Federalism “The federal Constitution forms a happy combination... the great and aggregate interests being referred to the national, and the local and particular to state governments.” – James Madison, Federalist 10 – James Madison, Federalist 10 Unitary systemFederalismConfederation

American Federalism Dual Federalism (layered cake) Dual Federalism (layered cake) “States’ rights” “States’ rights” National gov’t limited to enumerated powers National gov’t limited to enumerated powers Dual sovereignty, dual citizenship Dual sovereignty, dual citizenship Cooperative Federalism (marbled cake) Cooperative Federalism (marbled cake) “We the people” (i.e. not the states) “We the people” (i.e. not the states) National gov’t can expand with “elastic clause” National gov’t can expand with “elastic clause” State sovereignty limited by “supremacy clause” State sovereignty limited by “supremacy clause”

Picket-fence Federalism Picket-fence Federalism Pragmatic policy-making is more important than theoretical arguments and formal divisions Pragmatic policy-making is more important than theoretical arguments and formal divisions Still takes into account the background of separation Still takes into account the background of separation American Federalism is a Dynamic system characterized by American Federalism is a Dynamic system characterized by 1) Ambiguity 2) Pragmatism (political, logistical, & economic) 3) Policy-based Organization American Federalism (continued)

The Dynamics of American Federalism What moves this dynamic? What moves this dynamic? 1) National Crises & Demands crisis increases need for unified direction, effort, & resources; e.g. Great Depression, 9/11 crisis increases need for unified direction, effort, & resources; e.g. Great Depression, 9/11 Some national needs require unity & coordination; Some national needs require unity & coordination; e. g. Nutrition Labeling and Education Act 1990 e. g. Nutrition Labeling and Education Act ) Judicial Interpretation Possible (inherent?) contradictions in Constitution Possible (inherent?) contradictions in Constitution Challenges to new legislation (especially preemptive legislation) are often based on interpretations of the 10 th Amendment Challenges to new legislation (especially preemptive legislation) are often based on interpretations of the 10 th Amendment Conflicting interests often use whichever position favors their cause Conflicting interests often use whichever position favors their cause

3) Financial Incentives/Fiscal Federalism Categorical Grants, Block grants Categorical Grants, Block grants e.g. South Dakota v Dole 1987, Stimulus Package 2009 e.g. South Dakota v Dole 1987, Stimulus Package ) Professionalization of State Gov’t Internal changes (e.g. higher salaries, better education, full- time staff) Internal changes (e.g. higher salaries, better education, full- time staff) State tax & budgetary reform State tax & budgetary reform Fiscal Federalism (e.g. E&SEA NCLB 2001) Fiscal Federalism (e.g. E&SEA NCLB 2001) The Dynamics of American Federalism (continued)

Trends in Federalism In America In America Growth of local gov’t Growth of local gov’t county gov’t (some townships), municipal gov’t, school districts, some special districts county gov’t (some townships), municipal gov’t, school districts, some special districts Over 87,000 local gov’t Over 87,000 local gov’t Expansion of national gov’t Expansion of national gov’t Growth of Preeminent legislation Growth of Preeminent legislation Abroad Abroad States’ abroad States’ abroad >30 have intnat’l trade directors >30 have intnat’l trade directors Most have foreign offices of some kind Most have foreign offices of some kind The European Union The European Union Africa, Iraq Africa, Iraq

Pros & Cons “Laboratories of Democracy” “Laboratories of Democracy” Experimentation & Competition Experimentation & Competition Diversity & Freedom of Choice Diversity & Freedom of Choice Greater Participation & Responsiveness Greater Participation & Responsiveness Efficiency, Decisiveness, Speed of Action Efficiency, Decisiveness, Speed of Action Conflict Management Conflict Management May help governing of diverse & semi-autonomous groups May help governing of diverse & semi-autonomous groups May also contribute to or prolong conflict May also contribute to or prolong conflict e.g. Germany, Iraq e.g. Germany, Iraq

Minority Rights Minority Rights Factions, benefits of a “large republic” Factions, benefits of a “large republic” History of Intolerance (e.g. Voting Rights Act 1965, protection of civil rights) History of Intolerance (e.g. Voting Rights Act 1965, protection of civil rights) “Race to the Bottom?” “Race to the Bottom?” States determine social welfare benefits States determine social welfare benefits They also compete to be the home of businesses They also compete to be the home of businesses Does one affect the other? Does one affect the other? Lack of Accountability? Lack of Accountability? Sharing burden, but also blame Sharing burden, but also blame e.g. Hurricane Katrina e.g. Hurricane Katrina Pros & Cons

Federalism Fun Facts – who spends what (circa )? EDUCATION (K-12)---Feds provide 9%, States 47.3%, Local govts. 43.7% EDUCATION (K-12)---Feds provide 9%, States 47.3%, Local govts. 43.7% HEALTH CARE---Feds provide 31.5%, States 12%, Others 56% HEALTH CARE---Feds provide 31.5%, States 12%, Others 56% PRISONERS---Federal 12.3%, State & local 87.7% PRISONERS---Federal 12.3%, State & local 87.7% HIGHWAYS—Feds provide 28.78%, States and locals 71.22% HIGHWAYS—Feds provide 28.78%, States and locals 71.22% INCOME SECURITY (welfare) – Feds provided about 2/3 in 1995 INCOME SECURITY (welfare) – Feds provided about 2/3 in 1995 i

KEY SUPREME COURT CASES in Federalism McCulloch v. Maryland (1819) -- Bank of US, N & P clause McCulloch v. Maryland (1819) -- Bank of US, N & P clause Gibbons v. Ogden (1824) – steamboat case, IC clause Gibbons v. Ogden (1824) – steamboat case, IC clause Child labor, minimum wage, monopoly cases in late 19 th Century, IC clause Child labor, minimum wage, monopoly cases in late 19 th Century, IC clause NLRB v. Jones & Laughlin Steel (1937), IC clause NLRB v. Jones & Laughlin Steel (1937), IC clause Heart of Atlanta Motel v. US (1964), IC clause Heart of Atlanta Motel v. US (1964), IC clause

Are we in the middle of a “states’ rights” revolution? US v. Lopez (1995) -- guns ‘n’ schools US v. Lopez (1995) -- guns ‘n’ schools Printz v. US (1997) -- Brady bill Printz v. US (1997) -- Brady bill US v. Morrison (2000) – VAWA US v. Morrison (2000) – VAWA Revival of “sovereign immunity” principle Revival of “sovereign immunity” principle Gonzales v. Oregon (2006) – assisted suicide Gonzales v. Oregon (2006) – assisted suicide More and more states “going it alone” on environment, min. wage, health care, stem cells More and more states “going it alone” on environment, min. wage, health care, stem cells

NOT SO FAST, my STATES’ RIGHTS FRIEND! 1.) Continuing Pre-Emption by Federal Govt. in selected policy areas (election reform, voter registration, education standards, gunmaker liability, tort reform, health insurance) 1.) Continuing Pre-Emption by Federal Govt. in selected policy areas (election reform, voter registration, education standards, gunmaker liability, tort reform, health insurance) 2.) Countermoves by Supreme Court (medical marijuana, disability access) 2.) Countermoves by Supreme Court (medical marijuana, disability access)

MORE ON GRANTS MANDATES – funded or unfunded MANDATES – funded or unfunded Competitive categorical grants Competitive categorical grants Formula categorical grants Formula categorical grants Block grants – welfare converted to a block grant in 1996 Block grants – welfare converted to a block grant in 1996 Political incentives for block grants (Stimulus spending school example) Political incentives for block grants (Stimulus spending school example)