Federalism

Constitutional Basis

• Federalism – political system where the national

(federal) government shares power with local

(state, regional, municipal) governments

• The US, Canada, Australia, India and Germany

are federal systems.

• France, GB, Italy, and Sweden are unitary

systems

• Their local gov’ts can be altered or abolished by

national gov’t

• Devolution – process of giving the states more

power over welfare, health care, and job training

• Congressmen vote to give states block grants –

money from Congress that states can use at

their discretion within broad guidelines

• Woodrow Wilson believed federalism is an idea that changes with each generation.

• The question today - Are we in the process of devolution?

• Must first understand concepts and history of federalism to answer that question

• We think our federal government ishuge and

self-serving

• We forget they give much of their money and

enforce much of the laws on local governments

• These are the things they regulate in states:

– Large part of welfare system

– Interstate highways system

– Programs to improve cities

– Much of the effort to provide jobs to unemployed

– All of cleaning up the water

– Most of the military manpower

• Things that fall to the states:

– Policing

– Education

– Local land-use

Federalism: Good or Bad?

• To some, federalism means allowing states to block

action, prevent progress, upset national plans, and

cater to self-interested politicians.

• To others, federalism means the ability to develop

and maintain things that are vital to our unique

nation, political flexibility and individual liberty

• Opportunity to exercise political control in 50

states and about 3000 counties

– These places and people will do things for different

purposes

• In some places people will use this to maintain

segregation, protect interests and facilitate

corruption

– The opposite is also true

• The smaller the political unit,

the more likely it is to be

dominated by a single political

faction

• Madison (Federalist #10)

said that only in a large

republic would there be a

place for all interests to be

heard

Increased Political Activity

• The most obvious

effect has been to get

more people involved

in politics

• Also, decentralization

of political authority

lowers the cost of

government

• Founders weren’t really clear on how the federal

system was to work

• We have had to work that out since then,

sometimes bitterly

A Bold New Plan

• Our federal republic gets its power from the

people – as do state and local gov’ts

• Founders wanted to make sure neither the state

gov’ts nor federal gov’t had supreme power over

the other

• Federalist 46 (Madison) said both gov’ts are

different and given different powers

• Founders believed the federal gov’t would only

have the powers the Constitution gave it.

• Constitution doesn’t spell out the rights of states

• 10th amendment says that powers not

delegated to the US, nor prohibited by it to the

states, are given to the states, or people

Elastic Language

• Article I gives Congress the

power to “make all laws

which shall be necessary

and proper for carrying into

execution the forgoing

powers”

• Framers knew they couldn’t

make a list of everything the

federal government was

allowed to do

– So they included the “elastic

clause”

– For example: Congress given the power to regulate

commerce “among the several states”

– Didn’t say where commerce among the states ended

and commerce within a state began

– Supreme Court tried to figure that out for 100 years

before giving up

• Alexander Hamilton

believed in a “loose

interpretation” of the

Constitution

• Jefferson and Madison

believed in a “strict

interpretation”

• Madison Federalist 45 –

powers given to gov’t are

“few and defined” – those

to the states are

“numerous and indefinite”

Debate on the Meaning of Federalism

• Civil War fought partly

over states’ rights

• Settled with the national

government as supreme

• Supreme Court tried to

settle issue during

formative years

• Led by Chief Justice

John Marshall

• He and court powerfully

defended the “national

supremacy” view

• McCulloch v. Maryland – case over national

bank being taxed by a state

• 1st question – did Congress have the right to set

up a bank or any corporation?

• Congress given power to manage money so it

was “necessary and proper”

• 2nd question – could a federal bank be lawfully

taxes by a state?

• Marshall argued that the only way for national

power to be supreme was for them to be

immune from state challenges and protected

Nullification

• Congress passed laws in 1798 to punish

newspaper editors who wrote critical stories

about the government

• VA & KY Resolutions – suggested that states

should have right to nullify federal laws they think

violate the Constitution

• Law expired before issue could be settled in court

• John C. Calhoun brought

up nullification again in the

1830’s because of the tariff,

then efforts to restrict

slavery

• This issue was settled by

war

• Northern victory determined

once and for all that the

union could not be

dissolved

• Nor could states declare

acts of Congress

unconstitutional

Dual Federalism

• After war, the debate on meaning of federalism

focused on the commerce clause

• Thus dual federalism developed

• Although the national gov’t was supreme in its

sphere, states were equally supreme in theirs

• Also, that the two spheres of action should be

kept separate

• Interstate shipments of lottery tickets, prostitute,

liquor, harmful foods and drug upheld by court

as regulated by federal gov’t

• Intrastate commerce like manufacturing,

insurance, and farming were regulated by state

gov’ts

• Product based decisions proved hard to sustain

• Question – when shipping goods from state to

state, how long is it interstate commerce (federal

law) and when does it become intrastate

commerce (state law)

• Debated several times by the courts

• Finally, they decided that pretty much everything

– farming and manufacturing was interstate

commerce and regulated by federal gov’t

State Sovereignty

• States down but not out

• US v. Lopez (1995) – SC said Congress had

exceeded its commerce clause power by

prohibiting guns in school

• Reaffirmed that view with

US v. Morrison (5-4)

– Overturned Violence

Against Women Act (1994)

– Law allowed women to sue

attacker motivated by

gender

– SC said attacks against

women are not and do not

affect interstate commerce

and so Congress cannot

pass the law (states can)

• 11th amendment

• Alden v. Maine (1999) – helped protect states

against lawsuits by people who said that state

regulations created unfair economic competition

– SC said state employees could not sue to force state

compliance with federal fair labor laws

• Federal Maritime Commission v. South

Carolina Ports Authority (2002)

– Court further expanded states’ sovereign immunity

from private lawsuits

– However, federal gov’t can still make laws on

anything, but can’t go “too far” in “commandeering”

state resources or hurting states’ rights

• One accepted state power is “police power”

– States make and enforce criminal codes

– Make kids go to school

– Make people be vaccinated

– Restrict access to pornographic materials

– Restrictions on driving and roads

• Most states allow more direct democracy:

– Initiative – lets voters put measures on the ballot

– Referendum – lets voters reject a measure adopted

by the legislature

– Recall (20 states) – voters can remove an elected

official from office.

• Existence of states guaranteed by Constitution

• Cannot be divided without its consent

• Counties, towns and cities exist because of the

states – can be abolished

Grants-in-Aid

• First came before the constitution

• Land grants given to the states to fund education

– State universities were built with this money

– Land grants also made to build roads, canals, RR and

flood control

• By 2001, $300 billion a year went to states for grants

• Four reasons grants are so popular with state

officials

– 1. the US government had plenty of money

– 2. the federal income tax

– 3. the US government could make more money

– 4. politics

• If the federal government

wants to send money to

one state, they must send

money to all states

– Example: 1966 – Lyndon

B. Johnson wanted to give

money to cities with

problems “Model Cities”

– Senator from Maine

wouldn’t vote for it until his

cities got money also

Intergovernmental Lobby

• Some states actually “lobby” Congress for money

for their states

• More than 31 states and dozens of counties have

offices in Washington, DC in order to do this

• They want more money with fewer strings

• Categorical grants go towards a specific

purpose like a college, or hospital

– Many times states are required to “match” funds

– Most states don’t like the regulations put on them

• Revenue sharing – a

“no string attached”

form of aid to state

and local governments

• Can be used for most

any project but never

to exceed more than

two percent of

revenues

• Mandates – requirements that are imposed by

the national gov’t on the state and local gov’ts

– Example: Americans with Disabilities Act (1990)

• Mandates that all public buildings be accessible to

people

• All mandates are not

created equal

• Federal courts have

helped the growth of

mandates

• 10th amendment does

not provide any

protection for states

against mandates

• Most well known

mandates are for

school desegregation

• SC decided in 1980 (that a law passed in 1870)

allowed citizens to sue local officials if they were

deprived of anything they were entitled to under

federal law

Conditions of Aid

• Most important federal restriction on state action are

the strings attached to the grants

– If states need it for their budget, they have to accept it

• Some conditions are specific to particular programs

– Building – study of environmental impact – prevailing wage

– contractors have nondiscriminatory hiring practices, etc.

• These rules are to prevent states from

misspending federal tax money

• State officials say rules don’t take into account

the diverse local conditions

• “free” money isn’t quite so “free”

Entitlements

• Entitlements - A government program that

guarantees and provides benefits to a particular

group

– Example: Medicaid & AFDC

– Each state gets money based on amount it paid to

poor families and people

• Possibly federal welfare programs have triggered:

– Second-order devolution – flow of power and

responsibility from states to local gov’ts.

– Third-order devolution – increased role of nonprofit

organizations and private groups in policy implementation

Congress and Federalism

• Unclear whether the devolution movement will

gain strength, stall, or reverse

• Whatever, the US will not become a wholly

centralized country

• There is more political and policy diversity in

American than any other nation