1. FEDERALISM
Chapter 4
Federalism is the most compelling topic about American government & politics or it’s the most boring.
I used to think it was the most boring. In part one’s perspective on this topic must be historical. The relative power of the states versus the national government has waxed and waned but it has done so as the power of the national government has increased dramatically over time. So even though we think about the states as less powerful than the federal government, we regularly debate whether the states of the federal government should be more of less powerful than they are and in what arenas of public policy they should be influential.

2. Federalism
is a political system in which power is divided and shared between the national/central government and the states (regional units) in order to limit the power of government.
Examples of countries with federal governments: United States, Canada, Australia, India
Distinguish from
-- Unitary Governments - government power clearly lodged in central government and local governments are mere administrative units.
-- Confederations - group of sovereign states joining for limited purposes. Ultimate power resides with the sovereign states.

5. The Powers of Government in the Federal System
The distribution of powers in the federal system consists of several parts:
exclusive powers
shared ( “concurrent”) powers
denied powers
enumerated powers
and implied powers.
Exclusive – given to either the federal government or the state governments but not both.
Shared – power that could be exercised by both levels of government.
Denied – What each level can’t do. (Article I, sec. 9 & 10)
Enumerated – Explicitly mentioned by the Constitution (I.8)
Implied (Role of the Elastic Clause – Article I, sec. 8 “necessary & proper”)

6. Relations among the States
The Framers wanted a single country, not 13 squabbling semi-countries.
Article IV requires states to give "full faith and credit" to each others' laws.
Banking
Contracts
Marriage
Banking & Contracts
Gay Marriage

7. Article I, section 8
The enumerated powers of the central government consist of the power to:
lay and collect taxes, duties, and imposts
provide for the common defense and general welfare of the United States
regulate commerce with foreign nations, and among the states, and with Indian tribes
coin money and regulate the value thereof
declare war
Note Congress gets most of the responsibility here in Article 1.

8. Implied Powers
The central government may make all laws which shall be necessary and proper for carrying into execution the enumerated powers.
The necessary and proper clause has often been used to expand the powers of the national government.
Added to the end of Article 1 Section 8.

9. State Powers
Most of State powers come from the Tenth Amendment that says: "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."
These are often referred to as the reserve or police powers.
States also have some powers that the central government also wields called concurrent powers such as the right to tax, borrow money (although many state constitutions preclude going into debt), establish courts, and make and enforce laws.

10. Local Government Not covered by the US Constitution
Dillon’s Rule: “cities are creatures of the state legislature”
The “home rule” exception
Cities, counties, towns, etc. are usually ignored in discussions of federalism in large part because they aren’t constitutionally important. But certainly cities are operationally important and deliver many important government services. (Ignored by B/W)
In most states. state constitutions give the power to create and eliminate cities or change the authority they have to the legislature.
But in some states, state constitutions establish the powers of cities -- and state governments can’t take them away. These are “home rule” cities.

11. Denied Powers
Article I, section 9 lays out powers denied to the central government.
For example: give preference to ports of one state over another
Article I, section 10 lays out the powers denied to the states.
For example: enter into treaties, alliances, or confederations

13. Types of Federalism “Constitutional” Federalism
“Operational” Federalism
“Fiscal” Federalism
“Judicial” Federalism
In other words:
What the Constitution Says
How the Governments actually operate or operate today
Follow the Money
What Judges Say
The latter has been critical….

14. The Evolution of Federalism: The Role of the Courts
Despite formal wording in the Constitution, the allocation of powers in our federal system has changed dramatically over the years.
The Supreme Court in its role as interpreter of constitution has been a major player in the redefinition of our Federal system.
Fletcher v. Peck (1810)
McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824)
Dred Scott v. Sanford (1857)

15. Key Decisions Marbury v. Madison (1803) Fletcher v. Peck (1810)
McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824)
Dred Scott v. Sanford (1857)
The first four were decided by the Supreme Court led by Chief Justice John Marshall.
Marbury v. Madison (1803) didn’t really deal with Federalism but helped define the power of the US Supreme Court to rule on issues of law. MvM, as we’ll discuss in greater detail later in the semester, established the principle of “judicial review”.

16. Fletcher v. Peck (1810)
For the first time, the U.S. Supreme Court declared a (Georgia) state law unconstitutional.
The decision was the first step in establishing the supremacy of the Constitution and federal laws over state governments and laws.
The Georgia legislature had given land grants to private speculators in return for bribes. The next legislature revoked the grants, but some of the original grants had already been sold. Chief Justice John Marshall held that the original grants were still valid because the Constitution prohibits any state from violating a contract.
F v P extended the logic of M v M by which a national court could exercise oversight over state laws. (In M v M, the USSC had invalidated a congressional, i.e., national government, act.)

17. McCulloch v. Maryland (1819)
McCulloch is considered the first major decision by the Supreme Court about the relationship between the states and the national government.
The Court upheld the power of the national government to establish a bank and denied the right of a state to tax the Bank of the United States.
Note that this decision about the relative power of the national versus state government didn’t happen until 30 years after the country was formed.
The Court’s broad interpretation of the necessary and proper clause (Article I.8) paved the way for later rulings upholding expansive federal powers. Nothing in the Constitution says the Federal Government has to run a bank BUT it seems part and parcel of the notion the Government is empowered to coin money and raise revenue and facilitate interstate commerce.

18. Gibbons v. Ogden (1824)
The main constitutional question in Gibbons was about the scope of Congress' authority under the Commerce Clause.
In Gibbons, the Court upheld broad congressional power over interstate commerce.
The Gibbons case centered on the conflict between the states and the powers of Congress.
The specific question: Could New York grant a monopoly concession on the navigation of the Hudson River? (The Hudson River forms part of the border between New York and New Jersey and the U.S. Congress also licensed a ship to sail the Hudson.)
Note we’re still fighting over who owns what part of the Hudson river, a boundary between NY and NJ, today. The USSC recently ruled (1998) that the location of Ellis Island in NY Harbor is in NJ.

19. Dred Scott v. Sanford (1857)
The Supreme Court articulated the idea of dual federalism in which separate but equally powerful levels of government is preferable.
The Taney Court said that the national government should not exceed its enumerated powers.
Here the Court steps back from fully endorsing national authority over the states.
The Roger Taney-led Court held that Mr. Scott was not a U.S. citizen and therefore not entitled to sue in federal court. The case was dismissed and Scott remained a slave.
Taney further wrote that Congress had no power to abolish slavery in the territories and slaves were private property protected by the Constitution.
In essence, the USSC may have provided a logic for Southern states to engage in the “nullification” of national policies and paved the way for the Civil War.

20. The Civil War and Beyond
The Civil War minimized the impact of Dred Scott on limiting the growth of federal authority.
Dual federalism remained the Supreme Court's framework even after the adoption of the 13th, 14th, and 15th amendments.
Dual federalism finally ended in the 1930s, when the crisis of the Great Depression demanded powerful actions from the national government.
Wars often provide for federal expansion.
13th-15th Amendments were adopted to end slavery, ensure due process (expansion of the Bill of Rights) in state courts (up to this time the Bil of Rights were simply a protection against National Government), and promote equal rights.
But the National government was hesitant to force the issue too far.
1930’s -- the Supreme Court finally gave expanded power to the Federal Government to regulate the economy and be intrusive in its interactions with the states.

21. Landmarks on the road of rising federal power and responsibilities
Reagan Revolution
Environmental and consumer regulation
Terrorism
Civil rights revolution and the Great Society
Devolution movement
WW II
Great Depression & New Deal
WW I
Income Tax
Industrial revolution and urbanization
The Civil War Amendments (13th-15th)
Dred Scott
The Civil War
Landmarks on the road of rising federal power and responsibilities
McCulloch v. MD
Constitution replaces Articles

22. Federalism and the Supreme Court
By the 1980s and 1990s, many Americans began to think that the national government was too big, too strong, and too distant to understand their concerns.
The Supreme Court, once again, played a role in this new evolution of federalism.
For example: Since 1989, the Court has been allowing states to introduce limitations on the right to an abortion.
In recent years the Court has decided a number of cases for state governments against the national government.
The Court has also expressed its hesitancy to letting then Bush administration go too far in abrogating rights of the accused in several terrorism detainee cases. But it has recently suggested the limits are being reached. Much of the debate the last couple of weeks is a “discussion between the President and Congress over the power of government.

23. The Changing Nature of Federalism
Prior to the 1930s, a “layer cake”
After the New Deal, a “marble cake”
Analogies to describe federalism:
“layer cake”. Each layer had clearly defined powers and responsibilities. (aka “Dual Federalism”)
“marble cake”: the lines of authority were much more mixed.
“Marble cake” aka “Cooperative Federalism”
The expression of concurrent powers has become the focus of attention in recent years as both state and national government budgets continue to expand.

24. Understanding Federalism
Federalism and the Scope of Government
Which level of government is best able to solve the problem?
Which level of government is best able to fund solutions to the problem?
The answers to these two questions often differs.
--Sometimes the national government is the best service provider. Sometimes it’s the state government. And sometimes whoever is the “best provider” still needs help.
--Education is commonly thought of as something best produced locally but states help local school districts foot most of the bill and the feds step in to help certain programs operate.

25. Understanding Federalism
Advantages for Democracy
Increasing access to government
Local problems can be solved locally
Hard for political parties / interest groups to dominate ALL politics
Disadvantages for Democracy
States have different levels of service
Local interest can counteract national interests
Too many levels of government- too much money
Advantages:
The national government is so distant but I can always call on local political leaders. Indeed I have a chance to be a local political leader.
Local governments are much more likely to do what I want than state or national government officials located so far away that they don’t have a good sense of my needs and desires.
And if my local leadership is corrupt, I can ask others for help. (Overlapping)
Disadvantages:
Is it fair for citizens of different states to receive different services? (Equality?)
Should local (minority) interests prevent the majority will from becoming national policy?
We often worry about government’s wasting money Do we waste even more money with so many different governments? Do many governments produce competition and hence efficiency or redundancy and hence inefficiency? (or is redundancy bad?)

26. Additional Advantages
“Laboratories of Democracy”.
Competition.
Efficiency
States can serve as experimental platforms for new policies. Some have called them “Laboratories of Democracy”. Others less optimistic call them “Guinea Pigs”.
Competition. States may “compete” for citizens and businesses.
Negative Competition - Welfare = “The Race to the Bottom”
We often worry about government’s wasting money Do we waste even more money with so many different governments? Do many governments produce competition and hence efficiency or redundancy and hence inefficiency? (or is redundancy bad?)

27. Intergovernmental Relations Today
“Cooperative” Federalism
Definition: A system of government in which powers and policy assignments are shared between states and the national government.
Shared costs
Shared administration
But states are typically put in a position to follow federal guidelines. More later…

28. Intergovernmental Relations Today
Fiscal Federalism
Definition: The pattern of spending, taxing, and providing grants in the federal system.
Fiscal federalism is the cornerstone of the national government’s relationship with state and local governments.
Figure 3.2

29. Fiscal Federalism continued:
The Grant System:
Distributing the Federal Pie
Two Types of Grants:
Categorical Grants: Federal grants that can be used for specific purposes. (with “strings attached”)
Block Grants: Federal grants given more or less automatically to support broad programs. “Revenue Sharing”
Grants are federal monies given to states & local governments – or state monies given to local governments.
Two types of Categorical Grants:
Project Grants- based on merit (NSF)
Formula Grants: amount varies based on formulas
States prefer Block Grants. Those “Strings Attached” to Categorical Grants are sometimes contrary to local wished. (More in a minute)

30. Fiscal Federalism continued…
The Scramble for Federal Dollars
$300 BILLION in grants every year
“Universalism” - a little something for everybody
Congress (or rather Representatives and Senators) loves the grant-giving process. Our elected federal officials are very effective at advertising how much of these dollars “they” provide to their constituents. During the fall campaigns expect to hear about each incumbent’s success in bring money home. We call such credit claiming “pork barrel politics”. (Indeed the only negative statistic you’ll here is when challengers can say that the incumbent brought home fewer dollars than others or that the constituents paid more in tax dollars to the feds than they got back.)
WH is asking Congress for Hurricane relief. Not just for FL or LA. But to get this bill passed, other regions of the country will ask for money for their past emergencies (earthquakes, floods, hail, wind, etc).

31. Fiscal Federalism continued…
The Mandate Blues
Mandates are the “strings” attached to federal money
Unfunded mandates are requirements on state & local governments- but with no money
“Funded” Mandates: Drinking Age tied to Highway $$
Unfunded Mandates are even worse thanh Funded Mandates!
1970 Clean Air Act
Americans with Disabilities Act (1990)
Motor Voter Registration Act (1993)
“You will do this and pay for it!”
Political Reaction: Unfunded Mandates Reform Act (1995)

32. Examples of Federalism
Education
Public Safety
Welfare
Health Care
Hurricanes
Terrorism

33. Hurricanes NATIONAL Oceanic and Atmospheric Administration
NATIONAL Weather Service
NATIONAL Hurricane Center
FEDERAL Emergency Management Agency
STATE Government of Florida/Louisiana
COUNTY Governments in FL/LA
LOCAL Governments in FL/LA
PRIVATE Companies and Individuals
RED CROSS – Private aid organization recognized by Congressional Charter

34. 911 Terrorism New York City New York State Port of NY US Government
NYPD
NYFD
New York State
Port of NY
US Government

35. The Russian Response to Terror
Regional Governors to be elected by local legislatures not the people.
Regional governors would be nominated by the (National) President
Duma (lower federal house) would be elected from national slates. District elections (currently ½) would be eliminated.
Citing terror, Putin aims to consolidate power By Steven Lee Myers /The New York Times Tuesday, September 14, Moscow - President Vladimir Putin ordered a stunning overhaul of Russia's political system on Monday in what he called an effort to unite the country against terrorism. If enacted, as expected, the proposals would strengthen his already pervasive control over the legislative branch and regional governments.
Putin, meeting in special session with Cabinet ministers and regional government leaders, outlined what would be the most sweeping political restructuring - and his most striking single step to consolidate power - in Russia in more than a decade.
Critics immediately said it would violate the constitution and stifle political opposition.
Some 430 people have been killed in terror attacks in Russia in the past three weeks, including 330 people in the school siege in Beslan.
Under Putin's proposals, which he said required only legislative approval and not constitutional amendments, the governors or leaders of the country's 89 regions no longer would be elected by popular vote but rather by local legislatures - and only after the president's nomination.
Seats in the lower house of the federal parliament, or State Duma, would be elected entirely on national party slates, eliminating district races that now decide half of parliament's composition. In last December's elections, those races accounted for all the independents and liberals in the Duma.

36. Summary: Continuity and Change
Federalism as outlined at Philadelphia in 1787 has evolved considerably over time.
Initially, the states were quite powerful.
Over time the national government became progressively stronger.
Today, we have a Court that is more interested in reinvesting power in the 10th Amendment and in the states. The countervailing force is the “war on terrorism”.
The battle lines for the current court revolve around just how the relative power of the national versus state governments will be restricted or enhanced and where the boundaries of the powers of each level will be drawn.
2000 Presidential election?
Watch the newspaper for continuing stories about federalism once the fall term of the Supreme Court begins.