3 The Federal System

IA_1/polisci/presidency/OConner_Ch03_Federalism_Seg1_ v2.html 3 Video: The Big Picture

Trace the roots of the federal system and the Constitution’s allocation of powers between the national and state governments Determine the impact of the Marshall Court on federalism Learning Objectives

Describe the emergence and decline of dual federalism Explain how cooperative federalism led to the growth of the national government at the expense of the states Learning Objectives

Describe how the federal budget is used to further influence state and local governmental policies Explore the role of the judiciary as arbiter of federal–state conflicts Learning Objectives

Assess the challenges in balancing national and state powers and the consequences for policy making Learning Objectives

IA_1/polisci/presidency/Seg2_Federalism_v2.html 3 Video: The Basics

Hamilton No. 16 & 17 Theme -Insufficiency of the Present Confederation to Preserve the Union unity of the country Unity, A standing, national army represents the nation's right to enforce the laws, individual agendas of the differing states. “Notes of Ancient and Modern Confederacies." Amphictyonic Council, Holy Roman Empire, Swiss Confederation, Confederation of the Netherlands. Interstate tensions, warlike.

Madison Summary of Federalist No. 14 While a Democracy can only cover a small space, Republics may span over many provinces. This is because in a Democracy, all people must gather into one place to vote. In a Republic the people elect representatives to vote. The greatest danger to a Republic is to confuse it with a Democracy. It is easier to be united and have to travel to a distant province to represent the people, than for that person to be isolated and attacked from all sides. So, if Americans do not fall for a Democracy, a Republic will provide for a strong union, additional states, and security.

Federalism/Federal System Federalism Political system in which power is divided and shared between the national/central government and the states. Both national and state governments exercise power over the same geographical area. Created by the Constitution of 1787 Creates more access points to government. Think linkage institutions. Additionally, federalism strengthens the judicial branch, since it is often called up to resolve conflicts. decentralizes political power in our politics.

FIGURE 3.1: Where does governmental authority come from? 3.1

FIGURE 3.3: How many governments exist in the United States? 3.1

County – LA County Board of Supervisors Municipal – West Covina City Government Township – Hillsbrouogh, Marin County School District – Hacienda/La Puente Special District -Special districts are a form of local government created by a local community to meet a specific need. Transit District Utility District Water District Waste Management Agency/Authority Federalism

Local Governments Under the Constitution  No power under Constitution  Operate under state charter (Dillon’s Rule, 1868)  Counties  Municipalities  Towns  Special districts Most numerous form of government 3.1

Roots of the Federal System The Framers worked to create a political system that was halfway between the failed confederation of the Articles of Confederation and the tyrannical unitary system of Great Britain. The three major arguments for federalism are: 1.the prevention of tyranny; 2.the provision for increased participation in politics; 3.and the use of the states as testing grounds or laboratories for new policies and programs.

Roots of the Federal System  National Powers Under the Constitution  State Powers Under the Constitution  Concurrent Powers Under the Constitution  Powers Denied Under the Constitution  Interstate Relations Under the Constitution  Local Governments Under the Constitution 3.1

National Powers Under the Constitution  Article I, section 8 Enumerated [Delegated]powers of legislative branch Coin money Conduct foreign relations Provide for army and navy Declare war Collect duties and taxes  Necessary and proper clause (elastic) Enact laws for exercising enumerated powers Implied powers  Supremacy clause Article VI 3.1

National Powers Under the Constitution Article II – Executive branch Clause 1: Command of military; Opinions of cabinet secretaries; Pardons. Clause 2: Treaties; Senior-level appointments and Judicial nominations. Clause 3: Recess appointments

Inherent powers are those powers that belong to the national government simply because it is the national government. Examples - declare war, foreign affairs, acquire new territory. ONLY the national government is allowed to regulate commerce with foreign nations Example NAFTA, CAFTA. National Powers Under the Constitution – Inherent Powers

Reserved Powers of the States  Reserved powers are powers retained by the states. 10th Amendment: "The power not delegated to the United States by the Constitution., not prohibited to it by the States, are reserved to the States or to the people." State powers then are called reserved powers.  In our federal system, the powers of the state governments are ultimately granted by the United States Constitution. The most significant reserved power given to states is the power to determine the qualifications for voting, set time and place of elections.  Courts have interpreted reserve powers as falling into three categories:  1. Public education  2. Police powers; criminal laws. For example, as a result of our federal form of government, the death penalty in the United States varies substantially state by state.  3. Right to regulate commerce within a state, i.e., intrastate commerce. 3.1

Concurrent Powers Under the Constitution  Overlapping powers Power to tax Borrow money Establish courts Charter banks Spend money for general welfare 3.1

FIGURE 3.2: How is governmental power distributed in the federal system? 3.1

Powers Denied Under the Constitution [Prohibited Powers]  Article I, section 9 lays out powers denied to the central government.  For example: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  Article I, section 10 lays out the powers denied to the states. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. 3.1

Interstate Relations Under the Constitution  Supreme Court settles disputes  Full faith and credit clause Article IV  Privileges and immunities clause  Extradition clause  Interstate compacts 3.1

Explore the Simulation: You Are a Federal Judge _1/2013_mpsl_sim/simulation.html?simulaURL=3 3.1

Federalism and the Marshall Court  Defining National Power: McCulloch v. Maryland (1819)  Affirming National Power: Gibbons v. Ogden (1824)  Limiting the Bill of Rights: Barron v. Baltimore (1833) 3.2

Defining National Power: McCulloch v. Maryland (1819)  Implied powers were first established in the United States Supreme Court case of McCulloch v. Maryland (1819).  In McCulloch, the Supreme Court held that because of the "necessary and proper" clause in Article 1, Section 8 of the Constitution, the national government had additional powers that were implied in that clause.  Implied powers are those powers of the national government that flow from its enumerated powers and the "elastic clause" of the Constitution. 3.2

Affirming National Power: Gibbons v. Ogden (1824)  Congress’s authority under commerce clause disputed Power to regulate just products or commercial activity too?  Ruling: Congress can regulate commercial activity New York had no authority to grant monopoly 3.2

Limiting the Bill of Rights: Barron v. Baltimore (1833)  Due process clause Guaranteed by Fifth Amendment Action by state, not federal, government caused damages Federal government not at fault for state actions 3.2

Dual Federalism: States’ Rights, the Civil War, and Reconstruction  States Assert Their Powers: Nullification  States’ Rights and the Dred Scott Decision  Reconstruction and the Transformation of Dual Federalism  Amending the National-State Relationship 3.3

States Assert Their Powers: Nullification  Nullification States declare federal laws invalid  Alien and Sedition Acts (1798) Unconstitutional  “Tariff of Abominations” (1828)  Southern states use nullification to resist anti-slavery laws 3.3

States’ Rights and the Dred Scott Decision  Dred Scott v. Sandford (1857) Slaves were property, not citizens Congress could not ban slavery in new territories Enhanced states’ power 3.3

Reconstruction and the Transformation of Dual Federalism  Nullification, dual federalism destroyed by Civil War  Reconstruction New state constitutions  Supreme Court limits state power Monopolies outlawed 3.3

How did the relationship between state and federal governments change after the Civil War? 3.3

Amending the National-State Relationship  Sixteenth Amendment Money is power  Seventeenth Amendment (1913) Direct election of senators 3.3

IA_1/polisci/presidency/Seg3_Federalism_v2.html 3.3 Video: In Context

The Evolution and Development of Federalism Dual Federalism (layered cake federalism) States and the federal government have separate and distinct jurisdictions. 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) Barron v. Baltimore (1833) Dred Scott v. Sanford (1857)

Cooperative Federalism: Growth of National Government  Functions of government are not neatly parceled out.  Shared functions  Grant – In –Aid programs for education, police, health & safety. 3.4

When do national and state governments work together? 3.1

Cooperative federalism In the Roosevelt New Deal period during the depression of the 1930s, federalism moved into a cooperative system. Under cooperative federalism, the national and state governments undertook joint ventures such as the financing the building of the Pennsylvania Turnpike. The national government became the major provider of resources while the state governments became the major implementers of the joint programs. The line separating the national government and the state governments became blurred. This type of relationship became analogous to a marble cake with money serving as the "glue" that held the federal system together. Federal government enhances its power and governance becomes "we are all in this together, so we should cooperate."

President Lyndon Johnson's Creative Federalism as embodied in his Great Society program, was, by most scholars' assessments, a major departure from the past. It further shifted the power relationship between governmental levels toward the national government through the expansion of grant-in-aid system and the increasing use of regulations Creative Federalism and the Great Society sought to expand the national government's role in an effort to achieve socially desirable outcomes (i.e reductions in poverty, elimination of hunger). federal regulations increased as the federal government became increasingly involved in areas that had previously been the purview of state and local governments or the private sector. Creative Federalism

Creative (Picket Fence) Federalism

Regulatory Federalism A model of federalism — regulatory federalism — evolved with the advent (since the mid-1960s) of extensive federal regulations mandating functions for states and localities to perform. Regulatory federalism is a term used to describe the emergence of federal programs aimed at, or implemented by, state and local governments. Environmental Protection Agency - EPA Executive Order (Nixon)

1.Environmental regulations, and regulations on civil rights, hiring, and workplace safety created new mandates for state actions. 2.Often these mandates came without federal funds, i.e., "unfunded mandates," to cover any of the implementation costs. For this reason, mayors, governors, and local officials have bemoaned the problem of unfunded mandates. They simply put an unwanted financial burden of states and local communities. Unfunded mandates are federal laws that require states to meet certain regulatory standards, but provide no money to help the states comply. 3.Congress enacted a law in 1995 to curtail the practice. New York spent $1.3 billion to make its subways accessible to the disabled, without federal assistance. Regulatory Federalism

New Federalism Richard Nixon launched revenue sharing in 1972 under the rubric of "New Federalism." Federal money was given to state and local governments with no restrictions on how the money was to be spent. The program ran until it was terminated in 1986, a casualty of deficit reduction. Over the 14 year period, $85 billion was disbursed to the state and local governments with two- thirds going directly to local governments Ronald Reagan went back to "New Federalism" in which he set out to get the national government out of programs that were, in his view, the responsibility of state and/or local governments.

Block grants and revenue sharing, reduce federal requirements, giving state grantees greater freedom while setting the stage for withdrawal of federal fiscal support. Republican Congress pursues "devolution revolution." A new Republican majority in Congress moves to hand day-to-day control of many federal programs to the states. Most important, Congress gives new authority to state governments to overhaul federally mandated programs, most notably welfare. New welfare policies use block grants to give states more discretion over spending. Congress also adopts a law compelling the federal government to pay states for the enforcement of any new federal policies or mandates. In addition, budget considerations work to limit the growth of federal programs and initiatives affecting state and local government. New Federalism “Your on your own federalism ” Devolution

Devolution Personal Responsibility and Work Opportunity Reconciliation Act of 1996 [Welfare to Work Act] Eliminated welfare and transferred the money to states as block grants States received wide latitude on how to administer “workfare” 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

Pros of Federalism 1. Federalism permits diversity and diffusion of power. 2. There are a number of local units, not remote bureaucracies, which deal directly with local problems. (Local governments may better understand local problems.) 3. There are multiple access points for citizens to participate in democracy. 4. There is less chance that individual rights will be abused by a large, aloof bureaucracy where power is concentrated in a few hands. 5. Multiple layers of government provide more avenues for innovation, experimentation, and problem solving. Many New Deal & Great Society programs copied the states. 6. It suits a large country with a very diverse population like the United States.

Drawbacks of Federalism 1. Federalism permits some state and local areas to continue race discrimination (Southern school de facto segregation). 2. Under a federal system, special interests and certain localities can frustrate the realization of national goals. (Examples: poor wages and working conditions for coal miners in West Virginia; automobile and oil industries in some areas) 3. Local communities may lack the expertise to solve problems, and may provide favoritism to some at others' expense. 4. Law enforcement and justice maybe unevenly applied among the states (death penalty laws). 5. Local autonomy may get in the way of national unity.

Need for National Action Arises: The New Deal  Great Depression  New Deal programs increased federal authority States could not solve these problems on their own  Local government involvement  Constitutional challenges 3.4

How did FDR’s actions change conceptions about federalism? 3.4

Federal Grants to State and Local Governments  Categorical Grants  Block Grants  Programmatic Requests 3.5

Categorical Grants  Grants serve 3 purposes Provide funds Address national problems like clean air Redistribute funds between rich and poor states  Categorical grants are for specific purpose 3.5

Block Grants  Block grants less restrictive Give states more discretion in spending funds Devolution revolution 3.5

Unfunded Mandates  No Child Left Behind (2001)  Unfunded Mandates Reform Act of

Who supported scaling back the federal government and increasing the use of block grants? 3.5

Programmatic Requests  Funds earmarked for specific projects within states  Secured by lobbyists or members of Congress for their districts Bringing the pork back home 3.5

Video: Thinking Like a Political Scientist IA_1/polisci/presidency/Seg4_Federalism_v2.html 3.5

Explore Federalism: Which States Win or Lose in the Federal Aid Game? _12/pex/pex3.html 3.5

Judicial Federalism  The Rehnquist Court  The Roberts Court 3.6

The Rehnquist Court  Appointed by Reagan  Committed to states’ rights  Rolled back federal authority U.S. v. Lopez (1995) U.S. v. Morrison (2000) Printz v. U.S. (1997) 3.6

The Roberts Court  Has decided with federal government Immigration Health care reform 3.6

IA_1/polisci/presidency/Seg5_Federalism_v2.html 3.6 Video: In the Real World

Toward Reform: Attempts to Balance National and State Power  Price of Federalism  Progressive Federalism 3.7

Price of Federalism  Redistributive policies Provide services such as health care to citizens  Developmental policies. Build roads or infrastructure 3.7

Progressive Federalism  Pragmatic approach Coercion and cooperation  “Free-for-all” federalism 50 state standards costly and difficult 3.7

How do views on the role of government change? 3.7

IA_1/polisci/presidency/OConner_Ch03_Federalism_Seg6 _v 3 Video: So What?

Further Review: On MyPoliSciLab 3  Listen to the Chapter  Study and Review the Flashcards  Study and Review the Practice Tests