Chapter 3: Federalism

Learning Objectives Why does the US have federalism? How has American federalism evolved from the founding to the present? Which level of government does federalism favor – national or state? Where is sovereignty located in the American political system? How is power divided between the national government & the states under the Constitution? What competing values are at stake in federalism? Who should decide which matters ought to be governed mainly or solely by national laws?

Federalism = Federal System Federalism: system in which national government shares power with state/local governments + view: states can stand up against federal corruption - view: states can get away with corruption In US history, the most persistent source of political conflict has been between national & state governments

Why do we practice federalism in the US Why do we practice federalism in the US? The line of power begins with the citizens.

Lines of Power in a… Sovereignty held by national government; states dependent on its will

Lines of Power in a… States are sovereign; national government is allowed to do only what states permit

Lines of Power in a… Sovereignty is shared

3 Systems of Government: Recap Unitary: sovereignty is held by federal government; states are dependent on its will Confederation: states are sovereign; federal government is allowed to do only what the states permit US under AOC Federal = Federalism: sovereignty is shared between states & federal government US under Constitution

The Cakes Dual federalism = layer cake Cooperative federalism = marble cake

3 Types of Federalism Dual federalism (1789-1932) National government supreme in its sphere & states supreme in theirs 2 spheres should be kept separate Cooperative federalism (1933-1968) Great Depression led to this Overlap in powers of federal & state governments Devolution (1968-today): effort to slow growth of federal government by returning many functions to the states

Types of Powers in the Constitution Delegated/Enumerated: specifically assigned in the Constitution Implied: not specifically assigned but deemed necessary & proper Inherent: powers governments have historically possessed Concurrent: powers federal & state governments have simultaneously Reserved: all powers not specifically delegated to the federal government are reserved (saved) for the states Prohibited: powers the government cannot exercise

Notes: marriage/divorce bullet under Reserved Powers has changed due to 2015 Supreme Court case Obergefell v. Hodges

Federal v. State Powers Federal State Amendment process Declaring war Military Foreign policy & treaties Printing money Regulating interstate commerce Maintain postal services State Ratifying amendments Conducting elections Establishing local governments Regulating intrastate commerce Licensing Police power

10th Amendment “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” Assumed during Constitutional Convention Added to the Constitution to make the assumption clear

“Elastic” = “Necessary & Proper” Clause in Article I “Congress shall have Power... To make all Laws which shall be necessary & proper for carrying into Execution the foregoing Powers, & all other Powers vested by this Constitution in the Government of the US, or in any Department or Officer thereof.” Hamilton & Marshall wanted federal government’s power loosely defined Jefferson wanted federal government’s power narrowly defined Has increased federal government’s power over time

McCulloch v. Maryland (1819) Background: Congress created Second Bank of the US in 1816 It had a branch in Maryland, which Maryland tried to tax McCulloch, the bank’s cashier, refused to pay the tax Questions: Could Congress create a National Bank? Could states tax national programs? Decision: Congress has the power to create the Bank since it is necessary & proper (implied power); states cannot tax in that manner since they are not supreme Increased federal government’s power

Gibbons v. Ogden (1824) Background: Many states required out-of-state steamboat owners to pay high fees to use their waterways NY allowed only 2 NY owners to use their waterways An owner trying to trade in NY & NJ argued that this was unfair Question: Could states interfere with interstate commerce? Decision: Only Congress can control interstate commerce Increased federal government’s power

Nullification Nullify: declare null During 1700s & 1800s, Kentucky, Virginia, & South Carolina declared various national laws unconstitutional; led to Civil War Civil War settled the issue that states cannot do this Increased federal government’s power

A Devolution Revolution? Most Americans favor devolution, but not if it means cutting government programs that benefit most citizens In 2011, many states faced debts, causing them to consider which responsibilities are theirs & which belong to federal government

Actions Citizens Can Take Within States Initiative: allows voters to place a legislative measure (vote) directly on their state’s ballot via a petition (~25 states) Referendum: procedure that enables voters to reject a measure adopted by their state legislature (~25 states) Recall: procedure that enables voters to remove an elected official from office via a petition (~17 states)

Fiscal Federalism: Grants-in-aid Financial assistance from federal government to states 2 types Categorical grant: specific purpose; comes with restrictions on how it should be spent Block grant: broad purpose; few strings attached; began in 1960s

Fiscal Federalism Conditions of aid: what states must do to receive a grant-in-aid Mandates Federal government tells states what it must do – not optional Apply whether or not aid is accepted Most concern civil rights & environmental protection Mandate: school-desegregation plans are best-known example

Federal Grants to State & Local Governments in 2011

The Changing Purpose of Federal Grants to State & Local Governments

United States v. Lopez (1995) How does this compare to McCulloch v. Maryland? Gibbons v. Ogden? Interview with Lopez’s lawyer: https://www.c- span.org/video/?61488- 1/us-v-lopez