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. Learning Objectives
Define federalism and contrast it with alternative ways of organizing a nation.
3.1
In this chapter we will learn all about the system of governmental organization called federalism. First we will define the term, then look at how American federalism is organized by the Constitution. Next we will look at some changes in federalism over time and consider their consequences for public policy.

3. Ways to Organize a Nation’s Governmental System
Unitary System – most power is given to the central/national government and very weak state/regional governments.
Confederation – weak central government and most power is given to the state/regional governments.
Federalism – a way of organizing a nation so that two or more levels of government have formal authority over the same area and people.
Federalism is a way of organizing a nation so that two or more levels of government have formal authority over the same area and people. If you are a citizen of Vermont, for example, you have to obey both Vermont state laws and federal laws. Both the state and federal governments receive their authority directly from the Constitution, not from each other.
Federalism is not a common way of organizing government. Only 11 out of 190 countries use a federal system. Most nations have unitary systems, in which all power resides with the central government. States in the U.S. have a unitary relationship with local governments.
No country uses a confederate system of government, in which almost all power resides with the states and the central government is weak. The U.S. tried that under the Articles of Confederation and it did not work well at all. It is not a viable system to govern a nation.
The dealings of federal and state governments with one another in a federal system are called intergovernmental relations. Table 3.1 summarizes the authority relations in the three systems of government.

4. 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.

5. Learning Objectives
Outline the constitutional basis for the division of power between national and state governments, the establishment of national supremacy, and states’ obligations to each other.
3.2
In this chapter we will learn all about the system of governmental organization called federalism. First we will define the term, then look at how American federalism is organized by the Constitution. Next we will look at some changes in federalism over time and consider their consequences for public policy.

6. Federalism Video Clip

7. Why Federalism?
Citizens were loyal to their states more than a national government.
United States was so large and its people too widespread for a single central government to govern efficiently.
Creating a federal system was the only practical choice.
So, why did the Framers choose federalism as the system of government? Most citizens felt a strong loyalty to their states, more than they did toward a national government.
Also, the United States was so large and its people too widespread for a single, central government to govern efficiently. In 1787, creating a federal system of government was the only practical choice.

8. How to Divide the Powers Among the Levels
States retained many powers:
Organize local government and elections
Ratify Constitutional amendments
Equal representation in Senate
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 respectively, or to the people”
Federal obligations to states
Cannot divide states
Cannot tax interstate exports
Protect state against invasion
Overlapping responsibilities
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.
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.

9. 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.

10. What does this mean?
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority 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”

11. National Supremacy
If there was ever a dispute between the states and the national government the Supremacy Clause of the Constitution resolves it.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority 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”
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.

12. Moments in Establishing National Supremacy
McCulloch v Maryland (1819)
SC decided that due to national supremacy the state of Maryland did not have the power to tax a branch of the national bank.
Also, this case supported the implied powers of the national government through the Elastic Clause/Necessary and Proper Clause
“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.” (Article I Section 8)
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.
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 gives states immunity against lawsuits by individuals, but this immunity does not extend to suits by the federal government, other states, or state agencies.

13. Moments in Establishing National Supremacy
Gibbons v. Ogden (1824)
Enforced the national government’s enumerated commerce power
SC defined commerce so broadly as to encompass virtually any commercial activity.
The Civil War was a defining moment in establishing national sovereignty over the states.
The national government prevailed against the states throughout the Civil Rights Movement by integration of school and public accommodations and ending legal discrimination in jobs, housing and voting.
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.
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 gives states immunity against lawsuits by individuals, but this immunity does not extend to suits by the federal government, other states, or state agencies.

14. States’ Obligations to Each Other
Full Faith and Credit
States must honor public acts, records and civil judicial proceedings of every other state.
What about the Defense of Marriage Act (1996)?
Extradition
Requires a state to return a person charged with a crime back to the state for trial or imprisonment.
Privileges and Immunities
Designed to prevent discrimination by state against visitors or new residents coming from other states.
Examples: no sales tax in some states
Exceptions: state universities can charge higher tuition to out-of-state students.
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?
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.

15. Warm-Up
What is the connection between
these things?
Federalism

16. Learning Objectives
Characterize the shift from dual to cooperative federalism, the role of fiscal federalism in intergovernmental relations today, and diversity in policies among the states.
3.3

17. Types of Federalism
Dual (Layer Cake) Federalism – we started with this type
The federal and state governments have separate spheres of authority.
Cooperative (Marble Cake) Federalism – we have moved into this type
The national and state governments share spheres of power, blurring the lines of authority.
Examples: shared federal-state responsibility for education and transportation.
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.

18. Devolution
The transfer or delegation of power to a lower level, especially by central government to local or regional administration.
Example: Welfare Reform Act of Granted states wider latitude for designing their own programs.
Much debate between the parties on federalism
Democrats favor national government power
Republicans favor states powers
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.

19. Fiscal Federalism
Federal grants-in-aid that are a key part of cooperative federalism.
Two main types:
Categorical grants – can only be used for specific purposes
Examples:
Project grants – competitive application and must be used for projects
Formula grants – distributed based up on the number of recipients, income, or some other criterion.
Block grants – much less restrictive and give the states discretion of how to spend the money
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.
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?

20. Federal Mandates
An order from the federal government requiring the states to do something or provide something to their residents.
Usually Congress appropriates some funds to help pay for the new policy.
Funded – all money needed is given to the states
Underfunded – only a portion of what is needed is given to the states
Unfunded – no money is given to the states
Example – American with Disabilities Act (1990)
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. FIGURE 3.1: Fiscal federalism: Federal grants to state and local governments
Federal grants to state and local governments have grown rapidly in recent decades and now amount to more than $600 billion per year. The sharp increase in grants for 2010 and 2011 was the result of the stimulus package designed to counter the country’s financial crisis. The distribution of grants is not static. The percentage of grants devoted to health care, especially Medicaid, has increased substantially, mostly at the expense of income security programs.

22. Practice FRQ Prompt #1
Using the data in the graph above and your knowledge of United States politics perform the following tasks.
Identify two trends shown in the graph
b. Explain how each of the following contributes to the difference between the federal and state and local lines in the graph.
i. Block grants
ii. Federal mandates

23. Learning Objectives
Explain the consequences of federalism for diversity in public polices among the states.
3.4
Assess the impact of federalism on democratic government and the scope of government.
3.5

24. Think, Pair, Share
STEP 1: In your notebook and by yourself make a list of the advantages and disadvantages that federalism brings.
STEP 2: Find a partner and compare your lists with each other
STEP 3: Share your lists with the class

25. Advantages of Federalism for Democracy
Allows for considerable diversity among the states in policy.
Ex: Death penalty can be used or can be abolished depending on the citizens’ views.
Allows for states to be innovative in policy when federal policy lags.
Ex: raising the minimum wage above the federal level
Provides for effective representation of local interest
Reduces conflict at the national level – decentralizes politics
Allows for more opportunities to participate at different levels.
Federalism allows for considerable diversity among the states in their policies. One state can have the death penalty if its citizens favor it, and another state can abolish it if its citizens take a different view.
This constitutional arrangement facilitates state innovations in policy. It also allows states to move beyond the limits of the lowest common denominator problem in national policy. States can be innovators when federal policy lags, such as by raising the minimum wage above the federal level.
On the positive side, federalism provides for effective representation of local interests and reduces conflict at the national level. It also encourages acceptance of losing elections and increases the opportunities for citizens to participate in government to see their policy preferences reflected in law.

26. Disadvantages of Federalism for Democracy
Leaves states dependent upon the resources within their borders to finance public services
 may discourage some states from providing some services so that, for example, lower socio-economic people do not move to states with higher welfare benefits.
OR residents of state that choose to spend less on certain services may lag behind residents of other states in, for example, quality of education.
Confusing to citizens due to many different levels
However, federalism also leaves states dependent upon the resources within their borders to finance public services. It may also discourage states from providing some services so that, for example, poor people do not move to states with higher welfare benefits. It also means that residents of states that choose to spend less on certain services may lag behind residents of other states in, for example, quality of education.
On the negative side, federalism not only increases opportunities for local interests to thwart national policy, but also can result in the election of a president not favored by a majority of the public. Federalism can also complicate efforts to make government responsive.

27. 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?

28. Number of governments in America
The sheer number of separate governments in America is staggering.

29. Video: In the Real World
Is universal health care beyond the scope of our national government? Let’s see what others think. Should the federal government be allowed to mandate health care reform or should that power belong to the states? Hear supporters and detractors of Obamacare explain their opinions, and learn about the recent Supreme Court decision that handed this power to the federal government.

30. Practice FRQ Prompt #2
The framers of the United States Constitution created a federal system.
a. Define federalism
b. Select two of the following and explain how each has been used to increase the power of the federal government relative to the states.
i. Categorical Grants
ii. Federal Mandates
iii. Selective Incorporation
c. Select two of the following and explain how each has been used to increase the power of the states relative to the federal government.
i. Welfare Reform Act of 1996
ii. Block Grants
iii. 10th Amendment