Federalism
National Government vs. State
Governments
Federalism and the Constitution
• Federalism as a Madisonian device
• A way to limit federal authority (see Federalist
10 and 51)
• The division of powers between two sovereign
governments
• It helps to address the diverse nature of our
country (allows for local control)
• State governments were well established and
people trusted them
Explanation for federalism
• “…it clearly appears, that the
same advantage which a
republic has over a democracy,
in controlling the effects of
faction, is enjoyed by a large
over a small republic-is enjoyed
by the Union over the States
composing it…The influence of
factious leaders may kindle a
flame within their particular
States, but will be unable to
spread a general conflagration
through the other States.”
Madison Federalist #10
Constitutional Basis of federalism
• A strong national government
– Article I, Section 8 grants government many broad powers,
– but government also given powers to create all laws “necessary and
proper” (elastic clause)
– Article VI establishes the supremacy of the Constitution
• Powers prohibited to the states
– States denied from doing things that conflict with national
government such enter treaties, coin money, keep troops or navies,
make war levy import, export taxes
– States left with the local powers of governing the welfare, health,
safety and morals of its people
• National government limited
– Article I, Section 9 establishes powers denied to federal government
– 10th Amendment grants states powers not granted by the Constitution
to the national government (who wins if a conflict between the elastic
clause and 10th Amendment
• Article IV requires states to work together
– Full faith and credit clause
Layer Cake vs. Marble Cake Federalism
People
Federal gov’t
States
Developing Federalism—Early National
Period
McCulloch v. Maryland (1819)
• Congress charters the Bank of
the United States to provide
loans for investment and
infrastructure, control
currency
• Depression leads to distrust
and the bank becomes a
scapegoat so Maryland passes
a tax on the Baltimore branch
of the bank
• At issue was whether Congress
could establish a bank and
whether the states could tax
said bank
• Chief Justice John Marshall
ruled that while a national
bank is not specifically
stated in the Constitution,
the necessary and proper
clause gives the
government the power to
establish the bank; also
“the power to tax is the
power to destroy” and the
states can’t tax a branch of
the federal government
thus lending validity to the
supremacy clause
Early National Period
con’t
Gibbons v. Ogden (1824)
• This dispute arose because Ogden
held a New York monopoly license to
transport goods between New York and
New Jersey while Gibbons held a federal
contract to do the same
• John Marshall ruled that granting a
monopoly over interstate commerce
violated the Constitution
• This case most importantly gave the
government the broad authority to
regulate interstate commerce, an
important tool used by the government
during the New Deal and Civil Rights
eras
The Civil War era
• After Marshall, Andrew Jackson worked to build a more
conservative court, which granted the states more control
over local issues
• Nullification Crises- in 1798 Madison argued that the states
have a right to refuse to obey laws when they feel the federal
government has exceeded its authority; in 1832, South
Carolina, using Madison’s words threatened to secede when
they felt the government had passed a high federal tariff,
secession was avoided, but the question still remains, can the
states ignore federal laws they feel violate their sovereignty?
Civil War cont’d
• In the Dred Scott case Chief Justice Taney ruled that Congress
does not have the power to outlaw slavery in the territories
and the Missouri Compromise was unconstitutional
• Post Civil War
• 14th Amendment
– The due process clause of the 14th Amendment makes the
Bill of Rights applicable to the states, a power not felt until
the 1900s
• 16th Amendment
– The income tax becomes an important tool for the New
Deal and Fiscal Federalism or grants-in-aid
The New Deal era
• The states can’t cope with the
demands of the Great
Depression, thus Roosevelt is
elected on the promise of a
New Deal for the people
(which also called for a more
active government)
• Initially the Supreme Court
struck down the New Deal
because it granted Congress to
much discretion over
interstate commerce in the
“sick chicken case”
New Deal and the
commerce clause
• In response, Roosevelt
introduced his plan to change
the Court from 9 to 15 and
wouldn’t need an amendment
to do it; luckily 5 of his
opponents retire and are
replaced by pro-New Dealers;
Court rules in favor of Congress
in West Coast Hotel v. Parrish
(1937) thus “the switch in time
that saved nine”
• Afterwards, the Court defers to
Congress on regulating interstate
commerce and takes a broad
interpretation of the clause such
as in the Ollie’s BBQ case of 1964
Fiscal Federalism-spending, taxing and
producing grants in the federal system
• Categorical grants-money given to
states for a specific purpose, but
there are conditions
• Interstate Highway Act-governments
pay 80% of cost of highway
construction, but must be built to
government specifications
• States must establish a highway
beautification program or lose 10% of
its funding
• Or Cross over sanctions
• Funds withheld for highway
construction unless the drinking
ages of the states are raised (South
Dakota v. Dole)
• Block grants-money
given to states, but less
strings attached
– Giving money to
states to decrease
emissions
– Money given to the
states for welfare,
but the states come
up with the system
that helps them best
The National Government’s Contributions to
State and Local Government Expenditures
Trends in National Government
Grants to States and Localities
The Issue: Health Costs!
Devolution-a growing distrust of government and increased
trust in states coupled with a GOP takeover has led to an
increased backing off of the federal government
• Reagan takes 42
categorical grants and
turns them into block
grants with few strings
attached
• Clinton passes the
Personal Responsibility
and Work Opportunity
Act in 1995
• No Child Left Behind Act
and Education
Accountability Act passed
in 2000
Key cases
• US v. Lopez (1995)
– In 1990, Congress passes Gun
Free School Zone Act making it
a federal offense to bring a
firearm on a school campus
because they reasoned crime
has been exacerbated by the
interstate movement of guns,
drugs, and gangs and there is an
increasing amount of guns
found at school’s
– Under the interstate commerce
clause Congress felt they had
the power to pass laws to
ensure the “integrity and safety
of the nation’s schools”
• The Court ruled against
Congress and interstate
commerce clause for 1st
time in 60 years
– Congress was using a
“worst case scenario” in
passing the law
– Court believed that
Congress has gone far
enough with the
interstate commerce
clause
Key Cases
• US v. Morrison (2000)
– A female student at Virginia
Tech sued 2 football players
for raping her which was
made a federal crime under
the Violence Against Women
Act of 1994
– Congress reasoned that
gender-motivated crimes
affects interstate commerce
because if such crimes go
unpunished then women
will not participate in any
commerce activity
– In a 5-4 decision, William Rehnquist
agreed that Congress was again
misapplying the interstate
commerce clause
– The Court referenced the Lopez
case and argued that at least in the
Gun Free Zone Act Congress had
data to make their decision, no
such data existed for the passage of
this law
– Chief Justice Rehnquist wrote that
[i]f the allegations here are true, no
civilized system of justice could fail
to provide [Brzonkala] a remedy for
the conduct of...Morrison. But
under our federal system that
remedy must be provided by the
Commonwealth of Virginia, and not
by the United States."
Devolution
•
•
•
•
Advantages
Local control
Experimentation
Local governments able to
adapt to local needs
leading to greater
efficiency
Traditional interpretation
of the states’ power to
regulate health, welfare
and safety
Disadvantages
• Regional disunity
• Fiscal responsibility of
Congress
• Oversight
• “Irresponsibility” of
states
• Need to accomplish
national goals with
federal dollars
Medellin v. Texas
• Jose Medellin and his
gang rape and murder a
14 and 16 year old girl
• Medellin confesses 5 days
later and is sentenced to
death
• Mexico sues US in World
Court because Medellin a
mexican national was not
given the right of
assistance from the
Mexicacn consulate per
Vienna Convention
• Court ruled that US was
wrong, but asked that his
and others cases be
reopened
• Our laws say that a
criminal defendant must
raise challenges at trial or
on appeal
Medellin con’t
• President Bush then
intervenes by issuing a
memo declaring the
courts should give
Medellin a new hearing
after Supreme Court
takes up Medellin’s
habeas petition
• Can the president tell
states what to do?
• Does US law become
secondary to World
Court?
The Decision
• Medellin relied on the supremacy clause…treaties
included
• The Supreme Court, however, ruled that the US
doesn’t have to treat World Court judgments as
binding domestic law
• The President’s powers are limited to executing,
not creating therefore Bush’s memo is not
binding on states
• Only Congress can enact legislation transforming
domestic law