Federalism

The Basics

Governmental Structure

Federalism: a political system where local government units can make final decisions regarding some governmental activities and whose existence is protected

Unitary System: local governments are subservient to the national government

Lines of Power in Three

Systems of Government

Lines of Power in Three

Systems of Government

Lines of Power in Three

Systems of Government

Federalism

Why federalism is important? This is the single

most persistent source of conflict between the states and the federal government

It is a major difference between Democrats and Republicans

We fought a war over it.

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The Constitution• Federal Law is

Supreme (Article VI)

• Powers not delegated to the US are reserved to the states (10th Amendment)

• Federal Powers –Enumerated Powers

• State Powers-Reserved Powers

• Shared Powers-Concurrent Powers

• Implied Powers - Necessary & Proper Clauseeapartykc.com

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Enumerated Powers Regulate Interstate and

International Trade

Conduct foreign affairs

Raise and support an army

Coin and print money

Establish a postal system

Govern territories, admit new states, and regulates immigration

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Reserved Powers

Public safety, health and welfare

Intrastate commerce

Establishing local governments

Conducting elections and voter qualifications

Establishing a public school system

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Concurrent Powers

Enforce the law

Establish courts

Collect taxes

Borrow money

Provide for the general welfare

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Positives and Negatives of

Federalism• Negative view: Federalism

blocks progress and protects powerful local interests

• Positive view: Federalism contributes to governmental strength, political flexibility, and fosters individual liberty• Federalist #10: small

political units allow all relevant interests to be heard

• Federalism increases political activity

Is California a fuel-economy bully?

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Unions Still Block Education Reform

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Federalism: A Bold New

Plan• No historical

precedent

• Tenth Amendment was added as an afterthought to clarify the limits of the national government’s power

• Elastic language in Article I: Necessary and Proper Clause expands federal power

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McCulloch v. Maryland

• Could Congress charter a national bank? Yes, even though this power is not explicitly in the Constitution (Necessary and Proper Clause)

• Could states tax the national bank? No, because “the power to tax is the power to destroy”

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Selective Incorporation• Initially the Bill of Rights did

not apply to the states It was not until the

passage of the 14th Amendment that the Supreme Court began to apply them to the states under the “due process” and equal protection of the laws”

• Through a series of court cases, known by the process of selective incorporation, the Supreme Court began to apply certain federal rights to the states

OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al.

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Nullification• The states had the

right to “nullify”, (declare null & void) acts the state deemed unconstitutional

• Doctrine first supported by Madison & Jefferson

• Later used by John C. Calhoun to resist federal attempts to restrict slavery

• The north’s victory in the Civil War ended any attempts to use this doctrine (or did it???)

mediamatters.org

Napolitano asks Palin, Rep. Paul, if states can "nullify federal behavior which is obviously harmful to property and freedom"June 12, 2010 12:05 pm EThttp://mediamatters.org/mmtv/201006120009

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Federalism Over Time

• Dual federalism: Both national and state governments are supreme in their own spheres, which should be kept separate

• Hard to make distinctions between state and federal spheres; distinctions between them were blurred

• But Supreme Court has strengthened states’ rights in several recent cases.

The Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectfully, or to the people.

Even though there has not been an explicit case, this has been the background source for a number of critical cases limiting the commerce clause.

georgiafirst.org

http://eyeblast.tv/public/video.aspx?v=GdqGZuqG4z

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Supreme Court Cases

• U.S. v Lopez – Congress exceeded the use of the interstate commerce clause power by prohibiting guns in a school zone

• U.S. v Morrison – overturned the Violence against Women Act – attacks against women are not and do not substantially affect interstate commerce

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State Sovereignty• The state does have

some specific areas it controls:

• Police Powers-local law enforcement. Most criminal laws are state not federal laws

• Education-states and local governments decide most educational issues

• Health & Welfare

• Public Land & Water Use

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Direct

Democracy in

the States

• Different states allow different ways for the people to control Democracy

• Initiative-Not in Wisconsin (petition signed by voters – direct becomes law – indirect – referred to the legislature)

• Proposition-Not in Wisconsin

• Referendum-In Wisconsin (legislature or school board)

• Recall-In Wisconsin

mccsc.edu

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Grants in

Aid

• Dramatically increased in scope in 20th century

• Grants were attractive to state officials for various reasons

• Required broad congressional coalitions with wide dispersion of funds, because every state had incentive to seek grant money

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Why were grants popular?

• The money was there, the federal government had, in the 1920’s, a huge surplus of money.

• It had new a new source of money (The Income Tax).

• The federal government could always print more money.

• States could start programs without increasing state taxes. (Good Politics)

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Why have grants become

unpopular?• During the 1960s the

federal government started using grants to “encourage” states and local governments to do activities the states might not want to do just to get the money.

• Occasionally the federal government bypassed states and dealt directly with local governments.

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Grants v. Revenue Sharing

• Categorical grants for specific purposes defined by federal law; often require local matching funds

• Block grants (sometimes called special revenue sharing or broad-based aid) devoted to general purposes with few restrictions—states preferred block to categorical grants

• Revenue sharing (sometimes called general revenue sharing) requires no matching funds and can be spent on almost any governmental purpose

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Federal Aid and Federal Control• Block Grants : consolidation of

several categorical or project grants into one general purpose (community redevelopment)

• Conditions of aid: tell state governments what they must do if they wish to receive grant money

• Mandates: federal rules that states or localities must obey, generally have little or nothing to do with federal aid

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Common Conditions of Aid

•Civil Rights

•Minority Hiring's

•Minority Businesses

•Prevailing Wage

•Environmental Issues

Prevailing Wage is defined as the hourly wage, usual benefits and overtime, paid to the majority of workers, laborers, and mechanics within a particular area.

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Mandates• American with

Disabilities Act – required businesses, state, and local governments to provide the disabled with equal access - no clear-cut definition of what it meant or the cost to implement the program

• School desegregation plans – court ordered mandates

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The

Changing

Purpose of

Federal

Grants to

State and

Local

Governmen

ts

Federal Grants to State and Local

Governments, 1984-2004

Devolution • Devolution initiatives returned program management to the states, with some federal guidelines, but there is no guarantee of federal support

• Block grants continue to fund programs

• Welfare Reform Act of 1996 - AFDC (Aid to Families with Dependent Children) – welfare – turned into a state program – states set the rules for receiving aid and benefits – welfare to work programs

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The Devolution Revolution• Devolution proponents

harbor a deep-seated ideological mistrust of federal government and believe that state governments are more responsive to the people

• Deficit politics encouraged devolution

• Devolution is supported by public opinion, but the strength of that support is uncertain oregoncommentator.com

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Congress and Federalism

• Members of Congress represent conflicting constituencies (good of the country v good for the state)

• The erosion of parties increases political competition – Congressional members are free agents

• Americans differ in the extent to which we like federal versus local decisions