FEDERALISM:
Is the division of power a
constitutional principle or
practical politics?
And what’s with the baking
metaphor?
Interests and Powers

What are the
interests of state
governments?

What are the
interests of the
federal
government?

What powers should
states have?

What powers should
the federal
government have?
Bakery Metaphors (yummm)
Dual Federalism
Until 1930s
 Like a layer cake

Dual Federalism in parts:
 Nat’l Gov has enumerated powers only
 Each government has own sphere of
sovereignty
 More tension than cooperation
Cooperative Federalism
After 1930s
 Like a marble cake
 Rejects the idea of “spheres”
 Government action is jointly taken
 Nation and states routinely share
power
 Power is fragmented enough that it
cannot be concentrated at any level

So what’s the critical difference?
It’s all in how we interpret two sections
of the Constitution . . .
Article I, Section 8 enumerates powers
(and there is that pesky elastic clause)
Tenth Amendment reserves for the states
and the people powers not assigned to
the national government
Cooperative
Dual

Elastic clause is
inflexible and Tenth
Amendment is
capacious (capable
of containing a
great deal)

Elastic Clause is just
that, elastic. It aslo
confines the Tenth
Amendment to a
self-evident truth
So what do Article I and the
Tenth Amendment actually tell us?
Of the following list, which are mainly
state powers? Federal? Both?

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Collect Taxes
Define Private
Property
Regulate Marriages
Regulate Commerce
Administer Health
and Safety Rules
Coin Money
Regulate Labor

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Raise an Army
Enforce Criminal
Codes
Regulate
Professional
Standards
Declare War
Administer Drivers’
Licenses
Expressed Powers
Article I, Section 8 of the Constitution

Regulate Interstate Commerce (the
commerce clause)
Coin Money
 Borrow Money
 Raise an Army
 Declare War
 Are there more?
 Absolutely!

Implied Powers
Article I, Section 8, clause 18
The Elastic Clause
 Congress’ power to make all laws
“necessary and proper” to carry out
expressed powers

The Tenth Amendment
The 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.
Reserved Powers
Derived from the Tenth Amendment
Define Private Property
 Regulate Marriage
 Administer Health and Safety Rules
 Enforce Criminal Codes
 Regulate Professional Standards
 Administer Drivers’ Licenses
 Are there more?
 Absolutely!

Concurrent Powers Are Shared

Collecting taxes

Regulate Labor

Regulate Commerce
Federalism in Practice
What are the forces that change the face
of federalism? (What has contributed to
the increase in Federal Power)
National Crises and Demands
 Judicial Interpretations
 Grants-in-Aid
 Professionalization of state
governments

National Crises and Demands
Civil War
 Both World Wars
 Great Depression
 9/11

All of these involved problems that were
too extensive for states to handle alone
 National relief funds spent on states are
often attached to federal stipulations

Katrina and Federalism
Judicial Interpretation

McCulloch v. Maryland

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1819
Expanded the role of national government
Does Congress have the power to establish a
national bank?
If so, could a state tax the bank?
Yes, and No.
“The power to tax is the power to destroy”
Cooperative federalism (direct relationship
between the people and national government)
Shifts in Judicial Interpretation ever since
Judicial Interpretation

Gibbons v. Ogden, Marbury v. Madison,
and Korematsu v. US all increased the
power of the federal government
Grants-in-Aid
Financial incentives influence state
behavior (because the money comes
with “strings”)
Two forms:
Categorical
 Block

Categorical Grants
For a specific purpose
 Little discretion by recipient
government


Formula: very specific rules such as


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Per capita income
Number of school age children
Project: competitive applications

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Health (HIV-AIDS programs)
Natural Resources (Radon, asbestos, energy)
Block Grants
Recipient governments have more
discretion over funds
 Welfare Reform Act of 1996

States were given power and money to
run their own welfare program
 States were given discretion to determine
how to implement the goal of getting
people to work

Professionalization of State
Governments

States have become more forceful
policy actors

Education (NCLB)
http://www.ed.gov/nclb/overview/intro/execsumm.html

Health Care (S-CHIP)
http://www.chicagotribune.com/news/nationworld/chi-kidshealth-care_thufeb05,0,30310.story

Same sex marriage laws
Federal Government makes laws that foster
such programs
States have obligations to one
another

Full Faith and Credit Clause

Article IV, Section I
“Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of
every other State. And the Congress may by general
Laws prescribe the Manner in which such Acts, Records
and Proceedings shall be proved, and the Effect thereof.”
 Marriage,
Divorce, Custody and Adoption

Defense of Marriage Act

Loving v. Virginia
More obligations . . .

Comity Clause

Article IV, Section 2: “The Citizens of each
State shall be entitled to all Privileges and
Immunities of Citizens in the several
States.”
 AZ
can’t pass a law prohibiting NM residents
from traveling, owning property, or working in
AZ
And more . . .

Interstate Commerce Clause
Article I, Section 10
 “No state shall, without the consent of the
Congress . . . enter into any Agreement or
Compact with another other State . . . ”
 Water Rights
 Has, more than any other clause,
increased the power of the federal
government

Unfunded Mandates

Setting National Standards – but not
paying for them
New Federalism and Devolution

New Federalism
Reagan, Nixon, and Clinton
 Return more discretion to the states

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Devolution

Giving the states more power over policy
Simulation

http://www.wwnorton.com/lowi8/chapt
ers/ch03/simulation.asp