We the People, Sixth edition by Benjamin Ginsberg, Theodore J. Lowi, and Margaret Weir

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We the People, Sixth edition by Benjamin
Ginsberg, Theodore J. Lowi, and Margaret Weir

• Chapter 3. Federalism

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Federalism and the American Founding

• In addition to questions of the structure of the
  national government, the balance of power between
  the central government and the states was at the
  heart of the constitutional struggle between the
  Federalists and the Antifederalists.

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Antifederalists and the Vice Presidency

• The Vice President of the United States shall
  be President of the Senate, but shall have no
  Vote, unless they be equally divided.
• --Article I, Section 3, of the U. S.
  Constitution

• Antifederalist objections to the constitutional
  position of vice president exemplify the late
  18th century struggles over federalism as well as
  the separation of powers.

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• 18th CENTURY PRINCIPLE The states (former
  colonies) were, to a degree, independent entities
  that deserved equal representation as states.
  This was achieved in the Senate.

• ANTIFEDERALIST OBJECTION In cases of tie votes,
  the vice presidents state would have an
  additional vote and thus an unequal advantage in
  the Senate.

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• Even though this intense squabble was of minor
  importance at the time of the American founding,
  it exemplifies two salient issues that help us to
  understand late 18th century politics
• 1. The concept of separation of powers was
  understood to demand a strict separation in the
  functions of the legislative, executive, and
  judicial branches of government.
• 2. The relative strength of the states was at
  the heart of many of the political battles of
  the time.

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The Federal Framework

• Governments can organize the balance of power
  between the central and regional governments in a
  variety of ways
• Confederations
• Federal systems
• Unitary systems

• federalism
• a system of government in which power is
  divided, by a constitution, between a central
  government and regional governments

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• Unitary systems tip the balance of power in
  favor of a stronger central government in
  unitary systems, lower levels of government have
  little power independent of the central
  government.
• Confederations like the Articles of
  Confederation, reserve a great deal of power to
  lower levels of government.

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• Federal systems
• Under the Constitution, the United States has a
  federal system of government in which the
  national government shares power with lower
  levels of government.

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Federalism in the Constitution

• Consistent with the framers desire to divide
  the powers of government, the Constitutions
  federal division of power can be understood as an
  attempt to limit the power of the national
  government.
• With expressed powers, the Constitution grants
  specific powers to the national government and
  reserves the rest for the states.

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Implied Powers

• Article I Section 8, Clause 18
• necessary and proper clause or elastic clause
• Examples creation of National Bank, minimum
  wage, National Highway System, creation of
  agencies, Civil Rights Laws.

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• National Government Powers
• Expressed powers
• Collect taxes
• Coin money
• Declare war
• Implied powers
• The necessary and proper powers the national
  government has from their implication in the
  Constitution

• State Government Powers
• Reserved powers
• Police powers (the powers to regulate the health,
  safety, and morals of its citizens)
• 10th Amendment

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• 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.

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Reserved Powers

• Regulation of Education
• Marriage and Divorce laws
• Voting laws
• Public health
• Intrastate commerce

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Concurrent Powers

• Are powers shared by National and State
  governments.
• Examples are Power to tax, crime and
  punishment, some regulation of business,
  conditions of labor.

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Supremacy Clause

• Article VI
• The U.S. Constitution, laws made by Congress, and
  treaties are the supreme law of the land

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Denied Powers

• Article I, Section 9- Powers denied to the
  National Government
• Examples Titles of Nobility, ex post facto
  laws, denying writ of habeas corpus, bill of
  attainder
• Article I, Section 10-Powers denied to the States
• Examples- no standing troops, no treaties with
  foreign nations, compacts with other States

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• The full faith and credit clause compels states
  to honor the public acts and judicial proceedings
  of other states
• The comity clause promotes national unity by
  claiming that citizens of any state would be
  entitled to the privileges and immunities
  provided to citizens in the other states

• The Constitution establishes another type of
  federal relationship the obligations of states
  to one another.

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More Obligations State to State

• Privileges and Immunities clause sates that
  citizens of one State cannot be discriminated
  against in another State.
• Extradition is where a State is required to
  return criminals to the State where thy have been
  accused or convicted of a crime.

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• WHAT DO YOU THINK?
• How does dividing power between the national and
  the state governments work to protect citizens?
• What might be the disadvantages of federalism and
  the advantages of a unitary system?
• Did the framers of the Constitution want a large
  federal government?

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The Changing Federal Framework

• There have been four faces of federalism
  throughout American history.

1789 1937
1960 1970 1990
I. DUAL II. COOPERATIVE III.
REGULATED IV. NEW FEDERALISM
FEDERALISM FEDERALISM
FEDERALISM
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Stage 1 Dual Federalism (1789-1937)

• 1. Central government focused on the promotion
  of commerce and distribution of resources.
• 2. States retained most remaining powers.

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Table 3.2
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Stage 1 Dual Federalism

• National government powers set forth in Article
  I, Section 8, of the Constitution, including the
  commerce and necessary and proper clauses, could
  be interpreted to expand national power.

• In McCulloch v. Maryland (1819), for example,
  the Supreme Court held that a congressional power
  to charter a national bank might be implied by
  Congresss expressed powers To lay and collect
  taxes To borrow money and To regulate
  Commerce.

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Another case favoring the National Government

• Gibbons v. Ogden
• Involved Fultons shipping company that had been
  given a monopoly to operate steamships on the
  Hudson River.
• Thomas Gibbons sued to have rights to use the
  river. Aarron Ogden had a monopoly created by
  the New York legislature.
• The Supreme Court ruled that the Congress had the
  power to regulate interstate commerce, not the
  States.

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The Role of the States

• 10th Amendment
• States Rights
• Devolution-policy to remove a program from one
  level of government by delegating it to a lower
  level.
• U.S. v. Lopez
• Printz v. U.S.

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The Changing Role of the National Government

• The New Deal and FDR vs. Rugged Individualism and
  Herbert Hoover
• The expansion of national power took place with
  FDRs election.

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Hoover and Great Depression, 1932 Hoover is my
shepherd I am in want He maketh me lie down on
park benches He leadeth me beside still
factories He restoreth my doubt in the
Republican party He leadeth me in the path of
destruction for his partys sake. Yea though
I walk through the valley of the shadow
of destruction, I fear evil. For thou art
with me, politicians and Professors, they
frighten me. Thou preparest a reduction in my
salary before me in the presence of
my creditors.
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Stage 2 Cooperative Federalism
Building on its powers over time, the national
government expanded its role in matters that had
previously been reserved to states, seeking to
ensure state cooperation with federal policies by
offering grants-in-aid.

• Block grants are given to states for general
  purposes and allow state officials greater
  discretion over how funds will be spent.

• Categorical grants are given to states for more
  specific purposes, and most of the discretion
  remains in the hands of federal officials and
  officeholders.

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Other Grants

• Project Grants are grants where State and local
  submit proposals to federal agencies for funding
  on a competitive basis.
• Formula Grants are grants in aid based upon a
  formula to determine the amount to be given by
  the federal government.

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• Although states and ideological conservatives
  resisted encroachments by the national government
  into state matters under the banner of states
  rights and citing 10th Amendment protections for
  their positions, the 20th century witnessed a
  broad expansion of national government power.

• States acceptance of and eventual reliance on
  national government grants-in-aid transformed the
  more or less strict separations of dual
  federalism into a more complex cooperative
  federal relationship.

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Stage 3 Regulated Federalism (1960s-?)

• Once state and local governments were dependent
  on grant-in-aid support, the national government
  further intervened in state government
  decision-making by threatening to withhold such
  grants. This is also known as Coercive
  Federalism.

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Stage 3 Regulated Federalism

• To regulate speed limits within states, the
  national government threatens to withhold federal
  transportation dollars thus coercing states to
  comply with federal mandates. Examples No Child
  Left Behind and Environmental laws.

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Stage 3 Regulated Federalism

• Through preemption, the national government can
  override state and local actions in certain
  policy areas.
• The transfer of federal power is probably best
  exemplified by unfunded mandates, whereby the
  national government compels state and local
  government action but does not provide funding
  for that action.

• Seeking to increase control and impose more
  uniform national standards, the national
  government expanded its reach into what had
  traditionally been state matters.

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Stage 4 New Federalism and State Control
(1969--?)

• The waning in some respects of Franklin
  Roosevelts New Deal coalition and programs
  sparks a counter--federal trend, known as New
  Federalism, which begins to return discretion to
  the state and local governments.

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Stage 4 New Federalism

• The new federalism trend of returning discretion
  to the states began in the executive branch as
  the Nixon, Carter, and Reagan administrations
  gave states a larger role in administering
  federal policies.

• These administrations evinced a greater use of
  block grants rather than categorical grants and
  even instituted a process of general revenue
  sharing, whereby the national government yields
  tax revenues to state and local governments to
  spend as they wish.

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Stage 4 New Federalism
Beyond the White House In the 1990s both
Congress and the federal courts joined the New
Federalism revolution.

• The Republican takeover of Congress after the
  1994 elections led to a series of policies where
  the federal government devolved power to the
  states.
• Welfare reform is a good example of such
  devolution.

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Stage 4 New Federalism

• In United States v. Lopez (1995) and United
  States v. Morrison (2000), the Supreme Court
  reversed its course by restricting its
  interpretation of what constituted interstate
  commerce to justify federal government
  involvement in the states.

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Stage 4 New Federalism

• We would have to pile inference upon inference
  in a manner that would convert congressional
  authority under the Commerce Clause to a general
  police power of the sort retained by the States.
  Admittedly, some of our prior cases have taken
  long steps down that road , but we decline to
  proceed any further.
• --Chief Justice William Rehnquist, writing for
  the majority in United States v. Lopez (1995)

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Federalism under the Bush Administration

• The administration of George W. Bush,
  particularly post-9/11, seems to defy traditional
  understandings of conservatism, as the
  presidents policies have expanded the size,
  spending, and reach of the national government in
  states and in citizens lives.

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Federalism under the Bush Administration

• The Patriot Act and the creation of the
  Department of Homeland Security both expanded the
  size and reach of the national government.
• Even before 9/11, President Bushs No Child Left
  Behind Act expanded the federal governments role
  in funding and regulating public education.

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Federalism under the Bush Administration

• The Bush administration has not been averse to
  large social spending programs, like a
  prescription drug benefit under Medicare that
  will cost hundreds of billions of dollars.
• Congresss willingness to intervene in the Terry
  Schiavo case, where a Florida Court had ruled in
  a family medical dispute, further displays a
  Republican willingness to expand the national
  governments role to achieve its policy aims.

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Federalism under the Bush Administration

• Although some of these expansions of federal
  power are undoubtedly due to 9/11, these recent
  expansions of national government power reveal
  that both Democrats and Republicans are willing
  to expand federal power to achieve their policy
  aims when they control the national government.

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• WHAT DO YOU THINK?
• How might federalism help promote the American
  value of liberty?
• Where do you think the people have the most
  control over the government - the national
  government or the states?
• Do politicians only hold firm to federalism
  principles when the other party controls the
  national government? Do federalism proponents
  become advocates of national standards when they
  are in power?

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Clicker Questions

• Over the course of American history, the federal
  government has _______ compared with the states.
• Grown stronger
• Grown weaker
• Remained the same
• Grown in tandem

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Clicker Questions

• Which of the following statements best captures
  the meaning of the concept devolution of
  authority ?
• State governments have given the federal
  government more of their powers over time
• State governments have devolved to the point
  where they exercise very little power in the
  federal system
• City governments are now the premiere power
  brokers in national politics
• The national government grants the states more
  authority over a range of policies

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Clicker Questions

• The division of powers and functions between the
  national government and state governments is the
  definition of
• Confederation
• Intergovernmental relations
• Expressed powers
• Federalism

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Clicker Questions

• Which of the following best exemplifies the
  doctrine of preemption?
• welfare reform, which preempts states from giving
  benefits to some residents
• federal criminalization of marijuana, even when
  states or cities allow medicinal use
• federal regulations in which the cost is borne by
  the states
• federal and state governments sharing the cost of
  a new highway

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Clicker Questions

• The 1996 Welfare Reform law is an example of New
  Federalism because
• the national government has tried new types of
  taxes to pay for it
• it reduced the restrictions on how states spend
  grant money
• it reduced the role of state governments in
  administering the program
• it increased the role of the federal government
  in the day-to-day operation of the programs