Federalism

Constitutional Basis Federalism – political system where the national (federal) government shares power with local (state, regional, municipal) governments

The US, Canada, Australia, India and Germany are federal systems. France, GB, Italy, and Sweden are unitary systems Their local gov’ts can be altered or abolished by national gov’t

Devolution – process of giving the states more power over welfare, health care, and job training Congressmen vote to give states block grants – money from Congress that states can use at their discretion within broad guidelines

We think our federal government is huge and self-serving We forget they give much of their money and enforce much of the laws on local governments

These are the things they regulate in states: Large part of welfare system Interstate highways system Programs to improve cities Much of the effort to provide jobs to unemployed All of cleaning up the water Most of the military manpower

Things that fall to the states: Policing Education Local land-use

Federalism: Good or Bad? To some, federalism means allowing states to block action, prevent progress, upset national plans, and cater to self-interested politicians. To others, federalism means the ability to develop and maintain things that are vital to our unique nation, political flexibility and individual liberty

Opportunity to exercise political control in 50 states and about 3000 counties These places and people will do things for different purposes In some places people will use this to maintain segregation, protect interests and facilitate corruption The opposite is also true

The smaller the political unit, the more likely it is to be dominated by a single political faction Madison (Federalist #10) said that only in a large republic would there be a place for all interests to be heard

Increased Political Activity The most obvious effect of devolution has been to get more people involved in politics Also, decentralization of political authority lowers the cost of government

Founders weren’t really clear on how the federal system was to work We have had to work that out since then, sometimes bitterly

A Bold New Plan Our federal republic gets its power from the people – as do state and local gov’ts Founders wanted to make sure neither the state gov’ts nor federal gov’t had supreme power over the other Federalist 46 (Madison) said both gov’ts are different and given different powers

Founders believed the federal gov’t would only have the powers the Constitution gave it. Constitution doesn’t spell out the rights of states 10th amendment says that powers not delegated to the US, nor prohibited by it to the states, are given to the states, or people

Elastic Language Article I gives Congress the power to “make all laws which shall be necessary and proper for carrying into execution the forgoing powers” Framers knew they couldn’t make a list of everything the federal government was allowed to do So they included the “elastic clause”

For example: Congress given the power to regulate commerce “among the several states” Didn’t say where commerce among the states ended and commerce within a state began Supreme Court tried to figure that out for 100 years before giving up

Alexander Hamilton believed in a “loose interpretation” of the Constitution Jefferson and Madison believed in a “strict interpretation” Madison Federalist 45 – powers given to gov’t are “few and defined” – those to the states are “numerous and indefinite”

Debate on the Meaning of Federalism Civil War fought partly over states’ rights Settled with the national government as supreme Supreme Court tried to settle issue during formative years Led by Chief Justice John Marshall He and court powerfully defended the “national supremacy” view

McCulloch v. Maryland – case over national bank being taxed by a state 1st question – did Congress have the right to set up a bank or any corporation? Congress given power to manage money so it was “necessary and proper”

2nd question – could a federal bank be lawfully taxes by a state? Marshall argued that the only way for national power to be supreme was for them to be immune from state challenges and protected

Nullification Congress passed laws in 1798 to punish newspaper editors who wrote critical stories about the government VA & KY Resolutions – suggested that states should have right to nullify federal laws they think violate the Constitution Law expired before issue could be settled in court

John C. Calhoun brought up nullification again in the 1830’s because of the tariff, then efforts to restrict slavery settled by war Northern victory determined once and for all that the union could not be dissolved Nor could states declare acts of Congress unconstitutional

Dual Federalism After war, the debate on meaning of federalism focused on the commerce clause Thus dual federalism developed Although the national gov’t was supreme in its sphere, states were equally supreme in theirs the two spheres of action should be kept separate

Interstate shipments of lottery tickets, prostitute, liquor, harmful foods and drug upheld by court as regulated by federal gov’t Intrastate commerce like manufacturing, insurance, and farming were regulated by state gov’ts Product based decisions proved hard to sustain

Question – when shipping goods from state to state, how long is it interstate commerce (federal law) and when does it become intrastate commerce (state law) Debated several times by the courts Finally, they decided that pretty much everything – farming and manufacturing - was interstate commerce and regulated by federal gov’t

State Sovereignty States down but not out US v. Lopez (1995) – SC said Congress had exceeded its commerce clause power by prohibiting guns in school

Reaffirmed that view with US v. Morrison (5-4) Overturned Violence Against Women Act (1994) Law allowed women to sue attacker motivated by gender SC said attacks against women are not and do not affect interstate commerce and so Congress cannot pass the law (states can)

11th amendment Alden v. Maine (1999) – helped protect states against lawsuits by people who said that state regulations created unfair economic competition

One accepted state power is “police power” States make and enforce criminal codes Make kids go to school Make people be vaccinated Restrict access to pornographic materials Restrictions on driving and roads

Most states allow more direct democracy: Initiative – lets voters put measures on the ballot Referendum – lets voters reject a measure adopted by the legislature Recall (20 states) – voters can remove an elected official from office.

Existence of states guaranteed by Constitution Cannot be divided without its consent Counties, towns and cities exist because of the states – can be abolished

Grants-in-Aid First came before the constitution Land grants given to the states to fund education State universities were built with this money Land grants also made to build roads, canals, RR and flood control By 2001, $300 billion a year went to states for grants

Four reasons grants are so popular with state officials 1. the US government had plenty of money 2. the federal income tax 3. the US government could make more money 4. politics

If the federal government wants to send money to one state, they must send money to all states Example: 1966 – Lyndon B. Johnson wanted to give money to cities with problems “Model Cities” Senator from Maine wouldn’t vote for it until his cities got money also

Intergovernmental Lobby Some states actually “lobby” Congress for money for their states More than 31 states and dozens of counties have offices in Washington, DC in order to do this They want more money with fewer strings

Categorical grants go towards a specific purpose like a college, or hospital Many times states are required to “match” funds Most states don’t like the regulations put on them

Revenue sharing – a “no string attached” form of aid to state and local governments Can be used for most any project but never to exceed more than two percent of revenues

Mandates – requirements that are imposed by the national gov’t on the state and local gov’ts Example: Americans with Disabilities Act (1990) Mandates that all public buildings be accessible to people

All mandates are not created equal Federal courts have helped the growth of mandates 10th amendment does not provide any protection for states against mandates Most well known mandates are for school desegregation

SC decided in 1980 (that a law passed in 1870) allowed citizens to sue local officials if they were deprived of anything they were entitled to under federal law

Conditions of Aid Most important federal restriction on state action are the strings attached to the grants If states need it for their budget, they have to accept it Some conditions are specific to particular programs Building – study of environmental impact – prevailing wage – contractors have nondiscriminatory hiring practices, etc.

These rules are to prevent states from misspending federal tax money State officials say rules don’t take into account the diverse local conditions “free” money isn’t quite so “free”

Entitlements Entitlements - A government program that guarantees and provides benefits to a particular group Example: Medicaid & AFDC Each state gets money based on amount it paid to poor families and people

Possibly federal welfare programs have triggered: Second-order devolution – flow of power and responsibility from states to local gov’ts. Third-order devolution – increased role of nonprofit organizations and private groups in policy implementation

Congress and Federalism Unclear whether the devolution movement will gain strength, stall, or reverse Whatever, the US will not become a wholly centralized country There is more political and policy diversity in American than any other nation