Federalism: How our government works

Chapter 3

What is federalism? Why was a federal system so important to the framers?

How does the Constitution lay out what powers each level of government will have?

What are state, national, and concurrent powers?

What is federalism?

Federalism-a political system in which power is divided and shared between the national government and the states

• Derive all authority from the people• Powers specified by a Constitution

The Supreme Court plays a critical role in this power/influence struggle

Roots of the Federal System

• The Framers wanted a system that was between the failed confederation of the Articles and the tyrannical unitary system of England

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

2. provision for increased participation in politics

3. use of the states as testing grounds for new policies & programs

Governmental Powers in the Federal System

The distribution of powers in the federal system consists of several parts:– NATIONAL enumerated powers (Article I,

sec.8)• implied powers (elastic clause or necessary and

proper)• Supremacy clause (Article VI)

– STATE reserve (police) powers (10th amendment)

– shared powers (concurrent powers)– denied powers

Article I, Section 8The enumerated powers of the central

government include the power to:• provide for the national defense and make

regulations for the military• regulate commerce with foreign nations, among

the states, and with Indian tribes• coin money and regulate the value thereof• Declare/conduct war• establish national courts, post office

Implied Powers

• The central government may make all laws which shall be necessary and proper for carrying into execution the enumerated powers.

• The necessary and proper clause has often been used to expand the powers of the national government (aka elastic clause).

State Powers• Most come from the Tenth Amendment that

says: "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." – These are often referred to as reserve or police

powers (affecting health, safety, and morals) – Set time/manner/place of elections– Ratify amendments to USC– Exert powers not given to national gov’t– Establish local gov’t– Regulate state commerce

Relations among the States• The Framers wanted a single country, not

thirteen squabbling semi-countries.• Article IV requires states to give “full

faith and credit” to each others’ laws and legal proceedings.

• States are also required to extradite criminals if asked by another state.

• States recognize drivers’ and marriage licenses, custody rulings, etc.

Concurrent (shared) powers

Concurrent powers exist as long as the power is not within national/state scope or laws

Includes:• right to tax• borrow money• establish courts• make and enforce laws are powers shared with

national government

Denied Powers(no authority for arbitrary actions against

rights and liberties)• Amendment 9 lays out powers denied to the central

government and given to the people.• Amendment 10 lays out the powers denied to the

federal government, given to the states/people.• Neither level may pass bills of attainder, or laws

declaring an act illegal without a judicial trial (A1, Sect. 10)

• Bars ex post facto laws, or laws that make an act punishable as a crime after the fact (A1, S. 10)

The Evolution and Development of Federalism

• The allocation of powers in our federal system has changed dramatically over the years.

• 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. Sandford (1857)

McCulloch v. Maryland (1819)

• McCulloch was the first major decision by the Supreme Court under Chief Justice John Marshall about federalism.

• The Court upheld the power of the national government to establish a national bank and denied the right of a state to tax the bank. – “The power to tax is the power to destroy.”

• 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 Congress about controlling commerce.– Commerce Clause (Article I, sec. 8: “to regulate commerce

with foreign nations, and among the several states, and with the Indian tribes”)

• 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.

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

Dred Scott v. Sandford (1857)

• The Supreme Court notes the idea of dual federalism in which separate but equally powerful levels of government exist – national government should not exceed its enumerated

powers

• The Taney Court held that Scott was not a U.S. citizen and therefore not entitled to sue in federal court– Case dismissed, Scott remained a slave

• Court wrote that Congress had no power to:– abolish slavery in the territories – slaves were private property protected by the Constitution– MO Compromise was unconstitutional

The Civil War and Beyond

• Dual federalism—when states and federal government have mostly separate, distinct functions to serve the people– also called “layer-cake” federalism– clearly defined responsibilities and goals

• Remained the Supreme Court's framework for federalism and the ongoing relationship between n’tl/state gov’t from 1870-1930

• Dual federalism finally ended in the 1930s– crisis of the Great Depression demanded powerful actions

from the national government

Cooperative Federalism1930’s-50’s

• By the New Deal (1931), the analogy of a marble cake seemed more appropriate because the lines of authority were much more mixed– Fed. gov’t major player in domestic policy

– major shift in money from federal government to state/local governments

• Marble cake federalism is often called cooperative federalism with more powerful national government – States/local have a cooperative role (work with fed. gov’t)

• Grants-in-aid monies flooded states for public works projects, work programs, relief agencies (alphabetocracy)

Federal Grant-in-Aid Outlays, 1940-2005

Creative (Regulated) Federalism1960’s-70’s

• Increase in Categorical Grants: allocation of federal money to the states for a specific purpose (e.g., poverty programs, welfare, environment)– a way to make states behave in ways desired by

fed. govt. – if states refuse to cooperate, withhold funds (e.g.,

interstate highway funds)

New Federalism: Reagan Revolution 1980’s-90’s

• drastic cuts in federal domestic programs and income taxes in an attempt to reestablish the power of the states

• federal aid to state and local governments declined

• Reagan’s idea was that federal government had gotten too big. – states should have more responsibility and

authority.

Issues during 1980’s-90’s• Revenue sharing & matching funds• Block grants: monies allocated to states for broad

purpose, such as education or poverty, with few regulations on administering funds

• Unfunded mandates: laws that direct states & localities to comply with federal regulations, without funding– e.g., clean air laws & public access for disabled (ADA)

• State budgetary constraints: recession, constitutional requirement for balanced budget

• Intergovernmental lobby groups: NGA, USCM (see slide 26)

The Devolution Revolution

Devolution = delegation of power & responsibility to the states, not the federal gov’t

• SOH Gingrich: roll back scope of federal government and give back of power to the states– Contract with America: shift responsibilities to states;

Unfunded Mandate Reform Act of 1995• Clinton Era reaction to growth in power of the national

government due to Republican majority in both houses of Congress

• President Clinton: responsibility to administer federal programs as chief executive

Federalism and the Supreme Court

• Poll after poll showed that Americans began to think that the national government was too big, too strong, and too distant to understand their concerns.

• U.S. Supreme Court, once again, played a role in interpreting this new form of federalism.

• Cases involving abortion, gun control, environment, use of commerce clause, right to sue.

Rehnquist Court Reinterpreting Federalism

• Generally handing back power to the states

• Majority pro-states’ rights; 5-4 decisions

• Webster v. Reproductive Health Services (1989) and Casey v. Planned Parenthood (1992): states can restrict abortion laws

• U.S. v. Lopez (1995): federal law cannot regulate guns within 1000 of a school

• Bush v. Gore (2000): upheld deadline for selection of electors

Summary – Key Points to Remember

• Federalism is an important concept of the American system of government meant to limit the power of the national government.

• The notion of Federalism has changed drastically since the New Deal in the 1930’s.

• In the 1960’s and 1970’s the scope of federal domestic policies and programs increased steadily.

• In the 1980’s Reagan began a rollback of federal funding for programs and funding to states.

• In the mid-1990’s Republican Congress promised to reduce the size and scope of the national government and “return power to the states.”