1. 3
Federalism
Federalism can put the national and state governments in conflict. Here a California man compares the aroma of various varieties of marijuana on the final day of business of a medical marijuana dispensary, legal in California but put out of business by the national government.

2. Essential Question:
What is federalism and what is the constitutional basis for the division of power between national and state governments?

3. Authority relations in three systems of government
3.1
Authority relations in three systems of government
As we see in this table, the power relationship between the central government and subunits is different in unitary, confederate, and federal systems.

4. Powers in the Constitution
3.2
Powers in the Constitution
National Powers (enumerated)
Duties, interstate trade, coin $, post office, declare war, “necessary and proper”
Concurrent (powers held by BOTH)
Tax borrow $, make and enforce laws, charter banks, $ to the “general welfare”
State Powers (reserved)
Elections, ratify amendments, morals, public safety, create local gov, intrastate trade, 10th Amendment
Even though the states could see that they needed a stronger central government, there were limits to the powers that they would concede. The Constitution did not need to specify all state powers; states simply retained all powers that were not expressly forbidden.
The Constitution does designate states’ authority to organize local governments, and makes them responsible for both federal and state elections. They must ratify constitutional amendments and they have equal representation in the Senate regardless of size. 4

6. Some Powers Denied States by the Constitution
3.2
Some Powers Denied States by the Constitution
As we can see in Table 3.2, the Constitution is more specific about the powers states do not have than about those they possess.
The Constitution denies certain powers to the states in the realms of economic and foreign affairs and individual rights.

7. Division of Power 3.2 Federal obligations to states
The federal government has certain obligations to the states. It cannot subdivide them nor tax interstate exports. It must protect them against invasion and violence.
There are some responsibilities shared by both levels of government, such as establishing courts, maintaining law and order, protecting citizens’ health and safety, and regulating financial institutions. They can both levy taxes and take private property by eminent domain.
Activity: Have students create lists, on the board, both in support for nationalization of issues and for reacquisition of states’ rights. Have the class reach a consensus on the value (e.g., 1–10 points) of each point on each list. Which issue(s) finally has consensus, in points, regarding support for power in the federal system?
Federal obligations to states
Cannot divide states
Cannot tax interstate exports
Protect states against invasion
Overlapping responsibilities-such as establishing courts, maintaining law and order, protecting citizens’ health and safety, and regulating financial institutions. They can both levy taxes and take private property by eminent domain.

8. 3.2
National Supremacy
Which level should do what?
Debates over areas of policy responsibility..
Supremacy clause
Civil War-established national sovereignty over states
The Struggle for Racial Equality-forcing integration in schools and other public accommodations, and ending legal discrimination in jobs, housing, and voting over the strong objections of the states.
Tenth Amendment-“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.”
Eleventh Amendment – A citizen of one state cannot sue another state
Although the division of power may sound clear enough at first, American history has been a tug-of-war over which level of government should legislate in various policy areas.
The supremacy clause clearly states that national laws supersede state laws, but that does not end the debate over power and authority.
The Civil War was a defining moment in establishing national sovereignty over the states.
A century later, the federal government again prevailed against the states by forcing integration in schools and other public accommodations, and ending legal discrimination in jobs, housing, and voting over the strong objections of the states.
The Tenth Amendment states that 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.” States’ rights advocates maintain that this amendment gives the national government only those powers specifically assigned it and that the states have supreme power. The Court has not upheld this view.
The Eleventh Amendment forcing integration in schools and other public accommodations, and ending legal discrimination in jobs, housing, and voting over the strong objections of the states.

9. Wallace and segregation
3.2
Wallace and segregation
In 1963, Alabama Governor George Wallace made a dramatic stand at the University of Alabama to resist integration of the all-white school. Federal marshals won this confrontation, and since then the federal government in general has been able to impose national standards of equal opportunity on the states.
In 1963, Alabama Governor George Wallace made a dramatic stand at the University of Alabama to resist integration of the all-white school. Federal marshals won this confrontation, and since then the federal government in general has been able to impose national standards of equal opportunity on the states.

10. National Supremacy 3.2 Implied Powers
Some of the powers of the national government are clearly enumerated in the Constitution. Other powers are implied from the so-called elastic clause. This clause authorizes Congress to make all laws that are “necessary and proper” to carry out its enumerated functions.
The case of McCulloch v. Maryland illustrates how Congress uses this clause. The federal government established a national bank and the state of Maryland tried to tax it. Chief Justice John Marshall stated that although the Constitution does not say that the national government has the power to establish a bank, it had the implied power to do so because such power is necessary for the government to function.
Implied Powers
McCulloch v. Maryland (1819)
Enumerated powers
Elastic clause

11. National Supremacy 3.2 Commerce power
Gibbons v. Ogden (1824)-Ogden defined commerce so broadly as to encompass virtually any commercial activity.
After the Industrial Revolution when Congress sought to use its commerce powers to regulate worker health and safety, the Court said that the power to regulate interstate commerce did not extend so far. When the Great Depression placed new demands on the national government, the Court reluctantly allowed considerable expansion of Congress’s regulatory power.
Promote economic development
Regulate economic activity
Expansion then retraction (US v Lopez)
Although the Constitution gives Congress the power to regulate commerce, American courts have struggled to define “commerce.” The Court’s opinion in Gibbons v. Ogden defined commerce so broadly as to encompass virtually any commercial activity. After the Industrial Revolution when Congress sought to use its commerce powers to regulate worker health and safety, the Court said that the power to regulate interstate commerce did not extend so far. When the Great Depression placed new demands on the national government, the Court reluctantly allowed considerable expansion of Congress’s regulatory power.
Since the 1990s, the pendulum has swung the other way, with more recent Court opinions restricting Congressional power under the commerce clause. 11

12. States’ Obligations to Each Other
3.2
States’ Obligations to Each Other
Full faith and credit
Defense of Marriage Act (1996)
The Constitution requires that states give full faith and credit to the public acts, records, and civil judicial proceedings of every other state. In practical terms, this means that if you are married or divorced in one state, you are married or divorced in all states.
Because of the full faith and credit clause of the Constitution, marriage certificates issued by one state are valid in every state. People are also entitled to most of the benefits—and subject to most of the obligations—of citizenship in any state they visit, thanks to the privileges and immunities clause.
When Hawaii legalized same-sex marriage, Congress passed the Defense of Marriage Act, which allows states to make an exception to the full faith and credit clause and not recognize same sex marriages performed in other states. Was DOMA constitutional?
The Constitution requires that states give full faith and credit to the public acts, records, and civil judicial proceedings of every other state. In practical terms, this means that if you are married or divorced in one state, you are married or divorced in all states. A moment’s reflection will make it clear that this clause is essential to the functioning of the economy and society.
Because of the full faith and credit clause of the Constitution, marriage certificates issued by one state are valid in every state. People are also entitled to most of the benefits—and subject to most of the obligations—of citizenship in any state they visit, thanks to the privileges and immunities clause. Gay marriage is straining these principles, however, as most states refuse to recognize marriages between same-sex partners.
When Hawaii legalized same-sex marriage, Congress passed the Defense of Marriage Act, which allows states to make an exception to the full faith and credit clause and not recognize same sex marriages performed in other states. Is DOMA constitutional?

13. Obergefell v. Hodges (2015) Question
Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?
Decision
Yes, yes
This decision effectively nullified DOMA.

14. States’ Obligations to Each Other
3.2
States’ Obligations to Each Other
The Constitution requires states to return a person charged with a crime in another state to that state for trial or imprisonment, a practice called extradition.
The privileges and immunities clause of the Fourteenth Amendment are designed to prevent discrimination by states against visitors or new residents coming from other states. But there are many exceptions to this clause. State universities, for example, can charge higher tuition to out-of-state students.
Extradition-The Constitution requires states to return a person charged with a crime in another state to that state for trial or imprisonment
Privileges and immunities-prevent discrimination by states against visitors or new residents coming from other states. But there are many exceptions to this clause. State universities, for example, can charge higher tuition to out-of-state students. 14

15. From Dual to Cooperative Federalism
3.3
From Dual to Cooperative Federalism
In dual federalism, the federal government and the states each have spheres of sovereign authority, like a layer cake. Proponents are inclined to interpret federal power narrowly.
In cooperative federalism, the national government and the states share spheres of power, blurring the lines of authority more like a marble cake.
The U.S. system has moved from a dual towards a cooperative model of federalism. Shared federal-state responsibility for education and transportation both provide examples. Usually, the states bear primary responsibility for education and transportation programs under cooperative federalism. The federal government shares the costs by providing federal money to the states and sets guidelines for local administrators to follow.
Dual federalism
Separate spheres of authority
Layer cake
Before New Deal Programs
Cooperative federalism
Shared costs
Federal guidelines
After New Deal programs

16. From Dual to Cooperative Federalism
3.3
From Dual to Cooperative Federalism
States are responsible for most public policies dealing with social, family, and moral issues. The Constitution does not give the national government the power to pass laws that directly regulate drinking ages, for example, but it can influence the states by making federal money contingent on adopting certain policies, such as raising the state drinking age to 21, in line with national prerogatives.
Cooperative federalism in action
Schools
Highways
State Alcohol laws
The New Deal! 16

17. 3.3
Interstate highways
Cooperative federalism began during the Great Depression of the 1930s and continues into the twenty-first century. The federal government provides much of the funding for interstate highways, for example, but also attaches requirements that states must meet.
Cooperative federalism began during the Great Depression of the 1930s and continues into the twenty-first century. The federal government provides much of the funding for interstate highways, for example, but also attaches requirements that states must meet.

18. 3.3
Devolution? (transferring responsibility from the federal government to local and state governments)
Party divide on federalism
Democrats favor national government
Republicans favor states
Devolution since Reagan
Loosening federal regulations
Harnessing federal government power
After decades of new federal policies by the Democrats, the Republican party gained control of the White House in They attempted to devolve some federal power back to the states by cutting funds for domestic federal programs. Then, in 1994 the Republicans gained control of Congress and repealed many federal laws, giving states more latitude to set their own policies.
In simplistic terms, the Democratic party tends to favor federal government power to advance national policies of health, safety, and social welfare. By contrast, the Republican party has traditionally favored a weaker national government to allow states to handle these responsibilities without government regulations.
After decades of new federal policies by the Democrats, the Republican party gained control of the White House in They attempted to devolve some federal power back to the states by cutting funds for domestic federal programs. Then, in 1994 the Republicans gained control of Congress and repealed many federal laws, giving states more latitude to set their own policies.
But then an odd thing happened with the devolution trend. The Republicans realized that the best way to loosen economic regulations and strengthen social ones was to harness the authority of the federal government and restrict state power.
Activity: Hold a meeting of the Editorial Board of Publius: The Journal of Federalism. Have students visit the journal’s website ( ) and explore some recent articles to see what types of issues they address. Discuss what the table of contents should look like for this year's “State of Federalism” issue. What issues should it address? What trends can they discern?

19. Fiscal Federalism ($$)
3.3
Fiscal Federalism ($$)
The Grant System
Categorical grants
Specific purpose w/ strings attached (often non-discrimination clauses)
Crossover sanctions-withhold funds unless states change their policy in some area to conform with federal government goals
Crosscutting requirements-occur when a condition on one federal grant is extended to all activities supported by federal funds ( no highway funds until drinking age is raised to 21)
regardless of their source. For example, if a university discriminates illegally in one programs, such as athletics, it may lose the federal aid it receives for all its programs.
Project grants-the most common and are awarded on the basis of competitive applications
Formula grants-are distributed based upon the number of recipients, income, or some other criterion.
Fiscal federalism is the term used to describe federal grants-in-aid that are a key part of cooperative federalism. There are two main types of federal grants. Categorical grants can only be used for specific purposes, and they often have strings attached, such as non-discrimination.
Crossover sanctions withhold funds unless states change their policy in some area to conform with federal government goals, such as withholding funds for highway construction unless states raise the drinking age to 21.
Crosscutting requirements occur when a condition on one federal grant is extended to all activities supported by federal funds, regardless of their source. For example, if a university discriminates illegally in one programs, such as athletics, it may lose the federal aid it receives for all its programs.
There are two main types of categorical grants. Project grants are the most common and are awarded on the basis of competitive applications. Formula grants are distributed based upon the number of recipients, income, or some other criterion.

20. 3.3
Fiscal Federalism
Block grants-much less restrictive and generally only specify the policy area in which they are to be used, such as education or health care.
Scramble for federal dollars-“bring home the bacon”
Mandate-Requirements that direct states to provide additional services as a condition of a federal grant
Block grants are much less restrictive and generally only specify the policy area in which they are to be used, such as education or health care. States prefer block grants because they give them more discretion in how to allocate the funds.
Legislators and lobbyists are engaged in a perpetual feeding frenzy in Washington to “bring home the bacon” to their states. Their vigilance keeps federal dollars spread evenly rather than going to the most needy as originally intended.
Requirements that direct states to provide additional services as a condition of a federal grant are a type of mandate. Congress usually appropriates some funds to help pay for the new policy, but sometimes it does not. Unfunded mandates are particularly unpopular with states. Can you imagine why?

21. No Child Left Behind Act
3.3
No Child Left Behind Act
Unfunded Mandates
Policies of the federal government may have major impacts on core policies of state and local governments, like elementary and secondary education, and determine how much is spent on these policies. Under the No child Left Behind Act, schools are threatened with the loss of federal funds if schools don’t improve, but has not made available extra funding to help schools make these improvements.
Policies of the federal government may have major impacts on core policies of state and local governments, like elementary and secondary education, and determine how much is spent on these policies. Under the No child Left Behind Act, schools were threatened with the loss of federal funds if schools didn’t improve, but the mandate did not make available extra funding to help schools make these improvements.

22. 3.3
Fiscal Federalism
Programmatic Requests: usually known as earmarks, federal funds for special district or state projects
Legislators and lobbyists are engaged in a perpetual feeding frenzy in Washington to “bring home the bacon” to their states. Their vigilance keeps federal dollars spread evenly rather than going to the most needy as originally intended.
Requirements that direct states to provide additional services as a condition of a federal grant are a type of mandate. Congress usually appropriates some funds to help pay for the new policy, but sometimes it does not. Unfunded mandates are particularly unpopular with states. Can you imagine why?

23. Discuss:
Are state government too dependent on federal funds?
What are other ways states could raise more revenue?

24. 3.4 Which of the following is a result of federalism?
I want to test your comprehension of this topic by asking you this brief question.
Diversity of policies in states
States can be policy innovators
States can spend less on education
All of the above 24

25. 3.4 Which of the following is a result of federalism?
Federalism gives important powers to states. One state can set policies that may serve as models for other states. State spending is left to state legislators to determine.
Diversity of policies in states
States can be policy innovators
States can spend less on education
All of the above 25

26. FIGURE 3.2: State and local spending on public education
3.5
FIGURE 3.2: State and local spending on public education
A downside of the public policy diversity fostered by federalism is that the resources for public services vary widely from state to state. This map shows the great variation among the states in the money spent on children in the public schools. Can we say there is equal opportunity in the U.S. when the quality of education varies so much between states?
Can we say there is equal opportunity in the U.S. when the quality of education varies so much between states?

27. Federalism and Democracy
3.5
Federalism and Democracy
The federal system was designed by the Framers in part to avoid tyranny of the majority. In addition, it has contributed to democracy in several ways.
Federalism decentralizes policy, allowing different interests in different areas to elect representatives to promote those interests at both the state and federal level. This is pluralism at work, as Madison intended. Moreover, a democratic majority at the state or local level can get a policy enacted that might not represent majority opinion at the national level.
Since many policy disputes are decided at state and local level, the burden on the federal government is reduced. More levels of government also create more opportunities for citizen participation, which is critical to democratic governance. These levels also create more points of access for interest groups.
Federalism makes losing elections easier to bear as parties may retain control at one level of government even as they lose it at another.
Speaking of elections, the federal system can be detrimental to democracy because the Electoral College can select a president who loses the popular vote, as happened in Local interests can also thwart national policies supported by a majority of Americans, as southern states did with civil rights. Finally, the existence of so many governments can be confusing.
Contributions to democracy-avoid tyranny of the majority
Decentralizes politics- elect representatives to promote those interests at both the state and federal level.
Disputes resolved at lower levels of govt.-burden on the federal government is reduced
Majorities can be heard at state level
More opportunities for participation
Losing elections less painful
Detriments to democracy
Electoral College

28. Number of governments in America
3.5
Number of governments in America
The sheer number of separate governments in America is staggering.
Activity: Try to identify all of the governments that have authority and policymaking responsibilities in your area, from the federal and state governments to the various types of local government. At the same time, identify the types of public policies for which they are responsible. Briefly discuss your impressions of the federal system from your own vantage point. Indicate whether or not you found what you expected, based on your understanding of the American federal system.

29. Federalism and the Scope of the National Government
3.5
Federalism and the Scope of the National Government
Why national government grew
Economic intervention
Industrialization
Quotas-on foreign imports of automobiles and steel to protect U.S. industries from competition
Subsidies-faltering industries, such as airlines and railroads
Preventing monopolies
Occupational health and safety
Urbanization
Housing
Social welfare
In many of these policy areas, legislation at the state level would have been ineffective. Louisiana could not pass pollution legislation that prevents states upstream from polluting the Mississippi River before it flows down through its borders. Indiana could not forbid imports of foreign steel. As more policy areas come under the federal government, the scope of national government increases, but the states continue to legislate as they have always done.
The federal government has always been involved in economic regulation but economic policies increased exponentially after industrialization. The federal government, for example, has instituted quotas on foreign imports of automobiles and steel to protect U.S. industries from competition. They have also subsidized faltering industries, such as airlines and railroads. It has passed laws to prevent monopolies and protect the health and safety of workers. The urbanization that accompanied industrialization created social and economic problems that were also addressed through policies at the federal level, such as welfare, environment, and transportation.
In many of these policy areas, legislation at the state level would have been ineffective. Louisiana could not pass pollution legislation that prevents states upstream from polluting the Mississippi River before it flows down through its borders. Indiana could not forbid imports of foreign steel. As more policy areas come under the federal government, the scope of national government increases, but the states continue to legislate as they have always done.