Federalism

1
Federalism

• Chapter Three

2
American-Style Federalism

• In a federal system, authority is divided between
  two or more distinct levels of government.
• In the United States the division is between the
  national (federal) government and the states.

3
American-Style Federalism

• Federalism is a hybrid arrangement that mixes
  elements of a confederation (lower level has real
  power) and a unitary (national level monopolizes
  constitutional authority) government.
• Before adopting a federal system in the
  Constitution the nation had experienced both of
  these alternatives.

4
American-Style Federalism

• Worldwide, unitary governments are far more
  common.
• Examples of unitary governments are found in the
  United Kingdom, France, and Japan.

5
American-Style Federalism

• In this type of system, typically the central
  government establishes national policies and
  raises and distributes funds to the local units
  to carry them out.
• Lower level units function primarily as the
  administrative apparatus of the national
  government.

6
Qualifications of Federal Systems

• A government must have constitutional relations
  across levels, interactions that satisfy three
  general conditions
• The same people and territory are included in
  both levels of government.
• The nations constitution protects units at each
  level of government from encroachment by the
  other units.
• Each unit is in a position to exert some leverage
  over the other.

7
Qualifications of Federal Systems

• The second condition, independence, sets the
  stage for the third condition, mutual influence.
• Independence was the missing ingredient that made
  the national government impotent under the
  Articles of Confederation.
• Note also that local governments are not a
  separate level of government. They are
  established by the state and do not exercise
  independent, constitutional authority. State law
  establishes their responsibilities and the extent
  of their discretion over policies.

8
Types of Federalism

• Two distinct forms of American federalism have
  been identified.
• Dual federalism
• Shared federalism

9
Dual Federalism

• The simplest possible arrangement.
• This type of federalism leaves the states and the
  national government presiding over mutually
  exclusive spheres of sovereignty.
• The nation, however, has never divided authority
  so neatly.

10
Dual Federalism

• From the early days of quite limited
  responsibility for the national government,
  nationalization has shifted authority to the
  national side and away from state governments.
• Today the national government has a hand in
  almost all policies that concern the lives of
  the citizenry.
• Dual federalism no longer describes that nature
  of federal-state relations.

11
Shared Federalism

• The second and more accurate conception of
  federalism is called shared (or cooperative)
  federalism.
• It recognizes that the national and state
  governments jointly supply services to the
  citizenry.
• Over the years progressive nationalization has
  moved American federalism from mostly dual to
  mostly shared.

12
Shared Federalism

• Often the scope and complexity of modern problems
  mandate a joint, cooperative strategy across
  states and levels of government.

13
Shared Federalism

• Critics of nationalization argue that the federal
  government has so intruded into the traditional
  responsibilities of states and local communities
  that even shared federalism is a misnomer.
• But if there have always been critics, how did we
  get to this point?

14
Shared Federalism

• Why have states rights advocates had difficulty
  partitioning federal and state responsibilities?
• As national politicians sought to expand their
  authority over the years, they discovered that
  the wall between the federal government and the
  states was not impregnable. The Constitution
  leaves ample room for a variety of federal-state
  relations.
• Moreover, when nationalization of public policy
  proceeded, it rarely triggered a constitutional
  crisis.

15
Shared Federalism

• But the question of whether or not the federal
  government actually assumed responsibility for a
  specific policy remained and still is a political
  decision.

16
The Logic of Nationalization

• How does policy become nationalized?
• Generally, two scenarios
• Realities of collective action (problem solving).
• Purely political considerations (i.e.,
  opportunities for political advantage).

17
The Logic of Nationalization

• The Road Building game illustrates an important
  lesson in federalism state jurisdiction over
  public goods that fall within its borders offers
  real advantages efficiency and responsiveness.
• But once the public good encompasses the larger
  community, the logic for local control disappears.

18
The Paths to Nationalization

• Throughout the first half of the nineteenth
  century, America remained a nation of segmented
  communities that did not require much
  coordination of commercial endeavors.

19
The Paths to Nationalization

• But with the growth, industrialization,
  urbanization, and development of national
  transportation and communication systems, the
  nations desire for public goods that could not
  be met by local communities and states increased.

20
The Paths to Nationalization

• There are certain things that a local or state
  government has difficulty providing. Food safety
  standards and commercial regulation are examples.
• Interstate Commerce Act of 1887
• Regulation of railroads as farmers protested rate
  discrimination and high charges.
• Antimonopoly laws.

21
The Paths to Nationalization

• The nationalization of public policy grew out of
  the requirements of collective action.
• First, Americans have at times collectively
  decided to adopt policies of such magnitude and
  scope that they outstripped the resources of the
  state. Roosevelts New Deal and Johnsons War on
  Poverty/Great Society.
• Second, states have solicited federal
  intervention when they cannot solve their
  problems by working together individually.
• Third, sometimes easier for the majority to work
  through Washington, D.C., than through the
  states. More efficient. Civil rights is a good
  example.

22
Historic Transfers of Policy to Washington

• Roosevelts New Deal (1930s).
• Johnsons Great Society (1960s).
• Broadened the scope of federal responsibilities.
• Were accompanied by large national majorities to
  Congress from the presidents party. A mandate
  for new collective goods.

23
The New Deal

• Roosevelts New Deal was a comprehensive set of
  economic regulations and relief programs (massive
  in size and scope) intended to fight the Great
  Depression.
• To justify its unprecedented intervention in the
  economy, FDR invoked the commerce clause.

24
The Great Society

• Elected in 1964, Lyndon Johnson and his
  Democratic Congress launched a War on Poverty --
  part of a Great Society agenda.
• Passed more than 100 new categorical grant
  programs.
• Spent over 5 billion 1964-65.
• Grants supplemented state programs/national
  goals.
• Traditional state and local responsibilities
  became federal ones.

25
Nationalization The Solution to States
Collective Dilemmas

• The kinds of collective action dilemmas that
  prompt states to ask Washington for help often
  fall into one of three categories
• Coordination problems
• Reneging and shirking
• Cutthroat competition

26
Coordination Problems

• A nation composed of fifty states is bound to
  face coordination problems.
• Example of drivers license laws
• Lobby to standardization for interstate truckers
  -- what led to this federal intervention?
• Creation of bureau within DOT to centralize
  records of traffic violations.
• Easier to create centralized record keeping than
  to require each state to update its records with
  those of every other state.

27
Reneging and Shirking

• States may always honor their commitments to
  their sister states.
• The Constitution and national laws solve many of
  these dilemmas by authorizing the federal
  government to take direct action raising
  resources and administering policy.
• Example polluted air/water. Without enforcement
  states continue to pollute.

28
Cutthroat Competition

• Under the Articles of Confederation, each state
  was free to conduct its own international trade
  policy.
• Foreign governments and merchants would exploit
  the competition among the states for their own
  ends.
• Classic prisoners dilemma -- why?
• Negotiate from a united front best strategy, but
  states underbid each other or engaged in
  cutthroat competition.

29
Cutthroat Competition

• At various times cutthroat competition has
  prompted state officials to lobby Washington to
  prevent bidding wars.
• Examples minimum wage standards, environmental
  regulation.
• Competition can also emerge as states bid against
  each other for economic reasons getting
  companies to relocate to their state by providing
  tax breaks or special services.

30
The Political Logic of Nationalization

• Sometimes those promoting a policy find that it
  is in their interest to shift their focus from
  the states to the national government. Why?
• Difficult to lobby/persuade 50 separate states.
• More efficient method a single federal law can
  change policy in all 50 states at once.
• National government may be more receptive.
• Can you think of some recent examples?

31
The Political Logic of Nationalization

• Sometimes the reverse political process occurs,
  as groups that lose at the national level see
  smaller victories in those states where they
  enjoy majority support.
• Example social conservatives on the issues of
  abortion rights (see Table 3-2) and school prayer.

32
The Political Logic of Nationalization

• As James Madison emphasized in Federalist No. 10,
  states and the national government combined the
  citizenrys preferences into different groupings.
• The result the two levels of government may
  adopt different, even opposite, policies to
  address the same problem.
• Moreover, national majorities have the
  institutional resources to nationalize many
  policy questions that once were the exclusive
  domain of the states.

33
The Constitution and Federalism

• Greatest victory of states righters during the
  Constitutional Convention was the creation of a
  Senate whose members were to be selected by the
  state legislatures.

34
Transformation of the Senate

• In the 19th century the equal representation of
  states regardless of population, combined with
  the selection of senators by the state
  legislatures, gave the Senate the motive and
  means to defend state prerogatives.
• 1913 public pressure forced Congress and state
  legislatures to ratify the Seventeenth Amendment
  -- complaints that individuals were buying Senate
  seats with bribes to legislators.
• Consequence diminishment of one of the props of
  federalism.

35
Constitutional Provisions Governing Federalism

• The ratification of the Constitution was by state
  conventions that directly represented the people,
  not by the state governments themselves.
• Thus the people created the government, not the
  states.
• Language governing the relationship of the
  national government to the states runs throughout
  the Constitution. But the end result was a system
  open to nationalizing forces.

36
The Supremacy Clause

• This Constitution, and the Laws of the United
  States which shall be made in Pursuance thereof
  that is, in keeping with the principles of the
  Constitution shall be the supreme law of the
  land.

37
The Supremacy Clause

• The provision of the Constitution with the most
  profound implication for modern American
  federalism is the so-called supremacy clause in
  Article IV.
• This clause does not give the federal government
  free license.
• Framed to avoid impasses over jurisdiction rather
  than to cede to the national government broad,
  preemptive authority over the states.

38
The Powers of Congress

• Article I, Section 8 lists powers of Congress
  (enumerated powers).
• These powers are important to federalism because
  they create jurisdictional boundaries between the
  states and the national government.

39
The Powers of Congress

• Some powers are broadly stated and thus helped
  open up state policy to national intervention.
  Example the commerce clause.
• In addition the elastic clause (necessary and
  proper clause) also eventually undermined the
  restrictive purpose of the enumerated powers.

40
The Tenth Amendment

• Given the fear of tyranny as articulated by the
  Antifederalists it is not surprising that Madison
  had to promise the addition of a Bill of Rights
  as an incentive for ratification.
• Many members of the first Congress wanted
  protections for the states as well as for
  individual citizens.

41
The Tenth Amendment

• The Tenth Amendment offers the most explicit
  endorsement of federalism to be found in the
  Constitution.
• Yet despite its plain language, the Tenth
  Amendment has failed to play a major role in
  fending off national authority.
• Why?

42
Interpreting the Constitutions Provisions

• Sweeping language with which the Constitution
  variously endorses national power and states
  rights has given politicians easy openings to
  interpret the Constitution according to their own
  political objectives.

43
Interpreting the Constitutions Provisions

• Prior to the Civil War, southern leaders
  attempted to use the Tenth Amendment to justify
  the doctrine of nullification.
• Their argument was that states are no less
  sovereign than the national government and thus
  retain the prerogative to ignore federal law.

44
Supreme Court as Federal/State Arbitrator

• The Framers envisioned the Supreme Court as the
  referee of disputes between the national and
  state governments.
• When resolved created powerful precedents.
• Allowed national policy to develop free of state
  prerogatives.
• McCulloch v. Maryland (1819)
• Protected the national government from actions of
  the state.
• Gibbons v. Ogden (1824)
• Only Congress possesses authority to regulate
  commerce.
• Garcia v. San Antonio Metro Transit Authority
  (1985)
• Federal wage hours applied to state and local
  employees.

45
Modern Federalism

• Preemption legislation federal laws that assert
  the national governments prerogative to control
  public policy in a field.
• Relatively little preemption prior to the New
  Deal. Afterwards, much more.
• Owes its existence to the supremacy clause.
• But on balance, federal government has not
  usurped states jurisdictions so much as it has
  joined with the states in formulating policy.
• Result shared federalism.
• How does the federal government induce
  cooperation from the constitutionally independent
  states? Carrots and sticks.

46
The Carrot Federal Grants to the States

• During the last fifty years federal grants-in-aid
  become an important part of intergovernmental
  relations.
• Few grants prior to New Deal.
• All of these programs enlist categorical grants,
  in which federal dollars are tied to particular
  programs or categories of spending.
• These grants are inducements to states to carry
  out particular programs, but they also allow the
  national government to define these state
  programs.

47
The Carrot Federal Grants to the States

• Another alternative to categorical grants block
  grants.
• Like categorical grants, funds are appropriated
  to achieve a particular policy goal with specific
  administrative procedures. BUT, policy targets
  are only generally stated and fewer strings are
  attached.

48
The Stick Unfunded Mandates

• Since the 1960s the federal government has relied
  increasingly on rules to pursue policy objectives
  (see Table 3-3).
• States are required to administer policies they
  might object to, and they may even be asked to
  pay for the administration of the policies.
• One of most controversial Education for all
  Handicapped Children Act of 1975.
• Why?

49
Methods Used to Prescribe State Policy

• The national government uses four basic methods
  to prescribe state policy and supervise its
  administration.
• Cross-cutting requirements.
• Crossover sanctions.
• Direct orders.
• Partial preemption.

50
Cross-cutting Requirements

• Statutes that apply certain rules and guidelines
  to a broad array of federally subsidized state
  programs.
• Example failure of any state to follow federal
  guidelines that prohibit discrimination can
  result in the prosecution of state officials as
  well as loss of grants.
• Has been used to enforce civil rights laws.

51
Crossover Sanctions

• Stipulations that to remain eligible for full
  federal funding for one program a state must
  adhere to the guidelines of an unrelated program.
• Example Congresss stipulation that federal
  highway funds be tied to state adoption of a
  minimum drinking age of twenty-one.
• Example bill restricting sale of soft drinks on
  school grounds tied to school aid funds.

52
Direct Orders

• Requirements that can be enforced by legal and
  civil penalties.
• Example the Clean Water Act.

53
Partial Preemption

• Certain federal laws allow the states to
  administer joint federal-state programs so long
  as they conform to federal guidelines.
• If an agency fails to follow the instructions of
  the federal agencies, the state might lose
  control of the program.
• Example state air pollution policies.
• Public law and the EPA set minimally acceptable
  standards, but enforcement of these standards
  rests mostly with state agencies.

54
Trends in Federal Regulation of States

• Federal grants plentiful before 1970s, few
  regulatory policies in place.
• Since the 1970s the more coercive forms of
  regulation, direct orders and partial preemption,
  have been favored.
• Federal regulation of states concentrated in two
  areas environment and civil rights.
• Unfunded Mandates Reform Act, which required that
  new federal laws pay for the programs and
  regulations they imposed on the states.
• The practice of unfunded mandates and preemptive
  legislation has continued.

55
Federalism A Byproduct of National Policy

• Federal-state relations are dynamic and have been
  dramatically transformed during the twentieth
  century.
• Nationalization of public policy is not based on
  a grand design planned by the Framers, but is
  rather the product of problem solving and
  constituency service the interplay of political
  interests.
• Likely to continue in this form.