Federalism
What is federalism?
a system of government in which sovereignty is
shared between two or more levels of government
so that on some matters the national government is
supreme and on others the subnational gov’ts are
supreme
NOT power shared
Power CONSITUTIONALLY
Divided
Questions of Federalism are creating
quite the brouhaha these days
• Gay rights
•Gun control
•Health Care
•Immigration law
The Geographic Division of Government Authority
Do you get it?????
__________sovereignty is wholly in hands of national gov't
and local govs are at its will –subnationals are not
powerless, and certainly exist but don’t have ULTIMATE
sov
_________states are sovereign and national is allowed to do
only what states permit
________sov shared: in some matters national govt is
supreme and in some states are: here states are supposed
supreme in social, moral and family issues, including
criminal laws
Separation of Governmental Authority
decentralized
CONFEDERAL
Geographic
sep of FEDERAL
authority
UNITARY
centralized Authoritarian Parliamentary Presidential
concentrated dispersed
Structural sep of authority
Note: do you get it? While the United States
itself is federal, most (if not all) U.S. states are
themselves u__________, with counties and
other municipalities having only the authority
devolved to them by the state constitution or
legislature
FEDERALISM IS NOT
SEPERATION OF POWERS
So as we go from Articles of Confed to Fed . . .
Get more or less centralized?
Articles of Confederation
Article II
Each state retains its sovereignty, freedom, and independence, and every power,
jurisdiction, and right, which is not by this Confederation expressly delegated to the
United States, in Congress assembled.
United States Constitution
Amendment X
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.
Reln b/w federalism and
democracy
Most federal systems are_________________,
but most ___________ are not federal
Does this show federal or unitary systems?
A fight b/w levels of government raises issues of
______________ (federalism or sep of powers?)
Remember the nullification doctrine?
Compare that to Bush’s use of ―signing statements‖
If Congress passes a law and
applies it to the states and the
states refuse to follow it, that is
a federalism issue
If the president sends troops to
Fisherland, and Congress
refuses to fund them, that is a
_________ issue
If a state passes a law and it
conflicts with a law Congress Who trumps?
passes, that is a ______ issue
http://editorialcartoonists.com/cartoon/display.cfm/101580/
There are three essential features that
characterize a federal system of governance
First, Constitution sets up levels in same territory
“
Second, each government must have its
own authority and sphere of power, though
they may overlap.
informal term to describe a power
informal term to describe a power sharing sharing arrangement between national
arrangement between national and
and subnational governments whereby
subnational governments where the
powers of the two are clearly delineated the two levels of government share
and do not overlap powers
Third, neither level of government (federal or
state governments) can abolish the other
Remember: central to the conflict in the civil war were
questions of states' sovereignty including the power to
________federal laws or dissolve the Union
Article 4, Section three : ―New States may be admitted by the Congress
into this Union; but no new State shall be formed or erected within the
Jurisdiction of any other State; nor any State be formed by the Junction of
two or more States, or Parts of States, without the Consent of the
Legislatures of the States concerned as well as of the Congress.‖
Let’s look at this sphere idea in more detail:
“each government must have its own
authority and sphere of power, though
they may overlap. ―
When state and federal authority conflict, federal law is
supreme according to the Constitution.
BUT if Congress is going to call ―trump‖ it MUST be
exercising authority granted to it by the Constitution
Article I, Sec. 8 of the Constitution delegates certain enumerated powers to
the national government that includes the exclusive power to mint currency,
establish and maintain an army and navy, declare war, regulate interstate
commerce, establish post offices, establish the seat of national
government, and enter into treaties.
Of course, the ―_________and _______ clause‖ has
expanded those enumerated powers to include
________powers as well
aka which case class?
McCullough vs Maryland
Congress shall have the power . . . 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
But if Congress is not in its ―sphere‖ then the
States trump because of
The ________ 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
In the US states are
supposedly supreme
In which areas?
in social, moral and family issues--including
criminal laws
Wash. to Set Medical Marijuana Limits
By CURT WOODWARD
The Associated Press
Thursday, July 5, 2007; 12:29 PM
SEATTLE -- This fall, sober public servants will convene
meetings across Washington state to answer a pressing
question: How much marijuana constitutes a two-month
supply. . . . Washington's medical marijuana law was
approved by nearly 60 percent of voters in 1998, following
closely behind California in the first wave of such measures
nationwide
Effects of federalism
Effects of federalism
Same-Sex Marriages Begin in California
Effects of federalism
Del Martin, seated, and Phyllis Lyon were the first same-sex couple in San Francisco to
exchange wedding vows on Monday. Mayor Gavin Newsom, left, presided. 6/17/2008
The weddings began in a handful of locations around the state at exactly 5:01 p.m., the
earliest time allowed by last month’s decision by the California Supreme Court legalizing
same-sex marriage. Many more ceremonies will be held on Tuesday when all 58
counties will be issuing marriage licenses to same-sex couples.
Advantages to Federalism
Check on tyranny . . . How?
• because if it occurred in a few states, the fed. Gov could prevent its
spread--furthers pluralism
• Limits gov't. National gov't only has those powers granted to it--all others
belong to state thru 10th amendment
•
Maine
Governor
Signs
BOSTON — Gov. John Baldacci of Maine signed a same-
sex marriage bill on Wednesday minutes after the
Same-Sex
Marriage
Legislature sent it to his desk, saying he had reversed his
position because gay couples were entitled to the state
Constitution’s equal rights protections
Bill
Keeps Gov’t closer to
the people
More access points;
part of pluralism; more
ways to participate
Accommodates
diversity; More suitable
for heterogeneous
peoples
Twelve northern Nigerian states have introduced
Sharia since the year 2000
• It is inefficient
Disadvantages:
• Incoherent
• More expensive
• Lowers voter turnout
• Special interests can
thwart
Map showing 35 states ratifying E.R.A.
(in blue).
...
Who gets what depends on where--e.g. of Ronald Harmelin who
learned about fed. the hard way--on June 27, 1991 SU Ct upheld his
life without parole sentence imposed on him for possessing 650
grams (about 1 and 1/2 pounds) of cocaine. Michigan was the only
state at that time to impose a mandatory life sentence for this amount
of cocaine--in Alabama for example would have received 5 years--
under federal sentencing guidelines--10 years--sup court said too bad
There is a ―race to the bottom‖
More disadvantages:
• It’s confusing . . . Who’s sphere is it
• As a result, more power goes to
the courts cuz they are umpires
Let’s review
Bowers v Hardwick as an example--Georgia police found
a man in bed with another and he was prosecuted under
Georgia's anti-sodomy law. Sup Court upheld his
conviction saying that the states could pass a law
outlawing sodomy. Headlines blare: Supreme court ruled
homosexuality is illegal. WRONG--why?
Evidence or
Unitary or Federal?
Evidence of Unitary or Federal?
Mixed response to toddler plans
Toddlers are encouraged to be healthy,
competent learners
A proposed "national
curriculum" for babies and
toddlers in England has
received a mixed response.
Under the Childcare Bill,
childminders would teach the
curriculum to children "from
birth" - with some worrying that it
might be too prescriptive.
http://news.bbc.co.uk/2/hi/uk_news/education/4420138.stm
Let’s look at the struggle b/w states and the feds—
starting with the feds—it can be the boss by using sticks
or carrots
Mandates or "sticks"
The supremacy clause means they trump—so they can tell the states
what to do—that’s the ―preemption doctrine‖: if state and fed law
conflict, fed law preempts state law
Of course it must be acting in its
―sphere‖ of enumerated powers found
where?
And even more expansively, within its
implied powers made possible the
what clause?
EXAMPLE: Most environmental legislation
(States are told: Clean up the air . . period).
Clean Air Act
Example: Civil Rights Legislation
Remember: if the feds are mandating something, they must be acting
within their ―sphere‖
Separate but equal
drinking fountains
are bad . . . But that
is not the question
here—the question
is can Congress do
anything about it?
Is it within their ―enumerated powers
sphere?
They say yes it is within our authority to regulate
_________and pass the Civil rights act
Another Example: Americans with Disabilities Act
Americans with Disabilities Act—States (and businesses) may not
discriminate in employment and state and local governments must
provide equal access to service, employment , buildings and
transportation—
Important note: Mandates can be funded . . . Or they can be partially funded . . . Or
they can be unfunded . . . But they are a stick—the states must do it. The ADA was
unfunded.
No Child Left Behind was partially funded
It’s a mandate
And Utah refuses to comply
with any parts that are
unfunded
Then there is the carrot approach . . .
Carrots or strings attached to grants as "condition of aid"
can apply just to a program---like if want highway money it must have a
highway beautification plan, or what that has to do with drinking?
or can cover all grants--if state builds anything with federal money, it must
conduct an EIS. ("crosscutting)
Fiscal Federalism
Fiscal Federalism is
the power of the
national government to
influence state policies
through grants
A federal law enacted in December 2004 designates
September 17 as "Constitution Day and Citizenship Day," to
commemorate the signing of the United States Constitution on
September 17, 1787. The federal law is included in Section 111 of
Pub. L. 108-447 (Consolidated Appropriations Act of 2005). It
contains the following provision in Section 111(b): "Each
educational institution that receives Federal funds for a fiscal
year shall hold an educational program on the United States
Constitution on September 17 of such year for the students
served by the educational institution."
The U.S. Department of Education has published additional
information about the new law at
www.ed.gov/legislation/FedRegister/other/2005-2/052405b.html. If
September 17 falls on a non-school day, educational institutions
may hold the educational program during the preceding or
following week.
This gets harder to do in eras of big deficits.
Let’s see how this plays out in the
real world of today .. . . Shall we?
http://www.nytimes.com/2010/09/15/health/policy/15hea
lth.html
Health Care Law Could Mean End of Federalism If It Is Upheld,
Virginia AG Warns http://www.cnsnews.com/news/article/75212
Federal Judge Blocks Key Portions of Arizona
Illegal Immigration Law
http://www.foxnews.com/politics/2010/07/28/federal-
judge-rules-arizona-immigration-law-dispute/
Key parts of Arizona anti-immigration law blocked
http://www.reuters.com/article/idUSTRE66R45C20100728?rpc=21
Federal Judge Dismisses Officer's Challenge to Arizona
Immigration Law: this illustrates
http://www.foxnews.com/politics/2010/09/01/federal-judge-dismisses-officers-
challenge-arizona-immigration-law/
OK so the Trump Cards for the
feds are .
The Preemption Doctrine which derives from the Supremacy
Clause: and says: federal law trumps conflicting state law
But only if Congress is legitimately exercising . . . .
An enumerated Power . . With the commerce clause being
especially useful to them
Or an implied powers created through the ―Elastic‖ or
―necessary and proper‖ clause
Or if there is a clear pattern of discrimination so they
say they can use section 5 of the 14th amendment—
to be explained in the next slide show
Any other time . . . States trump
(1) Because of general principles of federalism
(2) Because of the 10th amendment:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved for
the States respectively, or to the people
And (3) (sometimes) because of the 11th amendment which
recognizes the states sovereign immunity so the feds can’t
allow individual damage suits against state officials
11TH AMENDMENT: PROTECTS STATES
• After Patricia Garrett, Director of Nursing for the
University of Alabama, was diagnosed with breast
cancer, her treatment forced her to take a substantial
leave from work. Upon her return, her supervisor
informed her she would have to give up her position.
She claimed the ADA protected her, and sued the
state. In Univ. of Alabama v. Garrett (2001) 5 to 4
decision: Ct. held that Congress did not have the
constitutional authority to open state government to
lawsuits by their employees for violation of the
Americans with Disabilities Act (protected by the 11th
amendment)
Briefly . . . Federalism in the US: the ebb and flow
Early sources of Federal Power
McCulloch: Supremacy clause and N & P clause allow Congress to establish a
national bank, even if ―bank‖ is not enumerated, the power is implied
Gibbons Vs Ogden (1824) the court ruled for the first time that the power to
regulate commerce was more than just the traffic of commerce, it included
navigation on rivers even when it means regulating inside a state
until the late 30s' a steady growth of the National Gov
through Civil War (nullification is dead) , reconstruction and
Progressive era BUT in the form of dual Federalism (ie in
distinct spheres of authority)
by late 40's National government trumped--
marble cake (shared spheres of authority) with
National gov holding most of power and then until
the 70's national government grows
Why? Depression leads to FDR and new deal and
the switch in time that saves 9; War (WWII and
Cold War), Civil Rights, environmental movement
etc. all look to fed. gov to solve problems and find
it more sympathetic than states
In the 1980’s and 1990’s power starts to return to the states
The “devolution Revolution”
Why?
Leadership:
Who was our president then class? ―Gov’t IS the problem:
Followed by whom? And he carries a copy of the 10th amendment in his pocket
1994 We get the ―Republican Revolution‖ the first time Republicans control
both Houses since 1954—and they pass the ―Contract with America‖ which
promises to return power to the states (more block grants, unfunded mandates
limited etc—see your book)
Deficit
End of Cold War
public confidence in feds
goes down with scandals like
Watergate, Savings and Loans,
budget procurement scandals
($200 toilet seats for the
pentagon etc)
Welfare Reform in the 1990’s gives
power to the states in the from of block
grants
And the Rehnquist Court
In 1995 for the first time since
New Deal the Court invalidated
an exercise of Congress's
asserted authority to regulate
interstate commerce when it
invalidated the 1990 Gun-Free
School Zones Act---
and in many terms since the
mid-1990s the Supreme Court
struck down some federal laws
as exceeding its authority to tell
the states what to do
And in the "Noughties" . . . The struggle between the two goes on
War on Terrorism . . .
Gives power to which
level of government?
“Real ID law” 2005 requires
states to use sources like
birth certificates and
national immigration
databases to verify that
people applying for or
renewing driver's licenses
are American citizens or
legal residents
Supreme court goes both ways
Printz
Vs
Raich
Morrison
Article I, Section 8: Powers of Congress
The Congress shall have Power
• To lay and collect Taxes, Duties, Imposts and Excises,
• to pay the Debts and provide for the common Defence and
general Welfare of the United States; but all Duties, Imposts
and Excises shall be uniform throughout the United States;
•To borrow money on the credit of the United States;
•To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes;
•To establish an uniform Rule of Naturalization, and uniform
Laws on the subject of Bankruptcies throughout the United
States;
•To coin Money, regulate the Value thereof, and of foreign
Coin, and fix the Standard of Weights and Measures;
•To provide for the Punishment of counterfeiting the
Securities and current Coin of the United States;
•To establish Post Offices and Post Roads;
•To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries;
•To constitute Tribunals inferior to the supreme Court;
•To define and punish Piracies and Felonies committed on the
high Seas, and Offenses against the Law of Nations;
•To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water;
•To raise and support Armies, but no Appropriation of Money to
that Use shall be for a longer Term than two Years;
•To provide and maintain a Navy;
•To make Rules for the Government and Regulation of the land
and naval Forces;
•To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions;
• To provide for organizing, arming, and disciplining the
Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving
to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;
• To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding ten Miles
square) as may, by Cession of particular States, and the
acceptance of Congress, become the Seat of the
Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of
the Legislature of the State in which the Same shall be,
for the Erection of Forts, Magazines, Arsenals, dock-
Yards, and other needful Buildings; And
• 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.
Remember:
the Commerce clause—Is the activity that is the subject of the law in anyway
connected to commerce?
10th amendment—Is Congress exercising a power delegated to it—if not—
states have reserved that power
11th amendment—(Has been interpreted to bar suits brought in federal court
brought against a state by citizens of that state (ie the 11th amendment
provides the state with sovereign immunity).
14th amendment section 5 gives Congress the power to enact legislation to
enforce the 14th Amendment’s equal protection/due process guarantees
Oregon v. Mitchell (1970) Does Congress have the Constituonal authority to
reduce the voting age to 18
Nevada v Hibbs
Facts of the Case
William Hibbs, an employee of the Nevada Department of Human Resources,
sought leave to care for his wife (who had beenin a serious car accident) under the
Family and Medical Leave Act of 1993 (FMLA). The FMLA entitles an eligible
employee to take up to 12 workweeks of unpaid leave annually for the onset of a
"serious health condition" in the employee's spouse. The Department granted
Hibbs's request for the full 12 weeks of FMLA leave and, after he had exhausted
that leave, informed him that he must report to work by a certain date. When Hibbs
failed to do so, he was fired. Pursuant to FMLA provisions creating a private right of
action "against any employer" that "interfered with, restrained, or denied the
exercise of" FMLA rights, Hibbs sued in Federal District Court, seeking money
damages for FMLA violations. The District Court concluded that the Eleventh
Amendment barred the FMLA claim. The Court of Appeals reversed.
Question
May an individual sue a State for money damages in federal court for violation of
the Family and Medical Leave Act of 1993?
• Yes. In a 6-3 opinion delivered by Chief Justice William H.
Rehnquist, the Court held that State employees may recover money
damages in federal court in the event of the State's failure to comply
with the FMLA's family-care provision. The Court reasoned that
Congress both clearly stated its intention to abrogate the States'
Eleventh Amendment immunity from suit in federal court under the
FMLA and acted within its authority under section 5 of the
Fourteenth Amendment by enacting prophylactic, rather than
substantively redefining, legislation. "In sum, the States' record of
unconstitutional participation in, and fostering of, gender-based
discrimination in the administration of leave benefits is weighty
enough to justify the enactment of prophylactic [section] 5
legislation," wrote Chief Justice Rehnquist. Justices Antonin Scalia
and Anthony M. Kennedy, who was joined by Justices Clarence
Thomas and Scalia, filed dissents.
Solid Waste Agency of Northern Cook County v. US Army
Corps of Engineers does the federal government have power to
block construction of a garbage dump because the planned site
provides important habitation of migratory birds
So let’s apply this to more real federalism cases:
Remember:
the Commerce clause—Is the activity that is the subject of the law in anyway
connected to commerce?
10th amendment—Is Congress exercising a power delegated to it—if not—
states have reserved that power
11th amendment—(Has been interpreted to bar suits brought in federal court
brought against a state by citizens of that state (ie the 11th amendment
provides the state with sovereign immunity).
14th amendment section 5 gives Congress the power to enact legislation to
enforce the 14th Amendment’s equal protection/due process guarantees