Federalism

1
Federalism

• Chapter 3

2
Federalism

• This lecture is NOT intended to promote teenage
  drinking. The focus of this lecture IS to point
  out how the Federal Government and State
  Governments interact with each other, using a
  current, relevant topic as an example.

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• With the exception of the 18th amendment,
  regulating liquor sales and setting the minimum
  age for drinking has always been the
  responsibility of state governments. But in the
  last 20 years, the national government has found
  ways to extend its influence into areas the
  founders might never have dreamt of.
• In 1981, 29 states and the District of Columbia
  allowed 18-year-olds to drink
• During the Reagan Administration, the legal
  drinking age was raised to 21. If stated failed
  to comply, they lost federal funding for
  highways, beginning in 1986
• Some say the Federal Government had a
  responsibility to maintain safety and order
• Others say the law constituted age discrimination
  and was an infringement on states rights

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• Several states sued in federal court, arguing
  that the law violated the 10th and 21st
  Amendments
• 10th Amendment 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
• 21st Amendment -
• Section 1. The eighteenth article of amendment to
  the Constitution of the United States is hereby
  repealed.
• Section 2. The transportation or importation into
  any State, Territory, or possession of the United
  States for delivery or use therein of
  intoxicating liquors, in violation of the laws
  thereof, is hereby prohibited. This gave the
  states the right to determine alcohol laws for
  their own state.
• Section 3. This article shall be inoperative
  unless it shall have been ratified as an
  amendment to the Constitution by conventions in
  the several States, as provided in the
  Constitution, within seven years from the date of
  the submission hereof to the States by the
  Congress

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• Court Ruling
• The Supreme Court ruled, in South Dakota vs.
  Dole, 1987,
• that direct congressional control of a
  state's minimum age
• for drinking would be unconstitutional.
  However, indirect
• control was ok- in his case withholding money
  from the
• states.
• The court said that Congress had an overriding
  goal here- ending drunk driving which the court
  said was related to interstate travel.

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• One more step
• In the fall of 2000, Congress went further,
  stating that unless states lowered the legal
  limit for drunken driving to .08, they would be
  in danger of losing 20 of their federal highway
  funds over the next three years. Under pressure
  from Washington, some states already had tough
  laws against drinking already.
• Is this fair?

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Whats the point here????

• FEDERALISM IS AT THE CENTER OF IMPORTANT BATTLES
  OVER PUBLIC POLICY- IT CAN DETERMINE THE WINNERS
  AND LOSERS AT THE LOCAL, STATE AND NATIONAL
  LEVELS. WHOEVER IS IN CHARGE OF THE PRESIDENCY OR
  CONGRESS WILL MAKE CRUCIAL DECISIONS ABOUT HOW WE
  ARE GOVERNED AND WHAT THE PROPER ROLE OF
  GOVERNMENT WILL BE IN OUR LIVES.

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Federalism Definedthe division of powers
between the federal government and the state
governments It has been a central and evolving
feature of our system of government. Federalism
means that citizens living in different parts of
the country will be treated differently, not only
in spending programs, but also in the legal
system..
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Three Ways of Ordering Relations Between Central
Governments and Local Units

• Unitary system- (France UK Israel Egypt) most
  popular historically and today allows ultimate
  governmental authority to rests in the hands of
  the national or central government. If Parliament
  wants to redraw local boundaries in the UK, they
  have the power to. Compare this to the US. Even
  if Congress wanted to abolish Alabama or Idaho
  they could not. States receive their power not
  from the national government but from the
  Constitution itself. (This type of system appeals
  to those who face opponents at the state or local
  level.)

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Three Ways of Ordering Relations Between Central
Governments and Local Units

• Confederal system - really the opposite of the
  unitary system the states have more power than
  the central government- and the states can
  destroy the central government if they feel it
  necessary.
• Federal system- (Russia Canada Mexico US) is a
  relatively rare type of system worldwide- only 11
  of the 197 world governments are arranged this
  way. Authority is divided, usually by a written
  constitution, between a central government and
  regional governments. The central government and
  the smaller governments both act directly on the
  people through laws and the policies carried out
  by the people's representatives. (This system
  appeals to pluralists and interest groups who
  have multiple points of entry when trying to
  affect policy).

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Advantages of Federalism

• 1. Permits diversity in policy making- can also
  protect the liberty of those at the state and
  local powers.
• 2. Local governments will be able to handle local
  problems-they are more in touch with the people
  anyway.
• 3. There are more levels of access to political
  participation- allows for pluralism and
  democracy.
• 4. Increases experimentation with policy-
  welfare, education, crime control, etc.
• In general then, federalism allows states to
  elect their own leaders, raise their own revenues
  and enact their own policies.

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Disadvantages of Federalism

• Makes national unity and consensus difficult to
  reach.
• Local governments may tolerate economic or
  political inequality.
• Local or state governments may openly block
  federal policies
• May promote hyper-pluralism or extensive
  factionalism (tyranny of the majority)

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Different Types of Congressional Power

• Expressed (enumerated) which are the first 7
  articles of the Constitution) The Constitution
  does not specifically delegate or list powers to
  the state. Because states had all the power at
  the time of the writing of the Constitution, the
  Framers felt no need to list these powers, as
  they did for the national government. Examples
  war, interstate and foreign commerce, and coining
  money. These were the powers the Founders saw as
  lacking in the Articles of Confederation.

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Different Types of Congressional Power

• Reserved (police) powers of the states the 10th
  amendment has been controversial because it is
  vague. The ambiguity of the 10th amendment has
  allowed the reserved powers of the states to be
  defined differently at different times of our
  history.
• Generally, since the 19th century, state's rights
  advocates have been conservative believers in
  limited government. These rights are often used
  as justification for restricting abortion or
  having the death penalty.

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Different Types of Congressional Power

• Implied powers comes from the necessary and
  proper clause or elastic clause. These powers
  were dramatically increased under Chief Justice
  Marshall and set the stage for a strong national
  government. The biggest example of this in the
  Constitution is Article 1, sec 8 which has 2 main
  clauses commerce general welfare (taxes, common
  defense)
• Inherent powers These are powers not
  specifically in the constitution (foreign
  affairs, regulation of immigration, acquiring of
  territory) but are assumed to be residing with
  the national government

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Different Types of Congressional Power

• Concurrent Powers the state shares power with
  the federal government in certain areas. Most of
  these powers are implied- for example the power
  to tax (local, state, federal) borrow money to
  establish courts power to charter banks or
  corporations, power to hold elections. The states
  cannot use their reserved or concurrent powers to
  usurp the power of the national government (the
  SUPREMACY CLAUSE- Article 4 sec. 2) All national
  and state officers must swear allegiance to the
  Constitution
• Prohibited (denied) Powers these powers were
  designed against the national government and
  state governments. For example the national
  government cannot impose taxes on exports the
  national government cannot set up a national
  church or school system. Also, the states cannot
  do what the national government does make their
  own treaties, coin , declare war, etc.

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Defining National Power (1803-1828) Because the
constitution never specifically spelled out what
the role of the national government and the
states would be- the balance of power has shifted
throughout the years. In the 18th century the
accepted wisdom was that the sovereignty of the
state could not be divided. Either the federal
government or the state government would be
supreme not both. But very early on, the states
and the federal government came into conflict on
issues dealing with economic issues. The first
major decision that Chief Justice Marshall made
that dealt with federal or state supremacy was...

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McCulloch v. Maryland (1819) - Maryland tried to
tax the Second Bank's Baltimore branch in an
attempt to put the bank out of business.
McCulloch, the bank's cashier, refused to pay the
tax the issue went to court where Maryland won
at the state level it was appealed to the US
Supreme Court. Constitutional issues Question 1
Marshal was faced with the question of whether
or not Congress had the power under the necessary
and proper clause to charter a bank. Nothing was
mentioned in the Constitution about starting a
national bank and some felt the government was
overextending its powers. Others felt if the
government could coin money and regulate its
value, it surely could start a national bank.
Question 2 If the bank was constitutional,
could the state tax it? Marshall's decision
unanimous
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• Answer 1 Although the word "bank" does not
  appear in the Constitution, the enumerated powers
  that gave Congress the right to levy and collect
  taxes, issue currency and borrow money-
  suggesting to Marshall that the power existed for
  Congress to charter a bank. Thus, Marshall
  established the doctrine of implied powers he
  said that the Constitution was a living document
  that had to be interpreted to meet the practical
  needs of the government.
• Answer 2 Marshall said that no state could use
  its taxing power to tax the national government
  (the power to tax was the power to destroy) said
  the government was up by the people not the
  states. Besides, the supremacy clause made it
  clear to Marshall that national law was always
  superior to state law when the two came into
  conflict. Marshall's decision became the basis
  for strengthening the national government's power
  from that day on. Today, practically every
  expressed power of the national government has
  been expanded in one way or another by the use of
  the necessary and proper clause.

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• State's rights (1829-1865)
• At the heart of the controversy that eventually
  led to the Civil War was the issue of national
  government supremacy versus the rights of the
  separate states. After Marshall died, Chief
  Justice Roger Taney helped articulate the notion
  that concurrent national/state law was important.
  Under Taney, the Court took a much narrower view
  of the powers of the federal government. Taney's
  court invoked the 10th amendment repeatedly to
  protect the rights of the states.

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States obligations to each other

• Full faith and credit In Article IV, Section 1
  The Constitution requires each state to
  recognize the official documents and civil
  judgments rendered by the courts of other states
• Extradition a legal process whereby an alleged
  criminal offender is surrendered by the officials
  of one state to the state in which the crime
  allegedly occurred

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• Dual federalism (Layer Cake) (1865- 1933)
• Prevailed for two reasons
• 1. Supreme Court rulings between 1887-1937
  favored that interpretation
• 2. The widespread laissez faire policy toward big
  corporations from the government.
• Although the outcome of the Civil war firmly
  established the supremacy of the national
  government and put to rest the idea that a state
  could secede from the Union, the war by no means
  ended the debate over the division of powers
  between the national government and the states.
  Dual federalism grew out of the protracted debate
  about commerce and who had the right to regulate
  it.

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• Dual federalism has three major parts to it
• 1. National government rules by enumerated
  powers only- all others belong to the states.
• 2. Each government (national and state) is
  sovereign within its own sphere and these spheres
  should be kept separate (i.e., national
  government controls foreign and military policy
  and the postal system, and states control
  schools, law enforcement, building of roads)
• 3. The relationship between the states and
  national government is characterized by tension
  rather than cooperation.

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• Cooperative federalism (Marble Cake) (1933- 1968)
• The era of dual federalism ended with the
  onslaught of the Depression. FDR and the New Deal
  ushered in a new era of American politics. FDR
  was able to sell a brand new ideology to the
  American people and congress. Not only was the
  scope and role of national government remarkably
  altered, but also so was the relationship between
  each state and the national government.

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• Components of Cooperative Federalism
• Cooperative federalism rests on 2 major theories
  
• The national and state governments should
  cooperate on policy.
• It is natural for both governments to routinely
  share power.
• In Cooperative federalism, there are
• Shared costs
• Federal guidelines
• Shared administration

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• Competitive Federalism (1969-1974)
• As Congress increased the number of federal
  programs for which cities were eligible, many
  critics argued that the federal grants system was
  out of hand. Each program had its own complicated
  set of rules and formulas for matching and
  distributing money along with huge bureaucracies
  to implement them. Between 1965 and 1980, federal
  aid to the cities tripled.
• The fourth phase of federalism was termed
  "Competitive Federalism by President Nixon. Its
  goal was to restore more power to the state and
  local government, particularly by reducing the
  restrictions attached to federal grants. The aim
  of competitive federalism was to offer states
  pieces of the marble cake but to have them accept
  it with conditions and with a promise to develop
  programs on their own.

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• Under President Nixon's program of REVENUE
  SHARING (1969-1986)money was directly given to
  the state's and localities without any strings
  attached- that is, the national government
  returned to the state and local governments a
  certain portion of federal taxes. This was the
  centerpiece of Nixon's domestic spending program.
  This program allowed local officials to make
  decisions about how the money was to be spent.
  The problem with revenue sharing was that it
  created constituencies within the government and
  not among the voters. By the end of 1986 though,
  the government was saddled by huge budget
  deficits under Reagan and this revenue sharing
  program was disbanded.

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• New Federalism (1981-1992)
• A perfect example of this occurred under
  President Reagan (1981-1989). Reagan ushered in
  what came to be known as New Federalism" which
  gave more rights to the states while still
  retaining a carrot and stick approach if the
  states did not follow the guidelines of the
  federal government. While saying that "government
  was part of the problem, not the solution",
  Reagan still involved the national government in
  some state matters

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Devolution Fiscal Federalism

• Devolution - transferring responsibility for
  policies from the federal government to the
  states
• Fiscal federalism the pattern of spending,
  taxing, and providing grants in the federal system

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Types of Grants

• One string attached to ALL grants is a
  non-discrimination clause
• Categorical grants (Grants-in-aid)
• The main source of federal aid to state and local
  governments
• Can be used for several hundred specific purposes
  or categories

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Types of Grants

• Project Grants Given for specific purposes and
  awarded on the basis of the merit of applications
  (competition).
• Formula Grants Distributed according to a
  formula (things to consider in formula
  population, per capita income, of rural
  population, etc.). States and local governments
  do not apply for these grants.
• Block Grants Grants given more or less
  automatically to states or communities to support
  broad programs in areas such as community
  development and social services

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• Mandates
• State and local governments usually enjoy
  receiving federal funding, but sometimes, there
  are too many strings attached. Congress can pass
  laws requiring states to extend a program if they
  want to keep receiving aid
• A mandate includes requirements that direct state
  or local governments to comply with federal rules
  under threat of penalty or as a condition of
  receiving funding (i.e., Medicaid)
• Funded Mandate Federal government provides
  funding to accomplish goals
• Unfunded Mandate no funding is received from
  the Federal government, but the goals must still
• be met