FEDERALISM

Chapter 3

Mr. ManzoAmerican Government:

Continuity and Change

Federalism

In this chapter we will cover…1. The Roots of the Federal System

2. The Powers of Government in the Federal System

3. The Evolution and Development of Federalism

4. Federalism and the Supreme Court

Hamilton No. 16 & 17• Theme -Insufficiency of the Present Confederation to

Preserve the Union unity of the country

• Unity, A standing, national army represents the nation's right to enforce the laws, individual agendas of the differing states.

• “Notes of Ancient and Modern Confederacies." Amphictyonic Council, Holy Roman Empire, Swiss Confederation, Confederation of the Netherlands. Interstate tensions, warlike.

Madison Summary of Federalist No. 14

• While a Democracy can only cover a small space, Republics may span over many provinces. This is because in a Democracy, all people must gather into one place to vote. In a Republic the people elect representatives to vote. The greatest danger to a Republic is to confuse it with a Democracy. It is easier to be united and have to travel to a distant province to represent the people, than for that person to be isolated and attacked from all sides. So, if Americans do not fall for a Democracy, a Republic will provide for a strong union, additional states, and security.

Federalism/Federal System12.1 (5) Describe the system and shared powers,

the role of organized interests (Federalist paper No. 10. Enumerated powers, rule of law, federalism.

- political system in which power is divided and shared between the national/central government and the states.

Both national and state governments exercise power over the same geographical area.

Federalism12.9 (3) Advantages and Disadvantages of Federal,

Confederal, and Unitary Government.

• It creates more access points to government. Think linkage institutions. Additionally, federalism strengthens the judicial branch, since it is often called up to resolve conflicts.

• decentralizes political power in our politics.

Unitary Confederal Federal

Central Government controls lower levels- Education, police, land use, welfare and funding of local government activities

States have control over Central Government which is mostly administrative

- European Union (EU).

Shared Authority by ConstitutionConcurrent PowersCentral & Regional Governments Supreme in their sphere

Federalism12.9 (2) Differentiate between a parliamentary

government and a federal government

• Parliamentary

Unitary

Executive & Legislature

Removal of Executive = vote of NO CONFIDENCE

Judicial – Supreme Court of the United Kingdom

Queen – ceremonial, Head of State.

• Presidential

Federal

Executive / Legislature

Separated & Blended

Removal of Executive = 4 yr term or impeachment.

Independent Supreme Ct.

Federalism

• County – LA County Board of Supervisors• Municipal – West Covina City Government• Township – Hillsbrouogh, Marin County• School District – Hacienda/La Puente• Special District -Special districts are a form of local

government created by a local community to meet a specific need.

1. Transit District 2. Utility District 3. Water District 4. Waste Management Agency/Authority

The Roots of the Federal System

• The Framers worked to create a political system that was halfway between the failed confederation of the Articles of Confederation and the tyrannical unitary system of Great Britain.

• The three major arguments for federalism are:1. the prevention of tyranny;

2. the provision for increased participation in politics;

3. and the use of the states as testing grounds or laboratories for new policies and programs.

The Powers of Government in the Federal System

The distribution of powers in the federal system consists of several parts:– Delegated expressed or enumerated powers– implied powers. – Inherent powers– Prohibited or denied powers– Concurrent powers– Reserved powers

Article I, section 812.4 (1) Article I, enumerated legislative powers.

The Delegated (enumerated) powers of the central government consist of the power to:

• lay and collect taxes, duties, and imposts• provide for the common defense and general welfare of the

United States• regulate commerce with foreign nations, and among the

states, and with Indian tribes• coin money and regulate the value thereof• declare war• The Supreme Court case of Gibbons v. Ogden

defined commerce as virtually every form of commercial activity.

Article II 12.4 (4) Article II, enumerated executive powers.

• Clause 1: Command of military; Opinions of cabinet secretaries; Pardons.

• Clause 2: Treaties; Senior-level appointments and Judicial nominations.

• Clause 3: Recess appointments

Implied Powers12.5 (3) Judicial interpretation McCulloch v Maryland

• Implied powers were first established in the United States Supreme Court case of McCulloch v.Maryland (1819). In McCulloch, the Supreme Court held that because of the "necessary and proper" clause in Article 1, Section 8 of the Constitution, the national government had additional powers that were implied in that clause.Implied powers are those powers of the national government that flow from its enumerated powers and the "elastic clause" of the Constitution. Implied powers are best exemplified by congressional authority to pass environmental protection laws.

Inherent Powers

• Inherent powers are those powers that belong to the national government simply because it is the national government, e.g., declare war, foreign affairs, acquire new territory. ONLY the national government is allowed to regulate commerce with foreign nations, i.e. foreign trade. Example NAFTA, CAFTA.

Prohibited Powers• Expressly bar government from specific actions• Article I, section 9 lays out powers denied to the central

government.– For example: The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

• Article I, section 10 lays out the powers denied to the states. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Concurrent Powers

• Concurrent powers are those which are exercised independently by both the national and state governments. Those powers shared by both levels of governments, i.e., state and national. Examples: power to tax, power to borrow, and power to regulate commerce within their own borders.

• Both the federal and state government collaborate with each other within many geographic and policy spheres.

Reserved Powers12.7 (4) Tenth Amendment

• Reserved powers are powers retained by the states. 10th Amendment: "The power not delegated to the United States by the Constitution., not prohibited to it by the States, are reserved to the States or to the people." State powers then are called  reserved powers.

• In our federal system, the powers of the state governments are ultimately granted by the United States Constitution. The most significant reserved power given to states is the power to determine the qualifications for voting, set time and place of elections.

• Courts have interpreted reserve powers as falling into three categories:

a. Public education

b. Police powers; criminal laws. For example, as a result of our federal form of government, the death penalty in the United States varies substantially state by state.

c. Right to regulate commerce within a state, i.e., intrastate commerce.

Vertical Checks and Balances—involve relationships between the states and the national government.

Horizontal Checks and Balances—involve the relationship between the branches of government that are on the same level.

The Evolution and Development of Federalism

• Dual Federalism (layered cake federalism)

• States and the federal government have separate and distinct jurisdictions.

• The Supreme Court in its role as interpreter of constitution has been a major player in the redefinition of our Federal system.

– McCulloch v. Maryland (1819)– Gibbons v. Ogden (1824)– Dred Scott v. Sanford (1857)

McCulloch v. Maryland (1819)

• McCulloch was the first major decision by the Supreme Court under Chief Justice John Marshall about the relationship between the states and the national government.

• The Court upheld the power of the national government and denied the right of a state to tax the bank.

• The Court’s broad interpretation of the necessary and proper clause paved the way for later rulings upholding expansive federal powers.

Gibbons v. Ogden (1824) 

• The Gibbons case centered on the conflict between the states and the powers of Congress.

• Could New York grant a monopoly concession on the navigation of the Hudson River?  The Hudson River forms part of the border between New York and New Jersey and the U.S. Congress also licensed a ship to sail the Hudson.

• The main constitutional question in Gibbons was about the scope of Congress' authority under the Commerce Clause.

• In Gibbons, the Court upheld broad congressional power over interstate commerce.

Dred Scott v. Sanford (1857) 

• The Supreme Court articulated the idea of concurrent powers and dual federalism in which separate but equally powerful levels of government is preferable, and the national government should not exceed its enumerated powers.

• The Taney Court held that Mr. Scott was not a U.S. citizen and therefore not entitled to sue in federal court.

• The case was dismissed and Scott remained a slave. • Taney further wrote that Congress had no power to

abolish slavery in the territories and slaves were private property protected by the Constitution.

• Dual federalism finally ended in the 1930s, when the crisis of the Great Depression demanded powerful actions from the national government.

Grodzin’s Federalism

• Functions of government are not neatly parceled out.

• Shared functions

• Grant – In –Aid programs for education, police, health & safety.

Government expanded role by increasing spending for war effort. Income taxes were introduced to defray costs associated with war. Pension and widow benefits expanded the national government’s role in social enterprises.

Grodzin’s Federalism

• 19th Century known for Dual Federalism.

• However, close cooperation between national, state, and local government.

• Grant in Aid for schools, colleges, roads, canals, rivers, harbors, and railroads.

• National grants established state programs.

Cooperative federalism • Cooperative federalism (marble cake)• In the Roosevelt New Deal period during the depression

of the 1930s, federalism moved into a cooperative system. Under cooperative federalism, the national and state governments undertook joint ventures such as the financing the building of the Pennsylvania Turnpike. The national government became the major provider of resources while the state governments became the major implementers of the joint programs. The line separating the national government and the state governments became blurred. This type of relationship became analogous to a marble cake with money serving as the "glue" that held the federal system together.

• Federal government enhances its power and governance becomes "we are all in this together, so we should cooperate."

Creative Federalism• President Lyndon Johnson's Creative Federalism

as embodied in his Great Society program, was, by most scholars' assessments, a major departure from the past. It further shifted the power relationship between governmental levels toward the national government through the expansion of grant-in-aid system and the increasing use of regulations.

• 1964 -- Creative Federalism and the Great Society. Creative Federalism and the Great Society sought to expand the national government's role in an effort to achieve socially desirable outcomes (i.e reductions in poverty, elimination of hunger).

• federal regulations increased as the federal government became increasingly involved in areas that had previously been the purview of state and local governments or the private sector.

Creative (Picket Fence) Federalism

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Regulatory Federalism

• A model of federalism — regulatory federalism — evolved with the advent (since the mid-1960s) of extensive federal regulations mandating functions for states and localities to perform. Regulatory federalism is a term used to describe the emergence of federal programs aimed at, or implemented by, state and local governments.

• EPA Executive Order 1110.2 (Nixon)

Regulatory Federalism

• 1. Environmental regulations, and regulations on civil rights, hiring, and workplace safety created new mandates for state actions. 2. Often these mandates came without federal funds, i.e., "unfunded mandates," to cover any of the implementation  costs. For this reason, mayors, governors, and local officials have bemoaned the  problem of unfunded mandates. They simply put an unwanted financial burden of states and local communities. Unfunded mandates are federal laws that require states to meet certain regulatory standards, but provide no money to help the states comply. Congress enacted a law in 1995 to curtail the practice. New York spent $1.3 billion to make its subways accessible to the disabled, without federal assistance.

New FederalismRichard Nixon launched revenue sharing in 1972 under the rubric of "New Federalism." Federal money was given to state and local governments with no restrictions on how the money was to be spent. The program ran until it was terminated in 1986, a casualty of deficit reduction. Over the 14 year period, $85 billion was disbursed to the state and local governments with two-thirds going directly to local governments

Ronald Reagan went back to "New Federalism" in which he set out to get the national government out of programs that were, in his view, the responsibility of state and/or local governments.

New Federalism “Your on your own federalism ”Devolution

• Block grants and revenue sharing, reduce federal requirements, giving state grantees greater freedom while setting the stage for withdrawal of federal fiscal support.

• Republican Congress pursues "devolution revolution." A new Republican majority in Congress moves to hand day-to-day control of many federal programs to the states. Most important, Congress gives new authority to state governments to overhaul federally mandated programs, most notably welfare. New welfare policies use block grants to give states more discretion over spending.

• Congress also adopts a law compelling the federal government to pay states for the enforcement of any new federal policies or mandates. In addition, budget considerations work to limit the growth of federal programs and initiatives affecting state and local government.

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 [Welfare to Work Act]

Eliminated welfare and transferred the money to states as block grantsStates received wide latitude on how to administer “workfare”

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

Devolution

Pros of Federalism• 1. Federalism permits diversity and diffusion of power. • 2. There are a number of local units, not remote bureaucracies,

which deal directly with local problems. (Local governments may better understand local problems.)

• 3. There are multiple access points for citizens to participate in democracy.

• 4. There is less chance that individual rights will be abused by a large, aloof bureaucracy where power is concentrated in a few hands.

• 5. Multiple layers of government provide more avenues for innovation, experimentation, and problem solving. Many of the FDR New Deal programs copied the states.

• 6. It suits a large country with a very diverse population like the

United States.

Cons of Federalism

• 1. Federalism permits some state and local areas to continue race discrimination (Southern school de facto segregation).

• 2. Under a federal system, special interests and certain localities can frustrate the realization of national goals. (Examples: poor wages and working conditions for coal miners in West Virginia; automobile and oil industries in some areas)

• 3. Local communities may lack the expertise to solve problems, and may provide favoritism to some at others' expense.

• 4. Law enforcement and justice maybe unevenly applied among the states (death penalty laws).

• 5. Local autonomy may get in the way of national unity.

Federalism and the Supreme Court

• By the 1980s and 1990s, many Americans began to think that the national government was too big, too strong, and too distant to understand their concerns.

• The Supreme Court, once again, played a role in this new evolution of federalism. – For example: Since 1989, the Court has been

allowing states to introduce limitations on the right to an abortion.

– US v. Lopez– US v. Morrison

Continuity and Change

• Federalism as outlined at Philadelphia in 1787 has evolved considerably over time.

• Initially, the states remained quite powerful, and the national government was small and weak.

• Over time the national government became progressively stronger.

• However, we have a Court today that is more interested in reinvesting power in the Tenth Amendment and in the states.