The Constitutional Framework: Federalism and the Separation of Powers Federalism.

The Constitutional The Constitutional Framework: Framework:

Federalism and the Federalism and the Separation of Separation of

PowersPowers

FederalismFederalism

FEDERALISM AND THE FEDERALISM AND THE AMERICAN FOUNDINGAMERICAN FOUNDING

The The balance of power balance of power between the central between the central government and government and the statesthe states was at was at the heart of the the heart of the constitutional constitutional struggle between struggle between the Federalists and the Federalists and the Antifederalists.the Antifederalists.

FEDERALISM AND THE FEDERALISM AND THE AMERICAN FOUNDINGAMERICAN FOUNDINGPARADOX OF POLITICS:PARADOX OF POLITICS:

Generally, there exists a Generally, there exists a trade-off between trade-off between freedom and order.freedom and order.

FEDERALISM PARADOX:FEDERALISM PARADOX:

Were the states to be Were the states to be free to pursue their free to pursue their own courses or would own courses or would the central the central government government coordinate and coerce coordinate and coerce them to uniformity?them to uniformity?

STAGES OF FEDERALISMSTAGES OF FEDERALISM

There have been FOUR STAGES OF There have been FOUR STAGES OF FEDERALISM throughout American FEDERALISM throughout American history.history.

I. “DUAL II. “COOPERATIVE III. “REGULATED IV. “NEW

FEDERALISM” FEDERALISM” FEDERALISM FEDERALISM”

1789 1937 1960 1970 1990


STAGE 1: “Dual Federalism” (1789-1937)STAGE 1: “Dual Federalism” (1789-1937)

1. Central government focused on 1. Central government focused on promotion of commerce and distribution of promotion of commerce and distribution of resources.resources.

2. States retain most remaining powers.2. States retain most remaining powers.


Stage 1: Dual FederalismStage 1: Dual FederalismPower of the national government set forth Power of the national government set forth in in Article I, Section 8 of the ConstitutionArticle I, Section 8 of the Constitution

• Commerce clauseCommerce clause• ““necessary and proper clause”necessary and proper clause”• McCulloch v. MarylandMcCulloch v. Maryland (1819) (1819)• Gibbons v. OgdenGibbons v. Ogden (1824) (1824)

STAGES OF FEDERALISMSTAGES OF FEDERALISMSTAGE 2: “Cooperative Federalism” (1937-?)STAGE 2: “Cooperative Federalism” (1937-?)

Franklin Roosevelt’s “New Deal” sparks a revolution in Franklin Roosevelt’s “New Deal” sparks a revolution in national policy-making and an increased role for the national policy-making and an increased role for the national government altering the balance of federal national government altering the balance of federal power.power.


STAGE 2: “Cooperative STAGE 2: “Cooperative Federalism”Federalism”

The New Deal’s expansion of The New Deal’s expansion of the national government the national government and the executive branch and the executive branch further empowered the further empowered the national government at the national government at the expense of state expense of state autonomy.autonomy.


Block grantsBlock grants are given are given to states for general to states for general purposes and allow purposes and allow state officials greater state officials greater discretion over how discretion over how funds will be spent.funds will be spent.

Categorical grantsCategorical grants are are given to states for more given to states for more specific purposes and specific purposes and most of the discretion most of the discretion remains in the hands of remains in the hands of federal officials and federal officials and officeholders.officeholders.

STAGE 2: “Cooperative Federalism”

The national government would ensure state cooperation with federal policies by offering grants-in-aid.


STAGE 3: “Regulated Federalism” (1960s-?)STAGE 3: “Regulated Federalism” (1960s-?)

As state and local governments came to As state and local governments came to depend on grant-in-aid support, the depend on grant-in-aid support, the national government further intervened in national government further intervened in state government decision-making by state government decision-making by threatening to withhold such grants. This threatening to withhold such grants. This is also known as “COERCIVE FEDERALISM.”is also known as “COERCIVE FEDERALISM.”


STAGE 3: “Regulated STAGE 3: “Regulated Federalism”Federalism”

To regulate speed limits To regulate speed limits within states, the national within states, the national government threatens to government threatens to withhold federal withhold federal transportation dollars thus transportation dollars thus coercing states to comply coercing states to comply with federal mandates.with federal mandates.


STAGE 4: “New Federalism” (1969-?)STAGE 4: “New Federalism” (1969-?)

The waning in some respects of Franklin The waning in some respects of Franklin Roosevelt’s “New Deal” coalition and Roosevelt’s “New Deal” coalition and programs sparks a counter-federal trend, programs sparks a counter-federal trend, known as NEW FEDERALISM, that begins to known as NEW FEDERALISM, that begins to return discretion to the state and local return discretion to the state and local governments.governments.

STAGES OF FEDERALISMSTAGES OF FEDERALISMSTAGE 4: “New Federalism”STAGE 4: “New Federalism”

The “new federalism” trend of The “new federalism” trend of returning discretion to the returning discretion to the states began in the states began in the executive branch as the executive branch as the Nixon, Carter, and Reagan Nixon, Carter, and Reagan Administrations gave states Administrations gave states a larger role in administering a larger role in administering federal policies. federal policies.


STAGE 4: “New Federalism”STAGE 4: “New Federalism”

The Republican takeover of The Republican takeover of Congress after the 1994 Congress after the 1994 elections led to a series of elections led to a series of policies where the federal policies where the federal government “devolved” government “devolved” power to the states.power to the states.

Welfare reform is a good Welfare reform is a good example of such example of such “devolution.”“devolution.”


STAGE 4: “New Federalism”STAGE 4: “New Federalism”

In In United States v. Lopez United States v. Lopez (1995) (1995) and and United States v. Morrison United States v. Morrison (2000), the Supreme Court (2000), the Supreme Court reversed its course by reversed its course by restricting its interpretation of restricting its interpretation of what constituted “interstate what constituted “interstate commerce” to justify federal commerce” to justify federal government involvement in government involvement in the states.the states.


““we would have to pile inference upon inference we would have to pile inference upon inference in a manner that would … convert in a manner that would … convert congressional authority under the Commerce congressional authority under the Commerce Clause to a general police power of the sort Clause to a general police power of the sort retained by the States. Admittedly, some of retained by the States. Admittedly, some of our prior cases have taken long steps down our prior cases have taken long steps down that road …, but we decline to proceed any that road …, but we decline to proceed any further.”further.”--Chief Justice William Rehnquist, writing for --Chief Justice William Rehnquist, writing for the the majority in majority in United States v. Lopez (1995)United States v. Lopez (1995)

States are allowed to be States are allowed to be differentdifferent

Can be wide variety in criminal Can be wide variety in criminal statutes, punishments, etc . . .statutes, punishments, etc . . .

States are required to give “full faith States are required to give “full faith and credit” to honor the “public acts, and credit” to honor the “public acts, records, and judicial proceedings” of records, and judicial proceedings” of

other statesother states

1993 – Hawaii – gay marriage 1993 – Hawaii – gay marriage possiblepossible

1996 – Defense of Marriage Act – 1996 – Defense of Marriage Act – states don’t have to recognize states don’t have to recognize

same-sex marriagesame-sex marriage1998 – Court rules that Missouri 1998 – Court rules that Missouri court can ignore Michigan court court can ignore Michigan court

order to ban testimonyorder to ban testimony

Citizens from one state Citizens from one state have the same rights and have the same rights and the citizens of anotherthe citizens of another

• Article 4, section 2 – privileges and Article 4, section 2 – privileges and immunitiesimmunities

• No discrimination between state No discrimination between state residents and out-of-state residents, residents and out-of-state residents, criminal extraditioncriminal extradition

Modern Problem?Modern Problem?““competitive federalism” – competitive federalism” –

states compete amongst each states compete amongst each other to make themselves other to make themselves

more attractive to business – more attractive to business – can create a “rush to the can create a “rush to the

bottom”bottom”

THE COSTS OF DIVIDED THE COSTS OF DIVIDED GOVERNMENT POWERGOVERNMENT POWER

Thus, when collective action is necessary and Thus, when collective action is necessary and desirable, the government must overcome desirable, the government must overcome these barriers.these barriers.

Through federalism and the separation of powers, the Constitution sets up conflicts which act as barriers to collective action.

THE COSTS OF DIVIDED THE COSTS OF DIVIDED GOVERNMENT POWERGOVERNMENT POWER

Federalism and the separation of powers Federalism and the separation of powers provide impediments to the national provide impediments to the national government’s ability to meet the threat of government’s ability to meet the threat of terrorism, which requires swift and terrorism, which requires swift and concerted national government power.concerted national government power.

THE COSTS OF DIVIDED THE COSTS OF DIVIDED GOVERNMENT POWERGOVERNMENT POWERFEDERALISM’S FEDERALISM’S

CHALLENGECHALLENGE::

National, state and National, state and local governments local governments must overcome their must overcome their natural conflicts to natural conflicts to work together to work together to meet terrorist meet terrorist threats.threats.

SEPARATION OF POWERS SEPARATION OF POWERS CHALLENGECHALLENGE: :

The legislative, The legislative, executive, and judicial executive, and judicial branches must branches must overcome the natural overcome the natural struggle between their struggle between their various “ambitions” to various “ambitions” to act collectively.act collectively.

The Constitutional Framework: Federalism and the Separation of Powers Federalism.

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