Federalism PowerPoint

Federalism Chapter 3

Figure 3.2- Systems of Government 

Source: O’Connor and Sabato, American Government Roots and Reform

Federalism Defined A system of government in which a written constitution divides the powers of government on a territorial basis between a central or national government and several regional governments usually called states or provinces.

Why Federalism? Dilemma: How would framers create a new central government that would be strong enough to meet the new country’s needs but at the same time preserve strength of the existing states?

Division of Powers  Each

level of government has its own set of powers.  Neither level can act alone to change the basic division.  Each level acts through its own agencies, officials, and laws.  Both levels derive their powers from the people!

Dual System of Govt  Two

basic levels of govt Each has own authority Each operates over the same people over the same territory at the same time

Major Strength(s)  Allows

local action in matters of local concern.  Allows for local traditions, needs, and desires vary from one State to another  Allows for national defense, foreign affairs, disaster relief

Enumerated Powers  Spelled

out in the Constitution.  Article 1 Section 8 – gives these powers to Congress  Include: taxation, coinage of money, regulation of interstate commerce, national defense.

Implied Powers  Article

I, Section 8, Clause 18 gives Congress powers “necessary and proper” to carry out enumerated powers. AKA

the “elastic clause”

Necessary & Proper “…to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Powers Denied Fed Govt  Constitution

denies some powers

in writing  Levy duties on exports  Prohibit freedom of religion, speech, press, or assembly  Conduct illegal searches or seizures  Deny someone a speedy and public trial/trial by jury.

Powers Denied Fed Govt

2

 Denied

by “silence” of Constitution: nothing said  Examples:  Create public school system for the nation  Uniform marriage and divorce laws  Set up local governments

Powers Denied Fed Govt

3

 Denied

by nature of a federal government system  Example: Congress can not tax any of the States or their local units. To do so would give the Federal government the power to destroy state governments.

The States  Reserved

Powers (Police Powers)  10th Amendment  Powers not given to the Federal government by the Constitution and not denied the States are reserved to the States.  The sphere of powers held by each State is huge.

The States

2

 Most

of what government does in the US is done by the States (and local govts).  Includes police power—the power of a State to protect and promote the public health, the public morals, the public safety, and general welfare.

Denied to the States  Explicitly

stated in Constitution  Making foreign treaties, printing or coining money  Inherently denied  Can’t tax federal government  May be limitations in individual State constitutions

Concurrent Powers  Powers

possessed and exercised by both National and State governments  Levy and collect taxes  Define crimes and set punishments

Figure 3.3- Distribution of Power 

Source: O’Connor and Sabato, American Government Roots and Reform

Denied to all levels of government  Bill

of Attainder  Law declaring an act illegal without a judicial trial  Ex post facto laws 

Laws declaring an act illegal (creating punishment) after it has already been committed.

Relations Among the States  Full

faith and credit clause  Judicial decrees and contracts made in one state are binding and enforceable in another.  Privileges and immunities clause  Citizens of all states are afforded the same rights (under federal law).

Relations Among the States  Interstate

compacts

 Agreements

between states – must be approved by Congress.  Extradition clause  States must return criminals to other states where they have been convicted or are to stand trial.

Supreme Law of the Land  The

Supremacy Clause  Constitution stands above all other forms of law in the US  “Linchpin of the Constitution”  McCulloch v. Maryland

Figure 3.1- Governments in the U.S.

Source: O’Connor and Sabato, American Government Roots and Reform

Relations Within the States: Local Government 

Local governments’ authority not granted by the people but through state governments States establish or charter their administrative subdivisions  Local governments carry out or execute the duties of state governments on smaller scale 

Federalism and the Marshall Court 

Two rulings in the early 1800s had a major impact on the balance of power between national and state governments. 

McCulloch v. Maryland (1819) 



Upheld power of national government and denied the right of state to tax national bank

Gibbons v. Ogden (1824) 

Upheld broad congressional power to regulate interstate commerce

Dual Federalism: The Taney Court, Slavery, and the Civil War 

Dual Federalism  



Belief that having separate and equally powerful levels of government works best Implication: National government should not exceed its constitutionally enumerated powers.

Dred Scott v. Sandford (1857)  

Declared the Missouri Compromise unconstitutional Congress lacked the authority to ban slavery in the territories.

The Civil War, Its Aftermath, and the Continuation of Dual Federalism 

National government grew in size and powers after Civil War. 

13th, 14th, and 15th Amendments 



Prohibited slavery and granted civil and political rights to African Americans.

Supreme Court adhered to concept of dual federalism Plessy v. Ferguson (1896)  Confusion over regulation of commerce  Inconsistent rulings on scope of national power 

Setting the Stage for A Stronger National Government 

Sixteenth Amendment 

Authorized Congress to enact a national income tax  Supreme

Court had found congressional legislation in this area unconstitutional.



Seventeenth Amendment 

Made senators directly elected by the people; removed their selection from state legislatures.

Cooperative Federalism: New Deal and Growth of National Government 

The New Deal (1933-1939)  

intense governmental activity on the national level response to Great Depression required the exercise of tremendous national authority 



Supreme Court worried about scope of these programs in terms of regulating commerce and the economy 



New agencies and programs

Court-packing plan response to anti-New Deal court decisions

New Programs required cooperation across all levels of government.

The Changing Nature of Federalism: Layer Cake to Marble Cake 

Layer cake federalism Each layer, national, state and local, had clearly defined powers and responsibilities.  After New Deal, the nature of the federal system changed. 

 Marble

cake metaphor  Cooperative federalism 

The relationship between the national and state governments that began with the New Deal

Federal Grants and National Efforts to Influence the States   

Morrill Land Grant Act of 1862 New Deal Most grants were categorical grants 



Grant for which Congress appropriates funds for a specific purpose

1960s War on Poverty  

Direct assistance to states, local governments, and citizen groups Grants used to push national agenda rather than respond to state demands

New Federalism: Returning Power to the States 

New Federalism Federal/state relationship proposed by Reagan administration during the 1980  Returned administrative powers to the state governments  Reagan Revolution  Block grants 

 Broad

grant with few strings attached  Given to states by federal government for activity in specified area (education)

New Federalism: Returning Power to the States 

The Devolution Revolution Contract with America  Unfunded Mandates 

 National

laws that direct states or local governments to comply with federal rules and regulations but contain no federal funding to help pay the cost of meeting those requirements



Personal Responsibility and Work Opportunity Reconciliation Act of 1996

New Federalism: Returning Power to the States 

Federalism Under the Bush Administration Budget shortfalls at federal and state level  States raised taxes and cut services; received aid from federal government  Federal government expanded post 9/11 

 Department

of Homeland Security  No Child Left Behind 

Example of preemption

The Supreme Court: A Return to State’s Rights? 



From New Deal to 1980s: Court has generally expanded national authority at the expense of the states. Beginning in 1980s: Court interpretations altered      

Willingness to allow Congress to regulate in a variety of areas waned Webster v. Reproductive Health Services (1989) Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) U.S. v. Lopez (1995) Sovereign immunity Bush v. Gore (2000)

Figure 3.4- Supreme Court and Federalism 

Source: O’Connor and Sabato, American Government Roots and Reform Back

The National Government and the 50 States or “What does “United States” really mean?

Republican Form of Govt  Constitution

requires National Govt to “guarantee to every state in this Union a Republican form of government.”  Generally understood to mean a “representative government”.

Republican Form of Govt

2

 Only

time ever really big issue was after Civil War  Congress declared several southern States did not have a “republican form of govt” 

States had to ratify the 13th, 14th, and 15th amendments

Invasion/Internal Disorder  Invasion

of any one state is seen as attack on the US  Federal system assumes that each state will keep the peace within its own borders If

state can’t control some situations, then National govt provides protection against internal disorder

Territorial Integrity  National

govt must recognize the legal existence and physical boundaries of each state.  Congress must include members from each state  Article V: equal representation in US Senate guaranteed

Admitting New States  Only

Congress has this power  Admitted 37 states since original 13  5 states created from exiting states (Vermont, Kentucky, Tennessee, Maine, and West Virginia  Texas was independent first

Admission Procedure  Congress

issues enabling act  Territory frames a State constitution which is voted on by the people of the territory  Constitution submitted to Congress for approval  Approval = Statehood

Conditions for Admission  Each

state enters on equal footing with other states  Utah had to outlaw polygamy  Alaska had to give up claims to land held by Native Americans  Arizona had to end recall votes for Judiciary

Cooperative Federalism  Large

and growing areas of cooperation between National government and the States  Grants-in-Aid Grants

of federal money or other resources to States or local units. Goes back to time of Northwest Ordinance of 1787

Criticisms of Grants-in-Aid  Possible

for Federal government to operate in many policy areas where it doesn’t have constitutional authority  Blur the line of division of powers in our federal system

Revenue Sharing – 1987  Congress gave an annual share of federal tax revenue to the States.  Known as “shared revenues”  Almost “no strings” attached  Popular with States  Ended with Ronald Reagan  1972

Categorical Grants  For

specific, closely define purposes  Must use some of State’s own money (usually matching)  Have agency to administer  Obey federal guidelines for the grant

Block Grants  More

broadly defined than categorical grants Health

care, social services, welfare

 Fewer

strings so easier for States to use

Project Grants  To

States, localities, and private agencies (who apply for the grants)  Many states use to fund job training  NIH issues grants for medical research

Other forms of Aid  FBI

helps State and local law enforcement  Army & Air Force equip and train each State’s National Guard units  Census Bureau data essential to State and Local planning

Lulu Payments  Federal

monies going to local governments in areas where there are large federal landholdings.  Made in lieu of (take the place of) property taxes which can not be collected from Federal government

State Aid to Fed Govt  State

and local election officials conduct national elections  Naturalization takes place most often in State, not federal, courts  Federal criminals often arrested by State/Local officials

Interstate Relations or “How well do the states play together?”

Interstate Compacts  No

State may enter into any treaty, alliance, confederation.  These kinds of arrangements are what causes so much trouble under the Articles of Confederation.

Interstate Compacts2  However,

the States may, with the consent of Congress, enter into interstate compacts —agreements among themselves and with foreign states.  Over 200 compacts are now in force for law enforcement, resource development, conservation

Table 3.1- Compacts by the Numbers 

Full Faith and Credit Clause Of

the Constitution ensures that States recognize the laws and, documents, and court proceedings of the other States

Exceptions to FF&C (1) One State cannot enforce another State’s criminal laws. and, (2) Full faith and credit need not be given to certain divorces granted by one State to residents of another State.

Extradition  Extradition

is the legal process by which a fugitive from justice in one State is returned to that State.  Extradition is upheld through Article IV, Section 2, Clause 2 of the Constitution.

 Governors

are the State executives that handle the extradition process.  If governor is unwilling to return a fugitive to a State, federal courts can intervene and order governor to do so.

Privileges and Immunities  The

Privileges and Immunities Clause provides that no State can draw unreasonable distinctions between its own residents and those persons who happen to live in other States.

Privileges and Immunities

2

 States

cannot, for example, pay lower welfare benefits to newly arrived residents than it does to its long-term residents, Saens v. Roe, 1999.  However, States can draw reasonable distinctions between its own residents and those of other space, such as charging out-of-State residents higher tuition for State universities than inState residents.