Chapter 4 Federalism

MR. HALEY NAME______AMERICAN GOVERNMENT

CHAPTER 4 – FEDERALISM WHO IS IN CHARGE HERE? RELATIONS BETWEEN LEVELS OF GOVERNMENT

I. OBJECTIVES: 1. Identify the main divisions of powers between the states and the national government. 2. Describe key changes in federalism from the time the Constitution was first ratified. 3. Define the Constitutional Rules for relationships among the states. 4. Explain the concept of “Fiscal Federalism” and describe the types of federal grants-in-aid that exist 5. Explain how federalism affects politics.

II. DESCRIBE HOW OUR SYSTEM OF GOVERNMENT IS ORGANIZED 1. FEDERALISM - Definition? 2 parts A. 1ST part – A division of the total power of government between the 3 levels of government, national, state and local

B. 2nd Part – Each level exercises direct control over people’s lives

C. Federalism is another check and balance

2. Alternates to a Federal System? A. Unitary State – What is that? A system of government organization in which all power is held in one place, the national government (the UK)

B. Confederation – What is that? A loose association of sovereign states which come together for one purpose like defense or economic reasons (the UN and the EU)

3. Why did Framers create a Federal System of Government? A. It protects against tyranny – another check and balance B. It allows more people to participate in the democratic process – over 78,000 elected positions C. It allows more experimentation at the state level. – States are like laboratories for public policy making  Georgia – 1st state to give 18 year olds the right to vote  Nevada – state sponsored gambling  Oregon – Physician Assisted Suicide and elections by mail  Massachusetts – Same sex marriage  Wisconsin – welfare changes

D. It allows more people to be politically active. Over 85,000 units of gov’t III. DIVISION OF POWERS 1. Federalism is all about the powers of the government. The Constitution grants certain specific powers to the National Government and the 10th Amendment reserves all other powers to the States or to the People. 2. What powers are there in the Federal System? A. Delegated Powers – all those powers granted by the Constitution to the National Government – 3 types: 1.) EXPRESS OR ENUMERATED POWERS – What does this mean?  Powers granted specifically to the National Gov’t (L, E or J)

2.) IMPLIED POWERS – What does this mean?  Powers inferred from express powers that allow Congress to carry out its functions / duties  Congress can do everything necessary and proper to carry out its functions a.) Where is this found in the Constitution? Article I, Section 8, Clause 13 of the Constitution called the Necessary and Proper Clause – a/k/a the Elastic Clause

3.) INHERENT POWERS – What are these powers?  Powers of the national government in the area of foreign affairs  EX: Do you want Wisconsin to negotiate a trade agreement with Canada?

B. What are the RESERVED POWERS? Where in the Constitution?  The 10th Amendment – All powers NOT specifically granted to the national gov’t under the Constitution are reserved to the states or to the people

1.) List the examples of state powers:

C. What are the CONCURRENT POWERS?  Powers that are shared by both the national and state government 1.) List examples of Concurrent powers: IV. LIMITATIONS ON GOVERNMENT POWER

1. What does the Constitution prohibit the states from doing? Art. 1 Section 10  No foreign policy actions  No Coining Money  No Habeas Corpus Latin term that means “you shall have the body” or “bring the body forward” – A court order directing the authorities (police or DA) and government who have a person in custody to bring a prisoner before a judge and show cause why this detention is constitutional and justified. It was designed under Article I to prevent illegal arrests and imprisonment.

 No Bills of Attainder or A law that declares a person, without a trial, to be automatically guilty of a crime. It is forbidden for the national or state governments to do this by Article I of the Constitution.

 No Ex Post Facto Laws (“After the fact” in Latin) – A law that makes criminal an act that was legal when committed, that increases the penalty for a crime after it has been committed, or that changes the rules of evidence to make conviction easier. It is a retroactive criminal law. Congress and the state legislatures are forbidden to pass such laws by Article I.

2. What does the Constitution prohibit the National government from doing?  Bill of Rights  Article I, Section 9 - Export Duties / Habeas Corpus / Bills of Attainder / Ex Post Facto Laws / Titles of Nobility

3. What requirements does the Constitution place on the National government in terms of the state governments? Art. 1, Sec. 8 – Uniform Taxes among states Art. IV, Sec 3 – Process for new states and territorial integrity of states Art. IV, Sec. 4 – Guarantee Republican Form of Government Protect from Invasion and Domestic Insurrection

4. Name 2 things that the states are required to do for the national government? Conduct and pay for elections of national officials Ratifying Amendments V. EXAMINE THE HISTORY OF FEDERALISM 1. DESCRIPTIONS OF FEDERALISM

A. DUAL FEDERALISM - FEDERALISM AS A LAYER CAKE  The Constitution gives a limited list of powers, primarily foreign policy and defense, to the national government, and leaves most power to the sovereign states. Each level is dominant within its sphere. This was the first 130 years of the USA.

B. COOPERATIVE FEDERALISM - MARBLE CAKE FEDERALISM  Federalism is like a marble cake in which all levels of government are involved in a variety of issues and programs (not a layer cake) and it is all mixed up where one level’s authority starts and stops.

C. DEVOLUTION REVOLUTION Movement beginning with the 1994 congressional election to transfer functions and responsibilities from the national government to the states (welfare for example).  The effort to transfer responsibility for many public programs and services from the federal government to the states.

D. NEW FEDERALISM  This form emphasizes the view that we need to return fiscal resources and management responsibilities to the state sin the form of block grants and revenue sharing, and that we need to sort out the responsibilities of both the national and state governments (Nixon, Reagan, Bush, and Bush).

E. FISCAL FEDERALISM  Fiscal federalism is the system of transfer payments or grants by which a federal government shares its revenues with lower levels of government. Federal governments use this power to enforce national rules and standards.

F. TODAY – OBAMA Federalism – resurgence in the power and role of the national government in terms of the economy and health care.

2. The division of powers and responsibilities between the States and the National Government has been like a roller coaster ride.

1787 – 1930 State Power was High and National Government Power was Low 1930 – 1994 State Power was Low and national Government Power was High 1994 – Today –State Power rising and National Power decreasing (Sort Of!!!)

WHY THE SHIFTS??? The 10th Amendment has been an interesting little Amendment. For the 1st 100+ years, it was an important Amendment. Then the depression hit and the country looked to the national government for solutions. The states were ineffective and lost power to the national government. But why or how did the National government take over powers or increase its powers at the expense of the states?

FEDERALISM IS MUCH DIFFERENT TODAY THAN ORIGINALLY FORESEEN BY THE FRAMERS – It all depends on the ideological beliefs of the 9 people who sit on the US Supreme Court. VI. EXPANSION OF FEDERAL GOVERNMENT POWER LIMITATIONS - I’LL SHOW YOU LIMITATIONS!

You would think that, looking at the U.S. Constitution, the Federal Government is limited in terms of what it can do? BUNK – HOGWASH – HOKEY POKEY!

What are the FIVE CONSTITUTIONAL PILLARS that have permitted the expansion of the functions and powers of the Federal / National Government (at the expense of the states)?

1. THE NECESSARY AND PROPER CLAUSE – a/k/a THE ELASTIC CLAUSE Article I, Section 8, Clause 18 This is the source of the IMPLIED POWERS. Congress can make any law that is necessary to fulfill its duties and execute its powers under the Constitution. -This is very flexible and allows the National Government a lot of room to maneuver.

2. THE NATIONAL SUPREMACY CLAUSE - THE NA NA HEY HEY CLAUSE Article VI of the Constitution – The Constitution, and the laws of the United States . . . ; and all Treaties . . . are the supreme Law of the Land!!!

This clause allows for federal preemption over State laws and regulations.

3. THE WAR POWER This is the INHERENT POWERS. We look to the National / Federal Government to protect this nation. It can do anything necessary and proper to wage war successfully so long as it is not in conflict with some constitutional guarantees.

4. THE POWER TO REGULATE COMMERCE – a/k/a The Commerce Clause Article I, Section 8, Clause 3

What is ‘COMMERCE”?

By definition, this clause covers anything that affects commerce BETWEEN STATES. INTERSTATE COMMERCE OR INTRASTATE COMMERCE WITH A FLEXIBLE DICTIONARY The U.S. Government has been able to regulate a wide range of human activity under the guise of regulating commerce. For example: Civil Rights Acts – interstate travel

5. THE POWER TO TAX AND SPEND - Article I, Section 8 as well as the 16th Amendment

Congress lacks the authority to pass legislation solely on the grounds that it will promote the general welfare. However, it may tax and spend for this objective.

Congress can tax and then appropriate money that benefits education, the environment, or agriculture among others.

Examples: Withhold funds from any state or organization that discriminates

Withhold transportation highway funds from states that do not raise their drinking age to 21 years.

VII. INTERSTATE RELATIONS 1. Explain the Full Faith and Credit Clause (Article IV Section 1). Each state must recognize and enforce the civil judgments, public records (documents) and acts of all other states.

Full Faith and Credit: Each state must respect the legal actions and legal documents of other states.

Examples:  Marriages, divorces, & adoptions  Business transactions  Car registration and driver’s licenses

* This applies only to civil law, not criminal laws of other states.

2. Explain what is meant by Interstate Privileges and Immunities (Article IV Section 2). Each state must grant the same P & I (rights and benefits) to citizens of other states – EX: Protection of laws, access to courts, right to work, right to be free from discrimination

Privileges and Immunities: Each state must extend the same rights, privileges, and protections to citizens of other states that it extends to its own citizens.

Examples:  Use of highways  Use of the court system of a state  Make legal agreements that the state will enforce  Buy, sell, and own property  Marry  Pass through or live in another state

Exceptions (privileges and immunities that states don’t have to give to nonresidents)  Reduced tuition at state colleges and universities - 1 year wait  Reduced bills at state hospitals  Voting and serving on juries – wait 30-45 days to register  Residency

3. What is meant by Extradition? Legal Process whereby a criminal is returned / surrendered back to the state in which the offense was committed Extradition: States can arrest someone who has not committed a crime in their state and forcibly return them to the state where that person is wanted for committing a crime (This is an optional, not required power. States can refuse to extradite an accused criminal back to another state.)

* It is however now a federal crime to flee from one state to another state to avoid punishment for a crime committed.

4. Which state official is responsible for doing extradition? The Governor but not mandatory

5. What are Interstate Compacts? Agreements between 2 or more states – EX: Air quality, bridge control, water quality, water supply between Arizona and California VIII. FISCAL FEDERALISM - REGULATORY FEDERALISM – FEDERAL GRANTS AND MANDATES

1. What is a Federal Mandate?

2. What are Federal grants?

3. What are the purposes of federal grants?

4. Describe the Types of Federal Grants?

Types of Grants-in-aid

Grants-in-aid: financial aid given by one government to another (for example: by the National Government to the States and/or the local governments; or from the States to their local governments); the funds that are given as grants-in-aid are subject to certain conditions (“strings”); grants-in-aid funds are only given for certain purposes

CATEGORICAL GRANTS Congress appropriates funds for specific purposes and the funds are allocated by a specific formula subject to detailed federal conditions, often on a matching basis. Federal supervision is set up to ensure that the $ is spent as Congress wishes

These are grants where the giver requires the grant recipient to follow many specific rules, guidelines, and requirements in order to be eligible to receive the money. Under a categorical grant, the grant giver imposes many regulations, reviews plans for how the money is to be used, and audits the expenditures after the money is spent.

Grant givers like categorical grants because they give them the most control over the money they give and offer the most assurance that the money will be spend according to the giver’s priorities. Grant recipients sometimes do not like categorical grants because it might limit the usefulness of the money they’re receiving. (They may have higher priorities but the grant’s rules won’t allow them to spend the grant money on those.)

Categorical grants have provided most of the funds received by state and local governments. Some are used for development purposes (such as hospitals, airports, or slum clearance) while others are for the purpose of redistributing the nation’s wealth through direct payments from taxpayers to people in need (money for state welfare programs or medical assistance). The school lunch program is a categorical grant. Project Grants (a type of categorical grant) To try and allow grant givers confidence that the money is being used wisely but also allow the grant recipient to get financial assistance with exactly what they need, some categorical grant funding is now done through project grants. Project grants are a type of categorical grant whereby a specific state or municipality puts together a proposal for a project and then they apply and wait for approval.

BLOCK GRANTS: Broad grants to states for prescribed activities w/only a few strings attached. States have great flexibility in deciding how to spend the money and there are no Matching fund requirements.

Block grants still have restrictions and are subject to audits, but they allow state and local governments to use the funds for a specified area, but in a broader range of purposes for that issue. They can spend the money on the particular needs a state or locality has identified as their priorities in that matter. They have far fewer requirements, or “strings”, attached to their use.

State and local governments generally prefer these, as do many Republicans and other conservatives, because they argue it gives the local communities greater ability to use the money efficiently on the issues and priorities they have. They say the categorical grants spend the money where Washington D.C. legislators and bureaucrats think it’s best spent. Critics disagree and say it weakens responsible use of the money and may fail to be used toward the original goal of the funding.

Examples include: NCLB, The USA PATRIOT ACT, WELFARE among others

MATCHING GRANTS:

Matching grants will be either a block grant or categorical grant. This is not a third type of grant.

Rather, the issue of matching grants is that they require the grant recipient to put up a certain amount of their own money in order to be eligible to receive the grant. It could be perfectly even, providing one grant-in-aid dollar for every dollar the grant recipient spends. Or it could be some ratio: one dollar given for every two spent by the recipient, three dollars given for every one spent by the recipient, etc.

Grant givers like matching grants because they test the grant recipient’s need for the money. The givers also like them because they cost the givers less, allowing them to spread their assistance across a larger number of grant recipients.

Most federal grants-in-aid are matching grants.

REVENUE SHARING (1972 – 1982) – A program whereby federal funds were provided to state and local governments to be spent largely at the discretion of the receiving governments, subject to very general conditions (Like a blank check!)

-Terminated 1986 for states and 1987 for local governments because budget deficits under Reagan Administration were so high that there was no revenue to share