CH.

3 Federalism Notes THE HISTORICAL DEVELOPMENT OF FEDERALISM

Federalism was carefully defined in the Constitution as a founding principle of the U.S. political system. Even so, the nature of federalism is dynamic and has been shaped through the years by laws, Supreme Court decisions, and debates among prominent elected officials and statesmen. What is Federalism- Division of power between national, state, and local govt. Hybrid between unitary and confederate system of govt. Types of Powers in Federalism: Powers are named and divided into: Delegated (Expressed, Implicit, Inherent), Concurrent, and Reserved Powers TYPES OF POWERS in FEDERALISM Delegated Powers The Constitution grants the national government certain delegated powers- There are three types. Delegated powers that are specifically written in Constitution are called Expressed Powers Delegated Powers that are not written in Constitution, but reasonably suggested are called Implied Powers. These powers STRETCH the power of the expressed powers. Delegated powers that are not written in Constitution, but belong to national governments simply because they are the national govt are called Inherent Powers

Reserved Powers Reserved powers are those held by the states alone. They are not listed (as delegated powers are), but they are guaranteed by the 10th Amendment as reserved to the states respectively, or to the people. Reserved powers include establishing local governments and regulating trade within a state. States also have police power the authority to legislate for the protection of the health, morals, safety, and welfare of the people. However, because these powers are not listed in the Constitution, there is sometimes a question about whether certain powers are delegated to the national government or reserved for the states. Concurrent Powers All powers not granted in the Constitution to the national government are reserved for the states. States, however, may hold some of the same powers that the national government has, unless they have been given exclusively to the national government, either by provision of the Constitution or by judicial interpretation. Concurrent powers are those that both national and state governments hold. Examples are the concurrent powers of levying taxes and establishing and maintaining separate court systems. Even so, federalism limits state powers in that states

cannot "unduly burden" their citizens with taxes. Neither can they interfere with a function of the national government, nor abridge the terms of a treaty of the United States government. Prohibited Powers Prohibited powers are denied to the national government, state governments, or both. For example, the federal government cant tax exports, and state governments cannot tax either imports or exports. States cant make treaties with or declare war on foreign governments

FEDERALISM AS PROVIDED IN THE CONSTITUTION The Supremacy Clause (Article VI, Clause 2) makes the Constitution the Supreme Law of the Land. **States cannot use their reserved or concurrent powers to thwart national policies. o National government legislation in a concurrent area is said to preempt (take precedence over) conflicting state or local laws or regulations in that area. o One of the ways in which the national government has extended its powers, particularly during the 20th century, is through the preemption of state and local laws by national legislation. Vertical Checks and Balances: Government is divided between three branches of government: legislative, judicial, and executive. There are also checks and balances to keep one branch from becoming too powerful. These are sometimes called vertical checks and balances because they involve relationships between the states and the national government. o The Constitution cannot be changed without the states consent.

o National programs and policies are administered by the states, which gives the states considerable control over the ultimate shape of those programs and policies. The national government, in turn, can check state policies by exercising its constitutional powers under the clauses (supremacy, elastic, and commerce). The national government can influence state policies indirectly through federal grants. Horizontal Federalism: the states have numerous commercial, social, and other dealings among themselves. These interstate activities, problems, and policies make up what can be called horizontal federalism. o Three important clauses related to horizontal federalism in the Constitution (all taken from the Articles of Confederation) require each state to do the following: Give full faith and credit to every other states public acts, records, and judicial proceedings (Article IV, Section1) Extend to every other states citizens the privileges and immunities of its own citizens (Article IV, Section 2) Agree to return persons who are fleeing from justice in another state back to their home state when requested to do so (Article IV, Section 2) (EXTRADITION) o States may enter into agreements called interstate compacts if consented to by Congress. The Necessary and Proper Clause/Debate From the beginning, the meaning of federalism has been open to debate. In the late 18th century, Alexander Hamilton, the first Secretary of the Treasury, championed loose construction, the view that the Constitution should be broadly interpreted. The national government created by the government represented "the supreme law of the land" (Article Six), and its powers should be broadly defined and liberally construed. The opposite view of strict construction, articulated by Thomas Jefferson, was that the federal government was the product of an agreement among the states and that the main threat to personal liberty was likely to come from the national government. Jefferson's strict construction required that the powers of the national government should be narrowly construed and sharply limited. This famous clash in interpretations of the Constitution shaped the political culture of the United States for many years, well into the midtwentieth century. Realizing that they could not make a comprehensive list of powers for the national or the state governments, the founders added to Article I the "necessary and proper clause. This clause states that Congress shall have the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." Hamilton's arguments for national supremacy relied heavily on the "necessary and proper" (or elastic) clause. Jefferson's states rights point of view rested partially on the 10th Amendment that reserves powers to the states.

Important Note- ( THE NECESSARY AND POPER CLAUSE CREATED IMPLIED POWERS.. STOP AND REVIEW WHAT IMPLIED POWERS ARE. ASK YOURSELF HOW AN IMPLIED POWER HELPS CONGRESS EFFECTIVELY DO ITS JOB) FEDERALISM throughout the Years Defining Constitutional Powers The Early Years o Disputes over the boundaries of national versus state powers have characterized this nation from the beginning. In the early 1800s the most significant disputes arose over differing interpretations of the implied powers of the national government under the necessary and proper clause and the respective powers of the national government and the states in regard to commerce. Ultimately it is the Supreme Court that casts the final vote for settling these disputes. o From 1801-1835, the Supreme Court was headed by Chief Justice John Marshall, a Federalist who advocated a strong central government. The following Supreme Court cases are considered milestones on the movement toward national government supremacy: McCulloch v. Maryland (1819) The government of Maryland imposed a tax on the Second Bank of the United States (a national bank) in Baltimore in an attempt to put that branch out of business. The banks cashier, James William McCulloch refused to pay the tax. When Maryland took McCulloch to its state court, the state of Maryland won. The national government appealed the case to the Supreme Court. Constitutional Question: Does the national government have the implied power under the necessary and proper clause to charter a bank and contribute capital to it? o John Marshalls Court held that if establishing a national bank aided the national government in the exercise of its designated powers, then the authority to set up such a bank could be implied. Constitutional Question: If the bank was constitutional, could a state tax it (made invalid under the supremacy clause)? o Marshall states that no state could use its taxing power to tax an arm of the national government. If it could, the declaration that the Constitution shall be the supreme law of the land, is [an] empty and unmeaning [statement]. ** The Marshall Court established the doctrine of national supremacy with this court case. Gibbons v. Ogden (1824) Robert Fulton and Robert Livingston secured a monopoly on steam navigation on the waters in New York state from the NY legislature in 1803. They contracted with Aaron Ogden to operate a steam-powered ferry between New York and New Jersey. Thomas Gibbons decided to compete with Ogden and was given a license from the

U.S. government, but he did so without permission from New York. Ogden sued Gibbons and the New York state courts granted an injunction prohibiting Gibbons from operating in New York waters. Gibbons appealed to the Supreme Court. Constitutional Question: had to do with how the term commerce should be defined. o Marshall defined commerce as all commercial intercourse all business dealings including navigation and the transport of people. Constitutional Question: whether the national governments power to regulate interstate commerce extended to commerce within a state (intrastate commerce) or was limited strictly to commerce among the states (interstate commerce). o Marshall held that the commerce power of the national government could be exercised in state jurisdictions, even though it cannot reach solely intrastate commerce. Constitutional Question: Whether the power to regulate interstate commerce was a concurrent power or an exclusive national power. o Marshall emphasized that the power to regulate interstate coerce was an exclusive national power. Marshalls expansive interpretation of the commerce clause allowed the national government to exercise increasing authority over all areas of economic affairs throughout the land. In the 1930s and subsequent decades, however, the commerce clause became the primary constitutional basis for national government regulation. States Rights and the Resort to Civil War at the heart of the controversy that led to the Civil War was the issue of national government supremacy versus the rights of the separate states. o During the Jacksonian era (1829-1837) a shift back to states rights began. Nullification Crisis Congress passed a tariff in 1828, the state of South Carolina attempted to nullify the tariff, claiming that in cases of conflict between a state and the national government, the state should have the ultimate authority over its citizens. Ironically, the Civil War brought about in large part because of the Souths desire for increased states rights resulted in the opposite; an increase in the political power of the national government. o The debate over the division of powers in our federal system can be viewed as progressing through at least 3 stages since the Civil War: Dual Federalism: a doctrine that emphasizes a distinction between federal and state spheres of government authority. Is commonly depicted as a layer cake, because the state governments and the national government are viewed as separate entities, like separate layers in a cake.

The Courts tended to support the states rights to exercise their police powers and concurrent powers in regard to the regulation of intrastate activities. Cooperative Federalism: the states and the national government cooperate in solving complex common problems. The Great Depression in the 1930s saw the doctrine of dual federalism recede. The pattern of national-state relationships during these years gave rise to a new metaphor for federalism that of a marble cake. Some see the 1930s as the beginning of an era of national supremacy, in which the power of the states has been consistently diminished. Picket-fence federalism the horizontal boards in the fence represent the different levels of government (national, state, and local) while the vertical pickets represent the various programs and policies in which each level of government is involved. Officials at each level of government work together to promote and develop the policy represented by each picket. Federal Grants-in Aid: the national government gives back to the states (and local) governments a significant amount of tax dollars it collects. o Federal grants have taken the form of categorical grants-inaid, which are grants to state and local governments designated for very specific programs or projects. o By attaching conditions to federal grants, the national government has been able to exercise substantial control over matters that traditionally have fallen under the purview of state governments. If a state does not comply with the particular requirements, the national government may withhold federal funds for other programs. Cooperative Federalism and the Supreme Court: o The full effect of Chief Justice John Marshalls broad interpretation of the commerce clause has only been realized since the 1930s. In the years since then, the commerce clause has been used to justify national regulation of virtually any activity, even what would appear to be a purely local activity. o The commerce clause has also been used to validate congressional legislation in what would seem to be social and moral matters concerns traditionally regulated by the states. New Federalism was labeled by President Nixon (1969-1974) its goal is to restore to the states some of the powers that have been exercised by the national government since the 1930s. The word devolution which

means the transfer of powers to political subunits is often used in connection with this approach to federalism (devolutionary federalism). Block Grants one of the major tools of the new federalism place fewer restrictions on grants-in-aid given to state and local governments by grouping a number of categorical grants under one broad purpose. o Governors and mayors generally prefer block grants because they give the states more flexibility in how the money is spent. o Congress prefers categorical grants so that the expenditures are targeted according to congressional priorities. Federal Mandates (a major obstacle faced by those who favor returning power to the states) requirements in federal legislation that force states and municipalities to comply with certain rules. Some of these mandates are very costly to the state and local governments. The Supreme Court and the New Federalism One of the rallying cries of the new federalism has been that the national government has gone too far in the direction of exercising powers that rightfully belong to the states under the Constitution. To a significant extent, the federal courts have agreed with this contention. o 10th Amendment Issues: the federal government may neither issue directives requiring the states to address particular problems, nor command the states officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. o Reining in the Commerce Power: United States v. Lopez (1995) the Supreme Court held that Congress had exceeded its constitutional authority under the commerce clause when it passed the Gun-Free School Zones Act in 1990. This marked the first time in 60 years that the Supreme Curt had placed a limit on the national governments authority under the commerce clause. o State Sovereignty and the 11th Amendment in the 1999200 term, the Supreme Curt issued a series of decisions that bolstered the authority of state governments under the 11th amendment. As interpreted by the Court, the amendment precludes lawsuits against state governments for violations of rights established by federal laws unless the states consent to be sued.

During the early 19th century, the Supreme Court tipped the balance of the debate to national supremacy, the point of view that the national government should have relatively more power

than the states. Chief Justice John Marshall advocated this view in a series of decisions, including the influential 1819 case known as McCulloch v. Maryland. The case arose when James McCulloch, the cashier of the Bank of the United States in Baltimore, refused to pay a tax levied on the bank by the state of Maryland. When state officials arrested him, McCulloch appealed to the Supreme Court. The Court's opinion set an important precedent that established national supremacy over states rights. The case questioned the right of the federal government to establish a bank, since no such right is enumerated in Article I. Marshall ruled the Maryland law that established made The US bank pay a state tax was unconstitutional (Supremacy Clause) with his famous statement: "The power to tax is the power to destroy." The power to destroy a federal agency would give the state supremacy over the federal government, so the states may not tax a federal agency. TWO TYPES OF FEDERALISM Until the 1930s, the relationship between the national and state governments was usually described as dual federalism, a system in which each remains supreme within its own sphere. However, as the commerce controversy in Gibbons vs. Ogden points out, separating national from state jurisdiction isnt always easy. With the New Deal programs of the 1930s the separation proved to be virtually impossible, ushering in the era of cooperative federalism. During this era state and federal governments cooperated in solving the common complex problems brought on by the Great Depression. The New Deal programs often involved joint action between the national government and the states. Cooperative federalism remains in place today, with the national government involved to some extent in virtually all public policymaking. The two types of federalism are often compared by using an analogy with two types of cakes: the layer cake (dual federalism) with its clearly distinct separations, and the marble cake (cooperative federalism) where the two intertwine and swirl together. MODERN FEDERALISM- NEW FEDERALISM The structures of the federal system have not changed much since the Constitution was written, but modern politics have changed the relationship between national and state governments, especially over the past 50 years or so. Today a major aspect of federalism is the grants-in-aid system: the national government provides millions of dollars for federal grants to states. GRANTS-IN-AID One of the national governments most important tools for influencing policy at the state and local levels is the federal grant. Congress authorizes grants, establishes rules for how grants may be used, and decides how much control the states have over federal funds. Federal grants fall into two general types:

Categorical grants are appropriated by Congress for specific purposes - highway or airport building, welfare, or school lunches. These grants usually require the state to "match" (put up money) the federal grants, although the matching funds can vary widely. There are hundreds of categorical grant programs, but a few, including Medicaid and Aid to Families with Dependent Children, account for almost 85 percent of total spending for categorical grants. State and local officials complain that these grants are often too narrow and cannot be adapted easily to local needs. Block grants consolidate several categorical grants into a single "block" for prescribed broad activities, such as social services, health services, or public education. This type of grant was promoted by Ronald Reagan, and during the early 1980s, Congress consolidated a number of categorical grants into block grants. Later Presidents have advocated that more consolidation occur, but Congress has been reluctant to do so. Block grants give Congress less control over how the money is used, and representative cannot take credit for grants to their particular districts. State governors generally have supported block grants, because they give states wide control of how and where the money is spent. City mayors have tended to oppose them because cities must rely on state governments to determine funding rules and amounts.

Today, even though block grants still exist, Congress is always tempted to add "strings" that set requirements for how federal grants are to be spent. As a result, block grants gradually become more categorical, a phenomenon known as "creeping categorization." MANDATES A recent federal control on the activities of state governments is a mandate, a rule that tells states what they must do in order to comply with federal guidelines. Often the mandates are tied to federal grants, but sometimes the mandates have nothing to do with federal aid. Most mandates apply to civil rights and environmental protection. State programs may not discriminate against specific groups of people, no matter who pays for them. Today, antidiscrimination rules apply to race, sex, age, ethnicity, and physical and mental disabilities. States must comply with federal laws and standards regarding the environment, as well. Mandates have been criticized strongly by state and local governments. From their point of view, it is easy enough for Congress to pass mandates when the states must foot the bills. For example, the 1986 Handicapped Children's Protection Act provided federal regulations meant to assure equal access and opportunity for disabled children. Federal guidelines included requirements for public schools to build access ramps and elevators, provide special buses and personnel, and widen hallways, all with no federal money to help schools comply. Examples of Federal Mandates for State and Local Governments 1983 - Social Security Amendments 1984 - Hazardous and Solid Waste Amendments Highway Safety Amendments

1986 - Asbestos Emergency Response Act Handicapped Children's Protection Act Safe Drinking Water Act Amendments

1988 - Drug-Free Workplace Acts Ocean Dumping Ban Act 1990 - Clean Air Act Amendments

Americans with Disabilities Act

THE ADVANTAGES AND DISADVANTAGES OF FEDERALISM Few Americans believe that the federalist system should be abandoned, but the nature of federalism is still a controversy today, and Americans still disagree about the balance of power between national and state governments.

ADVANTAGES 1. Mobilization of political activity

DISADVANTAGES

1. Confusion of political activity The various levels of government provide many alternatives for a citizen The various levels of government can be confusing to be heard regarding a concern. If a to a citizen, so that he or she does not know which local official won't listen, a citizen may official to contact. appeal to someone on the state or national level. 2. Interest groups cannot easily take over the government. Powerful interest groups cannot force their will upon less powerful groups because in order to control, they would have to take over not only the national government, but state and local governments as well. Small groups of people have a chance to be heard and influence legislation. 3. Diversity of policies among states encourages experimentation and creativity. 2. Small but motivated interest groups can block the will of the majority for extended periods of time. Sometimes small groups of people can impose their will for extended periods of time on the majority. For example, a relatively small group of southern senators blocked civil rights legislation for many years after most citizens favored such legislation.

3. Diversity of policies among states creates inequality between citizens of different states. Because states provide different levels of 50 different state governments tackle support, citizens in some states have more similar issues, and a good solution in advantages than those in other states. For example, one state can be modeled in another. For welfare benefits vary widely among the states, as do example, if a state finds a good way to funding levels for public education. finance public education, other states can mimic the plan, altering for special

needs. On the other hand, if a state tries something that fails, at least it affects only one state, not all. 4. Diverse policies among states are good because uniform laws don't make sense in many areas. For example, speed limits on highways should be under state and local control, as should the minimum age for obtaining a driving license. Crowded New Jersey should not have the same speed limits as does wide-open Montana. Young people in farm states should be allowed to drive at early ages in order to help support the farm. 4. Diverse policies among states even for speed limits and driving ages creates confusion and inequality. Although speed limits obviously need to vary, arbitrary differences in state laws are confusing and outdated in this era of interstate highways. Differences in driving ages are not fair to young people in states with higher age requirements.

An individual's attitude about federalism depends partly on how much he or she values equality vs. freedom. Uniform laws passed by a unitary government tend to emphasize equal treatment of citizens. Diverse laws by their very nature allow a great deal of individual freedom. CH. 3 IMPORTANT DEFINITIONS AND IDENTIFICATIONS

block grants categorical grants The commerce clause concurrent powers confederal systems Full Faith and Credit Clause

Privileges and Immunities delegated powers devolution revolution federal systems federalism grants-in-aid system loose construction

mandate national supremacy necessary and proper clause nullification reserved powers

revenue sharing