Federalism

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Federalism

• Chapter 3

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Figure 3.2- Systems of Government
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Source OConnor and Sabato, American Government
Roots and Reform
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Federalism Defined

• A system of government in which a written
  constitution divides the powers of government on
  a territorial basis between a central or national
  government and several regional governments
  usually called states or provinces.

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Why Federalism?

• Dilemma How would framers create a new central
  government that would be strong enough to meet
  the new countrys needs but at the same time
  preserve strength of the existing states?

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Division of Powers

• Each level of government has its own set of
  powers.
• Neither level can act alone to change the basic
  division.
• Each level acts through its own agencies,
  officials, and laws.
• Both levels derive their powers from the people!

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Dual System of Govt

• Two basic levels of govt
• Each has own authority
• Each operates
• over the same people
• over the same territory
• at the same time

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Major Strength(s)

• Allows local action in matters of local concern.
• Allows for local traditions, needs, and desires
  vary from one State to another
• Allows for national defense, foreign affairs,
  disaster relief

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Enumerated Powers

• Spelled out in the Constitution.
• Article 1 Section 8 gives these powers to
  Congress
• Include taxation, coinage of money, regulation
  of interstate commerce, national defense.

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Implied Powers

• Article I, Section 8, Clause 18 gives Congress
  powers necessary and proper to carry out
  enumerated powers.
• AKA the elastic clause

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Necessary Proper

• to make all Laws which shall be necessary and
  proper for carrying into Execution the foregoing
  Powers and all other Powers vested by this
  Constitution in the Government of the United
  States, or in any Department or Officer thereof.

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Powers Denied Fed Govt

• Constitution denies some powers in writing
• Levy duties on exports
• Prohibit freedom of religion, speech, press, or
  assembly
• Conduct illegal searches or seizures
• Deny someone a speedy and public trial/trial by
  jury.

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Powers Denied Fed Govt2

• Denied by silence of Constitution nothing said
• Examples
• Create public school system for the nation
• Uniform marriage and divorce laws
• Set up local governments

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Powers Denied Fed Govt3

• Denied by nature of a federal government system
• Example Congress can not tax any of the States
  or their local units. To do so would give the
  Federal government the power to destroy state
  governments.

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The States

• Reserved Powers (Police Powers)
• 10th Amendment
• Powers not given to the Federal government by the
  Constitution and not denied the States are
  reserved to the States.
• The sphere of powers held by each State is huge.

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The States2

• Most of what government does in the US is done by
  the States (and local govts).
• Includes police powerthe power of a State to
  protect and promote the public health, the public
  morals, the public safety, and general welfare.

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Denied to the States

• Explicitly stated in Constitution
• Making foreign treaties, printing or coining
  money
• Inherently denied
• Cant tax federal government
• May be limitations in individual State
  constitutions

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Concurrent Powers

• Powers possessed and exercised by both National
  and State governments
• Levy and collect taxes
• Define crimes and set punishments

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Figure 3.3- Distribution of Power
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Source OConnor and Sabato, American Government
Roots and Reform
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Denied to all levels of government

• Bill of Attainder
• Law declaring an act illegal without a judicial
  trial
• Ex post facto laws
• Laws declaring an act illegal (creating
  punishment) after it has already been committed.

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Relations Among the States

• Full faith and credit clause
• Judicial decrees and contracts made in one state
  are binding and enforceable in another.
• Privileges and immunities clause
• Citizens of all states are afforded the same
  rights (under federal law).

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Relations Among the States

• Interstate compacts
• Agreements between states must be approved by
  Congress.
• Extradition clause
• States must return criminals to other states
  where they have been convicted or are to stand
  trial.

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Supreme Law of the Land

• The Supremacy Clause
• Constitution stands above all other forms of law
  in the US
• Linchpin of the Constitution
• McCulloch v. Maryland

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Figure 3.1- Governments in the U.S.
Source OConnor and Sabato, American Government
Roots and Reform
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Relations Within the States Local Government

• Local governments authority not granted by the
  people but through state governments
• States establish or charter their administrative
  subdivisions
• Local governments carry out or execute the duties
  of state governments on smaller scale

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Federalism and the Marshall Court

• Two rulings in the early 1800s had a major impact
  on the balance of power between national and
  state governments.
• McCulloch v. Maryland (1819)
• Upheld power of national government and denied
  the right of state to tax national bank
• Gibbons v. Ogden (1824)
• Upheld broad congressional power to regulate
  interstate commerce

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Dual Federalism The Taney Court, Slavery, and
the Civil War

• Dual Federalism
• Belief that having separate and equally powerful
  levels of government works best
• Implication National government should not
  exceed its constitutionally enumerated powers.
• Dred Scott v. Sandford (1857)
• Declared the Missouri Compromise unconstitutional
• Congress lacked the authority to ban slavery in
  the territories.

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The Civil War, Its Aftermath, and the
Continuation of Dual Federalism

• National government grew in size and powers after
  Civil War.
• 13th, 14th, and 15th Amendments
• Prohibited slavery and granted civil and
  political rights to African Americans.
• Supreme Court adhered to concept of dual
  federalism
• Plessy v. Ferguson (1896)
• Confusion over regulation of commerce
• Inconsistent rulings on scope of national power

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Setting the Stage for A Stronger National
Government

• Sixteenth Amendment
• Authorized Congress to enact a national income
  tax
• Supreme Court had found congressional legislation
  in this area unconstitutional.
• Seventeenth Amendment
• Made senators directly elected by the people
  removed their selection from state legislatures.

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Cooperative Federalism New Deal and Growth of
National Government

• The New Deal (1933-1939)
• intense governmental activity on the national
  level
• response to Great Depression required the
  exercise of tremendous national authority
• New agencies and programs
• Supreme Court worried about scope of these
  programs in terms of regulating commerce and the
  economy
• Court-packing plan response to anti-New Deal
  court decisions
• New Programs required cooperation across all
  levels of government.

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The Changing Nature of Federalism Layer Cake to
Marble Cake

• Layer cake federalism
• Each layer, national, state and local, had
  clearly defined powers and responsibilities.
• After New Deal, the nature of the federal system
  changed.
• Marble cake metaphor
• Cooperative federalism
• The relationship between the national and state
  governments that began with the New Deal

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Federal Grants and National Efforts to Influence
the States

• Morrill Land Grant Act of 1862
• New Deal
• Most grants were categorical grants
• Grant for which Congress appropriates funds for a
  specific purpose
• 1960s War on Poverty
• Direct assistance to states, local governments,
  and citizen groups
• Grants used to push national agenda rather than
  respond to state demands

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New Federalism Returning Power to the States

• New Federalism
• Federal/state relationship proposed by Reagan
  administration during the 1980
• Returned administrative powers to the state
  governments
• Reagan Revolution
• Block grants
• Broad grant with few strings attached
• Given to states by federal government for
  activity in specified area (education)

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New Federalism Returning Power to the States

• The Devolution Revolution
• Contract with America
• Unfunded Mandates
• National laws that direct states or local
  governments to comply with federal rules and
  regulations but contain no federal funding to
  help pay the cost of meeting those requirements
• Personal Responsibility and Work Opportunity
  Reconciliation Act of 1996

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New Federalism Returning Power to the States

• Federalism Under the Bush Administration
• Budget shortfalls at federal and state level
• States raised taxes and cut services received
  aid from federal government
• Federal government expanded post 9/11
• Department of Homeland Security
• No Child Left Behind
• Example of preemption

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The Supreme Court A Return to States Rights?

• From New Deal to 1980s Court has generally
  expanded national authority at the expense of the
  states.
• Beginning in 1980s Court interpretations altered
• Willingness to allow Congress to regulate in a
  variety of areas waned
• Webster v. Reproductive Health Services (1989)
• Planned Parenthood of Southeastern Pennsylvania
  v. Casey (1992)
• U.S. v. Lopez (1995)
• Sovereign immunity
• Bush v. Gore (2000)

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Figure 3.4- Supreme Court and Federalism
?
Source OConnor and Sabato, American Government
Roots and Reform
Back
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The National Government and the 50 States

• or
• What does United States really mean?

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Republican Form of Govt

• Constitution requires National Govt to guarantee
  to every state in this Union a Republican form of
  government.
• Generally understood to mean a representative
  government.

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Republican Form of Govt2

• Only time ever really big issue was after Civil
  War
• Congress declared several southern States did not
  have a republican form of govt
• States had to ratify the 13th, 14th, and 15th
  amendments

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Invasion/Internal Disorder

• Invasion of any one state is seen as attack on
  the US
• Federal system assumes that each state will keep
  the peace within its own borders
• If state cant control some situations, then
  National govt provides protection against
  internal disorder

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Territorial Integrity

• National govt must recognize the legal existence
  and physical boundaries of each state.
• Congress must include members from each state
• Article V equal representation in US Senate
  guaranteed

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Admitting New States

• Only Congress has this power
• Admitted 37 states since original 13
• 5 states created from exiting states (Vermont,
  Kentucky, Tennessee, Maine, and West Virginia
• Texas was independent first

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Admission Procedure

• Congress issues enabling act
• Territory frames a State constitution which is
  voted on by the people of the territory
• Constitution submitted to Congress for approval
• Approval Statehood

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Conditions for Admission

• Each state enters on equal footing with other
  states
• Utah had to outlaw polygamy
• Alaska had to give up claims to land held by
  Native Americans
• Arizona had to end recall votes for Judiciary

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Cooperative Federalism

• Large and growing areas of cooperation between
  National government and the States
• Grants-in-Aid
• Grants of federal money or other resources to
  States or local units.
• Goes back to time of Northwest Ordinance of 1787

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Criticisms of Grants-in-Aid

• Possible for Federal government to operate in
  many policy areas where it doesnt have
  constitutional authority
• Blur the line of division of powers in our
  federal system

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Revenue Sharing

• 1972 1987
• Congress gave an annual share of federal tax
  revenue to the States.
• Known as shared revenues
• Almost no strings attached
• Popular with States
• Ended with Ronald Reagan

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Categorical Grants

• For specific, closely define purposes
• Must use some of States own money (usually
  matching)
• Have agency to administer
• Obey federal guidelines for the grant

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Block Grants

• More broadly defined than categorical grants
• Health care, social services, welfare
• Fewer strings so easier for States to use

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Project Grants

• To States, localities, and private agencies (who
  apply for the grants)
• Many states use to fund job training
• NIH issues grants for medical research

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Other forms of Aid

• FBI helps State and local law enforcement
• Army Air Force equip and train each States
  National Guard units
• Census Bureau data essential to State and Local
  planning

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Lulu Payments

• Federal monies going to local governments in
  areas where there are large federal landholdings.
• Made in lieu of (take the place of) property
  taxes which can not be collected from Federal
  government

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State Aid to Fed Govt

• State and local election officials conduct
  national elections
• Naturalization takes place most often in State,
  not federal, courts
• Federal criminals often arrested by State/Local
  officials

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Interstate Relations

• or
• How well do the states play together?

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Interstate Compacts

• No State may enter into any treaty, alliance,
  confederation.
• These kinds of arrangements are what causes so
  much trouble under the Articles of Confederation.

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Interstate Compacts2

• However, the States may, with the consent of
  Congress, enter into interstate compacts
  agreements among themselves and with foreign
  states.
• Over 200 compacts are now in force for law
  enforcement, resource development, conservation

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Table 3.1- Compacts by the Numbers
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Back
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Full Faith and Credit Clause

• Of the Constitution
• ensures that States recognize the laws and,
  documents, and court proceedings of the other
  States

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Exceptions to FFC

• (1) One State cannot enforce another States
  criminal laws.
• and,
• (2) Full faith and credit need not be given to
  certain divorces granted by one State to
  residents of another State.

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Extradition

• Governors are the State executives that handle
  the extradition process.
• If governor is unwilling to return a fugitive to
  a State, federal courts can intervene and order
  governor to do so.

• Extradition is the legal process by which a
  fugitive from justice in one State is returned to
  that State.
• Extradition is upheld through Article IV, Section
  2, Clause 2 of the Constitution.

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Privileges and Immunities

• The Privileges and Immunities Clause provides
  that no State can draw unreasonable distinctions
  between its own residents and those persons who
  happen to live in other States.

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Privileges and Immunities2

• States cannot, for example, pay lower welfare
  benefits to newly arrived residents than it does
  to its long-term residents, Saens v. Roe, 1999.
• However, States can draw reasonable distinctions
  between its own residents and those of other
  space, such as charging out-of-State residents
  higher tuition for State universities than
  in-State residents.