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					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

				
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