Federalism
Government
Forms of Government
1. Federalism
a. Consists of national and state governments
b. Both exercise governmental power in the same system
c. Germany, U.S., Mexico, Canada
2. Confederation
a. Loose collection of states
b. Main power at the individual state level
c. U.S. under A. of Confed. (The United Nations)
3. Unitary system
a. Principle power is reserved to central government
b. Britain, France, China
Why Choose Federalism?
1. Shared resources
2. Allows unity without uniformity - one state's
needs are not the needs of other states
3. Protects against a runaway federal gov’t
4. Encourages experimentation and cooperation
b/t states
5. Allows states to administer federal programs
6. Equalizes financial resources
Models of Federalism
1. Dual federalism (prior to 1930 – each supreme in own realm)
a. State and national gov't separate
b. Each exercises its own powers in its own spheres
c. Layer cake analogy
2. Cooperative federalism (today with involvement by both)
a. Intertwining relationship b/t national, state and local
b. Powers often overlap – highways, schools, police, taxes
b. Marble cake analogy
3. Horizontal Federalism
a. Between States
b. Full Faith and Credit, Extradition, Contracts,
Privileges and Immunities, Interstate Commerce
Constitutional Powers
and the
Role of the States
National Powers Under the
Constitution
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Inherent Powers
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Self evident powers each branch possesses because of what it does (President is
Commander-in-Chief because he is the boss!)
Make laws, enforce laws, interpret laws
Enumerated Powers
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17 specific powers granted to Congress
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Necessary and Proper Clause
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AKA Elastic Clause
Article I, Section 8, Clause 17
Implied Powers
Supremacy Clause (Article VI)
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Article 1, section 8 of the U.S. Constitution
Taxation
Coinage of money
Regulation of commerce
National defense
Mandates that national law is supreme to all other laws passed by the states or by any
other subdivision of government
Concurrent Powers
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Authority is possessed by both state and national governments and exercised at
the same time
State Powers Under the Constitution
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Article 1
 Allows states to determine time, place, and manner of elections
for House Representatives and Senators
Article II
 Requires that each state appoint electors to vote for president
Article IV
 Privileges and immunities clause
 Republican form of government
 Protection against foreign attacks and domestic rebellion
Tenth Amendment
 States’ reserved powers described here
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“The powers not delegated to the US by the Constitution, nor prohibited
by it to the states, are reserved to the states respectively, or to the
people.
Police powers
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Authority of the state to protect and promote the public morals,
health, safety and general welfare
Relations Among the States
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Interstate disputes directly settled by U.S. Supreme Court under its
original jurisdiction
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Full Faith and Credit Clause
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Privileges and Immunities Clause
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The rights of citizens of a state can’t be denied to non-citizens.
Extradition Clause
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Ensures judicial decrees and contracts made in one state will be binding
and enforceable in others
States can vary considerably on social issues- implications?
Criminals who flee state borders can be returned for prosecution
Interstate compacts
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Over 200 exist today
Contracts between states that carry the force of law - Drivers License
Compact
Consent of Congress
Denied Powers
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States cannot (Article 1 Sec
9)
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Enter into treaties
Coin money
Impair obligation of contracts
Cannot enter into compacts with
other states without congressional
approval
Denied the authority to take
arbitrary actions affecting
constitutional rights and liberties
Cannot pass a bill of attainder
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Find you guilty w/o trial
No ex post facto laws
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Making a law retroactive
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Congress cannot
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Favor one state over
another in regulating
commerce
Cannot lay duties on items
exported from any state
Cannot pass a bill of
attainder
No ex post facto laws
Suspend habeas corpus
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Suspend right to know why
you are in jail
Checks and Balances
&
Judicial Decisions on
Federalism
Federal Supremacy &
Implied Powers
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McCulloch v. Maryland
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Maryland state assembly passes a “stamp tax” on paper that
banks used to print bank notes. If bank was not chartered by the
state, they had to pay the tax. McCulloch, a cashier at the national
bank, refused to pay the tax. Maryland brought suit.
Can a state tax an institution of the federal gov’t?
Does Congress have the power to create a national bank?
Marshall Court ruled that creation of a national bank was necessary
in order for Congress to carry out delegated powers such as
creating and coining a national currency, collecting taxes, etc.
Decision: National government “supreme” so state can’t tax
Decision: National gov’t needs place to collect taxes and pay bills
so under elastic clause, creation of bank is implied power
National Supremacy
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Gibbons v. Ogden (1824)
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Argument over Gibbons federal license to operate
steamboats (ferry) over Ogdens license from the state
of New York.
Can a state regulate interstate trade?
Marshall Court says commerce is more than traffic, it
includes business and trade b/t nations and parts of
nations
Court says if state law regulating trade interferes w/a
federal law, the federal law is always supreme
Decision: Federal law is supreme over state law,
Gibbons federal license is supreme
National Supremacy
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Heart of Atlanta Motel v. U.S.
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Motel in Atlanta refused to serve blacks claiming that
Congress exceeded its authority when it regulated local
businesses open to the public under the Civil Rights Act of
1964.
Is the Civil Rights Act of 1964 constitutional?
What constitutes interstate trade? How wide is its range?
Can the feds prohibit segregated public accommodations?
Court ruled that since the motel engaged in interstate
commerce by seeking out of state customers and since
75% of its customers were out of state refusing black
customers interfered with interstate commerce.
Decision: Under supremacy clause, CRA of ’64 is covered
as national regulation of trade
Relationships in a
Federal System
Fiscal Federalism
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Pattern of spending, taxing and providing grants in a
federal system
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2010 – state and local governments received $480
billion in federal grants
Fiscal Federalism 2011
Fiscal Federalism
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Categorical grants
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Target specific programs with restrictions
State and Local government must apply for the money
Intense competition for funds
Bureaucracy decides who gets the money (based on need)
There is little say by the state and local government on how
the money will be spent (increasing power of national gov)
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Formula Grant – States and fed share costs (airports, bridges,
highways)
Project Grant – Money given out for a purpose applied for by state
(health research, university research grants)
Fiscal Relationships
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Block Grants
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Blocks of money for area of policy but not a specific category
to spend it in
$$ goes to states with a few strings attached
States have greater discretion to determine how to use $$
Very few are granted, distributed based on formula set by
Congress
Fiscal Relationships
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Revenue Sharing
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Transfer of $ from taxes, etc. from nat. to state/local
Could be used for almost any purpose
Done away with in 1988 by Reagan
Fiscal Relationships
Federal Mandates
 Demand that states carry out policies even with little
or no government aid (unfunded mandates)
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Most common - Civil rights, air and water pollution, auto
emissions, services for illegal aliens, inspection of hospital
and nursing homes, education
National gov't can set up laws but relies on state
enforcement (OSHA, Clean Air)
Federal law prohibits under the Contract with America
Fiscal Relationships
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March 1995 - Unfunded Mandates Reform Act (UMRA)
 setting up procedures to keep congress from imposing
costs on states without appropriating funds
 requires analysis of any bill expected to cost state,
tribunal, or local governments more than $50 million
 if expected to cost lower levels of government or the
private sector more than $100 million, House and
Senate committees are required to show where
funding will come from to offset these costs
Unfunded Mandates
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Examples of Unfunded Mandates
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1970s 55 mph or lose hwy assistance during
Energy Crisis
1984 drinking age to 21 or 15% cut in hwy aid
1991 incentives for seatbelt/helmet laws; states
that did not lost 3% of their highway money for
safety programs
NCLB (No Child Left Behind)
Budgetary Relationships
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Every president since LBJ has tried to decrease gov’t
size
If feds don’t provide programs, states must
Interest on the debt consumes about 20 % of all
incoming revenue
People demand more services from gov’t for less cost
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Effects of Federal Budget on the states:
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Less federal money for states
Increase in federal mandates
Entitlements will have to be cut (welfare, social security, etc)
Taxes will have to increase or spending be cut
Budgetary
Techniques of Federal Control over the states
 Direct orders – required or face fines
 Clean up water and air; end discrimination in
workplace
 Cross Cutting requirements – sets conditions before
aid is granted
 Hire minorities in proportion to population on
highway project
 Cross over sanctions – money is given on one
program based on condition of another
 21 drinking age or no highway $$