National and State Powers FEDERALISM National and State Powers

Learning Intention: In a federal system, which activities and or responsibilities are most appropriately performed at the national, state, and local levels of government?

Scenario: On a blank sheet of paper, collaborate with your partner and read the following and answer the questions: A powerful hurricane is spinning in the Atlantic Ocean, and it appears to be on a direct path to hit the Virginia coast. Experts are predicting that the storm will hit at high tide, bringing a large storm surge. The weather service warns that low-lying areas will be completely under water. Further inland, the storm is predicted to bring large amounts of rain, high winds, and possible tornadoes. Damage could be extensive for hundreds of miles. Who is going to help the citizens of Virginia and its localities in their time of need? Make a list of all the services that will be needed if this event is catastrophic for VA residents.

Origins of the Federal System Under the Articles, the U.S. was governed by a confederation. National government derives power from states Led to weak national government Framers remedied problems with a federal system Federal system U.S. was the first country to adopt a federal system of government The national government and state governments derive all authority from the people. Different from unitary system The local and regional governments derive all authority from a strong national government.

Federalism and the Marshall Court Two rulings in the early 1800s had a major impact on the balance of power between national and state governments. McCulloch v. Maryland (1819) Upheld power of national government and denied the right of state to tax national bank Gibbons v. Ogden (1824) Upheld broad congressional power to regulate interstate commerce

Dual Federalism: The Taney Court, Slavery, and the Civil War Belief that having separate and equally powerful levels of government works best Implication: National government should not exceed its constitutionally enumerated powers and all other powers are, and should be, reserved to the states or the people. Dred Scott v. Sandford (1857) Declared the Missouri Compromise unconstitutional Congress lacked the authority to ban slavery in the territories.

Federalism - continued In the US, there are multiple levels of government. The US is a federal system, where both the national government and state governments have spheres of power and responsibility that at times can and do overlap. According to the Federal Emergency Management Agency (FEMA), the major disaster process would see different layers of the government responding in a variety of ways to meet the needs of citizens. Those ways include: Local government responds, supplemented by neighboring communities and volunteer agencies. If overwhelmed, it turns to the state for assistance; The state responds with state resources, such as the VA National Guard and state agencies; Damage assessment by local, state, federal, and volunteer organizations determines losses and recovery needs;

Meeting needs of citizens, continued: A major disaster declaration is requested by the governor, based on the damage assessment, and an agreement to commit state funds and resources to the long-term recover; FEMA evaluates the request and recommends action to the White House based on the disaster, the local community, and the state’s ability to recover; and The President approves the request or FEMA informs the governor it has been denied. This decision process could take a few hours or several weeks depending on the nature of the disaster.

Framers of Federalism In 1788, James Madison expressed his concern over having too much power concentrated in one governing body and described the need to divide power among branches of government. The framers chose federalism to divide power between the national and state governments and preserve the ability of citizens to choose representatives who would govern closer to home. They believed that local and state elected officials would be more familiar with the needs of their own communities and be responsive and accountable to their constituents.

In a nation as large as the US, the issues facing regions can be quite different. The national government and the states often handle different issues and sometimes their efforts overlap. Current discussion on issues ranging from immigration, health care, and environmental regulations have gained national attention. The federal government may take a policy stance that may or may not be mirrored by individual states, which opens the door for controversy to exist. States are not powerless and can be policy innovators when they are the first to identify solutions to key issues and problems. For example, VA may take a very different approach to an issue than Nebraska or Kansas because of differences in regional needs, concerns, and beliefs.

Obligations Between States States are able to create their own policy and laws on certain issues and there are instances when states have obligations toward each other. The US Constitution describes three areas in which states have obligations toward each other: Article IV, S.1 requires that each state recognize the public acts, records, and judicial proceedings of all other states; for example, marriage licenses, drivers license, and birth certificates are generally valid in all states. This is known as full faith and credit. Article IV, S. 2 requires extradition. A state must surrender a person charged with a crime to the state in which the crime is alleged to have been committed. Article IV, S.2 requires states to give citizens of other states the same privileges they afford the citizens of their own state. For example, if you visit another state, you will have to pay the sales tax of that state, but are guaranteed the same police protection.

If you look at the Venn diagram you can see how Americans are served by both their Federal government and their state government.

The diagram also shows states and the national government share certain powers (concurrent powers). Conflicts between states and national authority are often found in the concurrently held powers. Spheres of powers held by each level of government are sometimes merged through the process of distributing federal money to the states, a process known as the grants- in-aid system.

There are two main types of federal aid to states: While the federal government may not be able to require state action on certain issues reserved for the states (such as education), it is able to attach conditions to funds distributed to states, and if the states do not meet the conditions, they lose federal funding (power of the purse). There are two main types of federal aid to states: Categorical grants: require federal aid to be used for specific purposes and are the main source of federal aid to states. Block grants: less specific that categorical grants, are sources of federal aid that are provided for general purposes. They have fewer restrictions than do categorical grants.

Powers Denied both National and States There are some powers denied to both the state and national governments. Neither can pass ex post facto laws: protects citizens from governments creating laws that change the legal consequences of actions committed prior to the enactment of the new law. Neither can pass bills of attainder: protects citizens from legislative action, which inflicts punishment on people without judicial trial. National government may not: use money from the US Treasury without the approval of an appropriations bill; may not violate the Bill of Rights; or adjust state boundaries without the agreement of the state legislature. Powers denied states: may not enter into treaties with countries or nations, declare war, coin money, impair obligations of contracts, or suspend a person’s rights without due process.

Constitutionally, Who’s the Boss Constitutionally, Who’s the Boss? The Supremacy Clause & the Hierarchy of Laws State have many powers and responsibilities. But the US Constitution and federal laws trump state legislation. The Supremacy Clause in Article VI of the Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance there of; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, and Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The following chart illustrates the hierarchy of laws in our nation, with the US Constitution being the supreme Law of the Land:

The nature of federalism has changed over our nation’s history prompting different ways to think about federalism. Two main competing concepts: Dual federalism: likened to a layer cake where each level of government is responsible for some policy and each government remains supreme within its own sphere or layer.

Cooperative federalism: the roles of government are not clearly defined as they are with duel federalism. The national and state governments share policy responsibilities. Both levels work together in the states carrying out mandates passed by the federal government. It is sometimes likened to a marble cake.

New Federalism: Returning Power to the States The Devolution Revolution Contract with America Unfunded Mandates National laws that direct states or local governments to comply with federal rules and regulations but contain no federal funding to help pay the cost of meeting those requirements Personal Responsibility and Work Opportunity Reconciliation Act of 1996

New Federalism: Returning Power to the States Federalism Under the Bush Administration Budget shortfalls at federal and state level States raised taxes and cut services; received aid from federal government Federal government expanded post 9/11 Department of Homeland Security No Child Left Behind Example of preemption Viewed by many as an unprecedented usurpation of state and local powers

The Supreme Court: A Return to States’ Rights? From New Deal to 1980s: Court has generally expanded national authority at the expense of the states Beginning in 1980s: Court interpretations altered Willingness to allow Congress to regulate in a variety of areas waned Webster v. Reproductive Health Services (1989) Stenberg v. Carhart (2000) U.S. v. Lopez (1995) Sovereign immunity Right of a state to be free from lawsuit unless it gives permission to the suit Under the 11th Amendment, all states are considered sovereign. Questions regarding the Courts’ future direction