Federalism

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					Chapter 3

Federalism
X
         Battle for Control
• Since the founding of our country,
  there has always been a struggle
  between the States and the Central
  Government (Don’t write this down)
• It led to the Civil War
• There still is a constant battle
  between who has a say over what
• Other countries don’t have this debate
  like Britain
           Unitary Government

• All, or a vast majority,
  of the power is held by
  a central government.         Central
                               Government
• Local governments are
  only overseers and
  have very little power

• Many countries that are
  parliamentary have this    Local Governments
Examples of Unitary Govt.
 France

 Italy

 Great Britain

 Ireland

  Japan
       Federal Government
• Federalism- political system
  with local governmental          Central Govt.
  units, in addition to national
  one, that can make final
  decisions
• Power is divided equally at
  all levels of government          State Govt.
• Allows local governments
  flexibility to make laws
• Founders felt this system
  would be less of a threat to     Local Govt.
  liberty, why?
Examples of Federal
United States

Canada

Germany

India

Spain
   Local      Confederation
Governments
                                  Local
                  Central      Governments
                 Government


   Local
                                  Local
Governments
                               Governments

 • Power is held by the local governments
 • How many countries are
   confederations?
 • 0 (Yugoslavia 1991 was the last)
X       Federalism: good or bad?
    Special protection of sub national
    governments in federal system
    is the result of:

    a. Constitution of country

    b. Habits, preferences, and dispositions
    of citizens

    c. Distribution of political power in
    society
            The Founding
• Founders believed that neither national nor
  state government would have authority
  over the other because power derives from
  the people, who shift their support

• New plan had no historical precedent

• Tenth Amendment was added as an
  afterthought, defined the
  power of states (Delegated Powers,
  Education, etc.)
           The Founding
• Different political groups
  with different political
  purpose come to power
  in different places
• Federalist No. 10: small
  political units dominated
  by single political
  faction, Madison
 The Powers of Government

 3 types of delegated power:
- enumerated (expressed)
- implied
- inherent
Enumerated powers -
 literally expressed
        Enumerated powers -
         literally expressed
Article I, section 8
     • lay and collect taxes, duties, and imposts
     • provide for the common defense and general
       welfare of the United States
     • regulate commerce with foreign nations, and
       among the states, and with Indian tribes
     • coin money and regulate the value thereof
     • declare war
Implied Powers- not literally
stated but reasonable implied
• Article I, Section 8, clause 18
“necessary and proper clause” or
elastic clause
• The necessary and proper clause
  has often been used to expand
  the powers of the national
  government.
    Elastic Clause (Art. I Sec. 8)
• Precise definitions of powers
  politically impossible because
  of competing interests, such
  as commerce
• Hence vague language-
  "necessary and proper“
• Hamilton's view: national
  supremacy because
  Constitution
  supreme law
• Jefferson's view: states'
  rights with people ultimate
  sovereign
    Inherent powers

  Powers which belong to the
national government by virtue of
         their existence
       Reserved powers or
         “State Powers”-
            (police powers)

• Most of State powers come from the Tenth
  Amendment that says: "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."
 Concurrent powers-

Powers shared by the national
   and state governments
         Denied Powers

• Article I, section 9 lays out powers
  denied to the central government.
  –For example: give preference to
   ports of one state over another
• Article I, section 10 lays out the
  powers denied to the states.
  –For example: enter into treaties,
   alliances, or confederations
The Supremacy Clause

Article IV says that federal law
 is supreme. (So if the states
    and federal government
      argue, the feds win.)
      The Evolution and
  Development of Federalism
• The allocation of powers in our federal
  system has changed dramatically over the
  years.
• The Supreme Court in its role as interpreter
  of constitution has been a major player in
  the redefinition of our Federal system.
  – McCulloch v. Maryland (1819)
  – Gibbons v. Ogden (1824)
  – Dred Scott v. Sandford (1857)
     McCulloch v. Maryland
                      (1819)
• McCulluch was the first major decision by the
  Supreme Court under Chief Justice John
  Marshall about the relationship between the
  states and the national government.
• The Court upheld the power of the national
  government and denied the right of a state to tax
  the bank.
• The Court’s broad interpretation of the necessary
  and proper clause paved the way for later rulings
  upholding expansive federal powers.
     Gibbons v. Ogden (1824)
• The Gibbons case centered on the conflict
  between the states and the powers of Congress.
• Could New York grant a monopoly concession on
  the navigation of the Hudson River? The Hudson
  River forms part of the border between New York
  and New Jersey and the U.S. Congress also
  licensed a ship to sail the Hudson.
• The main constitutional question in Gibbons was
  about the scope of Congress' authority under the
  Commerce Clause.
• In Gibbons, the Court upheld broad congressional
  power over interstate commerce.
     Dred Scott v. Sandford
                      (1857)
• The Supreme Court articulated the idea of
  concurrent powers and dual federalism in which
  separate but equally powerful levels of
  government is preferable, and the national
  government should not exceed its enumerated
  powers.
• The Taney Court held that Mr. Scott was not a
  U.S. citizen and therefore not entitled to sue in
  federal court.
• The case was dismissed and Scott remained a
  slave.
• Taney further wrote that Congress had no power
      STAGES OF FEDERALISM


  There have been FOUR STAGES OF
    FEDERALISM throughout American history.

  1789                1937            1960          1970      1990



I. “DUAL       II. “COOPERATIVE   III. “REGULATED     IV. “NEW
 FEDERALISM”     FEDERALISM”         FEDERALISM            FEDERALISM”
     STAGES OF FEDERALISM
STAGE 1: “Dual Federalism” (1789-1937)



 1. Central government focused on promotion of
 commerce and distribution of resources.

 2. States retain most remaining powers.
       STAGES OF FEDERALISM
Stage 1: Dual Federalism
     Power of the national government set forth in
     Article I, Section 8 of the Constitution

•   Commerce clause
•   “necessary and proper clause”
•   McCulloch v. Maryland (1819)
•   Gibbons v. Ogden (1824)
     STAGES OF FEDERALISM
STAGE 2: “Cooperative Federalism” (1937-?)

  Franklin Roosevelt’s “New Deal” sparks a revolution in
  national policy-making and an increased role for the
  national government altering the balance of federal
  power.
STAGES OF FEDERALISM


        STAGE 2: “Cooperative
          Federalism”

        In NLRB v. Jones and Laughlin
           Steel (1937), the Supreme
           Court expanded its
           interpretation of the commerce
           clause to allow the national
           government to regulate as well
           as promote interstate
           commerce.
     STAGES OF FEDERALISM
STAGE 2: “Cooperative
 Federalism”

The New Deal’s expansion
  of the national
  government and the
  executive branch further
  empowered the national
  government at the
  expense of state
  autonomy.
      STAGES OF FEDERALISM

  STAGE 2: “Cooperative Federalism”
  The national government would ensure state cooperation
  with federal policies by offering grants-in-aid.


Block grants are given        Categorical grants are given
  to states for general         to states for more specific
                                purposes and most of the
  purposes and allow            discretion remains in the
  state officials greater       hands of federal officials
  discretion over how           and officeholders.
  funds will be spent.
     STAGES OF FEDERALISM
STAGE 3: “Regulated Federalism” (1960s-?)

As state and local governments came to depend
  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.”
     STAGES OF FEDERALISM
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.
Case study of the "Double Nickels“

• The federal fifty-five-mile-per-hour speed limit was repealed in
  December 1995 after two decades.
• Twenty states (mostly Western ones) increased their speeds to
  seventy miles per hour or more.
• Montana imposed no daytime speed, and Nevada had no
  speed limits at all at anytime.
• Why were fifty-five-mile-per-hour speed limits imposed in the
  first place?
   – To save gas after oil shortages in the 1970s.
   – Insurance industry studies say fewer highway deaths at lower speeds.
   – Same law removes helmet rules and zero alcohol tolerance rules.
• Uncle Sam: the carrot and the stick
   – Federal government involved through highway construction funds
     (Federal Highway Trust Fund).
   – To get federal funds, states kept lower speeds until Congress changed
     the law in 1995.
• President Clinton and Congress responded to states'
  complaints (the federal system and election politics in action).
    STAGES OF FEDERALISM
STAGE 4: “New Federalism” (1969-?)

 The waning in some respects of Franklin
 Roosevelt’s “New Deal” coalition and programs
 sparks a counter-federal trend, known as NEW
 FEDERALISM, that begins to return discretion to
 the state and local governments.
     STAGES OF FEDERALISM
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.
   STAGES OF FEDERALISM


STAGE 4: “New Federalism”

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.”
  Federal aid and federal control
Mandates
• Federal rules states or localities must obey,
  whether receiving aid or not
• Most controversial mandates result from
  court decisions; easier now for citizens to sue
  localities
Conditions of aid
• Conditions range from specific to general
  i.e., 1985 Road Construction Act. If you
  didn’t change drinking law to 21, no road
  aid.
                 Devolution
Devolution is the Federal Government
  passing on (or devolving) to the states
  national government functions (welfare,
  health care, etc.).
• Bill Clinton signed bill to turn back to states
• These and other turn-back efforts were
  referred to as devolution
Block grant entitlements
  1. Success with AFDC
  2. Failed effort for now with Medicaid
(Types of Devolution)
                             Third-Order
                Second-Order
Devolution                   Devolution
                 Devolution
                               Local/State/Federal
Federal Govt.    State Govt          Govts.




                               Nonprofit/Private
 State Govt.     Local Govt.
                                Organizations

 The main issue that triggered most of
       this was welfare reform
• What's driving devolution?
  1. Beliefs of devolution proponents
  2. Realities of budget deficit
  3. Citizen views (We can do better)
• Congress and federalism: nation far from
  wholly centralized:
• Members of Congress still local
  representatives, Members of Congress
  represent different constituencies from the
  same localities, Link to local political groups
  eroded. Still get money (Tip O’Neal, Boston)
• Issues like the recent Blackout and
  Deregulation in California has halted some
  devolution, stay tuned…..
     STAGES OF FEDERALISM


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.
     STAGES OF 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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posted:10/23/2012
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