Federalism November 1, 2010

U.S. v. Lopez (1995)

Federalism divides fundamental governmental authority between at least two different levels of government. Each has the power to act independently of the other. U. S. federalism has 3 key characteristics: 1.Have its own set of elected officials. 2.Its own capacity to spend money and raise revenues by means of taxation. Even go bankrupt. 3.Its independent authority to pass laws regulating the lives of its citizens.

Necessary and Proper Clause: Constitution gives Congress Power “To Make all Laws necessary and proper for carrying into Execution” delegated powers. Tenth Amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.” The Constitutional Compromise on Federalism

Dual Sovereignty

McCulloch v. Maryland

Doctrine of nullification

Necessary and Proper Commerce Spending

Necessary and Proper Clause: Constitution gives Congress Power “To Make all Laws necessary and proper for carrying into Execution” delegated powers. Tenth Amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.” The Constitutional Compromise on Federalism

“Let the end be legitimate... Let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” - Justice John Marshall McCulloch v. Maryland (1819)

New York v. U.S. (1991)

COMMERCE POWER Congress shall have the power “to regulate Commerce... among the states.” -Constitution

Interstate Commerce Intrastate Commerce

U.S. v. Knight

National Labor Relations Board v. Jones & Laughlin Co (1937) “When industries organize themselves on a national scale... how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter?” -Justice Charles Evans Hughes

“Congress may [not] use a relatively trivial impact on commerce as an excuse for broad general resolution of state and private activities.” -Justice William Rehnquist U.S. v. Lopez (1995)

SPENDING POWER “Congress shall have the power to lay and collect taxes...to provide for the...general welfare.” -Constitution

On whether or not spending is for the general welfare: “The discretion belongs to Congress unless the choice is clearly wrong.” Hilvering v. Davis (1937)

South Dakota v. Dole

Co-operative Federalism

Case for Federal Grants Directs state and local government activities toward federal purposes. Encourages co-operation among governments.

Case Against Federal Grants Inefficient: Too many cooks—Katrina. Inequitable: Rich states get as much or more money than poor states. Don't pay for themselves: Impose unfunded mandates.

State and local Government Risk of Bankruptcy 1. State and local governments can spend as much as they want—they spend about the same for domestic programs as the federal government (except for stimulus) 2. They can go bankrupt—Orange County CA went bankrupt when they badly invested their funds. Cleveland went to edge of bankruptcy; so did NYC

Risk of Bankruptcy Necessary for federal system 1. State and local governments have autonomy to make fiscal decisions without interference by federal government. 2. But the Risk of Bankruptcy holds state and local governments in check—over the long run they have to balance their budget.

Is the Bankrupty Risk Rising?

Christopher Edley (Berkeley Law School Dean) Should the federal government rescue the state and local governments? “the best booster shot for this recovery and the next would be to allow states to borrow from the Treasury during recessions”

Changing Federalism State bias has shifted from conservative to liberal. In states, policy professionals have replaced business leaders. Public-sector unionism is stronger at state and local than at national level.

“I do not think the United states would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states. For one in my place sees how often a local policy prevails with those who are not trained to national views.” -Oliver Wendell Holmes

“The Constitution and the laws of the United States shall be the Supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” - Constitution, Supremacy Clause