Cummings and Wise Chapter 3: Federalism

Key Vocabulary Federalism New federalism Gibbons v. Ogden Federal system Regulatory federalism Supremacy clause Unitary system Enumerated powers Categorical grants Confederal system Implied powers Block grants Dual federalism (layer cake) Inherent powers General purpose grants Cooperative federalism Concurrent powers Devolution Revolution (marble cake) Commerce clause General revenue sharing Creative federalism McCulloch v. Maryland

Key Concepts/Questions

1. What is federalism and what are the various interpretations of federalism? a. Federalism is a vertical distribution of power between the national and state governments; a system of government characterized by a constitutional sharing of power between a national government and regional units of government i. Unitary (France); power centralized; state/regional governments derive authority from central government ii. Federal (USA); power divided between central and state or local governments; both national governments and state governments act directly upon citizens; both levels have to agree on constitutional change; political system where there are local units of government and a national government that can make final decisions; local units exist independently of preferences of the national government and can make decisions on at least some matters without regard to those preferences iii. Confederal (EU); power held by independent states; central government is a creature of the constituent governments b. Interpretations: Is federalism merely a baked good? i. Dual federalismthe concept-accepted until 1937-of the federal government and the states as competing power centers, with the Supreme Court as a referee 1. also known as layer cake federalism 2. constitution interpreted as giving limited powers to the national governments, giving most powers to the states, each level dominates in its own sphere; Supreme Court mediates ii. Cooperative federalisma view that the various levels of government in America are related parts of asingle governmental system characterized by cooperation and shared functions 1. came into favor beginning in 1937 when Supreme Court began ruling that many of the New Deal Programs were constitutional 2. Federalism as a marble cake(Grodzins) although each level has its own powers, they get swirled together and it is often hard to break them apart; state, national and local governments don’t have total independence just like the branches are not totally independent iii. Creative federalisma term coined by LBJ to describe his own view of the relationship between Washington and the States 1. comes out of the Great Society legislation that continued to expand the role of the federal government iv. New FederalismPresident Nixon’s effort to return federal tax money to state and local governments; also adopted by President Reagan 1. devolution of power to the state and local governments in an attempt to shrink the size of the national government, based on the theory that the closest level of government is going to know what is best 2. Examples: a. “Reagan revolution” cuts in domestic spending (specifically aimed at social-assistance programs such as Medicaid, housing subsidies, and welfare benefits b. 1994 Republicans take over Congress and Newt Gingrich pushes for shift control over social programs to states; 1996 Clinton signs into law a program that ended the Aid to Families with Dependent Children program (AFDC) and created Temporary Assistance to Needy Families (TANF); more block grants (vs. categorical grants) to states; state is supposed to have more authority on how its spends its money v. Regulatory Federalismthe emergence of federal programs that set standards and requirements of the states through federal laws and regulations. The federal programs are then implemented by the state and local government. 1. begins in 1960s when federal government starts expecting states and local governments to comply with environmental regulations devised by the federal government (Clean Air Act of 1970), 1964 Civil Rights Act, 1965 Highway Beautification Act, 1970 Occupational Safety and Health Act 2. Cummings and Wise use the shift from AFDC to TANF as an example 3. when the federal government provides all or most of the funding to comply with these rules, the rules are called “funded mandates”, when the federal government does not provide the funding, yet still expects the states to comply, these rules are called “unfunded mandates”

2. How are constitutional powers distributed throughout the levels of the United States government? a. In general: i. National government has delegated (enumerated), implied, and inherent powers, w/in its powers, national government overrides the states 1. Supremacy clauseArticle VI, Paragraph 2 of the Constitution which declares that the Constitution, and the laws and treaties of the United States made under it, are “the supreme Law of the Land” and prevail over any conflicting stat constitutions or laws ii. State governments have reserved powers 1. 10th Amendment States “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” iii. Prohibited (Restricted) powerssome powers prohibited; to both state and national governments or one or the other b. The powers of the national government i. Delegated powersthe 27 powers, also called enumerated or expressed powers, that are specifically granted to the federal government by the Constitution (Article I, Sec. 8), coin money, tax, regulate commerce, declare war ii. Implied powersthose delegated powers of the national government that are not specifically stated in the Constitution, but that are implied by the interpretation of the Elastic Clause iii. Elastic Clauseallows Congress to pass laws as necessary to carry out its authorized powers iv. Inherent powersthe powers, usually in foreign affairs, that grow out of the very existence of the national government (acquire territory, recognize foreign states, immigration policy, protect US from rebellion) c. Powers of the states i. Reserved powers, those powers that are held by states and not delegated to the national government, guaranteed by the 10th Amendment, not listedestablish local government, regulating trade w/in the states, conducting elections ii. Constitution assumes that state governments should regulate their internal affairs d. Concurrent powersthe powers that both national and state governments have (levying and collecting taxes, establishing and maintaining separate court systems, borrowing money) e. Prohibited powers(restricted powers) are denied to the federal government, the state government, or both i. National governmentcan’t tax exports, can’t interfere with states ability to carry out their duties ii. Statescan’t recognize other territories, can’t make treaties, print money, tax imports/exports, can’t engage in war 3. Federal and state responsibilities a. Federal responsibilities to states i. Republican form of government ii. Protection against domestic insurrection iii. Admission of new states b. State responsibilities to national government i. National Guard ii. Procedures for elections, voter registration, polling places, congressional districts, amending the constitution c. States’ obligations to each other i. Full Faith and Credit Clause (IV, 1)states that acts or documents considered legal in one stte must be accepted as valid by all other states ii. Extradition iii. Citizens of one state receive the privileges and immunities of any other state where they happen to be (exceptions include, in state/out of state tuition, can’t vote in another state’s state election)

4. How has federalism evolved since the beginning of this country? a. Involves defining boundaries, especially in terms of interstate commerce b. History is series of expansion and contraction of national power over states c. History of interpretation of commerce clause doesn’t always fit the general pattern, in general Court since 1937 “[has] supported virtually unlimited congressional authority”(Woll, 87) d. 18th century=national power over the states, but not unlimited national authority, should the states be subject to the national government (advantages/disadvantages) e. Expansionthrough New Deal (centralization), federal grant-in-aid programs, conditions of aid f. 19thdefining the boundaries of state and national powers (especially the interpretation of the commerce clause ) g. McCulloch v. Maryland (1819)  Marshall court  Established doctrine of implied powers and the supremacy of national law  Issues: o Did congress have power to charter a national bank? o If so, did the states have the power to subvert it?  The power to create implies a power to preserve (national gov. has implied pwr to create a bank, taxation on state level would impede the bank, so national gov has right/power to preserve h. Gibbons v. Ogden (1824) i. Ogden licensed by individuals (which were granted monopoly pwr by NY legislature) to navigate rivers of state ii. Gibbons operating boat on basis of license granted by 1793 law passed by congress iii. Ogden wants Gibbons to stop, Gibbons appeals to Supreme Court iv. “States cannot interfere with a power granted to Congress by passing conflicting state legislation” v. “the commerce power includes anything affecting ‘commerce among the states’ and thus may include intrastate as well as interstate commerce” vi. Precedent set for broad national control over commercial activity i. Marshall era ends in 1836 of broad interpretation of national dominance in terms of interpretation of commerce clause, Congress returns to this interpretation in 1937 w/ passage of New Deal legislation j. Civil War (650,000 die) i. Amendments 1. 13th (abolition of slavery) 2. 14th(citizenship to all born in US, states may not prohibit citizens of the US from enjoying privileges of citizenship) 3. 15th (race, nationality, previous condition of servitude not grounds for denial of suffrage on state and federal levels) 4. Amendments were outlines not blueprints so conflict over interpretation of amendments emerges and conflicts were fought in court (still continues to be weapon of states rights advocates) ii. Enforcement clauses of amendments gave Congress authority to enforce them and “vastly expanded Congress’ potential authority over the states”(Woll, 85) 5. Expansion and Contraction/20th a. Expansion i. see Federalism in New Deal, symbolized “state capitulation to a dominant national government”(Woll, 50) ii. 1960s get process of incorporation of Bill of Rights (through 14th amendment) iii. 1964 Heart of Atlanta Motel, Inc. v. U.S. (test for constitutionality of the Civil Rights Act of 1964; does the federal gov. have the authority to prohibit racial discrimination in the states?) 1. Racial discrimination in public accommodations impedes interstate travel which would cause a disruption of interstate commerce (b/c people eat, sleep, buy other goods and service in the process of travel) which congress has the authority to regulate anything that would impede interstate travel b. Contraction i. New FederalismNixon, Reagan, decentralization of power from the national to state governments (revenue sharing, block grants), federal government would have smaller role in financing state and local governments ii. Devolution revolution! iii. (1990s)resurgence of states’ rights through Supreme Court interpretations 1. US v. Lopez(1995)national government can’t regulate guns in school zones; overturned Gun-Free School Zone Act of 1990 (law said that it was a federal crime to possess a firearm in a school zone) iv. US v. Morrison (2000) 1. 1994 Violence Against Women Act declared unconstitutional (federal gov. did not have authority to enact/enforce the civil damages part) a. People have right to be free from crimes motivated by gender b. Victims of such crimes have right to seek compensation (Supreme Court found that this is not an enumerated power of Congress, doesn’t fall w/in purview of CommerceClause) i. Gender motivated crimes are not economic activity ii. Congressional findings as to the damaging effects of gender motivated violence are not sufficient to make the law constitutional iii. 14th Amendment prohibits discriminatory behavior on the part of states, not on the part of individuals’ private behavior c. 9/11 and international nature of terrorism has made this process more complex, (Unfunded mandates), states/localities are expected to increase security measures, beef up first responders, but are they getting the money?

6. What is the state of federalism today? “characterized by conflict and cooperation” a. Regulatory federalism b. Need to examine the amount of money that the federal government gives to states and the conditions placed on that money i. Amount of aid to states had grown steadily since 1950 ii. Types of Grants 1. Categorical- 2. Block- 3. General purpose- c. Does the government’s response to Katrina reveal mostly conflict or cooperation?

7. What are some advantages and disadvantages of federalism? (see Cummings & Wise pp. 65-67); cut and paste from a. The Founders’ Opinions i. Problem at the constitutional convention was how to make both the small and large states happy ii. Intent was for national and state level governments to have certain powers iii. Federalism was supposed to be a means for protecting personal liberty (preventing tyranny) iv. Hamiltonpeople created the national government and therefore it was supreme 1. broad interpretation of the power of the federal government 2. nationalistsConstitution was created by people, not states; national governments should take the lead in making government decisions; brad interpretation of the Elastic Clause; national government stands for all of the people while the state just stands for some of the people v. Jeffersonfederalism is the product of the states; fear of national level domination 1. powers of federal government should be limited and narrowly interpreted 2. states’ rightsConstitution is a compact among states; because it was created by states, the federal government is subordinate to the states; states should get deference if there is a conflict as to where the power belongs because the states are closer to the people and the states, therefore, know what is better for the people b. Pro i. Elazar ii. Mobilization of political activity leads to increased political activity b/c y can get involved at multiple levels of the political process; you are more likely to get involved if you think you have a chance of getting heard (higher political efficacy); costs of getting involved in a federal system are lower than in other types of government iii. Interest groups can’t easily take over government; small groups have a chance to be heard iv. Diversity of policies among states encourages experimentation and creativity v. Diverse policies among states b/c uniform laws don’t make sense in many areas (speed limits, minimum age for drivers licenses) c. Con i. Riker, Laski ii. Confusion of political activitycitizens don’t know who to contact iii. Small, but motivated interest groups can block the will of the majority for extended periods of time (e.g. Southern senators blocking civil rights legislation in the 1950s and 1960s) iv. Diversity of policies among states creates inequality between citizens of different states (varying levels of welfare benefits) v. Diverse policies among states even for speed limits and driving ages create confusion and inequality