Federalism

Constitutional Underpinnings #3

Federalism Defined

Political system with local government units, besides

national one that can make final decisions regarding some

governmental activities and whose existence is protected

A New System

Unitary SystemStrong Central Government

Trampled on Liberty

Confederate SystemWeak Central Government

Couldn’t Protect the People

NATIONAL NATIONAL

STATE STATE STATE STATESTATESTATE

Federal SystemSplit Powers

Between State and National

NATIONAL

STATE

A New System

• The plan had no historical precedence• The idea was neither the Federal nor

State governments would ever dominate over the other since the power comes from the people, and the people would shift their support

Federalism in the Constitution

Types of PowersExpressed PowersPowers granted to the Federal Government (Article 1, Section 8)Reserved PowersPowers reserved to the States by the 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”)Concurrent PowersPowers that both the Federal and the State Governments hold to some extent (Taxation, Construction, Etc…)

Federalism in the ConstitutionFull Faith and Credit Clause (Article IV, Sec 1)States must respect the laws and decisions of

other state governments (Driver’s License, Marriage License, Divorce, Etc..)

Privileges and Immunities (Article IV, Sec 2)Can’t deny a non-state resident of the same

protections of law as a residentExtradition (Article IV, Sec 2)

Return fugitives to the state they are wanted in

Two Theories of Federalism

Dual Federalism• The national and state

governments are partners, and co-equals, sovereign in their own areas

• Belief that the federal government only can act in areas specifically stated in the Constitution

Cooperative Federalism• The national

government is supreme over the states.

• The state governments act as agents to help design programs that go along with the national interest

The Tenth 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.

The Supremacy ClauseThis Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Evolution of Federalism

Dual Federalism

The easiest way to picture how Dual Federalism Works is to picture this…..

Dual Federalism is referred to as LAYER CAKE federalism. In this case the layers exist

independently of the other layers. There is no interaction between them. Each is

responsible for their own flavor.

Federal Government

State Government

Local Government

Evolution of Federalism

Founding until 1930s (Dual Federalism)Although, for the most part, the federal

and the state government remained independent of each other, certain

things chipped away at the balance of power between the two.

Evolution of Federalism1819: McCulloch v. Maryland

• Ruled of the existence of “Implied Powers.” Powers not specifically given to the

government but implied by the “elastic” or “necessary and proper clause”

• Ruled that the Federal Government was supreme and immune from state challenges

such as taxes

1824: Gideon v. Ogden• Congress's right to regulate commerce

under the Commerce Clause could be "exercised to its utmost extent, and

acknowledges no limitations, other than those prescribed in the constitution...“

Nullification• The doctrine that a state can declare a

federal law null and void, if the state believes it is unconstitutional. Used by the South against efforts to limit or abolish Slavery.

The Civil War answer that question

Dual Federalism Breaks Down

• As time went on Dual Federalism erodes due to several factors– Defining “Intrastate” and “Interstate” Commerce

• As the economy grew due to advance in technology and transportation it became impossible to differentiate between the two. By 1940s almost all commerce was considered “interstate.”

– Expansion of the definition of Commerce• By far the biggest way the national government has

expanded its power is through redefinition of “commerce.” Today “pollution”, “crime”, and “education” all fit into “commerce” in some way.

Cooperative Federalism is referred to as MARBLE CAKE federalism. In this case the

layers get mixed in with each other to where it is impossible to separate them from one

another. Usually it results in one flavor being the dominant one.

Evolution of Federalism

Cooperative Federalism

The easiest way to picture how Cooperative Federalism Works is to picture this…..

FEDERAL GOVERNMENT

STATE GOVERNMENT

Era of Cooperative Federalism

Like all great relationships….

The relationship between State and Federal Government is defined by $$$

Grants-in-Aid

Definition: Money (or resources) given by the national government to the states.

Land Grants: Began even prior to Constitution. Land was given to the states and then sold, the proceeds used to finance Universities (land-grant colleges)

Cash Grants

• Began in 1808, but remained relatively few• Increased Dramatically in the 20th Century. – Federal Surplus– Income Tax led to increase in revenue– Federal Government controlled money supply– States liked the money (spend none of the money but

take all of the credit for the project)• Leads to National Legislature voting for

everybody’s projects so they would have support for theirs.

Cash Grants

• 1920s to 1950s these grants were PROJECT GRANTS. States would design the project, the federal government would provide funding for it.

• 1960s the Federal Government started taking the lead and designing programs to fulfill “national needs.” Hard for states to counter since the states had become dependent on federal money.

Types of Grants

• Land Grants• Project Grants• Categorical Grants– Money given for a specific purpose defined by federal law.

• Block Grants– Money from the national government that states can

spend within broad guidelines.• Revenue Sharing– Federal sharing of a fixed percentage of its revenue with

the states (no longer used)

Impact of Grants

• Intergovernmental Lobby– State and Local government hire people to lobby the

Federal Government to keep money flowing with hopefully less strings.

• Rivalry Among States– Importance of the Census (more money with more

population)• Categorical Grants have grown faster than Block Grants– Block Grants are so broad based there is no “constituency”

that constantly lobbies for them as opposed to Categorical Grants.

Federal Aid and Control

Conditions of Aid

If States meet certain conditions

then the States will receive certain federal funds.

MandatesTerms set by the

national government that states must meet.

Federal Mandates

• Most mandates revolve around civil rights or environmental protection.–Problems• Sometimes vague in terms of definitions

or estimated costs• Unfunded Mandates–Requirement by Federal Government that is

not paid for by Federal Government (Americans with Disabilities Act)

Devolution

• Driven by the Republican Party – Republican Majorities in House and Senate (1994)

• Goal: Shift important functions back to states by turning some categorical grants into block grants to scale back the size of federal government.

• Focus: Shifting Entitlement (Programs in which individuals who meet a set criteria are legally obligated to received money/services from government) Grants (Aid to families and individuals)

• Success with Welfare (AFDC) but not Medicaid.

Limits on States

• When it comes to State Power there are two limits. One formal the other informal (but perhaps more impactful)– The states must observe the Constitution of the

United States of America and they must obey valid laws of the federal government made under the Constitution.

– The second major limitation on state power is their relative lack of financial resources compared with those of the federal government.

Effects of Federalism

• Negative– Entrenches Powerful Local Interests. Progress can be blocked

by a small group.• Civil Rights, Voting, Segregation

• Positive– Diversity in Power (# of positions in government at national,

state, and local levels allows not only a diversity in demographics but diversity of view points)

– Lowers Cost of Political Activity (can get active at local and state levels, not just national)

– “Laboratories” of Democracy (states can design programs that other states can use as models to emulate or avoid).