Federalism How the circle and the squares get along

Disaster Relief Who’s job was it to clean up New Orleans and the rest of the coast after Katrina?

No Child Left Behind Should the national gov’t step in to regulate school performance?

What is Federalism? Federalism – Two or more governments exercise power and authority over the same people in the same territory OR… the relationship between the federal government (circle) and the state governments (squares)

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

Federal Powers -The national (federal) government has two types of powers  Enumerated Powers – powers expressly given to Congress by the Constitution (see Article I, Section 8, Clauses 1- 17)  Implied powers – (see next slide)

E-l-a-s-t-i-c Clause Aka – “Necessary and Proper Clause” Art. I, Sec. 8, Cl "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Source of “implied powers” – powers necessary for Congress to carry out its enumerated powers. McCulloch v Maryland validated the principle of implied powers in upholding the constitutionality of the Bank of the U.S.

Selfish Powers? -Delegated Powers (National Powers) – the powers given by the Constitution only to the Fed gov’t. For example:  The power to declare war  The power to coin money

Let’s Share -Concurrent Powers – powers shared by the federal government and the states  The power to tax  The power establish courts  The power to tax  The power to make and enforce laws  The power to tax (I think I see a trend developing)

Left-overs! -Reserved Powers – 10 th Amendment provides that powers not delegated to the national government nor prohibited to the states are reserved to the states or the people. For example: -To administer elections -To establish local governments -To regulate marriages and divorces -Education (but the Feds have found a way to mettle)

But Who is Supreme? What if a state law conflicts with a federal law?, you ask? Well, the Constitution has the answer! Supremacy Clause (Article VI, Section II) -The Constitution, federal laws, and treaties are the supreme law of the land. Sorry states, but that’s the way it is. Live with it!

Yeah, that’s right! -In McCulloch v. Maryland, Chief Justice John Marshall reaffirmed the Supremacy Clause when he ruled that states could not tax the activities of the federal government. (i.e. the Bank of the U.S.)

That’s a No-No -Prohibited (Denied) Powers – powers denied to the federal government, the state governments or both (See Article I, Sections IX and X -Ex. Neither gov’t can pass ex post facto laws -Ex. States cannot make treaties or coin money

Commerce clause Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power - To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Congress has used the elastic clause to s-t-r-e-t-c-h this power What is commerce? “Buying and selling of goods and services.” Congress given the power to regulate commerce between foreign countries and US as well as state to state… they control business law.

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 (and the Feds) Win! Result – Gibbons wins Expanded national power in all areas of commerce law because national government overrules states in interstate commerce issues All trade today is primarily controlled by national law

Importance 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

United States v. Lopez (1995) Commerce clause carried too far! 1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school, 12 year old Lopez carried a gun on to the property Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce” LIMITED National government power

Gonzalez v. Raich (2005) Commerce clause quiz!!! Medicinal Marijuana Controlled Substance Act (1970) – US gov regulates the manufacture, importation, possession, and distribution of certain drugs Medicinal marijuana was legalized in California, but illegal to US government. Raich argued commerce clause should not take effect because 1) there was no business transactions and 2) there were no state border issues. Supreme Court ruled 6-3 against Raich saying that the federal government could trump state laws that permitted medicinal marijuana

2 Federalisms? OLD SCHOOL – Dual Federalism –Federal and state governments remain dominant in their separate spheres of influence. i.e. states regulate intrastate commerce and feds regulate interstate commerce –Gibbons v. Ogden proved life is not that simple

2 Federalisms? NEW SCHOOL – Cooperative Federalism –State and Federal governments work together to solve complex problems –Started with New Deal during the Great Depression

Federalism Culinary Arts TWO METAPHORS… Dual Federalism – Layer Cake Cooperative Federalism – Marble Cake Federal State

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? A – Money

Grants-in-Aid Money paid from one level of government to another to be spent for a specific purpose Categorical Grants - target specific purposes usually with “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 of the federal government that a state undertake an activity or provide a service as 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 (Unfunded mandate)

Mandates, the Courts Selective incorporation – The process by which certain constitutional guarantees are applied to the states by federal courts Courts can require states to fund programs, i.e. busing to achieve racial balance, provide defense attorneys, etc.

Mandates the States Know and Love? 1970 – Clean Air Act (Amendment added 1990) 1986 – Asbestos Emergency Response Act, Handicapped Children’s Protection Act 1988 – Drug-free Workplace Acts, Ocean Dumping Ban Act 1990 – Americans with Disabilities Act 2001 – No Child Left Behind 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 Shift towards Federal Gov’t Spending FederalStateLocal (City) %23%60% %23%30% %17%19% %19%15%

Devolution Revolution Devolution is the return of power to the state gov Big hit in the 1980s and 1990s Idea is fueled by distrust of the federal gov and the desire to save money by reducing the size of the “bloated federal government”

Devolution Example Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Reform Act) Eliminated a federal welfare program and transferred the money to states as block grants States received wide latitude on how to administer “workfare” but with the knowledge that Congress was counting on anti- poverty spending” Strings attached: head of family must work or lose benefit; lifetime benefits limited to 5 years; unmarried mother < 18 only receive $ if stay in school and live with adult; immigrants ineligible for 5 years

Federalism is good Living under 2 governments is great… Built on compromise, promotes unity Gov’t duties can be split up Brings gov’t closer to people Allows for state gov’t to address issues in unique regions of the country Allows states to experiment with policy before enacting it at the federal level – Ex. Vermont’s free health care for children

Federalism is bad Living under 2 governments is bad… States can impede progress of Nation States are unequal in resources and money States have different policies (confusing to many) Easier for states to be dominated by interest groups than the federal government

Understanding Federalism State Welfare Benefits (Figure 3.3)

Understanding Federalism Spending on Public Education (Figure 3.4)