FederalismChapter 3

Federalism• This lecture is NOT intended to promote teenage drinking.

The focus of this lecture IS to point out how the Federal Government and State Governments interact with each other, using a current, relevant topic as an example.

• With the exception of the 18th amendment, regulating liquor sales and setting the minimum age for drinking has always been the responsibility of state governments. But in the last 20 years, the national government has found ways to extend its influence into areas the founders might never have dreamt of. • In 1981, 29 states and the District of Columbia

allowed 18-year-olds to drink• During the Reagan Administration, the legal

drinking age was raised to 21. If stated failed to comply, they lost federal funding for highways, beginning in 1986• Some say the Federal Government had a responsibility to

maintain safety and order• Others say the law constituted age discrimination and was

an infringement on states’ rights

• Several states sued in federal court, arguing that the law violated the 10th and 21st Amendments

•10th Amendment – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

•21st Amendment - •Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. •Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. This gave the states the right to determine alcohol laws for their own state. •Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress

Court Ruling

• The Supreme Court ruled, in South Dakota vs. Dole, 1987,

that direct congressional control of a state's minimum age

for drinking would be unconstitutional. However, indirect

control was ok‑ in his case withholding money from the

states.• The court said that Congress had an overriding

goal here‑ ending drunk driving which the court said was related to interstate travel.

One more step…

• In the fall of 2000, Congress went further, stating that unless states lowered the legal limit for drunken driving to .08, they would be in danger of losing 20% of their federal highway funds over the next three years. Under pressure from Washington, some states already had tough laws against drinking already. • Is this fair?

What’s the point here????

• FEDERALISM IS AT THE CENTER OF IMPORTANT BATTLES OVER PUBLIC POLICY IT CAN DETERMINE THE WINNERS ‑AND LOSERS AT THE LOCAL, STATE AND NATIONAL LEVELS. WHOEVER IS IN CHARGE OF THE PRESIDENCY OR CONGRESS WILL MAKE CRUCIAL DECISIONS ABOUT HOW WE ARE GOVERNED AND WHAT THE PROPER ROLE OF GOVERNMENT WILL BE IN OUR LIVES.

Federalism Defined:

the division of powers between the federal government and the state governments

It has been a central and evolving feature of our system of government. Federalism means that citizens living in different parts of the country will be treated differently, not only in spending programs, but also in the legal system..

Three Ways of Ordering Relations Between Central Governments and Local

Units

• Unitary system‑ (France; UK; Israel; Egypt) most popular historically and today; allows ultimate governmental authority to rests in the hands of the national or central government. If Parliament wants to redraw local boundaries in the UK, they have the power to. Compare this to the US. Even if Congress wanted to abolish Alabama or Idaho they could not. States receive their power not from the national government but from the Constitution itself. (This type of system appeals to those who face opponents at the state or local level.)

Three Ways of Ordering Relations Between Central Governments and Local

Units

• Confederal system ‑ really the opposite of the unitary system; the states have more power than the central government‑ and the states can destroy the central government if they feel it necessary.

• Federal system‑ (Russia; Canada; Mexico; US) is a relatively rare type of system worldwide‑ only 11 of the 197 world governments are arranged this way. Authority is divided, usually by a written constitution, between a central government and regional governments. The central government and the smaller governments both act directly on the people through laws and the policies carried out by the people's representatives. (This system appeals to pluralists and interest groups who have multiple points of entry when trying to affect policy).

Advantages of Federalism

• 1. Permits diversity in policy making‑ can also protect the liberty of those at the state and local powers.• 2. Local governments will be able to handle local

problems‑they are more in touch with the people anyway. • 3. There are more levels of access to political

participation‑ allows for pluralism and democracy. • 4. Increases experimentation with policy‑ welfare,

education, crime control, etc.

• In general then, federalism allows states to elect their own leaders, raise their own revenues and enact their own policies.

Disadvantages of Federalism

• Makes national unity and consensus difficult to reach. • Local governments may tolerate economic or political

inequality.• Local or state governments may openly block federal

policies • May promote hyper‑pluralism or extensive factionalism

(tyranny of the majority)

Different Types of Congressional Power

• Expressed (enumerated): which are the first 7 articles of the Constitution) The Constitution does not specifically delegate or list powers to the state. Because states had all the power at the time of the writing of the Constitution, the Framers felt no need to list these powers, as they did for the national government. Examples: war, interstate and foreign commerce, and coining money. These were the powers the Founders saw as lacking in the Articles of Confederation.

Different Types of Congressional Power

• Reserved (police) powers: of the states: the 10th amendment has been controversial because it is vague. The ambiguity of the 10th amendment has allowed the reserved powers of the states to be defined differently at different times of our history. • Generally, since the 19th century, state's

rights advocates have been conservative believers in limited government. These rights are often used as justification for restricting abortion or having the death penalty.

Different Types of Congressional Power

• Implied powers: comes from the necessary and proper clause or elastic clause. These powers were dramatically increased under Chief Justice Marshall and set the stage for a strong national government. The biggest example of this in the Constitution is Article 1, sec 8 which has 2 main clauses: commerce; general welfare (taxes, common defense) • Inherent powers: These are powers not

specifically in the constitution (foreign affairs, regulation of immigration, acquiring of territory) but are assumed to be residing with the national government

Different Types of Congressional Power

• Concurrent Powers: the state shares power with the federal government in certain areas. Most of these powers are implied‑ for example the power to tax (local, state, federal); borrow money; to establish courts; power to charter banks or corporations, power to hold elections. The states cannot use their reserved or concurrent powers to usurp the power of the national government (the SUPREMACY CLAUSE‑ Article 4; sec. 2) All national and state officers must swear allegiance to the Constitution

• Prohibited (denied) Powers: these powers were designed against the national government and state governments. For example; the national government cannot impose taxes on exports; the national government cannot set up a national church or school system. Also, the states cannot do what the national government does: make their own treaties, coin $, declare war, etc.

Defining National Power (1803‑1828):

Because the constitution never specifically spelled out what the role of the national government and the states would be- the balance of power has shifted throughout the years. In the 18th century the accepted wisdom was that the sovereignty of the state could not be divided. Either the federal government or the state government would be supreme not both. But very early on, the states and the federal government came into conflict on issues dealing with economic issues. The first major decision that Chief Justice Marshall made that dealt with federal or state supremacy was...

McCulloch v. Maryland (1819) ‑ Maryland tried to tax the Second Bank's Baltimore branch in an attempt to put the bank out of business. McCulloch, the bank's cashier, refused to pay the tax; the issue went to court where Maryland won at the state level; it was appealed to the US Supreme Court. Constitutional issuesQuestion #1 Marshal was faced with the question of whether or not Congress had the power under the necessary and proper clause to charter a bank. Nothing was mentioned in the Constitution about starting a national bank and some felt the government was overextending its powers. Others felt if the government could coin money and regulate its value, it surely could start a national bank. Question #2: If the bank was constitutional, could the state tax it? Marshall's decision: unanimous

• Answer #1: Although the word "bank" does not appear in the Constitution, the enumerated powers that gave Congress the right to levy and collect taxes, issue currency and borrow money‑ suggesting to Marshall that the power existed for Congress to charter a bank. Thus, Marshall established the doctrine of implied powers; he said that the Constitution was a living document that had to be interpreted to meet the practical needs of the government.

• Answer #2: Marshall said that no state could use its taxing power to tax the national government (the power to tax was the power to destroy) said the government was up by the people not the states. Besides, the supremacy clause made it clear to Marshall that national law was always superior to state law when the two came into conflict. Marshall's decision became the basis for strengthening the national government's power from that day on. Today, practically every expressed power of the national government has been expanded in one way or another by the use of the necessary and proper clause.

• State's rights (1829‑1865) • At the heart of the controversy that

eventually led to the Civil War was the issue of national government supremacy versus the rights of the separate states. After Marshall died, Chief Justice Roger Taney helped articulate the notion that concurrent national/state law was important. Under Taney, the Court took a much narrower view of the powers of the federal government. Taney's court invoked the 10th amendment repeatedly to protect the rights of the states.

States’ obligations to each other

• Full faith and credit – In Article IV, Section 1 – The Constitution requires each state to recognize the official documents and civil judgments rendered by the courts of other states• Extradition – a legal process whereby an alleged

criminal offender is surrendered by the officials of one state to the state in which the crime allegedly occurred

• Dual federalism (Layer Cake) (1865‑ 1933)• Prevailed for two reasons: • 1. Supreme Court rulings between 1887-1937

favored that interpretation• 2. The widespread laissez faire policy toward

big corporations from the government.• Although the outcome of the Civil war firmly

established the supremacy of the national government and put to rest the idea that a state could secede from the Union, the war by no means ended the debate over the division of powers between the national government and the states. Dual federalism grew out of the protracted debate about commerce and who had the right to regulate it.

•Dual federalism has three major parts to it:

1. National government rules by enumerated powers only‑ all others belong to the states.• 2. Each government (national and state) is sovereign within its own sphere and these spheres should be kept separate (i.e., national government controls foreign and military policy and the postal system, and states control schools, law enforcement, building of roads)• 3. The relationship between the states and national government is characterized by tension rather than cooperation.

• Cooperative federalism (Marble Cake) (1933‑ 1968)

• The era of dual federalism ended with the onslaught of the Depression. FDR and the New Deal ushered in a new era of American politics. FDR was able to sell a brand new ideology to the American people and congress. Not only was the scope and role of national government remarkably altered, but also so was the relationship between each state and the national government.

Components of Cooperative Federalism

• Cooperative federalism rests on 2 major theories: • The national and state governments should

cooperate on policy.• It is natural for both governments to

routinely share power.

• In Cooperative federalism, there are:• Shared costs• Federal guidelines• Shared administration

Competitive Federalism (1969‑1974)

• As Congress increased the number of federal programs for which cities were eligible, many critics argued that the federal grants system was out of hand. Each program had its own complicated set of rules and formulas for matching and distributing money along with huge bureaucracies to implement them. Between 1965 and 1980, federal aid to the cities tripled. • The fourth phase of federalism was termed

"Competitive Federalism by President Nixon. Its goal was to restore more power to the state and local government, particularly by reducing the restrictions attached to federal grants. The aim of competitive federalism was to offer states pieces of the marble cake but to have them accept it with conditions and with a promise to develop programs on their own.

• Under President Nixon's program of REVENUE SHARING (1969 1986) ‑ money was directly given to the state's and localities without any strings attached that ‑is, the national government returned to the state and local governments a certain portion of federal taxes. This was the centerpiece of Nixon's domestic spending program. This program allowed local officials to make decisions about how the money was to be spent. The problem with revenue sharing was that it created constituencies within the government and not among the voters. By the end of 1986 though, the government was saddled by huge budget deficits under Reagan and this revenue sharing program was disbanded.

New Federalism (1981 1992)‑• A perfect example of this occurred under

President Reagan (1981- 1989). Reagan ushered in what came to be known as “New Federalism" which gave more rights to the states while still retaining a carrot and stick approach if the states did not follow the guidelines of the federal government. While saying that "government was part of the problem, not the solution", Reagan still involved the national government in some state matters

Devolution & Fiscal Federalism

• Devolution - transferring responsibility for policies from the federal government to the states• Fiscal federalism – the pattern of

spending, taxing, and providing grants in the federal system

One string attached to ALL grants is a non-discrimination clause

Categorical grants (Grants‑in‑aid)• The main source of federal aid to state and local governments• Can be used for several hundred specific purposes or categories

Types of Grants

Types of Grants

• Project Grants – Given for specific purposes and awarded on the basis of the merit of applications (competition). • Formula Grants – Distributed according to a formula

(things to consider in formula: population, per capita income, % of rural population, etc.). States and local governments do not apply for these grants.• Block Grants – Grants given more or less automatically

to states or communities to support broad programs in areas such as community development and social services

Mandates:• State and local governments usually enjoy receiving federal funding, but sometimes, there are too many strings attached. Congress can pass laws requiring states to extend a program if they want to keep receiving aid• A mandate includes requirements that direct state or local governments to comply with federal rules under threat of penalty or as a condition of receiving funding (i.e., Medicaid)• Funded Mandate – Federal government provides funding to accomplish goals• Unfunded Mandate – no funding is received from the Federal government, but the goals must still

be met