False- Go federalism

Make sure you consider

  • Other examples around the world
  • Issues with federalism in the US, such as same-sex marriage

Reserved Powers

The power of the federal government relative to the power of the states has increased since the ratification of the Constitution.

  • A. Describe TWO of the following provisions of the Constitution and explain how each has been used over time to expand the power of the federal government. (4 pts.)
    • The power to tax and spend
    • The “necessary and proper clause”
    • The Commerce Clause
    • The Supremacy Clause
  • B. Explain how BOTH of the following cases have increased the power of the federal government relative to the state governments. (2 pts.)
  • McCulloch v. Maryland
  • Gibbons v. Ogden
  • target specific purposes and “strings attached.” A way to bribe a state (States receive funds if state raised drinking age to 21, lowered Blood Alcohol levels to .08, or school lunch programs)

Gonzales v. Raich (2005)

  • 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 &
    • 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

Agenda

  • Debate tomorrow, have 3 sources
  • Do multiple choice questions p 57-61, answers on page 62
  • Look at flash cards on pages 46-54
  • Review terms on pages 55-56
  • Test Monday multiple choice, Essays on Tuesday

U3: Federalism

  • Government!

No Child Left Behind

  • Should the national government step in to regulate school performance?

Which of the following is the right statement?

  • Which of the following is the right statement?
    • The federal government has the right to regulate the internet.
    • State governments have the right to regulate the internet.
    • No one should regulate the internet.

Cake for EVERYONE!!

Terms you need to know after this presentation…

  • Federalism
  • Federalist #51
  • Delegated powers
  • Reserved powers
  • Concurrent powers
  • Prohibited powers
  • Elastic clause
  • McCulloch v. Maryland (1819)
  • Commerce clause
  • Gibbons v. Ogden (1824)
  • Dual Federalism
  • Cooperative Federalism
  • Grants-in-aid
  • Categorical grant
  • Block grant
  • Mandate
  • Devolution
  • Pros and cons of federalism

U3: Federalism

  • Government!

Extinct instincts


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