Federalism

National Government vs. State Governments

Explanation for federalism• “…it clearly appears, that the

same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic-is enjoyed by the Union over the States composing it…The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.” Madison Federalist #10

Federalism and the Constitution

• Federalism as a Madisonian device• A way to limit federal authority (see Federalist

10 and 51)• The division of powers between two sovereign

governments• It helps to address the diverse nature of our

country (allows for local control)• State governments were well established and

people trusted them

Constitutional Basis of federalism• A strong national government

– Article I, Section 8 grants government many broad powers,– but government also given powers to create all laws “necessary and proper”

(elastic clause)– Article VI establishes the supremacy of the Constitution

• Powers prohibited to the states– States denied from doing things that conflict with national government such

enter treaties, coin money, keep troops or navies, make war levy import, export taxes

– States left with the local powers of governing the welfare, health, safety and morals of its people

• National government limited– Article I, Section 9 establishes powers denied to federal government– 10th Amendment grants states powers not granted by the Constitution to the

national government (who wins if a conflict between the elastic clause and 10th Amendment

• Article IV requires states to work together– Full faith and credit clause

Layer Cake vs. Marble Cake Federalism

People

Federal gov’t States

Developing Federalism—Early National Period

McCulloch v. Maryland (1819)• Congress charters the Bank of

the United States to provide loans for investment and infrastructure, control currency

• Depression leads to distrust and the bank becomes a scapegoat so Maryland passes a tax on the Baltimore branch of the bank

• At issue was whether Congress could establish a bank and whether the states could tax said bank

• Chief Justice John Marshall ruled that while a national bank is not specifically stated in the Constitution, the necessary and proper clause gives the government the power to establish the bank; also “the power to tax is the power to destroy” and the states can’t tax a branch of the federal government thus lending validity to the supremacy clause

Early National Period con’t

Gibbons v. Ogden (1824)• This dispute arose because Ogden held a New York monopoly license to transport goods between New York and New Jersey while Gibbons held a federal contract to do the same • John Marshall ruled that granting a monopoly over interstate commerce violated the Constitution• This case most importantly gave the government the broad authority to regulate interstate commerce, an important tool used by the government during the New Deal and Civil Rights eras

The Civil War era

• After Marshall, Andrew Jackson worked to build a more conservative court, which granted the states more control over local issues

• Nullification Crises- in 1798 Madison argued that the states have a right to refuse to obey laws when they feel the federal government has exceeded its authority; in 1832, South Carolina, using Madison’s words threatened to secede when they felt the government had passed a high federal tariff, secession was avoided, but the question still remains, can the states ignore federal laws they feel violate their sovereignty?

Civil War cont’d

• In the Dred Scott case Chief Justice Taney ruled that Congress does not have the power to outlaw slavery in the territories and the Missouri Compromise was unconstitutional

• Post Civil War• 14th Amendment– The due process clause of the 14th Amendment makes the

Bill of Rights applicable to the states, a power not felt until the 1900s

• 16th Amendment– The income tax becomes an important tool for the New

Deal and Fiscal Federalism or grants-in-aid

The New Deal era• The states can’t cope with the

demands of the Great Depression, thus Roosevelt is elected on the promise of a New Deal for the people (which also called for a more active government)

• Initially the Supreme Court struck down the New Deal because it granted Congress to much discretion over interstate commerce in the “sick chicken case”

New Deal and the commerce clause

• In response, Roosevelt introduced his plan to change the Court from 9 to 15 and wouldn’t need an amendment to do it; luckily 5 of his opponents retire and are replaced by pro-New Dealers; Court rules in favor of Congress in West Coast Hotel v. Parrish (1937) thus “the switch in time that saved nine”

• Afterwards, the Court defers to Congress on regulating interstate commerce and takes a broad interpretation of the clause such as in the Ollie’s BBQ case of 1964

Fiscal Federalism-spending, taxing and producing grants in the federal system

• Categorical grants-money given to states for a specific purpose, but there are conditions• Interstate Highway Act-governments

pay 80% of cost of highway construction, but must be built to government specifications

• States must establish a highway beautification program or lose 10% of its funding

• Or Cross over sanctions• Funds withheld for highway

construction unless the drinking ages of the states are raised (South Dakota v. Dole)

• Block grants-money given to states, but less strings attached– Giving money to states to

decrease emissions – Money given to the

states for welfare, but the states come up with the system that helps them best

Federal Mandates

• An order from federal government that all state and local governments must comply with or face punishment (usually financial)

• Examples– Civil Rights Act of 1957 and 1964; Voting Rights Act of 1965– Clean Air Act (1963)– The Americans with Disabilities Act (1990)– Medicaid

» Healthcare law debate– No Child Left Behind Act of 2001

The National Government’s Contributions toState and Local Government Expenditures

Trends in National GovernmentGrants to States and Localities

Devolution-a growing distrust of government and increased trust in states coupled with a GOP takeover has led to an increased backing off of the federal government

• Reagan takes 42 categorical grants and turns them into block grants with few strings attached

• Clinton passes the Personal Responsibility and Work Opportunity Act in 1995

• No Child Left Behind Act and Education Accountability Act passed in 2000

Key cases• US v. Lopez (1995)

– In 1990, Congress passes Gun Free School Zone Act making it a federal offense to bring a firearm on a school campus because they reasoned crime has been exacerbated by the interstate movement of guns, drugs, and gangs and there is an increasing amount of guns found at school’s

– Under the interstate commerce clause Congress felt they had the power to pass laws to ensure the “integrity and safety of the nation’s schools”

• The Court ruled against Congress and interstate commerce clause for 1st time in 60 years– Congress was using a

“worst case scenario” in passing the law

– Court believed that Congress has gone far enough with the interstate commerce clause

Key Cases

• US v. Morrison (2000)– A female student at Virginia

Tech sued 2 football players for raping her which was made a federal crime under the Violence Against Women Act of 1994

– Congress reasoned that gender-motivated crimes affects interstate commerce because if such crimes go unpunished then women will not participate in any commerce activity

– In a 5-4 decision, William Rehnquist agreed that Congress was again misapplying the interstate commerce clause

– The Court referenced the Lopez case and argued that at least in the Gun Free Zone Act Congress had data to make their decision, no such data existed for the passage of this law

– Chief Justice Rehnquist wrote that [i]f the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of...Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States."

Key Cases• Gonzales v. Reich (2005)

– In 1996 California voters passed the Compassionate Use Act, legalizing marijuana for medical use, which conflicted with the federal Controlled Substances Act (CSA), which banned possession of marijuana. After the Drug Enforcement Administration (DEA) seized doctor-prescribed marijuana from a patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney General John Ashcroft in federal district court.

– The users argued the CSA exceeded Congress’ commerce clause power relying on the Lopez and Morrison cases

– The court ruled 6-3 that local marijuana use was in a “class of activities”, the national marijuana market where local use affected supply and demand nationally on the national market therefore allowing Congress to regulate such activity. The Lopez and Morrison cases attempted to regulate non-economic activity, this statute did not.

Recent Decision• National Federation of Independent Business v. Sebelius, Florida,

et. al. v US Department of Health and Human Services and US Department of Health and Human Services v. Florida, et. al. (2012)– 187 page decision– The Court ruled 5-4 that Congress did not have the authority to pass the

individual mandate under the commerce clause (Roberts, Scalia, Thomas, Kennedy, Alito)

– The Court ruled 5-4, however, Congress did have the authority to pass the individual mandate under its power to tax (Roberts, Ginsburg, Breyer, Sotomayor, Kagan)

– By 7-2, the Court ruled Congress did not have the power to threaten states with losing Medicaid funding if they didn’t comply with the expansion of Medicaid

Devolution

Advantages• Local control• Experimentation• Local governments able to

adapt to local needs leading to greater efficiency

• Traditional interpretation of the states’ power to regulate health, welfare and safety

Disadvantages• Regional disunity• Fiscal responsibility of

Congress• Oversight• “Irresponsibility” of

states• Need to accomplish

national goals with federal dollars

Medellin v. Texas

• Jose Medellin and his gang raped and murdered a 14 and 16 year old girl

• Medellin confesses 5 days later and is sentenced to death

• Mexico sues US in World Court because Medellin a Mexican national was not given the right of assistance from the Mexican consulate per Vienna Convention

• Court ruled that US was wrong, but asked that his and others cases be reopened

• Our laws say that a criminal defendant must raise challenges at trial or on appeal

Medellin con’t

• President Bush then intervenes by issuing a memo declaring the courts should give Medellin a new hearing after Supreme Court takes up Medellin’s habeas petition

• Can the president tell states what to do?

• Does US law become secondary to World Court?

The Decision

• Medellin relied on the supremacy clause…treaties included

• The Supreme Court, however, ruled that the US doesn’t have to treat World Court judgments as binding domestic law

• The President’s powers are limited to executing, not creating therefore Bush’s memo is not binding on states

• Only Congress can enact legislation transforming domestic law