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Federalism - Definition

Rejected a unitary and rejected a confederation…

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Constitutional Power of Federalism

National has specified powers The State and People have all other

powers National and State share some powers

The concept of Federalism has changed in America however the definition remains…

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Federal System or Federalism

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Does Federalism still exist? An even bigger ? Do we want it to exist?

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Why Federalism? Advantages1. Diversity2. Minimizes conflict3. Opportunity for

response4. Dispersal of power5. Political participation6. Innovation and

experimentation7. flexibility

Disadvantages1. Allows regions to

protect self-interest

2. Poor versus wealthy – ability to provide services

3. Inequality of programs

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National Powers - Delegated

Delegated/expressed/enumerated Directly stated in the Constitution –

examples: levy and collect taxes, coin money, declare war, army and navy, regulate interstate trade, regulate foreign trade, etc.

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National Powers - Implied

Implied/Necessary and Proper/Elastic

Those required to carry out the Constitution

Not specifically listed Examples: the draft, regulation of

the nuclear power plants, space program, national bank, etc.

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National Powers - Inherent

Just because it is the government Examples: control of immigration,

diplomatic relations, etc.

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State Powers Reserved Powers Not listed 10th Amendment – “not delegated to the

U.S., not prohibited to the states, a power of the states

Examples: regulate intrastate trade, establish local governments, administer elections, protect public health and welfare and morals

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Supremacy Clause…

Acts and treaties of the U.S. are supreme

No state law or constitution may conflict and can not interfere with the Constitution

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McCulloch vs. Maryland (1819) 2nd Bank of the United States Maryland imposed a state tax on the

National bank Rulings/Decisions1) Natl. Bank – constitutional – based on

necessary and proper clause2) State tax – unconstitutional – a. The power

to tax is the power to destroy – b. the national bank has money from a national “source” therefore tax would be against all but benefit a few

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Gibbons vs. Ogden (1824)

Congress has the power to regulate commerce…between several states

License to operate steam boats in water between NY and NJ ---Ogden – state license and Gibbons – national licenses

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Concurrent Powers

Shared – both National and State Each level exercises these powers

independently Examples: taxing, courts,

definition of crimes, appropriation of private property for public use

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Denied Powers CAN NOT National – tax exports, interfere with states to

carry out their responsibilities, granting titles of nobility, bills of attainders, deny habeas corpus, pass ex post facto laws

States – make treaties or alliances, coin money, impair contracts, titles of nobility, bills of attainders, ex post facto laws, deny habeas corpus

Belief in popular sovereignty=Bill of Rights – denied powers to eventually both National and States (14th amendment and incorporation)

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State Obligations to the Nation

Conduct and pay for elections Amendment process (ratification)

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National Guarantees to the States

Republican from of government Protection Territorial Integrity

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Admission of New States Congress admits Restrictions – can not take from

existing state and subjected to Presidential veto

Procedure: enabling act, draft and approve constitution (popular sovereignty), submitted to Congress, Admitting Act, Presidential approval

Once admitted = to all other states

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Interstate Relations – Article IV

Full Faith and Credit Privileges and Immunities Extradition Interstate Compacts Lawsuits between states – U.S.

Supreme Court Jurisdiction

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Changes in the definition of Federalism

How many different ways can you say Federalism? Which Federalism tastes better…Layer-cake or Marble-cake?

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Generally speaking…Federalism is…

A division of power between two distinctive governments, each with their own spheres of influence

National = broader issues State = direct impact on daily life

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Federalism is…

Auxiliary Precaution Against Tyranny

Federalist no.10 – federal system designed to consist of national government limited to areas of common concern, while the power to make particular policy would remain with the states -

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I want a … Strong National… I am a Centralist.1) State/local able to

deal with major 2) Advocate

sectional issues3) Extensive tax

base4) Prevents elitism

Strong State… I am a

Decentralist1) More sensitive to

needs2) Better ability to

support public policy with their tax base

3) National becomes too demanding

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Centralist v. Decentralist Centralist Lincoln FDR Johnson Courts between

1937 and 1970s Marble Cake

Federalism

Decentralist Nixon Reagan Rehniquist Court New Federalism

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History of Federalism… Dual Federalism Layer Cake Federalism Cooperative Federalism Marble Cake Federalism Creative Federalism Competitive Federalism New Federalism Fiscal Federalism Regulatory Federalism

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Dual Federalism 1787 - 1860

Each with their own sphere of influence and the Supreme Court acts as the umpire

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Layer-Cake Federalism – 1860 - 1930 National Supremacy – Each still had

their own powers however the National had pushed their supremacy in terms of the Civil War and Reconstruction – each exercising power independently with federal government exerting more influence

Courts still tended to side with the states

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Marble Cake Federalism – 1930s – to present day New Deal Era – FDR, Truman, Eisenhower-

New Deal programs (relief and recovery) Levels or layers of government being

interlaced or intrusive Growth of bureaucracy, regulations, and

spending Solutions for state and local problems were

directed and funded by national government and administered by the states

Often at the expense of state power

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Cooperative Federalism (Marble-Cake) 1930s Various levels of a single government

characterized more by cooperation and shared functions than by conflict

Responsibilities and powers intermingled and blurred

All are apart of the bigger Where does the federal responsibility

end and the states begin?

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Creative Federalism – (Marble Cake) 1960s Lyndon Johnson’s Great Society Federal Programs = Social Welfare System National would work with states/local to

create/provide social services Poverty, equality, urban crisis

through direct aid…Social equality National spending almost tripled – growth

of bureaucracy, states began tailoring to the national rather than their own needs

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Competitive Federalism – 1970s

States having to compete for the federal funding

decentralizing

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New Federalism – 1970s to present Idea of decentralizing Returning power to the states – return of fiscal

power to the states 77 categorical grants = 9 block grants Offering states pieces but have them accept

with conditions and promises to develop their own programs

1994 categorical grants were converted into block grants…more flexibility in how to spend…

If federal money then you must… US vs. Lopez…National can not set a law

banning guns within a school zone…this is a state power…

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Fiscal Federalism

Money ------- funding Grants, mandates, revenue sharing Supply money usually with

standards or requirements ---implement policies with federal guidelines

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Regulatory Federalism Regulatory laws Example: Clean air and water act –

national goals that must be carried out by the states

Paperwork and bureaucracy Civil Rights Act, Highway Beautification

Act, Occupational Safety and Health Act, 55 speed limit, drinking age, .08 blood alcohol, etc.

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Carrot and the stick…

Rewards Punishment

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Types of Grants and mandates Categorical Formula – legislative

formula – you meet you get – Medicaid, schools, hospitals – 90% of all grants

Project – specific purpose, fixed time – research, science, etc.

Block grants – flexible, broad, prescribed activities, few strings – welfare reform – consolidation – New Federalism

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Mandates Requirements or uniform orders Sometimes with $$$ and

sometimes unfunded… Regulatory federalism Direct orders States must do…if not reward

and/or penalty Increase state and local budgets

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Continue mandates…

Civil Rights Act OSHA Endangered Species Act Americans with Disabilities EPA (auto testing)

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Revenue Sharing

Did not last long 1970 – 1982 States could use at their discretion

– very general = high budget deficits Often the states used for general

operations

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Techniques Direct orders – comply or sanctions

(EEOC) Cross-Cutting Requirements – conditions

on one for all (Civil Rights Act) Crossover Sanctions – money influence

(Drinking Age) Total Preemption – Supremacy – Voting

Rights Act of 1965 Partial Preemption – state administer

but national will step in – (Clean Air Act)

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Spending… 1960 43% Transportation 7% Education,

Social Services, employment

38% income security

3% Health 9% other

1998 11% Transportation 42% Health -

Medicaid 14% Education,

Employment, Social Services

24% Income Security 8.5% other

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Federal Dilemma…

How to reduce spending but maintain assistance?

$$$$ + Requirements

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Devolution Revolution

Shift in policy to more state power – returning responsibility to the states

New Federalism Arguments can be made that it has

occurred and arguments can be made that it has not happened…

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Has there been a devolution revolution? Yes Moving away from

entitlements Contract with America

– Welfare Reform Act State speed limits End of unfunded

mandates Clinton – “end of big

government”

No Federal penalities

for crimes like carjacking

Food safety standards

911 control Education standards Gun control – Brady

Bill

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Rehniquist Court US v. Lopez – overturned – banning guns

near a school = state Printz v. US – Brady Bill and forcing local

law enforcement to complete background checks= this mandate violated the sovereignty of the states/local

South Dakota v. Dole= unconstitutional for National to control drinking age – however, indirect method was OK (loss of federal highway $$ if drinking age not raised)

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More court cases…

National League of Cities v. Usery – federal minimum wage and maximum hours could not be forced on local governments

Casey v. Planned Parenthood – states may pass law restricting rights of women to have abortions

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Power of the national government has increased… Large society with complex needs… Taxing power of the federal government

= use the $ for general welfare Commerce Clause Great Depression and Great Society Foreign policy Nuclear Age Party politics