FederalismFederalism

““The federal Constitution forms a happy The federal Constitution forms a happy combination . . . the great and combination . . . the great and

aggregate interests being referred to aggregate interests being referred to the national, and the local and the national, and the local and

particular to state governments.”particular to state governments.” – – James Madison, Federalist 10James Madison, Federalist 10

Unitary system Federalism Confederation

American FederalismAmerican Federalism

Dual Federalism (layered Dual Federalism (layered cake)cake) ““States’ rights”States’ rights” National gov’t limited to National gov’t limited to

enumerated powersenumerated powers Dual sovereignty, dual Dual sovereignty, dual

citizenshipcitizenship Cooperative Federalism Cooperative Federalism

(marbled cake)(marbled cake) ““We the people” (i.e. not the We the people” (i.e. not the

states)states) National gov’t can expand with National gov’t can expand with

“elastic clause”“elastic clause” State sovereignty limited by State sovereignty limited by

“supremacy clause”“supremacy clause”

Picket-fence FederalismPicket-fence Federalism Pragmatic policy-making is more important than Pragmatic policy-making is more important than

theoretical arguments and formal divisionstheoretical arguments and formal divisions Still takes into account the background of Still takes into account the background of

separationseparation American Federalism is a Dynamic system American Federalism is a Dynamic system

characterized bycharacterized by1) Ambiguity1) Ambiguity

2) Pragmatism (political, logistical, & economic)2) Pragmatism (political, logistical, & economic)

3) Policy-based Organization3) Policy-based Organization

American FederalismAmerican Federalism(continued)(continued)

The Dynamics of American FederalismThe Dynamics of American Federalism What moves this dynamic?What moves this dynamic?

1) National Crises & Demands1) National Crises & Demands crisis increases need for unified direction, effort, crisis increases need for unified direction, effort,

& resources; e.g. Great Depression, 9/11& resources; e.g. Great Depression, 9/11 Some national needs require unity & Some national needs require unity &

coordination; coordination;

e. g. Nutrition Labeling and Education Act 1990e. g. Nutrition Labeling and Education Act 1990

2) Judicial Interpretation2) Judicial Interpretation Possible (inherent?) contradictions in ConstitutionPossible (inherent?) contradictions in Constitution Challenges to new legislation (especially Challenges to new legislation (especially

preemptive legislation) are often based on preemptive legislation) are often based on interpretations of the 10interpretations of the 10thth Amendment Amendment

Conflicting interests often use whichever position Conflicting interests often use whichever position favors their causefavors their cause

3) Financial Incentives/Fiscal 3) Financial Incentives/Fiscal FederalismFederalism

Categorical Grants, Block Categorical Grants, Block grantsgrants

e.g. South Dakota v Dole e.g. South Dakota v Dole 1987, Stimulus Package 1987, Stimulus Package 20092009

4) Professionalization of 4) Professionalization of State Gov’tState Gov’t

Internal changes (e.g. higher Internal changes (e.g. higher salaries, better education, salaries, better education, full-time staff)full-time staff)

State tax & budgetary reformState tax & budgetary reform Fiscal Federalism (e.g. Fiscal Federalism (e.g.

E&SEA 1965 - NCLB 2001)E&SEA 1965 - NCLB 2001)

The Dynamics of The Dynamics of American FederalismAmerican Federalism

(continued)(continued)

Trends in FederalismTrends in Federalism

In AmericaIn America Growth of local gov’t Growth of local gov’t

county gov’t (some townships), municipal gov’t, school county gov’t (some townships), municipal gov’t, school districts, some special districtsdistricts, some special districts

Over 87,000 local gov’tOver 87,000 local gov’t Expansion of national gov’tExpansion of national gov’t

Growth of Preeminent legislationGrowth of Preeminent legislation

AbroadAbroad States’ abroadStates’ abroad

>30 have intnat’l trade directors>30 have intnat’l trade directors Most have foreign offices of some kindMost have foreign offices of some kind

The European UnionThe European Union Africa, IraqAfrica, Iraq

Pros & ConsPros & Cons

““Laboratories of Democracy”Laboratories of Democracy” Experimentation & CompetitionExperimentation & Competition Diversity & Freedom of ChoiceDiversity & Freedom of Choice Greater Participation & ResponsivenessGreater Participation & Responsiveness Efficiency, Decisiveness, Speed of ActionEfficiency, Decisiveness, Speed of Action

Conflict ManagementConflict Management May help governing of diverse & semi-May help governing of diverse & semi-

autonomous groupsautonomous groups May also contribute to or prolong conflictMay also contribute to or prolong conflict e.g. Germany, Iraqe.g. Germany, Iraq

Minority RightsMinority Rights Factions, benefits of a “large republic”Factions, benefits of a “large republic” History of Intolerance (e.g. Voting Rights Act History of Intolerance (e.g. Voting Rights Act

1965, protection of civil rights)1965, protection of civil rights) ““Race to the Bottom?”Race to the Bottom?”

States determine social welfare benefitsStates determine social welfare benefits They also compete to be the home of They also compete to be the home of

businessesbusinesses Does one affect the other?Does one affect the other?

Lack of Accountability?Lack of Accountability? Sharing burden, but also blameSharing burden, but also blame e.g. Hurricane Katrinae.g. Hurricane Katrina

Pros & ConsPros & Cons

Federalism Fun Facts – who Federalism Fun Facts – who spends what (circa 2005-06)?spends what (circa 2005-06)?

EDUCATION (K-12)---Feds provide 9%, States EDUCATION (K-12)---Feds provide 9%, States 47.3%, Local govts. 43.7%47.3%, Local govts. 43.7%

HEALTH CARE---Feds provide 31.5%, States 12%, HEALTH CARE---Feds provide 31.5%, States 12%, Others 56%Others 56%

PRISONERS---Federal 12.3%, State & local 87.7%PRISONERS---Federal 12.3%, State & local 87.7% HIGHWAYS—Feds provide 28.78%, States and HIGHWAYS—Feds provide 28.78%, States and

locals 71.22%locals 71.22% INCOME SECURITY (welfare) – Feds provided about INCOME SECURITY (welfare) – Feds provided about

2/3 in 19952/3 in 1995

ii

KEY SUPREME COURT KEY SUPREME COURT CASES in FederalismCASES in Federalism

McCulloch v. Maryland (1819) -- Bank of US, N McCulloch v. Maryland (1819) -- Bank of US, N & P clause& P clause

Gibbons v. Ogden (1824) – steamboat case, IC Gibbons v. Ogden (1824) – steamboat case, IC clauseclause

Child labor, minimum wage, monopoly cases in Child labor, minimum wage, monopoly cases in late 19late 19thth Century, IC clause Century, IC clause

NLRB v. Jones & Laughlin Steel (1937), IC NLRB v. Jones & Laughlin Steel (1937), IC clauseclause

Heart of Atlanta Motel v. US (1964), IC clauseHeart of Atlanta Motel v. US (1964), IC clause

Are we in the middle of a Are we in the middle of a “states’ rights” revolution? “states’ rights” revolution?

US v. Lopez (1995) -- guns ‘n’ schoolsUS v. Lopez (1995) -- guns ‘n’ schools Printz v. US (1997) -- Brady billPrintz v. US (1997) -- Brady bill US v. Morrison (2000) – VAWAUS v. Morrison (2000) – VAWA Revival of “sovereign immunity” principleRevival of “sovereign immunity” principle Gonzales v. Oregon (2006) – assisted Gonzales v. Oregon (2006) – assisted

suicidesuicide More and more states “going it alone” on More and more states “going it alone” on

environment, min. wage, health care, environment, min. wage, health care, stem cellsstem cells

NOT SO FAST, my STATES’ NOT SO FAST, my STATES’ RIGHTS FRIEND!RIGHTS FRIEND!

1.) Continuing Pre-Emption by 1.) Continuing Pre-Emption by Federal Govt. in selected policy areas Federal Govt. in selected policy areas (election reform, voter registration, (election reform, voter registration, education standards, gunmaker education standards, gunmaker liability, tort reform, health liability, tort reform, health insurance)insurance)

2.) Countermoves by Supreme Court 2.) Countermoves by Supreme Court (medical marijuana, disability access)(medical marijuana, disability access)

MORE ON GRANTSMORE ON GRANTS

MANDATES – funded or unfundedMANDATES – funded or unfunded Competitive categorical grantsCompetitive categorical grants Formula categorical grantsFormula categorical grants Block grants – welfare converted to a Block grants – welfare converted to a

block grant in 1996block grant in 1996 Political incentives for block grantsPolitical incentives for block grants

(Stimulus spending school example)(Stimulus spending school example)