11

FederalismFederalismTwo or more governments in Two or more governments in

which a which a constitutionconstitution distributes distributes powers b/w a central government powers b/w a central government and subdivisional governments and subdivisional governments

giving both substantial giving both substantial responsibilities and powers. responsibilities and powers.

22

Types of FederalismTypes of Federalism

Dual-Federalism Dual-Federalism

Cooperative Federalism Cooperative Federalism

New FederalismNew Federalism

33

Dual Federalism Dual Federalism A.A. Constitution gives limited list of Constitution gives limited list of

powers to national government powers to national government leaving most power to sovereign leaving most power to sovereign states.states.

EX: foreign policy, defense = national EX: foreign policy, defense = national responsibilitiesresponsibilities

Supreme Court is the umpire in any Supreme Court is the umpire in any question for specific activity; cities are not question for specific activity; cities are not sovereign entities – only national and state sovereign entities – only national and state governmentsgovernments

states rights are primarystates rights are primary each government sovereign within its own each government sovereign within its own

spheresphere

44

Cooperative FederalismCooperative FederalismA.A. Various levels of government Various levels of government

should work together to deliver should work together to deliver public servicespublic services

power not concentrated at any levelpower not concentrated at any level states/national take joint responsibility for states/national take joint responsibility for

functionsfunctions– welfarewelfare

Marble Cake Federalism:Marble Cake Federalism: all levels of all levels of government are involved in a whole bunch government are involved in a whole bunch of issues rather than a layer cake, where of issues rather than a layer cake, where there are definite divisionsthere are definite divisions– EX: education, drugs, medical researchEX: education, drugs, medical research

55

New FederalismNew Federalism

Nixon, Reagan, BushNixon, Reagan, Bush

- - Return fiscal resources and Return fiscal resources and management of programs to management of programs to states using block grants and states using block grants and distinguish responsibility of distinguish responsibility of

statestate and national and national governmentsgovernments

66

Why Federalism?Why Federalism?

A.A. Checks the growth of tyrannyChecks the growth of tyranny

B.B. Allows experimentation – states Allows experimentation – states can try out new programs/ideas can try out new programs/ideas with less impact if it goes wrongwith less impact if it goes wrong

C.C. Keeps government closer to the Keeps government closer to the peoplepeople

77

Checks the growth of tyrannyChecks the growth of tyranny

– Americans associate Americans associate freedom w/ federalism freedom w/ federalism

– James Madison James Madison Federalist Federalist #10#10 – national government – national government can utilize states to check can utilize states to check factions in other statesfactions in other states

88

Checks the growth of Checks the growth of tyrannytyranny

– When a political party loses When a political party loses power, still has power in power, still has power in many states and can regroup many states and can regroup with new policieswith new policies

99

Checks the growth of Checks the growth of tyrannytyranny

– Framers feared one faction Framers feared one faction gaining too much influence; gaining too much influence; they liked the idea of state they liked the idea of state governments being able to governments being able to challenge Congress on certain challenge Congress on certain issuesissues EX: gay rights (states EX: gay rights (states

leading)leading)

1100

Keeps government closer Keeps government closer to the peopleto the people

Many levels of access for many Many levels of access for many different peopledifferent people

Other side – most people do not Other side – most people do not participate in local or state participate in local or state government = concerned with government = concerned with national and international national and international politicspolitics

1111

Alternatives to FederalismAlternatives to Federalism

– Unitary systemUnitary system: all power rests with : all power rests with central governmentcentral government

any power of provinces given can be any power of provinces given can be taken awaytaken away

– Great Britain, Israel, France and JapanGreat Britain, Israel, France and Japan

– ConfederationConfederation: association of : association of independent state – creates independent state – creates government that operates at their government that operates at their discretion (European Union and discretion (European Union and former USSR)former USSR)

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American FederalismAmerican Federalism

– ConstitutionalityConstitutionality

National government has National government has powers by US Constitution powers by US Constitution – ExceptionException – foreign affairs – foreign affairs

– inherent power– inherent power National government is National government is

supremesupreme

1133

American FederalismAmerican Federalism

states have powers not states have powers not delegated to central delegated to central government, except those government, except those denied by Constitutiondenied by Constitution

some powers are denied to some powers are denied to both governmentsboth governments– EX: wrongful imprisonmentEX: wrongful imprisonment

1144

Powers of national government - Powers of national government - expresses, implied, inherentexpresses, implied, inherent

National Supremacy Clause (Article National Supremacy Clause (Article VI, Section 2)VI, Section 2)

Regulate commerce Regulate commerce

American FederalismAmerican Federalism

1155

Power to declare war – Power to declare war – protection from external protection from external aggression is handled by aggression is handled by national governmentnational government

Tax and Spending powerTax and Spending power

American FederalismAmerican Federalism

1166

Article VI - National Supremacy Article VI - National Supremacy Clause Clause

All states and national officials All states and national officials are bound by an oath to uphold are bound by an oath to uphold the Constitution of the United the Constitution of the United StatesStates

Any national law or Any national law or regulation is supreme to regulation is supreme to any conflicting state or any conflicting state or local lawlocal law

1177

Power to Regulate Power to Regulate Commerce Commerce

A.A. Congressional authority over any Congressional authority over any commerce that affects more than commerce that affects more than one state (Commerce clause one state (Commerce clause I.8.3)I.8.3)

B.B. ““To regulate commerce w/ foreign To regulate commerce w/ foreign nations and among the several nations and among the several states, and with Indian tribes…”states, and with Indian tribes…”

1188

Power to Regulate Power to Regulate CommerceCommerce

C.C. Can be used to sustain Can be used to sustain legislation that goes beyond legislation that goes beyond commercial matters = commercial matters = Civil Civil Rights Act 1964Rights Act 1964

1.1.Forbid discrimination based on Forbid discrimination based on race, religion, or national race, religion, or national origin in places of public origin in places of public accommodationsaccommodations

1199

Power to Regulate Power to Regulate CommerceCommerce

C.C. Heart of Atlanta Motel v. US Heart of Atlanta Motel v. US (1964)(1964)1.1.On interstate highway, an On interstate highway, an

African American man; African American man; decision = discrimination decision = discrimination restricts flow of interstate restricts flow of interstate traffic; Congress may regulate traffic; Congress may regulate under commerce clauseunder commerce clause

2200

Tax and Spending PowerTax and Spending Power

Congress cannot regulate Congress cannot regulate education or agriculture, but education or agriculture, but can spend money on themcan spend money on them

Grants influence states – if you Grants influence states – if you don’t play by our (national) don’t play by our (national) rules, then we don’t pay rules, then we don’t pay

– EX: drinking age v. highway fundsEX: drinking age v. highway funds

2211

**National government uses legislative action, judicial interpretation, incentives, and sanctions to shift balance of power

Legislation – Legislation – Elastic ClauseElastic Clause

EX: EX: Voting Rights Act 1965Voting Rights Act 1965 – – States decide requirements, but States decide requirements, but national gov’t has responsibility national gov’t has responsibility to enforce 15th Amendment to enforce 15th Amendment (“right to vote cannot be (“right to vote cannot be denied…”) denied…”)

2222

Judicial InterpretationJudicial Interpretation

Supreme Court and other Supreme Court and other courts; 14th Amendment’s due courts; 14th Amendment’s due process clause incorporates process clause incorporates many of the Bill of Rights many of the Bill of Rights amendments and it is the amendments and it is the national government’s national government’s responsibility to carry them outresponsibility to carry them out

2233

IncentivesIncentives= “Grants-In-Aid”= “Grants-In-Aid”

Congress hands down federal Congress hands down federal mandates and then may or may mandates and then may or may not help to pay for themnot help to pay for them

In the form of In the form of GrantsGrants

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Purposes of Grants Purposes of Grants Supply states and local Supply states and local

governments w/revenuegovernments w/revenue Estimate minimum national Estimate minimum national

standards standards – Ex: clean air and highwaysEx: clean air and highways

To equalize resources among To equalize resources among states states

Attack national problems w/o Attack national problems w/o crating new federal agenciescrating new federal agencies

2255

Types of GrantsTypes of Grants

Categorical – formula grantsCategorical – formula grants

Project GrantsProject Grants

Block GrantsBlock Grants

2266

Categorical – Formula Categorical – Formula GrantsGrants

Money given for specific Money given for specific purposes, subject to purposes, subject to federal supervisionfederal supervision Formula must be met Formula must be met

before states receive before states receive fundsfunds

Example: airports, Example: airports, highways, Medicaidhighways, Medicaid

Local governments often Local governments often match fundsmatch funds

2277

Project GrantsProject Grants

– State, Local, and non-State, Local, and non-governmental agencies governmental agencies can apply for moneycan apply for money

Example: Employment Example: Employment training programs, training programs, university research university research grantsgrants

2288

Block GrantsBlock Grants

– Grants for prescribed Grants for prescribed activities with very few activities with very few stringsstrings States have broad States have broad

flexibilityflexibility Child care, welfare, Child care, welfare,

social services, and social services, and health carehealth care

2299

Mandate DebateMandate Debate States have complained about Unfunded

Mandates for years! Under Clinton, Congress passed Unfunded

Mandate Reform Act 1995Stated Congressional Budget Office and Federal agencies must issue reports on the impact of unfunded mandatesA Congressional Committee must approve Unfunded Mandates and justify why it would be appropriate for state and local governments to pay for implementation

3300

Powers of States (Tenth Amendment)

Concurrent powers (ex: taxes) Restriction = cannot “unduly burden” Congress decides what “unduly” meansStates are guaranteed

Republican form of government = state’s delegation allowing seat in Congress indicates recognition of republican form of government

Protection against “domestic insurrection” = LA riots, Seattle (both cases the National Guard was called)

3311

States Are Forbidden (Constitutionally)

make treaties coin money tax imports and exports

(national government/export) tax foreign ships keeping troops/militia in time of

peace engage in war

3322

Interstate Relations Interstate Relations (Horizontal Federalism)(Horizontal Federalism)

Full Faith Clause Full Faith Clause (Article IV, Section1)(Article IV, Section1)

Requires states to enforce Requires states to enforce civil judgments of other civil judgments of other states (divorce) and accept states (divorce) and accept public records as valid public records as valid (marriages licenses, driver (marriages licenses, driver licenses and identification licenses and identification for age)for age)

3333

Interstate Relations Interstate Relations (Horizontal Federalism)(Horizontal Federalism)

Interstate Privileges and Immunities Interstate Privileges and Immunities (Article IV, Section 2)(Article IV, Section 2)

Must extend privileges and immunities Must extend privileges and immunities to citizens of other statesto citizens of other states

laws, access to courts, freedom laws, access to courts, freedom from discriminatory taxesfrom discriminatory taxes

Gambling in some statesGambling in some states

Same sex marriages under debateSame sex marriages under debate

3344

Interstate Relations Interstate Relations (Horizontal Federalism)(Horizontal Federalism)

Extradition (IV, 2) – states must deliver Extradition (IV, 2) – states must deliver criminals back to the state criminals back to the state Interstate Compacts:Interstate Compacts:

States must settle disputes States must settle disputes peacefullypeacefullyOptions = compact or Supreme Options = compact or Supreme CourtCourtCompact must be approved by Compact must be approved by CongressCongress

Environment, higher education Environment, higher education exchangesexchanges

3355

McCulloch v. Maryland McCulloch v. Maryland (1819) (1819)

A.A. Supreme Court defined Supreme Court defined divisions of powers b/w divisions of powers b/w national and state national and state governments governments

B.B. McCulloch was a cashier of a McCulloch was a cashier of a U.S. bank U.S. bank iin Baltimore, MD; n Baltimore, MD; he refused to pay a state tax he refused to pay a state tax levied on banks by Maryland.levied on banks by Maryland.

3366

McCulloch v. Maryland McCulloch v. Maryland (1819) (1819)

A.A.MD argument = MD argument = power to incorporate power to incorporate bank is NOT listed in bank is NOT listed in Constitution as a Constitution as a Congressional power Congressional power

3377

McCulloch v. Maryland McCulloch v. Maryland

D.D.Federal Bank = no state could Federal Bank = no state could tax an agency of the national tax an agency of the national government. Congress did government. Congress did have implied power to create have implied power to create national bank to collect taxes, national bank to collect taxes, borrow money, and care for borrow money, and care for national propertynational property

3388

McCulloch v. Maryland McCulloch v. Maryland

D.D.Unanimous court opinion = Unanimous court opinion = Chief Justice John MarshallChief Justice John Marshall ““Power to tax is the power Power to tax is the power

to destroy”to destroy” Rejected all of the Rejected all of the

arguments by Marylandarguments by Maryland Opinion officially established Opinion officially established

implied powers and doctrine implied powers and doctrine of national supremacy.of national supremacy.

3399

Federalism DebateFederalism Debate

Decentralization of DebateDecentralization of Debate

Centralists – favor national Centralists – favor national action in important issues action in important issues

Decentralists – favor action Decentralists – favor action at state and local levelsat state and local levels

4400

Decentralists Decentralists Conservatives (state’s rights)Conservatives (state’s rights)

Reagan, Bush (41 and 43), Republican leaders Reagan, Bush (41 and 43), Republican leaders of Congress, Chief Justice Rehnquist, Justice of Congress, Chief Justice Rehnquist, Justice Thomas, and Justice O’ConnerThomas, and Justice O’Conner

Believe that the Constitution Believe that the Constitution is a treaty among sovereign is a treaty among sovereign states which created a states which created a government with limited government with limited authorityauthority

4411

Decentralists Decentralists

Conservatives (State’s Rights)Conservatives (State’s Rights)

* * National government is an agent National government is an agent of states and its powers and of states and its powers and should be narrowly defined and should be narrowly defined and interpretedinterpreted

4422

Decentralists (cont’d)Decentralists (cont’d)

Any question of whether Any question of whether national/state should handle national/state should handle a function should be decided a function should be decided in state’s favorin state’s favor

4433

Decentralists (cont’d)Decentralists (cont’d)

10th Amendment = “Powers 10th Amendment = “Powers not delegated to US by not delegated to US by Constitution, nor prohibited Constitution, nor prohibited by it to the states, are by it to the states, are reserved to the states reserved to the states respectively, or to the respectively, or to the people.”people.”

4444

Centralists Centralists

Liberals (National Supremacy)Liberals (National Supremacy)

Chief justice John Marshall, Lincoln, Teddy Chief justice John Marshall, Lincoln, Teddy Roosevelt, FDR, and usually Supreme Court Roosevelt, FDR, and usually Supreme Court justices (although currently the S. Court has justices (although currently the S. Court has conservative majority).conservative majority).

reject idea of Constitution as interstate reject idea of Constitution as interstate compact compact

Constitution is supreme law established Constitution is supreme law established “by the people” = national government is “by the people” = national government is agent of all people b/c drawn up “by the agent of all people b/c drawn up “by the people”; not the statespeople”; not the states

4455

CentralistsCentralists Framers intended liberal definition of Framers intended liberal definition of

national powersnational powers Central government should only be Central government should only be

denied expressed forbidden powersdenied expressed forbidden powers Each state only speaks for some Each state only speaks for some

people – national government people – national government represents all the people; states represents all the people; states should not be allowed to interfere should not be allowed to interfere with a government that represents with a government that represents all the peopleall the people

4466

Justice Holmes: Justice Holmes:

““I do not think the US would come to I do not think the US would come to an end if we lost our power to an end if we lost our power to declare an act of Congress void. I do declare an act of Congress void. I do think the union would be imperiled if think the union would be imperiled if we could not make that declaration we could not make that declaration as to the laws of the several states.as to the laws of the several states.