1. Federalism: State’s Rights & Mandates1

2. Federal Mandates Definition & Examples Purposes Impact upon the states
Republican response to mandates
Mandate: a federal order imposed upon states. Examples: (p. 82)
Americans with Disabilities Act
Various environmental acts, e.g., Clean Air Act, Clean Water Act
Individuals with Disabilities Education Act
Purposes: to meet a goal of the federal government
Impact upon the states:
Financial burdens, esp. with unfunded mandates, e.g., ADA has imposed large costs upon states as they make “reasonable accommodations” for the disabled.
State complaints about federal heavy-handedness, e.g., if a state does not devise a plan and pay for the requirements of the Clean Air Act of 1990, the federal government will impose its own plan upon the state
State complaints about federal blackmail, e.g., if a state doesn’t comply with the Clean Air Act standards, federal funds can be withheld in other programs
Republican response to mandates:
Unfunded Mandates Reform Act of 1995 (part of Contract w/America) restricted future unfunded mandates (p. 83)
Required CBO to analyze impact of unfunded mandates on states
Requires separate congressional vote on bills that impose unfunded mandates
This is another example of the Devolution Revolution associated with the 104th Congress 2

3. Decentralism v. Centralism
Decentralist Approach
7 key points
Centralist Approach
Triumph of Nationalist Approach
Decentralist (states’ rights) approach
Const. a compact created by states  implies strong state authority
Const. carefully limits national authority to delegated powers.
10th amendment gives broad powers to states
When in doubt as to which holds a power, matter should be resolved in favor of states
Implies strict constructionist approach to Constitution
National govt. has gotten too big and impersonal
State govts. are closer to the people
Followers: Calhoun, Goldwater, Reagan, southern conservatives, western conservatives, Christian fundamentalists, Newt Gingrich, Bush 43 (“W”)
Centralist (nationalist) approach
Const. created by people (“We the people…”), and not the states
Elastic, commerce, and taxing/spending clauses give great power to national govt.
Powers go to states only if they have been surrendered by national govt.
When in doubt, matter should be resolved in favor of national govt.
Implies loose constructionist approach to Constitution
Size of federal bureaucracy has remained relatively constant for last 40 years
While state govts. may be closer to people, some of those state govts. have violated people’s basic rights (e.g., South during first 70 years of 20th century) – national govt. has been key protector of rights
Followers: Hamilton, Marshall, Webster, TR, FDR, JFK, LBJ, Clinton, Kerry
Triumph of nationalist approach: McCulloch v. Maryland (1819)
Maryland attempted to tax a branch of the Bank of the U.S.:
It argued that taxing was one of its reserved powers
In addition, it argued that the Bank was unconstitutional, anyway
The Court’s decision (under Marshall)
Need for a more flexible interpretation of the Const. so that it would endure  Bank was “necessary and proper”  establishment of implied powers
“Power to tax involves power to destroy”  states clearly not free to destroy the national govt.  establishment of national supremacy 3

4. Sources of National Strength
Elastic Clause
War Powers
Commerce Clause
Power to tax
Preemption of state laws by federal courts
Imposition of federal mandates
Sources of national strength
Elastic clause: Congress can pass laws “necessary and proper” to carry out expressed powers
War powers
Commerce clause: virtually anything is interstate or foreign commerce  Congress can regulate virtually anything
Power to tax and spend for the “common defense and the general welfare”
While Congress cannot technically legislate on everything, it can spend funds on virtually everything
States don’t have to accept federal money, but if they do, they must follow federal guidelines (e.g., fed. highway funds can be denied if a state’s alcohol purchasing age is less than 21, fed. education funds can be denied if states do not comply w/ No Child Left Behind Act) – Federal “strings” attached to funding are ways in which the federal govt. can get its way on things.
Preemption of state laws by federal courts if laws in conflict with Const. or fed laws
Imposition of federal mandates (some unfunded) on states 4

5. Recent Developments Evolution Nixon’s “New Federalism”
Republican Victory 1994
Supreme Court Actions
Recent developments
Evolution towards greater federal control throughout most of the 20th century
Nixon’s “New Federalism:” returning some power back to the states. Also favored by Reagan, both Bushes, and Republican party in general
Republican victory in cong. elections of 1994  Contract with America and devolution of power back to states:
Unfunded Mandates Reform Act of 1995 restricted future unfunded mandates
Use of block grants to replace categorical grants
1996 welfare reform bill that ended welfare as fed. entitlement
repeal of 55 mph speed limit
Supreme Court actions consistent with devolution:
Struck down Gun Free Schools Zones Act in 1995 in US v. Lopez: Congress overextended itself when it linked gun control laws to the interstate commerce clause of the Const.
Struck down part of the Violence Against Women Act in US v. Morrison (2000), saying that rape victims could not sue their attackers in federal court because it was up to the states – not Congress – to give such help to women victimized by violence. Again, the Court said that the Congress had overextended itself with the use of the interstate commerce clause in passing the Act
Struck down Religious Freedom Restoration Act in 1993: This act had restricted the power of states to regulate religion  this ruling gave states greater authority to regulate religion
Struck down Brady Act in 1997 that required local law enforcement agencies to do background checks on gun buyers
Upheld an Indiana law that required photo ID for voting (Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, 2008) 5