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 states, regions, or provincial governments are supreme”

It is an issue of sovereignty (independent legal authority) which must CONSTITUTIONALLY be divided between a central governing authority and constituent political units (“subnational units” like states or provinces)

Questions of Federalism are creating quite the brouhaha these days

• Gay rights• Gun control• Health Care• Immigration law

The Geographic Division of Government Authority

states are sovereign and national is allowed to do ONLY what states permit

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

sov shared: in some matters national govt is supreme and other the states are: here states are supposed supreme in social, moral and family issues, including criminal laws

• Most federal states also have unitary lower levels of government. Thus while the United States itself is federal, most (if not all) U.S. states are themselves unitary, with counties and other municipalities having only the authority given (devolved) to them by the state constitution or legislature.

FEDERALISM IS NOT SEPERATION OF POWERS

Structural sep of authority

Geographic sep of authority

concentrated dispersed

centralized

decentralized

Separation of Governmental Authority

FEDERAL

UNITARY

CONFEDERAL

Authoritarian Parliamentary Presidential

So as we go from Articles of Confed to Fed . . .

Get more or less centralized?

Articles of ConfederationArticle IIEach 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 ConstitutionAmendment 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.

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______________

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 Wieburgistan, and Congress refuses to fund them, that is a _________ issue

If a state passes a law and it conflicts with a law Congress passes, that is a ______ issue

Who trumps?

There are three essential features that characterize a federal system of governance

First, there must be a provision for more than one level of government to act simultaneously on the same territory and on the same citizens

The American federal system is composed of a national government and the 50 states, both recognized by the Constitution

Second, each government must have its own authority and sphere of power, though they may overlap.

informal term to describe a power sharing arrangement between national and subnational governments whereby the two levels of government share powers

informal term to describe a power sharing arrangement between national and subnational governments where the powers of the two are clearly delineated and do not overlap

Third, neither level of government (federal or state governments) can abolish the other

The Civil War was fought not only on the question of slavery but also central to the conflict were questions of states' sovereignty including the power to nullify 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.

Sources of Federalism1. Art 1, Section 8 enumerated

powers2. Elastic Clause- necessary and

proper to carry out the enumerated powers

3. Commerce Clause4. McCulloch v Maryland- implied

powers and backed up Supremacy Clause

5. Gibbon’s v Ogden (steamboat in NY)- wide interpretation of Congress using interstate commerce

• Trend- favored growing federal power until recently

And it is true, the “Necessary and Proper clause” has expanded those enumerated powers to include implied 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 The Constitution reserves powers not granted to the national government to states, or the peopleThe 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 respectively, or to the people

In the US states are supposedly supreme In which areas?

Source of Power to States1. 10th Amendment2. Federal gridlock- divided gov’t3. Scandals- declining public

confidence- Watergate, debt ceiling)

4. Republican Revolution- block grants, limit unfunded mandates

5. Conservative Supreme Courts-• Rehnquist- US V Lopez-

commerce clause cannot be used to limit guns in school

• Roberts Court-

Effects of federalism

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

Same-Sex Marriages in California before Prop 8 banned them again in 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.

Effects of federalism

Issue of full faith and credit

Advantages to Federalism

1. Keeps Gov’t closer to the people

3. Accommodates diversity; More suitable for heterogeneous peoples and large country

4. Frees national gov’t to focus on big issues while states come up with local solutions

5. Necessary for ratification

6. States can experiment- Mass. Health care

7. Our ideals of individualism

Disadvantages: 1. It is inefficient2. Who gets what and where3. Incoherent4. More expensive5. Race to the bottom6. Lowers voter turnout7. Special interests can thwart8. Confusing- who has

authority on an issue?

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

“race to the bottom”- competition b/w statesto attract businesses with the lowest amount of regulations

Evidence or Unitary or Federal?

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

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

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?

Clean Air Act

EXAMPLE: Most environmental legislation (States are told: Clean up the air . . period).

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?

Example: Civil Rights Legislation

They say yes it is within our authority to regulate _________and pass the Civil rights act

And the “umpire” upholds it:

In Heart of Atlanta Motel v. United States (1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers;

in Katzenbach v. McClung (1964) the Court ruled that the government could regulate Ollie's Barbecue, which served mostly local clientele but sold food that had previously moved across state lines;

and in Daniel v. Paul (1969), the Court ruled that the government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.

Another Example: Americans with Disabilities ActAmericans 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

http://www.msnbc.msn.com/id/7713931/ns/us_news-education/t/utah-snubs-federal-no-child-left-behind-act/

Carrots or strings attached to grants as "condition of aid"

These proliferated in 1970's

tells state govs. what they must do if they want money

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)

Then there is the carrot approach . . .

CNN July, 1996: Louisiana's legislature was the last to raise the minimum drinking age to 21 in order to save $14 million to $18 million per year in federal highway funds. In March, the state's highest court ruled that the minimum age hike was unconstitutional.

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.

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/

http://www.reuters.com/article/idUSTRE66R45C20100728?rpc=21

Key parts of Arizona anti-immigration law blocked

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/

Another way Congress can tell the states what to do:

14th Amendment, Section 5:

14th amendment section 1 says “No State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” Section 5 goes on to state “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”

On that basis, the Court upheld a provision of the Voting Rights Act that prevented states from using English language literacy tests as qualifications for voting. The Court decided that the law was a valid exercise of Congress's enforcement power under the Fourteenth Amendment, because it was aimed at remedying state-sponsored discrimination

But the discrimination by the states must be well documented. . .

Facts of the CaseIn 1994, while enrolled at Virginia Polytechnic Institute (Virginia Tech), Christy Brzonkala alleged that Antonio Morrison and James Crawford, both students and varsity football players at Virginia Tech, raped her. In 1995, Brzonkala filed a complaint against Morrison and Crawford under Virginia Tech's Sexual Assault Policy. After a hearing, Morrison was found guilty of sexual assault and sentenced to immediate suspension for two semesters. Crawford was not punished. .. . Ultimately, Brzonkala dropped out of the university. Brzonkala then sued Morrison, Crawford, and Virginia Tech in Federal District Court, alleging that Morrison's and Crawford's attack violated 42 USC section 13981, part of the Violence Against Women Act of 1994 (VAWA), which provides a federal civil remedy for the victims of gender-motivated violence. Morrison and Crawford moved to dismiss Brzonkala's suit on the ground that section 13981's civil remedy was unconstitutional. In dismissing the complaint, the District Court found that that Congress lacked authority to enact section 13981 under either the Commerce Clause or the Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for it. Ultimately, the Court of Appeals affirmed.

• Question• Does Congress have the authority to enact

the Violence Against Women Act of 1994 under either the Commerce Clause or Fourteenth Amendment?

• Conclusion• No. In a 5-4 opinion delivered by Chief Justice William H.

Rehnquist, the Court held that Congress lacked the authority to enact a statute under the Commerce Clause or the Fourteenth Amendment since the statute did not regulate an activity that substantially affected interstate commerce nor did it redress harm caused by the state. Chief Justice Rehnquist wrote for the Court that [i]f the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of...Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States." Dissenting, Justice Stephen G. Breyer argued that the majority opinion "illustrates the difficulty of finding a workable judicial Commerce Clause touchstone." Additionally, Justice David H. Souter, dissenting, noted that VAWA contained a "mountain of data assembled by Congress...showing the effects of violence against women on interstate commerce."

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

Or an implied powers created through the “Elastic” or “necessary and proper” clause

But only if Congress is legitimately exercising . . . .

An enumerated Power . . With the commerce clause being especially useful to them:

Or if there is a clear pattern of discrimination so they say they can use section 5 of the 14th amendment

Any other time . . . States trump

Because of general principles of federalism

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 because of the 11th amendment which recognizes the states sovereign immunity so the feds can’t allow individual damage suits against state officials

Briefly . . . Federalism in the US: the ebb and flow

Early sources of Federal PowerMcCulloch: Supremacy clause and N & P clause allow Congress to establish a national bank, even if “bank” is not enumerated, the power is impliedGibbons 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 Warpublic 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

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 the Rehnquist Court

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

And in the "Noughties" . . . The struggle between the two goes on

Supreme court goes both ways

Raich

Printz

Vs

Morrison