FEDERALISM: National Government Versus the States'

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FEDERALISM National Government Versus the States.
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Federalism Debate

• Which level of government should have primary
  control or responsibility over the following
  policy areas the national government or the
  states?
• Welfare
• Education
• Abortion
• Minimum Wage
• Same-Sex Marriage
• Gun-Control Laws
• Medical use of Marijuana

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In this Lecturewe will

• Define federalism and compare it with two other
  methods of organizing government
• Learn how the U.S. Constitution established a
  federal system for our nation.
• Trace the evolution of American federalism over
  the last 200 years and reasons for the growth of
  national power.
• Examine opposition to the growth of federal power
  and attempts to restore balance of power.
• Identify techniques employed by a Congress to
  reinforce federal power over the states.
• Discuss the pros and cons of federalism.

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What is Federalism?

• A political system in which power is divided and
  shared between a national/central government and
  the states (or sub-national units) in order to
  limit the power of government.
• The basic premise of federalism is that
• Two or more governments exercise separate and
  shared powers over the same land and people.

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Distribution of Powers Federalism Versus Other
Systems
UNITARY
CONFEDERAL
FEDERAL
CENTRAL
CENTRAL
CENTRAL
state and local
state and local
state and local
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Federalism as a System of Government

• Federalism - not a common way of organizing
  governments around the world.
• Unitary government - the most common form of
  government today.
• Confederation (or confederal government) the
  least popular among modern societies.

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American Federalism

• Under American federalism,
• neither the national (or central or federal)
  government nor the state governments receive
  powers from each other. Both derive powers from a
  common source, the U.S. Constitution.
• Some powers are delegated to the national
  government, some powers are reserved to the
  states, and some powers are shared by both levels
  of government.

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American Federalism or Federal System

• American federal system is a halfway between the
  failed confederation and the tyrannical unitary
  system of Britain
• The word does not appear anywhere in the
  Constitution. Federalism is implied by the way
  powers are distributed between the national
  government and the states in the constitution.
• American federalism is consistent with the
  Founders contention that tyranny is less likely
  when power is dispersed rather than concentrated
  in one branch or one level of government.
• It is a another institutional barrier, in
  addition to separation of power and checks and
  balances, to establish a limitation on the power
  of the national government.

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How the U.S. Constitution Established a Federal
System
National and State Governments
National Government
State Governments
EXPRESSED
RESERVED TO STATES
CONCURRENT
IMPLIED
POWERS DENIED BY THE CONSTITUTION
STATE
NATIONAL
BOTH
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Constitutional Powers National

• Enumerated/Delegated/Expressed Powers
• explicitly given to national government
• Article 1, Section 8
• 17 enumerated powers
• Implied Powers
• Derive from the necessary and proper clause
  (euphemistically called the elastic clause by
  critics) Congress to have additional powers
  necessary and proper to carry out is enumerated
  or delegated powers.
• E.g., power to establish a draft to carry out its
  power to establish an army and navy and to
  declare war.

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Constitutional Powers State

• State powers taken for granted and not
  enumerated.
• Come from the Tenth Amendment)
• Says powers not delegated to the national
  government and not prohibited to the states are
  reserved to the states or the people.
• Includes
• Police Powers authority of states to legislate
  for the health, morals, safety, and welfare of
  their people.
• Education
• Authority over local governments
• Other broad powers and responsibilities

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Constitutional Powers Concurrent

• Concurrent Powers
• powers shared by national and state governments
• most are implied
• EXAMPLES of concurrent powers
• Right to tax
• borrow money
• establish courts
• Make and enforce laws

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Constitutionally Prohibited Powers

• National EXAMPLES
• cannot suspend habeas corpus right to appear
  before a judge after being arrested or detained
• cannot pass a bill of attainder legislative act
  inflicting punishment without the benefit of a
  judicial trial
• cannot pass ex post facto laws retroactive
  criminal laws
• cannot violate Bill of Rights The first Ten
  Amendments
• States EXAMPLES Art. 1, Sect. 10
• cannot coin money Art. 1, Sect. 10
• enter into treaties Art. 1, sect. 10
• Impair the obligation of contracts Art 1. sect.
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• Cannot deny life, liberty, and property without
  due process, nor deny any person equal protection
  of the laws 14th Amendment
• deny citizen right to vote due to race or gender
  15th Amendment
• National and States EXAMPLES
• cannot permit slavery 13th Amendment
• cannot confer titles of nobility on any person

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• The States Roles in National Government
• Amendments to the U.S. Constitution
• Requires consent of at least 3/4th of the states
• U.S. House of Representatives
• Representation based on each states population.
• Senate 2 senators for each state
• Electoral College
• states to choose the electors
• to match each states senators and
  representatives

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Relations Between States

• full faith and credit (Article IV, sect. 1)
• privileges and immunities (Article IV, sect.
  2).
• Extradition - States required to extradite
  fugitive criminals back to the state of crime for
  trial.
• Interstate Compacts required Congresss
  approval

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Relation Within States

• Local governments are not a part of American
  federalism.
• Counties, municipalities, townships, and school
  districts have no constitutional standing.
• They are creatures of state governments. Their
  relationship resembles a unitary system and is
  governed by a long-standing legal doctrine known
  as Dillions rule.

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National Supremacy

• ARTICLE VI
• Establishes national supremacy
• In situations of conflict between state and
  national law, the laws of the United States,
  and its treaties are to be the supreme Law of the
  Land.
• The Supremacy Clause has been/will be interpreted
  by the courts.

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Debate over Federalism has focused on these
questions

• Which level of governmentfederal or stateshould
  exercise what power?
• Which level of government is most effective at
  solving problems?
• Where can individuals and groups be best heard by
  government?
• Which level of governmentfederal or state is
  liberty best protected and equality best
  promoted?

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Early Disputes on Federalism The Marshall Court

• Authority of Congress to charter a national bank.
• Resolved by the Supreme Court in McCulloch v.
  Maryland (1819).
• The meaning of commerce and the scope of
  Congress authority under the Commerce Clause.
• Defined in Gibbons v. Ogden (1824)

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Dual Federalism The Taney Court, Slavery,
Civil War

• Chief Justice Roger B. Taney who succeeded John
  Marshall had a different notion about federalism.
• Under his leadership, Supreme Court began to
  articulate the idea of concurrent powers and the
  idea of dual federalism

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• Dual federalism
• the theory or view that the national and state
  governments have separate grants of power under
  the Constitution, and that the national
  government should not exceed its enumerated
  powers.
• The concept of states rights is important to
  proponents of dual federalism.
• Political scientists have employed the
  layer-cake metaphor to describe this view of
  federalism.
• The Taney Courts view of federalism strongly
  espoused in Dred Scott v. Sandford (1857). The
  Court strengthened states rights and invalidated
  the Missouri Compromise of 1820.

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Dual federalism

• The notion of dual federalism was so strong
  before the Civil War that some states believed
  they could nullify federal laws that threatened
  states and individual liberties. This is the
  theory of nullification.
• The doctrine of nullification died when the North
  won the Civil War, but dual federalism remained
  the Supreme Courts framework for federalism even
  after the adoption of the 13th, 14th, and 15th
  Amendments.
• Dual federalism finally ended in the 1930s.
• The Great Depression ushered in a new federalism
  framework called Cooperative Federalism.

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• Cooperative Federalism the theory or view that
  all levels of government in America are related
  parts of a single governmental system,
  characterized by cooperation and shared
  functions.
• Political scientists have employed the
  marble-cake metaphor to illustrate this kind of
  federalism.
• Cooperative federalism defined the relationship
  between the national and state governments from
  1937 to the late 1960s.

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The Changing Nature of American Federalism

• Over time, power has gravitated toward the
  national government.
• The growth has been fueled by several factors.

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Factors Accounting for the Growth of National
Government

• The Constitution itself
• Industrialization and Urbanization
• National Crises or Emergencies
• Politics
• Federal Grants and National Efforts to Influence
  the States
• Judicial Interpretation the role of the Supreme
  Court

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The Growth of National Government

• The Impact of the Constitution
• Key Clauses in the Constitution allows national
  government to exercise broad powers.
• The necessary and proper clause
• The national supremacy clause
• The interstate commerce clause
• The 10th Amendment - reserves powers to the state
  without specifying what those powers are.
• Several Amendments to the Constitution (e.g.,
  13th, 14th, 15th 17th 19th, 24th, 26th
  Amendments)

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The Growth of National Government

• Impact of National Crises
• The Civil War established the supremacy of the
  national government
• Industrial Revolution and Urbanization led to
  the development of a national economy and
  transportation system.
• The Great Depression - got the national
  government involved in education, social welfare,
  agricultural surpluses
• World War II led to federal regulation of
  wages, prices, and federal reallocation of
  national resources.
• Civil Rights Revolutions of the 1960s led to
  nationalization of civil rights laws and the
  Great Society Program
• .
• The War on Terrorism has led to many intrusive
  federal laws on our lives.

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The Growth of National Government

• The Impact of Politics
• Until recently, federal officials actively
  promoted federal initiatives or programs
• Congress responded often to every group that
  wanted something from the national government.
• Once established, federal programs generate
  groups with vested interests in promoting and
  defending these programs.

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The Growth of National Government

• The Impact of Federal Grants National Efforts
  to Influence the States
• The Morill Land Grant of 1862
• The New Deal unleashed floods of federal grants
• The Civil Rights Era federal action to
  eliminate discrimintion
• War on Poverty - federal effort to eradicate
  poverty led to huge amounts of federal money
  going to the states and cities.
• p

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The Growth of National Government

• The Impact of the U.S. Supreme Court
• The Marshall Court (1801-1835) favored the
  nationalist position
• E.g., McCulloch vs. Maryland (1819) Gibbons vs.
  Ogden (1824)
• The Taney Court (1836-1864) favored the states
  rights position, e.g. Dred Scott vs. Sandford
  (1857)
• Between 1865 and 1937 Supreme Court, for the
  most part, subscribed to the dual federalism
  theory.
• The Supreme Courts position on federalism from
  1937 to the early 1995 favored the cooperative
  federalism theory.

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The Devolution Revolution Attempts to Restore
the Balance of Power

• Began in the late 1960s, led by conservatives and
  state governors.
• Nixons new federalism was an effort to shift
  decision-making back to the states by
  consolidating categorical grants into block
  grants.
• Categorical grants federal grants to state and
  local communities, to be used for specified
  purposes and in specified ways.
• Block grants federal grants to state
  governments for general use in a broad area, and
  with few conditions attached. Increased under
  Reagan.

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The Growth of Federal Grants-in-Aid
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New Techniques of Federal Control over the States

• Preemption
• occurs when a federal law or regulation precludes
  or forbids enforcement of a state or local law.
• Mandates
• a requirement that a state undertake an activity
  or provide a service in keeping with minimum
  national standards.

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• Unfunded Mandates
• Requirements that the national government places
  on states and local governments without giving
  them the funds to carry out the requirements
  (.e.g., the ADA Act)
• Conditions on Aid
• Use of federal dollars in one program to
  influence state or local policy in another (e.g.,
  the minimum drinking age and federal highway
  funds).

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Pressures on the Federal Government to transfer
programs to the States

• The cost of entitlement programs has gone up.
• Several budget deficit problems in the 1980s and
  in post-9/11, coupled with Republican sweep of
  the Congress in the 1994 congressional elections
  accelerated the move toward devolution.
• However, the War on Terror has drained the
  federal treasury, increased national budget
  deficit, and deprived the states of federal funds.

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The Supreme Court A Return to States Rights?

• From the New Deal until the 1980s, the Supreme
  Court generally expanded national power and
  restricted state power in its rulings.
• Recent decisions by the Court has generally
  advanced states rights.
• e.g..Webster v. Reproductive Health Services
  (1989) and Planned Parenthood of Southeastern
  Pennsylvania v. Casey (1992)
• U.S. vs. Lopez (1995) U.S. vs. Morrison (2000)
• U.S. Term Limits v. Thornton (1995)

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U.S. Federalism Pros

• Helps to check the growth of tyranny
• Provides unity without uniformity
• Encourages Policy Innovation and Experimentation
  
• The use of states as testing grounds for new
  policies and programs.
• Contributes to competition among political
  parties.
• Provides for increased participation in politics.
• Makes governing more manageable.

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U.S. Federalism Cons

• It is incredibly expensive
• It is inefficient (duplication of services)
• It is unfair - Federalism creates inequality
  among the states
• It allows multiple access points and influence,
  thus allowing special interests to gain sway in
  policy.

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Cons

• States have not always done a good job of
  protecting minorities, the disadvantaged, and
  even the environment.
• Federalism may reinforce conflict in countries
  with deep ethnic and religious cleavages.

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Continuing Debate over Federalism has focused on
these questions

• Which level of governmentfederal or stateshould
  exercise what power?
• Which level of government is most effective at
  solving problems?
• Where can individuals and groups be best heard by
  government?
• Which level of governmentfederal or state is
  liberty best protected and equality best
  promoted?