Federalism

How the circle and the squares get along

Terms you need to know after this presentation…

• Federalism• Federalist #51• Delegated powers• Reserved powers• Concurrent powers• Prohibited powers• Elastic clause• McCulloch v. Maryland

(1819)• Commerce clause• Gibbons v. Ogden

(1824)

• Dual Federalism• Cooperative

Federalism• Grants-in-aid• Categorical grant• Block grant• Mandate• Devolution• Pros and cons of

federalism

Disaster Relief

• Who’s job was it to clean up New Orleans and the rest of the coast after Katrina?

No Child Left Behind

• Should the national gov’t step in to regulate school performance?

What is Federalism?

• Federalism – Two or more governments exercise power and authority over the same people in the same territory

• OR… the relationship between the federal government (circle) and the state governments (squares)

Federalist #51

• Defends the Constitution• Explains why a strong gov’t is necessary

– “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

• Defends separation of powers between state and national gov’t

Powers

- Delegated Powers (enumerated powers) – powers given to Fed gov’t by Constitution- Interstate/foreign commerce, war, tax/spend

- Reserved Powers – state power alone- Licensing, local gov’t, police powers

- Concurrent Powers – shared powers- Taxation, borrow money, establish courts

- Prohibited Powers – denied from both- Ex. Neither gov’t can tax exports

Elastic Clause• Aka – “Necessary and Proper Clause”• Art. I, Sec. 8, Cl. 18 - "The Congress shall have 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."

• Impossible to predict all powers Congress will need to function, sometimes we might have to allow Congress extra powers to fulfill their delegated powers

LOOSE CONSTRUCTION

• Alexander Hamilton believed that the Constitution should be “the supreme law of the land”.

• Hamilton relied on the “necessary and proper” clause as support for broad interpretation.

• These are sometimes called “implied powers”.

STRICT CONSTRUCTION

• Supported by Thomas Jefferson who felt that the main threat to personal liberty would come from the national government, not the states.

• Jefferson’s preference for states rights was based on 10th Amendment that reserves powers to the states.

• Louisiana Purchase???

McCulloch v. Maryland (1819)

Background• Bank of the US operated in Maryland• Maryland did not want BoUS to operate in

state, competition unwanted, unfair• Maryland taxed the bank to put it out of

business• McCulloch, BoUS employee, refused to

pay the state tax

McCulloch v. Maryland (1819)

• Is a Bank of the US Constitutional?YES. The national gov’t has certain implied

powers that go beyond delegated powers. US needs a national bank for borrowing, lending, holding minted money, etc. All of which are delegated powers.

McCulloch v. Maryland (1819)

Can a state tax the federal gov’t?-NO. The federal gov’t is supreme. Since the BoUS is constitutional, only the feds may tax it.

-John Marshall reaffirmed Supremacy Clause and Elastic Clause

-National (Federal) Gov gets STRONGER

Commerce clause• Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have

power - To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

• Congress has used the elastic clause to stretch this power

• What is commerce? “Buying and selling of goods and services.”

• Congress given the power to regulate commerce between foreign countries and US as well as state to state… they control business law.

Gibbons v. Ogden (1824)

• 1824 – aka “The Steamboat Case”• Ogden received a state licensed monopoly

to run a ferry across the Hudson River• Gibbons also saw the potential of the

traffic between NJ and NY and obtained a federal license.

• Ogden sued saying he had the valid state license, even though Gibbons had US license

Gibbons v. Ogden (1824)

Result – Gibbons wins• Expanded national power in all areas of

commerce law because nation overruled state in interstate trade issues

• Fed Gov’t gets STRONGER• All trade today is primarily controlled by

national law

Commerce Clause

• Who cares? Why is it important?• Gibbons v. Ogden ruling makes a loop

hole giving Congress power to take control over any issue involving the movement of people, or things

• Fed gov’t power increased

United States v. Lopez (1995)

• Commerce clause quiz!!!• 1995 – “Gun Free School Zone” law

banned possession of a firearm within 1000 feet of a school, 12 year old Lopez carried a gun on to the property

• Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce”

• LIMITED National government power

Gonzalez v. Raich (2005)

• Commerce clause quiz!!! Medicinal Marijuana• Controlled Substance Act (1970) – US gov

regulates the manufacture, importation, possession, and distribution of certain drugs

• Medicinal marijuana was legalized in California, but illegal to US government. Raich argued commerce clause should not take effect because 1) there was no business transactions and 2) there were no state border issues.

• Supreme Court ruled 6-3 against Raich saying that the federal government could trump state laws that permitted medicinal marijuana

2 Federalisms?

• OLD SCHOOL – Dual Federalism– Federal and state governments remain

dominant in their separate spheres of influence

– Gibbons v. Ogden proved life is not that simple

• NEW SCHOOL – Cooperative Federalism– State and Federal governments work together

to solve complex problems

2 Federalisms

TWO METAPHORS…

• Dual Federalism – Layer Cake

• Cooperative Federalism – Marble Cake

Federal

State

Fiscal Federalism

• Fiscal means $• Q – How do you get the states to do things

they normally wouldn’t do?• A – Money• Q – What is the answer to any question

ever asked?• A – Money

Grants-in-Aid• Money paid from one level of government to

another to be spent for a specific purpose• Categorical Grants - target specific

purposes and “strings attached.” (States receive funds if state raised age to 21 and lowered BAC to .08)

• Block Grants – given for broad, general purposes and allow more discretion on how the money is spent (ex. Welfare reform)

Mandates

• A requirement that a state undertake an activity or provide a service

• Most apply to Civil Rights and the Environment

• Often times the states or local gov’ts have to pay the bill of the mandate set by Congress

Mandates• 1986 – Asbestos Emergency Response Act,

Handicapped Children’s Protection Act• 1988 – Drug-free Workplace Acts, Ocean

Dumping Ban Act• 1990 – Clean Air Act• EX – Columbus, OH spends 23% of the city

budget trying to meet environmental mandates (including testing for pesticides used on rice and pineapple)

• EX – Public schools have to use Internet filtering or schools lose e-rate subsidies

Change in Spending• Shift towards Federal Gov’t Spending

Federal State Local (City)

1929 17% 23% 60%1939 47% 23% 30%1960 64% 17% 19%1997 66% 19% 15%2013 54% 22% 24%

Devolution

• Devolution is the return of power to the state gov

• Idea is fueled by distrust of the federal gov and the desire to save money by reducing the size of the “bloated federal government”

Devolution Example• Personal Responsibility and Work Opportunity

Reconciliation Act of 1996• Eliminated welfare and transferred the money to

states as block grants• States received wide latitude on how to administer “workfare”

but with the knowledge that Congress was counting on anti-poverty spending”

• Strings attached: head of family must work or lose benefit; lifetime benefits limited to 5 years; unmarried mother < 18 only receive $ if stay in school and live with adult; immigrants ineligible for 5 years

Federalism is good

Living under 2 governments is great…• Built on compromise, promotes unity• Gov’t duties can be split up• Brings gov’t closer to people• Allows for state gov’t to address issues in

unique regions of the country• Allows states to experiment with policy

before enacting it at the federal level – Ex. Vermont’s free health care for children

Federalism is bad

Living under 2 governments is bad…• States can impede progress of Nation• States are unequal• States have different policy• Easier for states to be dominated by

interest groups