1. Chapter 3 Federalism

2. WHO GOVERNS? TO WHAT ENDS?
1. Where is sovereignty located in the American political system?
2. How is power divided between the national government and the states under the constitution?
TO WHAT ENDS?
1. What competing values are at stake in federalism?
2. Who should decide which matters ought to be governed mainly or solely by national laws?
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3. Why Federalism Matters
Federalism is a system in which the national government shares power with state/local governments.
State governments have the authority to make final decisions over many governmental actions.
The most persistent source of political conflict is between national and state governments.
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4. Roots of Federalism Video
The federalist system of government is a hybrid of what other two forms of government?
Where do state and national governments reeve their power in a federal system?

5. Figure 3.1 Lines of Power in the Federal System of Government
Unitary government:
All local governments are subservient to the national government.
Local governments can be altered or abolished by the national government.
Local governments have no final authority over any significant federal government activities.
Examples of unitary governments: France, Britain, Italy, Sweden
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6. Figure 3.1 Lines of Power in the Federal System of Government

7. The Founding
A Bold New Plan: A “federal republic” for which there was no precedent
Founders believed that neither national nor state government would have authority over the other, because power comes from the people, who shift their support to keep the two in balance.
New plan had no historical precedent
Tenth Amendment was added as an afterthought to clarify the limits of the national government’s power.
Tenth Amendment has had limited applicability, but has recently been used by the Supreme Court to give new life to state sovereignty.
Elastic Language
Precise definitions of powers are politically impossible due to competing interests, for example, commerce.
Congress shall have the power to “make all
laws which shall be necessary and proper for
carrying into execution the foregoing powers.”
-from Article I
Formatting?
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8. Elastic Language
Hamilton’s view: national supremacy, because the Constitution was the supreme law of the land
Jefferson’s view: states’ rights with the people as ultimate sovereign; the national government was likely to be the principal threat to individuals’ liberties.

9. McCulloch v. Maryland (1819)

10. The Debate on the Meaning of Federalism
The Supreme Court Speaks
McCulloch v. Maryland (1819) settled two questions
Could Congress charter a national bank? Yes, because of the “necessary and proper” (elastic) clause, even though this power is not explicitly in the Constitution
Could states tax such a federal bank? No, because national powers were supreme and therefore immune to state challenge
Later battles related to federal taxes on state and local bond interest.
Bowdoin College Museum of Art, Brunswick, Maine, Bequest of the Honorable James Bowdoin
Thomas Jefferson was an ardent supporter of states’ rights, p. 54
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11. Article I Section 9&10
Article I, Section 9 specifically prohibits Congress from legislating in certain areas.
Article I, Section 10, limits the power of the states.

12. Debate cont’ Nullification Dual Federalism
Definition: states had the right to declare null and void a federal law that they believed violated the Constitution
Authors: James Madison (Virginia Resolutions), Thomas Jefferson (Tennessee Resolutions), and John C. Calhoun
Question settled by the Civil War: the federal union is indissoluble, and states cannot nullify federal law; position later confirmed by the Supreme Court
Dual Federalism
Definition: both national and state governments are supreme in their own spheres, which should be kept separate.
Example: interstate versus intrastate commerce
Early, product-based distinctions were unsatisfactory
Still, the Supreme Court does seek some distinction between what is national and what is local, although it is not entirely consistent in its support of state sovereignty

13. Dual v Cooperative
What are some services provided by the federal government?
What are some services provided by the state government?
What services do local governments provide?

14. Dual v Cooperative Dual: Cooperative: Pre national govt dominance
Each remain supreme w/in their own spheres
Layer Cake Analogy
Powers of National Govt interpreted narrowly
Cooperative:
Share responsibilities for public policy
Marble Cake Analogy
Mingled resp. and blurred distinctions
Historically starts w/ New Deal, Great Society
Involve shared costs, federal guidelines, shared administration

15. State Sovereignty
Supreme Court has strengthened states’ rights in several recent cases
United States v. Lopez (1995), guns in schools
United States v. Morrison (2000), overturned Violence Against Women Act of 1994, stating that attacks against women do not substantially affect interstate commerce
Printz v. United States (1997), background checks on gun purchasers
Supreme Court has also strengthened the Eleventh Amendment, protecting states from suits by residents of other states or citizens of foreign nations
Alden v. Maine (1999), compliance with federal fair-labor laws
Federal Maritime Commission v. South Carolina Ports Authority (2002), states did not agree to become mere appendages of national government

16. Eleventh Amendment
The amendment specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country. Protecting states from certain types of legal liability is a concept known as “sovereign immunity.” (immune from being sued in federal court without their consent).
Hans v. Louisiana(1890) extended the sovereign immunity, barring suit even by citizens of that defendant state. Although other states and the federal government could still bring action against the state.
Result: States became immune to federal law, since private parties could not sue.
Stripping doctrine: private parties can sue state officers in their official capacity for injunctive relief.
Eleventh Amendment - The Meaning
After the U.S. Supreme Court ruled in 1793 that two South Carolina men could sue and collect debts from the State of Georgia, states-rights advocates in Congress and the states pushed for what became the Eleventh Amendment in The amendment specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country. Protecting states from certain types of legal liability is a concept known as “sovereign immunity.”
The amendment did not bar all lawsuits against states in federal courts. For example, as initially interpreted, the Eleventh Amendment did not bar suits against states when a matter of federal law was at issue nor did it prevent suits brought against a state by its own citizens. But more recently, a divided Supreme Court has held that states are immune from all lawsuits in federal courts unless they specifically agree to be sued.

17. State Sovereignty cont’
But not all decisions have supported state sovereignty
State can do what is not prohibited by the Constitution or preempted by federal policy, even if it is consistent with its own constitution
Police power—generally recognized; refers to those laws and regulations, not otherwise unconstitutional, that promote health, safety, and morals.
Protections for the states in the Constitution
No state can be divided without its consent.
Two senators for every state
Every state assured of a republican form of government.
Powers not granted to Congress are reserved to the states.
Cities, towns, and counties have no such protections.
They exist at the pleasure of the state government, so there is no struggle over sovereignty (Dillon’s Rule)
See the Politically Speaking box: The Terms of Local Governance
Current conflicts are mostly over federal grants or federal mandates, which require states to meet certain standards before they can receive federal funds.

18. The Granger Collection
At one time the states could issue their own paper money, such as this New York currency worth 25 cents in Under the Constitution, this power was reserved to Congress. p. 55

20. Who wins????? V.
But where does the national govt’s boundaries end????

21. Advocates of a strong national govt say…..
Supremacy Clause!
(Article VI, Section 1, Clause 2. This clause asserts and establishes the Constitution, the federal laws made in pursuance of the Constitution, and treaties made by the United States with foreign nations as "the Supreme Law of the Land”)

22. 10th Amendment
Advocates of state’s rights believe this means the national govt has only those powers specifically assigned by the constitution
10th Amendment: Any power not listed, says the Tenth Amendment, is left to the states or the people.
Review terms expressed and enumerated ; Go over 10th amendment

23. What would Georgia do????
Jack and Jill got married in Maine and moved to GA for the weather. Are they still married?
Susie gets her driving license in Texas. Can she get pulled over in GA for not having a GA license?
Yes, Full Faith and Credit Clause
No, Full Faith and Credit Clause
Go over Article IV with students as do this….full faith and credit: section 1: requires each state to recognize the official documents and civil judgments rendered by the cts of other states…..Defense of Marriage Act permits states to disregard gay marriages

24. Article IV
Section 1 ensures that states respect and honor the state laws and court orders of other states, even when their own laws are different.
Section 2 guarantees that states cannot discriminate against citizens of other states.
Section 3 Congress can admit new states into the Union, but a single state cannot create a new state within its boundaries.
Section 4 The section also gives Congress the power (and obligation) to protect the states from an invasion by a foreign country.

25. What would Georgia do????
John Dillinger is fleeing Indiana after robbing banks and has made it down South to GA. The officials know where he his.
Return him to Indiana…..
Extradition
Go over Article IV with students!!! ; extradition: section 1, legal process whereby an alleged criminal offender is surrendered by the officials of one state to officials of the state in which the crime is alleged to have been committed

26. What would Georgia do????
Sam is visiting Atlanta from New York and has to pay 7% sales tax (he’s not to happy since New York does not have this….). Does he have to pay?
Yes, Privileges and Immunities
Go over Article IV with students!!! Section 2, according citizens of each state most of the privileges of citizens of other states; police protection also; exceptions colleges, voting

27. Federalism ALSO involves relationships among states
Article IV….
Federalism ALSO involves relationships among states

28. Is Federalism Good or Bad?
So what is Federalism?
Is Federalism Good or Bad?

29. Figure 3.1 Lines of Power in the Federal System of Government
Federalism: a political system with local government units, as well as a national government, that can make final decisions regarding some governmental activities and whose existence is protected
Local governments are able to make decisions on at least some matters without regard to the preferences of the national government.
Examples of federal governments: United States, Canada, India, Germany, Switzerland, Australia

30. Governmental Structure
Special protection of sub national governments in federal system due to:
Constitution of country
Habits, preferences, and dispositions of citizens
Distribution of political power in society
National government largely does not govern individuals directly, but compels states to do so in keeping with national policy.

31. Federalism: Good or Bad?
Negative views: federalism blocks progress and protects powerful local interests
Different political groups with different political purposes come to power in different places.
Positive view: federalism contributes to governmental strength and political flexibility and fosters individual liberty
Federalist No. 10: small political units are more likely to be dominated by single political faction which allows all relevant interests to be heard, somewhere
The Granger Collection, New York
Federalism has permitted experimentation. Women were able to vote in the Wyoming Territory in 1888, long before they could do so in most states, p. 62

32. So is it good or bad? Increased political activity
Most obvious effect of federalism: it facilitates political mobilization.
Federalism decentralizes authority, lowering the cost of political organization at the local level.
What the states can do
1.Play a key role in social welfare, public education, law enforcement, criminal justice, health and hospitals, and roads and highways; also in managing water supplies
2.State constitutions are more detailed and sometimes confer more rights than the federal one in the above matters.
3.State constitutions open one or more of three doors to direct democracy: what are they?
4.Existence of states is guaranteed by the federal Constitution.

33. Eleventh Amendment
The amendment specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country. Protecting states from certain types of legal liability is a concept known as “sovereign immunity.” (immune from being sued in federal court without their consent).
Hans v. Louisiana(1890) extended the sovereign immunity, barring suit even by citizens of that defendant state. Although other states and the federal government could still bring action against the state.
Result: States became immune to federal law, since private parties could not sue.
Stripping doctrine: private parties can sue state officers in their official capacity for injunctive relief.
Eleventh Amendment - The Meaning
After the U.S. Supreme Court ruled in 1793 that two South Carolina men could sue and collect debts from the State of Georgia, states-rights advocates in Congress and the states pushed for what became the Eleventh Amendment in The amendment specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country. Protecting states from certain types of legal liability is a concept known as “sovereign immunity.”
The amendment did not bar all lawsuits against states in federal courts. For example, as initially interpreted, the Eleventh Amendment did not bar suits against states when a matter of federal law was at issue nor did it prevent suits brought against a state by its own citizens. But more recently, a divided Supreme Court has held that states are immune from all lawsuits in federal courts unless they specifically agree to be sued.

34. p. 59
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35. Federal-State Relations
Grants-In-Aid
Grants show how political realities modify legal authority
First form was land grants in order to finance education.
Meeting National Needs
1960s shift in grants-in-aid
From what states demanded …
…To what federal officials considered important as national needs
David Young-Wolff/PhotoEdit
Some of the nation’s greatest universities,
such as the University of California at Los Angeles, began as land-grant colleges. p. 64
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36. Relations cont’ The Intergovernmental Lobby Categorical Grants
Hundreds of state and local officials lobby in Washington
Purpose: to get more federal money with fewer strings
Categorical Grants
Categorical grants are made for specific purposes defined by federal law; they often require local matching funds.
Block grants (essentially a group of categorical or project grants) were devoted to general purposes with few restrictions—states preferred block to categorical grants.
Rivalry Among the States
Intense debate regarding whether the federal government is helping some regions at the expense of others
Difficulty determining where funds are actually spent and their effect, though

37. Source: Budget of the U.S. Government, Fiscal Year 2009.
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Source: Budget of the U.S. Government, Fiscal Year 2009.
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38. New York police check backpacks as passengers enter a ferry when the city was on high alert in p. 65
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39. Figure 3.2 The Changing Purpose of Federal Grants to State and Local Governments
Note: Totals may not add up to 100 percent because of rounding.
Source: Budget of the U.S. Government, Fiscal Year 2007, table 12.1.

40. Today: Healthcare
Florida, October 15, 2010 A federal judge in Florida has ruled that the lawsuit led by 20 U.S. states against the new national health care reform may proceed to trial… the challenge to the Affordable Care Act, called "ObamaCare" by its critics, on two major counts: the individual mandate to carry health insurance and the required expansion of the state-run Medicaid program.

41. Federal Aid and Federal Control
Mandates
federal rules that states or localities must obey
generally have little or nothing to do with federal aid, but states will not receive aid if they do not follow the federal mandate.
Civil rights
Environmental protection
Conditions of Aid
Attached to grants
Range from specific
to general
unfunded mandates-
Conditions of receiving
that are not paid for by the
federal government.
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42. Mandate Example… National Minimum Drinking Age Act (NMDAA) in 1984
"unfunded federal mandate”
Under the NMDAA, the federal government ordered the states to increase their minimum legal drinking age to 21 years old. States were free to say "no," but for any state that did so it would lose approximately 10% of its federal funding for highway public transportation under another act called the Federal Aid Highway Act. Therefore, the federal government mandated the states to pass laws increasing their minimum drinking age to 21 years old or face losing money for their highways legalflip.com

43. Unfunded Mandates Reform Act
Contract With America
1994 GOP push to reform government
A bill to curb the practice of imposing unfunded Federal mandates on States and local governments.
To ensure that the Federal Government pays the costs incurred by those governments in complying with certain requirements under Federal statutes and regulations; and for other purposes.

44. A Devolution Revolution?
Devolution shifts many federal functions to the states.
President Reagan asked Congress to consolidate numerous categorical grants into large block grants.
The 1994 election of Republican majorities in House and Senate led to devolution initiatives that sought to reduce the number of federal regulations and shift responsibility for programs to the states.
Results
Federal spending increased—did not decrease
More, not fewer, rules and regulations overall
Little change in congressional preemption of state laws
Is Devolution good or bad?

45. Robin Nelson/Corbis
A woman who heads a faith-based organization works with a jailed teenager to help him overcome his problems. p. 70
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46. Congress and Federalism
WHY IS THERE SO MUCH POLITICAL AND POLICY DIVERSITY IN THE UNITED STATES?
State and local governments have retained certain constitutional protections.
Members of Congress think of themselves as representatives of localities to Washington, not as representatives of Washington to the localities.
Congress members represent conflicting constituencies—won’t always agree with governors and mayors
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47. WHAT WOULD YOU DO?
MEMORANDUM To: Representative Sue Kettl From: Grace Viola, chief of staff Subject: Faith-based preemption bill As requested, I have researched state-funding policies. The main finding is that the state laws do hobble getting federal dollars to the religious groups that have been doing most of the actual recovery work. The immediate question before you is whether to sign on as a co-sponsor to the bill.
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48. WHAT WOULD YOU DO?
Arguments for: 1. Congress has already passed at least four laws that permit federal agencies to fund faith-based groups that deliver social services, subject to prohibition against using any public funds for proselytizing or such. 2. The faith-based organizations functioned as first responders when the hurricanes hit, and have since supplied billions of dollars worth of manpower and materials. 3. Some legal experts say that the existing laws already preempt the contrary state ones; besides, it polls great (75 percent in favor nationally, even higher in your district).
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49. WHAT WOULD YOU DO?
Arguments against: 1. You have traditionally argued in favor of states’ rights and the separation of church and state. 2. Praiseworthy though their civic good works have been, some of the religious groups involved in the cleanup and recovery have beliefs and tenets that seem discriminatory (a few even refuse to hire people of other faiths). 3. Expressly preempting more state laws could come back to bite us when it comes to state laws that we favor over contrary federal ones.
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50. WHAT WOULD YOU DO? Your decision: Support bill? Oppose bill?
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