The Evolution of Federalism

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

Defining Federalism Federalism Constitutional arrangement whereby power is distributed between a central government and subdivisional governments called states in the United States. The national and the subdivisional governments exercise direct authority over individuals “Look, the American people don’t want to be bossed around by federal bureaucrats. They want to be bossed around by state bureaucrats”

Advantages of Federalism Federalism allows for experimentation/diversity Multiple levels of government provide flexibility Citizens can choose where to live Citizens have many ways to influence their gov’t Provides additional checks & balances

Disadvantages of Federalism The complexity of the federal system Larger bureaucracy/duplication Coordination confusion Slow to respond to crisis Complex tax system Federalism is expensive Potential for inequality in services & policies

Versions of Federalism Dual Federalism (Layer Cake Federalism) Views the Constitution as giving a limited list of powers to the national government, leaving the rest to sovereign states Cooperative Federalism (Marble Cake Federalism) Federalism as a cooperative system of intergovernmental relations in delivering goods and services to the people “As the colors are mixed in a marble cake, so functions are mixed in the American federal system.”

The Significance of the 10th Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The 10th Amendment was seen as a reservoir of reserved powers for state governments However, it’s rarely had much significance since McCulloch v. Maryland in 1819 The doctrine of implied national powers, and the “necessary and proper” clause have undercut the words and apparent intent of the 10th Amendment

Why Divide Authority in the First Place? The Constitution may have never been ratified if the Framers had pushed for a unitary system Federalism was a compromise, allowing the states to maintain their independence Why? Prevent tyranny Provision for increased participation Uses states for experimentation for new policies/programs

The Evolution of Federalism “State-Centered Federalism” 1787 to 1868 From the adoption of the Constitution to the end of the Civil War, the states were the most important units of the American Federal System McCulloch v. Maryland decided during this phase Construes “necessary and proper” to favor expansion of national authority

McCulloch v. Maryland (1819) Doctrine of Implied National Powers It determined that Congress had not only the powers expressly conferred upon it by the Constitution but also all authority “appropriate” to carry out such powers Doctrine of National Supremacy The national supremacy principle states that all federal laws (including the Constitution itself) are superior to any conflicting state or local laws, such that the federal laws will always take precedence.

Evolution of Federalism Doctrine of Nullification Each state could declare any laws or actions of the national government “null and void” (ruled unconstitutional) Doctrine of Secession States could chose to withdraw from the United States if they wanted Used by the Confederate States in the Civil War

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

2 Federalisms Cooperative Federalism – Marble Cake TWO METAPHORS… Dual Federalism – Layer Cake Federal State Cooperative Federalism – Marble Cake

The Evolution of Federalism “Dual Federalism” 1868 to 1913 In this phase, the national government narrowly interpreted its delegated powers and the states continued to decide most domestic policy issues. Believed the national government shouldn’t exceed enumerated powers

Evolution of Federalism After the Civil War, industrialization and urbanization created new challenges for the federal system

The Evolution of American Federalism “Cooperative Federalism” 1913 to 1964 The system was likened to a marble cake in that “as the colors are mixed in a marble cake, so functions are mixed in the American federal system.”

“Cooperative Federalism” 1913-1964 New Deal= centralized response to national crisis, become nationally-based welfare state Many social programs remain under state control Congress controls commerce leading up to and during WWII

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?

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 17% 23% 60% 47% 30% 64% 19% 66% 15% 1929 1939 1960 Shift towards Federal Gov’t Spending Federal State Local (City) 1929 17% 23% 60% 1939 47% 30% 1960 64% 19% 1997 66% 15%

The Evolution of American Federalism “Centralized” or “Creative” Federalism 1964-1980 The presidency of Lyndon B. Johnson (1963-1969) marked a critical point in the evolution of federalism Federal government clearly had its own national goals

The Great Society and Creative Federalism Johnson’s “Great Society” War on Poverty Civil Rights Acts Federal funds were directed to states, local government, and a wide variety of social programs

The Great Society and Creative Federalism

The Great Society and Creative Federalism

New Federalism Ronald Reagan sought to return more power and responsibility to the states Block grants and revenue sharing reduce federal requirements “Government is not the solution; it’s the problem” -Ronald Reagan

Devolution (Beginning in 1995) The Republican “Contract with America” called for devolution-- the transfer of political and economic power to the states (with decreased federal funding) 1996 Welfare Reform devolved the program to states

The Supreme Court’s Shift in Perspective Beginning in 1995, justices interested in granting more deference to state authority gained a slim five-to-four majority in the Supreme Court The Constitutional Counterrevolution A return to an older version of federalism not embraced since the constitutional crisis over the New Deal in the 1930s United States v. Lopez (1995) Printz v. United States (1997) United States v. Morrison (2000)

The Changing Nature of Federal Grants In 1996 there was a shift from Categorical Grants to Block Grants 2 types of Categorical Grants (Grants-in-Aid): Formula grants Project grants Block Grants (Revenue-sharing Grants) Far more flexible

The Changing Nature of Federal Grants Grants-in-Aid Federal funds given to state and local governments on the condition that the money be spent for specified purposes, defined by officials in Washington Such funds are usually accompanied by requirements and standards set by the governing body for how they are to be spent. An example of this would be how the United States Congress required states to raise the drinking age for alcohol from 18 to 21 in order for the individual states to continue to qualify for federal funds for interstate highways located within each state.

The Future of Federalism The persistence of international terrorism, the war in Afghanistan, and rising deficits all ensure a substantial role for the national government in the years to come

The Future of Federalism TARP (Troubled Asset Relief Program) Health Care Law No Child Left Behind

No Child Left Behind Example Problem= declining student performance Solution= federal funding requires tough performance standards Unintended consequences: localities forced to make huge investment to implement testing requirements Localities sue states--> unfunded mandate States opting out of federal funds (& performance standards)