1. Federalism, the Commerce Clause and the 10th Amendment
Federalism – two or more levels of government each with significant policymaking power
Remember, the US as a whole is Federal; the 50 individual states are unitary (power is centrally located, for example, in Sacramento, in California). Under the Article of Confederation the US had a confederate form of government (states had sovereignty (power) and the national government was weak. Most countries in the world are by far unitary. No countries in the world are confederate (the United Nations is an example of a confederate form of government
Most public policy debates today center on federalism; meaning which level of government has power over the policy area in question
Decentralizes politics – many levels of government to which we elect leaders. This allows us many points to access policymakers
Decentralizes policies – allows states to have different policies regarding the same issue (think death penalty) and to offer different levels of services (think level of funding per student for education or welfare payments)
Up until the 1930s powers rarely overlapped (Dual Federalism – a layered cake). Powers are clearly defined for each level of government (National and State)
Since the 1930s we have operated under cooperative federalism (a marbled cake or 50 marbled cupcakes). National and State Governments share responsibility, costs (federal and state dollars) and administration over public policy (think interstate highway system)

2. Federalism, the Commerce Clause and the 10th Amendment
Cooperative federalism
Grants in Aid
Categorical Grants
For a specific category (school lunch programs , not a broad category like education)
Come with lots of “strings” (conditions) attached to receive the money
Two types
Project Granst
Based on merit and competition
University research grants and grants to arts programs
Formula grants
Based on a formula
Medicaid
Aid to Families with Dependent Children
Block Grants
For a broad category (welfare reform or community redevelopment)
Come with few “strings” attached
Give states the most discretion on how to spend the money
Ex – 1996 Welfare Reform Act
Mandates
Directives by the federal government to carry out policy
Most come with very little money
some are what are termed “unfunded mandates” because they come with no money from the federal government
No Child Left Behind
The Americans with Disabilities Act

3. Federalism, the Commerce Clause and the 10th Amendment
Federal Government is given the power to regulate interstate commerce in the Constitution (Commerce and Slave Trade Compromise)
How the Courts have interpreted what is and is not interstate commerce has often defined the relationship between the National and State Governments
Broad definition expands the power of the federal government; narrow definition strengthens state powers
Gibbons v. Ogden
If intrastate commerce affects interstate commerce than the federal government can regulate - broadens the definition to include virtually every commercial activity
After industrialization, Congress attempts to regulate workplace conditions (child labor, for example, in Hammer v. Dagenhart). Court rules Congress actions unconstitutional. Must be a direct relationship between the regulated activity and interstate commerce. The production of goods is separate from the fact the goods may end up as interstate commerce. Narrows federal power
Beginning in the 1930s with the New Deal, the Court changes its stance and expands the power of the Federal government
Allows for regulating activities, including in the workplace, that have a substantial affect on interstate commerce
US v Darby
NLRB v Jones
Wickard v Filburn
1964 Civil Rights Act – bans discrimination in places of public accommodation (motels, restaurants). Upheld as a constitution exercise of Congress’ power to regulate interstate commerce
Katzenbach v McClung
Heart of Atlanta Motel v US
Beginning with US v. Lopez (1995) and followed up by US v. Morrison (2000), Court restrains the power of the national government
Lopez decision – guns near schools bear no relationship whatsoever to interstate commerce
Morrison decision – gender-motivated crime bears no relationship to interstate commerce

4. Federalism, the Commerce Clause and the 10th 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”
Some have interpreted this to mean that the National Government only has those powers enumerated in the Constitution – this interpretation limits the power of the National Government
In this sense, the Tenth Amendment is “but a truism.” United States v. Darby (1941). No law that would have been constitutional before the Tenth Amendment was ratified becomes unconstitutional simply because the Tenth Amendment exists. The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment. That was the understanding of the Supreme Court for nearly two centuries
beginning in 1976, a line of cases has emerged that seems to give substantive constitutional content to the Tenth Amendment. In 1986, in Garcia v. San Antonio Metropolitan Transit Authority, a narrow majority of the Supreme Court held that a city was required to comply with federal labor laws
in subsequent cases the Court has indeed found judicially-enforceable limits on the power of the federal government to regulate states (and their political subdivisions) directly
Those cases all involve action by the federal government that in some way regulates or commands state governments, such as by telling states what policies they must adopt, New York v. United States (1992), forcing state or local executive officials to implement federal laws, Printz v. United States (1997), or conditioning the states’ acceptance of federal money on compliance with certain conditions,South Dakota v. Dole (1987)

5. Federalism, the Commerce Clause and the 10th Amendment
States the federal government is a government of delegated powers, while the states have reserved powers
Delegated Powers not limited to enumerated powers (those specific powers listed Article I; Section 8 of the Constitution)
In McCulloch v Maryland (1819), the Court not only upheld the supremacy of the National government (Supremacy Clause), but said Congress had implied powers in addition to their enumerated powers
Creating a bank, the military draft, and the federal minimum wage are all examples of implied powers
The federal government also has inherent powers – those powers that come with being a nation-state in the world community
Regulating immigration, to acquire territory, to recognize other countries are all examples of inherent powers of the National Government
Some powers, such as the power to coin $ and the power to declare war are exclusive to the National Government
Some powers, such as the power to tax, the power to create a bank, the power to make and enforce laws are concurrent powers exercised by BOTH the National and State Governments