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NB #10
Introduction to Federalism
OVERVIEW OF FEDERALISM
What Is Federalism?
 Federalism – Organizing a nation so that two or more levels of government have formal authority over the
same land and people.
o Only 11 (out of approximately 190 nations of the world) have federal systems.
 Unitary governments – Organizing a nation so all power resides in the central government.
o Most governments in the world today have unitary governments, in which all power resides in the
central government
 Confederation – A nation in which the national government is weaker than the states, with most or all of
the power is in the hands of its components.
Why Is Federalism So Important?
 Decentralizes our politics – More opportunities for political participation.
 Decentralizes our policies – Federal and state governments handle different problems.
Hot Issues
 Some of the hottest issues in American politics are, at their core, disputes over federalism.
 Some hot issues involving federalism today are Gay marriage and Medical marijuana
Federal and State Powers
 In general, the federal government has power over economic issues, the military and defense.
 In general, state governments have power over social, moral, and family issues.
Positives and Negatives of Federalism
 Negative view: Federalism blocks progress and protects powerful local interests.
 Positive view: Federalism contributes to governmental strength, political flexibility, and fosters individual
liberty and the development of leaders.
 Federalist #10: small political units allow all relevant interests to be heard.
 Federalism is the subject of numerous Federalist Papers, but is never directly mentioned in the Constitution
o Eighteenth-century Americans had little experience in thinking of themselves as Americans first
and state citizens second.
QUESTION – What is a federal system and how does it impact issues in governing?
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FEDERALISM AND THE CONSTITTION
Source of power in the National Government (Article 1 sec. 8)
 Enumerated/Express Powers: Powers specifically granted in the Constitution
 Implied Powers: Powers inferred from the express powers that allow congress to carry out functions
(Elastic Clause)
The Division of Power
 The writers of the Constitution carefully defined the powers of state and national governments
o Although favoring a stronger national government, states were retained as vital components of
government.
 The supremacy clause deals with the question of which government should prevail in disputes between the
states and the national government; Article VI states that three items are the supreme law of the land:
o The Constitution
o Laws of the national government (when consistent with the Constitution)
o Treaties (which can only be made by the national government)
 Judges in every state were specifically bound by the Constitution.
 Questions remain concerning the boundaries of the national government’s powers.
o The national government can only operate within its appropriate sphere and cannot usurp the
states’ powers.
o The Tenth Amendment states that “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.”
 There have been variations in the Court’s interpretation of the Tenth Amendment.
State Powers and Limitations
 Powers
o Most criminal laws are issues of the state (murder, trespassing, etc)
o Interstate Compact Clause: Article I section 10, states may enter into an agreement with each other
based on congressional approval
o Extradition
 Limitations
o Comity Clause/Privileges and Immunity Clause: Article IV section 2, states cannot discriminate
against someone from another state
o Commerce Clause: Article I section 8, power to regulate foreign commerce rests with national government
States’ Obligations to Each Other
 Federalism involves more than the relationships between the national government and state and local
governments: Article IV of the Constitution outlines certain obligations that each state has to every other state.
 Full Faith and Credit – Article IV, Section I of Constitution requires each state to recognize and give full
faith and credit to the public acts, records, and judicial proceedings of all other states.
 Extradition - Article IV, Section II of Constitution requires a state to surrender a person charged with a
crime to the state in which the crime is alleged to have been committed for trial or imprisonment.
 Privileges and Immunities – Article IV, Section II of Constitution requires states to extend to citizens of
the other states the privileges and immunities granted to their own citizens – includes the protection of
laws, right to engage in peaceful occupations, access to the courts, and freedom from discriminatory taxes.
o EXAMPLES/PROBLEMS -- Medical benefits, Voting, state university tuition, Licensing to be a
teacher, doctor, or electrician
QUESTION – How has federalism created political and governing issues due to constitutional
requirements and overlapping/competing areas of governance?
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Full Faith and Credit AND Privileges and Immunities-- Issue of Gay Marriage
 States have the ability to grant marriage licenses according to their own policies due to the 10th
Amendment, as regulating marriage is not addressed as a power of Congress
 Defense of Marriage Act of 1996 (DOMA) passed by national government saying the federal government
will not recognize gay marriages from the states and that states do not have to recognize gay marriages
from other states
o Section 1. Short title
 This Act may be cited as the "Defense of Marriage Act".
o Section 2. Powers reserved to the states
 No State, territory, or possession of the United States, or Indian tribe, shall be required to
give effect to any public act, record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory, possession, or tribe, or
a right or claim arising from such relationship.
o Section 3. Definition of marriage (ruled unconstitutional by the Supreme Court)
 In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the
word 'marriage' means only a legal union between one man and one woman as husband
and wife, and the word 'spouse' refers only to a person of the opposite sex who is a
husband or a wife.
o 38 states had also passed a state “Defense of Marriage Act”
o Before June 2013, 12 states had adopted gay marriage either through state law (Vermont, New
Hampshire, New York, Delaware, Rhode Island, Minnesota), popular vote (Maine, Maryland,
Washington), or court decision (Massachusetts, Connecticut, Iowa)
 Additionally, gay marriage was legalized in Washington, DC in 2010
 Obama pledged to stop supporting DOMA and the national government did not actively defend the law in
cases, such as United States v. Windsor
 Supreme Court finds in June 2013 in United States v. Windsor that the federal government not recognizing
gay marriages by the states violated equal protection and due process in the 5th Amendment, declaring
Section 3 unconstitutional
o Federal government would recognize married gay couples for federal benefits that live in states
where gay marriage is legal, but there are several remaining issues
 The government is unsure whether they can recognize those individuals that are marred,
but live in states where gay marriage is not legal
 Military members that are stationed in these states can receive benefits, but they
must travel to a state where it is legal to marry first
o While it appears to violate full faith and credit, this case did not strike down Section 2 regarding
states recognizing marriages from other states (case did not address that aspect of the law)
o In a separate decision the same summer, gay marriage was legalized in California in June 2013 by
the Supreme Court in Hollingsworth v. Perry, but it only applied to California due to the technical
aspects of the case
 Obergefell v. Hodges resolved the constitutional issues over the legality of same-sex marriages, finding that
states must grant same-sex marriages, as banning them violated the due process of liberty and the equal
protection aspects of the 14th Amendment
o Issues with full faith and credit were not directly addressed in the case, as every state must now
grant and recognize same-sex marriages
o While states are now required to grant/recognize same-sex marriages, challenges will likely exist at
the state level over enforcement and religious exemptions
QUESTION – How have laws and court decisions regarding gay marriage demonstrated difficulties
regarding federalism?
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Medical Marijuana and issues of federalism
 The national government has regulated the use of marijuana, making its sale, distribution, and use illegal
 Several states have passed laws that have either decriminalized possession of small amounts of marijuana,
legalized medicinal marijuana, or legalized its sale and consumption for recreational use
 The Supremacy Clause would give the national government the ability to overrule these state laws and
arrest/suspend sales, which was backed in two Supreme Court decisions in United States v. Oakland
Cannabis Buyers' Cooperative (2001) and Gonzales v. Raich (2005)
 The Obama administration has slowed federal enforcement, although reserved the right to intervene, as four
states have legalized marijuana use (Colorado, Washington, Oregon, and Alaska) and several others have
expanded either medical use or decriminalization
o Ohio will vote on legalization in November 2015 and there is anticipation that it will be on the
California ballot in 2016
o Bills have been introduced in Congress to move marijuana from a schedule one drug (no medicinal
use) to schedule two (some medicinal value but highly addictive), giving states the ability to
regulate medical use, but none have moved beyond committee
QUESTION – How have state laws and federal court decisions regarding marijuana demonstrated
difficulties regarding federalism?
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THE EVOLUTION OF FEDERALISM IN THE UNITED STATES
How far does national power go in a federal system
 The 10th Amendment states that all power not delegated to the national government, nor prohibited to the
states, is reserved to the states and the people
 But, Article I, Section 8, allows Congress to make all laws necessary and proper for carrying out its
enumerated powers (the Elastic Clause).
Establishing National Supremacy
 Implied Powers - McCulloch v. Maryland (1819) ruled Congress had implied powers in addition to its
enumerated powers.
o McCulloch v. Maryland (1819) - the case that first brought the issue of state versus national power
before the Supreme Court.
o In this case, the Supreme Court ruled that national policies take precedence over state policies:
Chief Justice John Marshall wrote that “the government of the United States, though limited in its
power, is supreme within its sphere of action.”
o The Court also ruled that the Constitution gives Congress certain implied powers (based on the
provision granting Congress the power to “make all laws necessary and proper for carrying into
execution the foregoing powers”) that go beyond the enumerated powers that are specifically
listed in Article I, Section 8.
 John Marshall’s Opinion: “Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the Constitution, are
constitutional.”
 Question: Would the courts have reached the same conclusion had the Constitution contained
no necessary and proper clause? If so, what purpose, if any, does the necessary and proper
clause serve?
 Commerce Power - Gibbons v. Ogden (1824) defined commerce very broadly to encompass virtually
every form of commercial activity.
o Constitutional Question: Could NY grant Robert Fulton a monopoly on his steamboat services?
Article I, Section 8 (necessary and proper clause)
o What was the meaning of interstate commerce in the Constitution? What exactly could the federal
government regulate under the provision? Were steamboat licenses of the State of New York in
conflict with the National Government’s authority to regulate commerce?
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Ruling of Gibbons v. Ogden -- Congress has supremacy in all matters of interstate commerce.
 Now the national government could regulate commerce through grants.
 Entering the workplace and regulating working conditions was still seen as a state power
through the 1920’s.
The Civil War – Militarily the national government asserts its power over the Southern states’ claim of
sovereignty and yields the 13th, 14th, and 15th Amendments during Reconstruction
o Settled the issue of national supremacy that McCulloch had enunciated constitutionally.
o While the banning of slavery (13th) and banning of voting discrimination based on race (15th) are
more well known, the 14th Amendment has a much greater impact on federalism
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14 Amendment and Selective Incorporation
o 14th Amendment says that states cannot “deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”
o During the 20th Century, the Supreme Court started using the 14th Amendment clauses to limit the
powers of states by requiring them to grant these to their citizens
o Selective Incorporation – use of individual Supreme Court cases to apply elements of the Bill of
Rights to the states, limiting their power over restrictions regarding speech, press, assembly,
searches, and judicial regulations and procedures
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Progressive Era and New Deal
o The early 20th Century led to major expansion in national power and the expansion of government
regulations during the Progressive Era and the New Deal
 While most Progressive reforms targeted government regulation, the 17th Amendment
removed the power of choosing senators from state legislatures by giving citizens the
ability to directly elect senators
 Several programs created during the New Deal were upheld through applications of the
commerce clause, allowing for increasing indirect connections to commerce as justification
for the legality of laws/programs
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The Struggle for Racial Equality – a century after the Civil War, the policy issue was equality.
o Brown v. Board of Education (1954) outlawed segregation in the public schools.
o The conflict between states and the national government over equality issues was decided in favor
of the national government: throughout the 1960s, the federal government enacted laws and
policies to end segregation in schools, housing, public accommodations, voting, and jobs.
o In Heart of Atlanta Motel v. US, which is not technically a federalism case, the Court upheld the
Civil Rights Act of 1964 using the Commerce Clause, arguing that segregation is illegal in hotels
because they are an element of interstate commerce. This greatly expanded federal power.
What is left of state power?
 By the last quarter of the 20th century, many scholars thought that the Tenth Amendment had little relevance.
 Then, along came the United States v. Lopez case and a judicial decision reversing the trend of expanding
national power
 This decision limited the power of the national government to use the commerce clause for any issue
QUESTION – How has the national (federal) government expanded its power beyond what may have been
originally envisioned since the signing of the Constitution?
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From Dual to Cooperative Federalism
 Dual Federalism – A system of government in which both the states and the national government remain
supreme within their own spheres, each responsible for some policies.
o Belief that having separate and equally powerful levels of government is the best arrangement. In
other words, Congress does not exceed its enumerated powers.
o Referred to as “Layer Cake Federalism”
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The Demise of Dual Federalism -- Great Depression causes a shift
o The American federal system leaned toward dual federalism before the national government began
to assert its dominance
o Government was seen as unsuccessful responding to economic conditions due to its minimal intervention
o Government intervention dramatically increases as a response to the financial crisis
o National and state governments begin cooperating on massive programs as part of New Deal
Cooperative Federalism – A system of government in which powers and policy assignments are shared
between states and the national government.
o Referred to as “Marble Cake Federalism”, Competitive Federalism, New Federalism
o Standard operating procedures of cooperative federalism - Shared costs, federal guidelines, and
shared administration.
 Marked by mingled responsibilities and blurred distinctions between the levels of government.
QUESTION – How has the national (federal) government expanded its power beyond what may have been
originally envisioned since the signing of the Constitution?
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The Monetary Side of Federalism
 Fiscal Federalism – Pattern of spending, taxing, and providing grants in the federal system.
o Fiscal federalism is the cornerstone of the national government’s relations with state and local governments.
o Grants-in-aid are the main instrument the national government uses for both aiding and influencing
states and localities.
 Federal aid to states and localities amounted to approximately $306 billion in 2001, despite
cutbacks during the Reagan administration.
 Federal grants to state and local governments have grown rapidly and now amount to more
than $600 billion per year.
 Grants increased in 2010 and 2011 due to the stimulus package.
o Conditions of aid: tell state governments what they must do if they wish to receive grant money.
Raising the drinking age to 21 is an example of this.
 Categorical grants (project grants and formula grants) must be used for specific purposes and have
strings attached.
o State and local agencies can obtain categorical grants only by applying for them and by meeting certain
qualifications.
o Categorical grants come with numerous “strings” (rules and requirements) attached, such as
nondiscrimination provisions and punitive cross-over sanctions and cross-cutting requirements that reduce
or deny federal funds if certain local or state laws are not passed or if federal guidelines are not met.
o There are two types of categorical grants.
 Project grants - the most common type of categorical grant; awarded on the basis of competitive
applications (such as grants to university professors from the National Science Foundation).
 Formula grants - distributed according to a formula; states and local governments
automatically receive funds based on a formula developed from factors such as population, per
capita income, or percentage of rural population (such as Medicare, Aid for Families with
Dependent Children, and public housing).
 Block grants - used to support broad programs in areas like community development and social services.
o In response to complaints about the cumbersome paperwork and restrictive federal requirements
attached to categorical grants, Congress established block grants to support broad programs.
o States have discretion in deciding how to spend the money.
 Scramble for Federal Dollars – Grant distribution of roughly $600 billion yearly
o On the whole, federal grant distribution follows the principle of universalism—that is, something
for everybody, even though some money goes where it is not really needed.
QUESTION – How does the national (federal) government influence the states through the use of
different types of spending?
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Mandates: federal rules that states or localities must obey, generally have little or nothing to do with
federal aid (Americans With Disabilities Act).
Mandate Blues - Mandates direct state governments to comply with federal rules under threat of penalties
or as a condition of receipt of a federal grant.
o There are some occasions when states would prefer not to receive some federal aid—such as when
Congress extends a program that is administered by the states and only partly funded by the
national government—an underfunded mandate.
• This means that the states have to budget more funds for the project in order to receive
federal grant money.
Of even greater concern to states are unfunded mandates.
o These require state and local governments to spend money to comply with laws such as the Clean
Air Act of 1970 and the Americans with Disabilities Act of 1990 with no financial help from the
federal government that enacted the laws.
o In addition, federal courts create unfunded mandates for states regarding school desegregation,
prison construction, and other policies.
o In 1995, Congress passed a law that will make it more difficult for Congress to impose new
unfunded mandates.
QUESTION – What are mandates and how can they be problematic for states?
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Devolution?
 Devolution – Transferring responsibility for policies from the federal government to state and local governments.
 State and local governments are mostly responsible for handling crime, welfare, and education.
The Devolution Revolution
 Nixon and New Federalism
o Attempted to decrease federal bureaucracy yet coincided with a concentration of power within the
White House.
o Instead of simply cutting taxes, as later Conservatives would, he proposed a new system called
revenue sharing, which redirected funds to the state and municipal levels.
o The federal government would collect taxes and the local governments would spend the money.
o Money typically through categorical grants
 Reagan’s view of New Federalism
o The “Devolution Revolution”
o Movement away from categorical grants to block grants
o Puts less requirements onto the states
 Bill Clinton wins 1992 election
o Republicans campaign on the “Contract with America” created by Newt Gingrich.
o Many Proposals to return power back to the states -- EXAMPLE - Welfare Reform
o Republicans win both houses of Congress and many Governorships in 1994
o Unfunded Mandates Reform Act
QUESTION – How have the states gradually increased power since the late 1960s?
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Federalism and the Scope of the National Government
 National power increased with industrialization, expansion of individual rights, and social services.
 Most issues, concerns, and problems require resources afforded to the national, not state, governments.
 The national government’s share of expenditures has grown rapidly since 1929; today it spends about 25
percent of the GDP, while state and local governments spend about 12 percent today.
Federalism and Democracy
 Increases access to government.
 Local problems can be solved locally.
 An interest concentrated in a state can exercise substantial influence in the election of that state’s officials.
 Hard for political parties to dominate all politics.
 States have different quality and quantity of public services.
 Local interest can counteract and impede national interests.
 Having so many governments (89,527 American governments) makes it difficult to know which
governments are doing what.
CASE REVIEWS
MCCULLOCH V. MARYLAND
Overview
Congress chartered the Second Bank of the
United States in 1816 to provide a sound national
currency. But the bank soon proved very
unpopular in many states. Maryland levied an
extremely high tax on all banks without state
charters (a $15,000 per year flat tax). Maryland
also required the use of Maryland-based paper
products for the printing of bank notes and any
other bank related correspondence. At the time,
the Second Bank of the United States operated as
the only bank in Maryland not chartered by the
state. McCulloch, the head cashier of the
Baltimore branch of the Bank of the United
States, refused to pay the tax. Maryland sued
McCulloch and won in the Maryland courts.
Officials of the bank appealed to the U.S.
Supreme Court. They claimed the state tax
interfered unconstitutionally with the federally chartered bank. The state claimed it had the power to tax the bank.
Maryland argued that the federal government was created by the States, and that state law took precedence over
federal law in every matter, such as banking, not specifically cited in the Constitution. Marshall, on the other hand,
determined that the Constitution was not made by the states but by the people ("We, the people of the United States,
. . . do ordain and establish. . . .") Any act of the federal government not directly contrary to the Constitution
therefore was the law of the land, whatever a state, or the Supreme Court, might think of its merits. Coining the
famous phrase, “The power to tax involves the power to destroy," Marshall declared that the Maryland tax on a
bank established by the U.S. Government was void. Who was correct constitutionally?
QUESTION – How has McCulloch v. Maryland shaped governmental powers as a part of federalism?
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GIBBONS V. OGDEN
Overview
The State of New York granted a monopoly on the use of its waters to the line of steamboats belonging to Robert
Fulton and his partner, Robert Livingston. Livingston and Fulton then granted Aaron Ogden a license to carry out a
crossing route between New Jersey and New York City. Ogden then sued in court to prevent a rival line owned by
Thomas Gibbons from making the crossing between New Jersey and New York City.
For Gibbons:
• The court was urged to take a broad view of commerce, which would make passengers commerce.
• Federal license supersedes New York because of the Commerce clause gives FED exclusive control over
interstate commerce.
For Ogden:
• The court was urged to take a narrow view of commerce, which would respect New York as a sovereign state
able to regulate commerce within its boundaries.
• New York believed that the regulation of commerce was a concurrent power.
In a decision once described as the "emancipation proclamation of American commerce," that Marshall's decision
nullified a law by which the State of New York granted a monopoly on the use of its waters. Marshall held, was in
flagrant violation of the constitutional provision giving Congress the power to "regulate Commerce. . . among the
several States." All of the now immense regulatory apparatus of the modern American government had its inception in
this judgment. The effect of all such cases was to prevent the states from ever erecting economic walls around their
borders. That America moved so rapidly from an overwhelmingly agricultural society to the highly urbanized
industrialized and mobile one it would become is in good part owing to the way the Marshall court cleared away
efforts to put obstacles in the way of the free flow of trade and people across state boundaries. No wonder Marshall has
been described as a definer of the nation.
QUESTION – How has Gibbons v. Ogden shaped governmental powers as a part of federalism ?
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