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Chapter Three
Federalism
Federalism: A Bold New Plan
• No historical precedent
• Tenth Amendment was added as an
afterthought to clarify the limits of the
national government’s power
• Elastic language in Article I: Necessary and
Proper Clause expands federal power
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Federalism and the American intergovernmental system
• Thousands of governments
• There is 1 national government, 50 state governments,
and more than 87,500 local governments of various types.
• Types of local governments
• Municipal governments: the government units that
administer a city or town.
• County governments: the government units that
administer a county.
• School districts: the government unit that administers
elementary and secondary school programs.
• Special districts: government units created to perform
particular functions, especially when those functions are
best performed across jurisdictional boundaries.
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Governmental Structure
• Federalism: a political system where local
government units can make final decisions
regarding some governmental activities and
whose existence is protected
• Unitary System: local governments are
subservient to the national government
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Figure 3.1: Lines of Power in Three
Systems of Government
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Question:
• Should the national government
set standards for the nation?
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Figure 3.1: Lines of Power in Three
Systems of Government
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Questions:
• What issues should be locally
determined?
• What issues require national
legislation and enforcement?
• What is the proper balance
between uniformity and local
autonomy?
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Figure 3.1: Lines of Power in Three
Systems of Government
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Questions:
• People want to reform education. Which
system would you want to use to make that
process the easiest?
• You want people to be involved in their
government? Which system would
encourage that more, Unitary or Federal?
• What does a federal system tell us about
the goals of the Framers?
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Federalist Papers
• Federalist #10 in my own words (read it
and look at Federalist #51 again. Could
you put it in your own words?).
• (This is part of our ongoing exploration of
the Constitution and the Checks and
Balances that are included in it).
• (Checks and Balances are separate from
the concept of government being divided
between national and state powers, i.e
Federalism (another way to protect liberty))
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13
Two Views of Federalism . . .
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Dual federalism
• Dual federalism: a view that holds that the
Constitution is a compact among sovereign
states, so that the powers of the national
government and the states are clearly
differentiated (represented by the layercake metaphor).
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Dual Federalism
• a) States are, in some ways, equal to the
federal government.
• b) States’ rights: the idea that all rights not
specifically conferred on the national
government by the U.S. Constitution are
reserved to the states.
– What does this lead to? What does it justify?
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Dual Federalism
• c) The national government rules by
enumerated powers only (supported by 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.”
• d) The role of the people is not clear in the
dual federalism perspective.
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Federalism Over Time
• Dual federalism: Both national and state
governments are supreme in their own
spheres, which should be kept separate
• Hard to make distinctions between state
and federal spheres; distinctions between
them were blurred
• But Supreme Court has strengthened
states’ rights in several recent cases
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In Practice, American Gov. is a Marble Cake
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Cooperative federalism
• Cooperative federalism:
a view that holds that the
Constitution is an
agreement among people
who are citizens of both
state and nation, so there
is much overlap between
state powers and national
powers (represented by
the marble-cake
metaphor).
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Evidence of the Marble Cake:
• a) National and state governments undertake
functions jointly.
• b) Nations and states routinely share power.
• c) Power is not concentrated at any level of
government or in any agency
– fragmentation of responsibilities gives people and
groups access to many venues of influence.
• d) Stresses the role of the national government,
supported by an expansive view of the
supremacy clause (Article VI)
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How to read the Constitution?
• Differences in the
theories of dual and
cooperative federalism
are based in
Constitutional
interpretation.
• How NOT to read the
Constitution?
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@
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Questions:
• How do you think you read the
Constitution? Are you a strict
constructionist or do you read it as an
activist?
• Will this change as we read more…we’ll
see..
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(Competing Argument): Tenth
Amendment
• The Tenth Amendment says 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.”
– (1) Dual federalism postulates a capacious
Tenth Amendment.
– (2) Cooperative federalism confines the Tenth
Amendment to a self-evident, obvious truth.
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(Competing Argument): The
elastic clause
• a) What is Necessary and Proper? (Article I,
§8): gives Congress the means to execute
its enumerated powers
– basis for Congress’s implied powers (also
called the necessary and proper clause).
• (1) Dual federalism postulates an inflexible
elastic clause.
• (2) Cooperative federalism postulates
suppleness in the elastic clause.
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The elastic clause in practice…
• Increased the scope of the national government
in times of crises and national emergencies.
• a) The Great Depression
– (1) National government offered money to support
state relief efforts, but states had to provide
administrative supervision or additional funds.
– (2) National government extended its power and
control over the states through regulations attached to
grants.
– (3) Significant change in the ways Americans thought
about their problems and the role of the national
government in solving them
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Question:
• How has the elastic clause impacted the balance
of power between the states and the national
government?
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• Create a chart organizing the information from
each side. Use the following topics:
– Dual federalism
– Cooperative federalism
– Marble cake
– Layer cake
– States’ rights
– National government supremacy
– Clear differences between levels related to
power and responsibility
– Overlap between levels related to power and
responsibility
– Beliefs about 10th Amendment, and Elastic
Clause
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Federalism’s dynamics
• The actual and proper balance of power
between the nation and the states has
always been a matter of debate.
– 1. The Constitution’s inherent ambiguities
about federalism generate both constraints and
opportunities for politicians, citizens, and
interest groups.
– 2. Both elected and appointed officials often
make policy decisions based on pragmatic
considerations without regard to theory.
– 3. Public problems cut across government
boundaries.
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September 11, 2001
• (1) Swift expansion of national power
through such legislation as the USA
PATRIOT Act
• (2) Creation of the Department of
Homeland Security, a new department that
united over twenty previously separate
federal agencies
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Voting Rights Act of 1965
• The national government has also responded to needs
the states and localities were unable or unwilling to meet.
• a) The Voting Rights Act of 1965: gives national
government officials the power to decide whether
individuals are qualified to vote and requires that
qualified individuals be permitted to vote in
national, state, and local elections.
• b) Act intrudes on political sovereignty of the
states by replacing state officials with national
examiners
• c) Constitutional authority rests in the Fifteenth
Amendment (§2), which gives the power to
enforce the amendment through “appropriate
legislation.”
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Judicial interpretation
• 1. Court settles disputes over the powers of the
national and state government by deciding
whether the acts of either are unconstitutional
– a) In the nineteenth and early twentieth
centuries, the Court often decided in favor the
states.
– b) 1937–1995: Court tended to support the
national government
– c) 1995–present: Court has tended to favor
states rights, but not without exceptions
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McCulloch v. Maryland
• 1816, The Second Bank of the United States
• 1818, MD passed law to impose taxes on the bank
• James W. McCulloch, the cashier of the
Baltimore branch of the bank, refused to pay
the tax
• Did Congress have the authority to
establish the bank?
• Did the Maryland law
unconstitutionally interfere with
congressional powers?
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• Above: The south façade of the
Second Bank of the United
Chief Justice John Marshall
States in August 2006.
• The Second Bank of the United
States was located in
Philadelphia, Pennsylvania,
where its building, designed by
the architect William Strickland,
still stands as part of
Independence National Historical
Park.
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Decision
• Unanimous decision
• Congress had the power to incorporate the
bank and MD could not tax instruments of the
national government employed in the
execution of constitutional powers
• Chief Justice Marshall noted that Congress
possessed unenumerated powers not
explicitly outlined in the Constitution
• Marshall also held that while the states
retained the power of taxation, "the
constitution and the laws made in pursuance
thereof are supreme. . ."
The Oyez Project, McCulloch v. Maryland, 17 U.S. 316 (1819), available at: <http://www.oyez.org/cases/1792-1850/1819/1819_0/>
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Decision
• “the power to tax is the power to destroy”
• Overall, the court adopted a broad
interpretation of the elastic clause and said
that the Constitution was established by the
people not the states.
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Commerce clause
• The commerce clause: the third
clause of Article I, §8 of the
Constitution, which gives Congress the
power to regulate commerce among the
states.
• a) The Court’s interpretation of this clause
has been a major factor in increasing or
decreasing the national government’s
power.
• b) Gibbons v. Ogden (1824): broad
interpretation of commerce; increased
national government power
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Gibbons v. Ogden (1824)
• A New York state law gave two individuals the
exclusive right to operate steamboats on waters
within state jurisdiction. Laws like this one were
duplicated elsewhere which led to friction as
some states would require foreign (out-of-state)
boats to pay substantial fees for navigation
privileges. In this case a steamboat owner who
did business between New York and New Jersey
challenged the monopoly that New York had
granted, which forced him to obtain a special
operating permit from the state to navigate on its
waters.
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Question
Decision
• Did the State of New York exercise authority
in a realm reserved exclusively to Congress,
namely, the regulation of interstate
commerce?
• Yes
• Regulation of navigation by steamboat
operators and others for purposes of
conducting interstate commerce was a power
enumerated to and exercised by the
Congress.
The Oyez Project, Gibbons v. Ogden, 22 U.S. 1 (1824), available at: <http://www.oyez.org/cases/1792-1850/1824/1824_0/>
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More Cases . . .
• Dred Scott (1857): Congress had no power to
prohibit slavery in the territories; narrow
interpretation of commerce; increased state
government power
• Court upholds FDR’s New Deal legislation;
increased national government power (1937)
• Printz v. United States (1997): Court concluded
that Congress could not require states to
implement a regulatory scheme imposed by the
national government; increased state power
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• United States v. Lopez (1995): held that
Congress exceeded its authority under the
commerce clause in regard to legislation
banning guns in school zones; increased
state power
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Shifting scales?
• a) Ruled Texas law banning
homosexual conduct between
consenting adult was unconstitutional
(Lawrence v. Texas, 2003)
• b) Bush v. Gore (2000): Court ordered
halt to Florida ballot recounts,
overruling the Florida courts
• http://www.oyez.org/cases/2000-2009/2000/2000_00_949/argument/
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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
– Federalist #10: small political units allow all
relevant interests to be heard
– Federalism increases political activity
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• …and now for something
completely different…
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Grants in Aid
• Dramatically increased in scope in 20th
century
• Grants were attractive to state officials for
various reasons
• Required broad congressional coalitions
with wide dispersion of funds, because
every state had incentive to seek grant
money
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• Grants-in-aid: money paid by one level of
government to another level, to be spent for
a specific purpose.
– a) Categorical grants: grants-in-aid targeted
for a specific purpose by either formula or
project.
• (1) Formula grants: categorical grants distributed
according to a particular set of rules, called a
formula, that specifies who is eligible for the grants
and how much each eligible applicant will receive.
• (2) Project grants: categorical grants awarded on
the basis of competitive applications submitted by
prospective recipients to perform a specific task or
function.
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In General. . .
• (3) Categorical grants tend to increase
national power and decrease state power.
• (4) Categorical grants are for specific
purposes defined by federal law; often
require local matching funds
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Broader Grants
• -b) Block grants: grants-in-aid awarded for
general purposes, allowing the recipient
great discretion in spending the grant
money.
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Broader Grants
• Block grants (sometimes called special
revenue sharing or broad-based aid)
devoted to general purposes with few
restrictions—states preferred block to
categorical grants
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Figure 3.2:
The Changing
Purpose of
Federal
Grants to
State and
Local
Governments
Budget of the U.S. Government, Fiscal Year 2005, table 12.2.
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Figure 3.3: Federal Grants to State and
Local Governments, 1984-2004
Budget of the U.S. Government, Fiscal Year 2002, Historical Tables, table 6.1, and Budget of the U.S.
Government, Fiscal Year 2005, table 12.1.
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Ideology, policymaking, and federalism in practice
• Preemption: the power of
Congress to enact laws by
which the national
government assumes total or
partial responsibility for a
state government function.
– a) Preemption is a modern
function; a majority of all
preemptive acts was passed
between 1970 and 1990.
– b) Example: The Nutrition
Labeling and Education Act of
1990
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Types of preemption
• (1) Mandate: a requirement that a state
undertake an activity or provide a service, in
keeping with minimum national standards.
• (2) Restraint: a requirement laid down by act of
Congress, prohibiting a state or local government
from exercising a certain power.
– a) Preemption costs state and local governments
money and interferes with their ability to set priorities.
– b) Use of unfunded mandates was constrained by the
Unfunded Mandates Relief Act of 1995
• (1) Required cost analysis of legislation
• (2) Required Congress to hold a separate vote specifically
imposing a requirement on other governments without
providing money to fulfill that requirement.
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Liberal or conservative support
• Liberal or conservative support for mandates
tends to depend on the ideology and the purpose
of government action being considered
– a) Conservatives may be less likely to support the
states when the states’ relationship to business is
adversarial.
– b.) When the Federal Gov’t requires the states to do
more, it increases the amount of gov’t that exists.
Conservatives tend to favor less gov’t.
– c) Federalism tends to be a secondary value, and is
overshadowed by other primary values.
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The Devolution Revolution
• Devolution proponents harbor a deepseated ideological mistrust of federal
government and believe that state
governments are more responsive to the
people
• Deficit politics encouraged devolution
• Devolution is supported by public opinion,
but the strength of that support is uncertain
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Ideology, policymaking, and federalism in theory
• 1. Conservatives are often associated with dual federalism.
• 2. Liberals are often associated with cooperative federalism.
• 3. Presidential actions since the 1960s seem to support these
generalizations.
– a) Lyndon Johnson: liberal; Great Society is often characterized as
apex of national government activism
– b) Richard Nixon: conservative; New Federalism call for block grants
to return power to the states
– c) Jimmy Carter: liberal; did not support the block grant approach
– d) Ronald Reagan: conservative; sought to “restore a proper
constitutional relationship” between the national government and the
states
– e) Bill Clinton: liberal; saw more potential for national government to
produce policy success
– f) George W. Bush: conservative; sought to embrace states’ rights in
a tempered fashion
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• Professionalization of state governments
• 1. Since the 1960s, states have become more capable
and forceful policy actors.
– a) Governors and legislators employ better trained and more
experienced policy staff.
– b) Legislative sessions are longer and legislators receive higher
salaries.
– c) More highly qualified people are running for state office.
– d) States have increased ability to raise revenue.
– e) Bureaucrats are generally more highly educated.
• 2. Changes in national policy have also helped the states
to develop.
– a) Many grants-in-aid include capacity-building elements.
– b) Example: the Elementary and Secondary Education Act
catalyzed changes that improved states’ ability to make and
administer education policy
– c) more people are hired at the state level to carry out mandates
and implement grants
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THE END
…or time to prepare for
an assessment…
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