Chapter 3: Federalism (pp 64-93)
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Gonzales v. Oregon, 546 U.S. ___ (2006)
Privacy, Right to Die, federalism
In 1994 Oregon enacted the Death with Dignity Act, the first state law authorizing
physicians to prescribe lethal doses of controlled substances to terminally ill patients.
Attorney General John Ashcroft declared in 2001 that physician-assisted suicide violated
the Controlled Substances Act of 1970 (CSA). Ashcroft threatened to revoke the medical
licenses of physicians who took part in the practice. Oregon sued Ashcroft in federal district
court. The court and, later the Ninth Circuit, held Ashcroft’s directive illegal. The courts
held that the CSA did not authorize the attorney general to regulate physician-assisted
suicide, which was the sort of medical matter historically entrusted to the states.
Did the Controlled Substances Act (CSA) authorize the attorney general to ban the use of
controlled substances for physician-assisted suicide in Oregon?
In a 6-to-3 decision, the Court held that Congress intended the CSA to prevent doctors
only from engaging in illicit drug dealing, not to define general standards of state medical
practice. Moreover, the CSA did not authorize Attorney General John Ashcroft to declare a
medical practice authorized under state law to be illegitimate.
United States v. Lopez, 514 U.S. 549 (1995)
First Amendment, protest demonstrations, federalism, economic activity
Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San
Antonio, Texas high school. He was charged under Texas law with firearm possession on
school premises. The next day, the state charges were dismissed after federal agents
charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of
1990. The act forbids “any individual knowingly to possess a firearm at a place that [he]
knows… is a school zone.” Lopez was found guilty following a bench trial and sentenced to
six months’ imprisonment and two years’ supervised release.
Is the Gun-Free School Zones Act of 1990, forbidding individuals from knowingly
carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress
to legislate under the Commerce Clause?
In a 5-to-4 decision, the Court held that the possession of a gun a local school zone is not an
economic activity that might, through repetition elsewhere, have a substantial effect on
interstate commerce. The law is a criminal statute that has nothing to do with “commerce”
or any sort of economic activity.
South Dakota v. Dole, 483 U.S. 203 (1987)
Federalism, Natural Resources, Miscellaneous
In 1984, Congress enacted legislation ordering the Secretary of Transportation to withhold
five percent of federal highway funds from states that did not adopt a 21-year-old minimum
drinking age. South Dakota, a state that permitted persons 19 years of age to purchase
alcohol, challenged the law.
Did Congress exceed its spending powers, or violate the Twenty-first Amendment, by
passing legislation conditioning the award of federal highway funds on the states’ adoption
of a uniform minimum drinking age?
In a 7-to-2 decision, the Court held that Congress, acting indirectly to encourage
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uniformity in states’ drinking ages, was within constitutional bounds. The Court found that
the legislation was in pursuit of “the general welfare,” and that the means chosen to do so
were reasonable. The Court also held that the Twenty-first Amendment’s limitations on
spending power were not prohibitions on congressional attempts to achieve federal
objectives indirectly. The five percent loss of highway funds was not unduly coercive.
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McCulloch v. Maryland, 17 U.S. 316 (1819)
Federalism, implied powers, necessary-and-proper, supremacy clause
In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of
Maryland passed legislation 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?
In a unanimous decision, the Court held that Congress had the power to incorporate the
bank and that Maryland 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…they control the constitution and laws of the
respective states, and cannot be controlled by them.”
Brown v. Board of Education, 347 U.S. 483 (1954)
Civil Rights, Desegregation, Federalism, Race, Discrimination, Education
Black children were denied admission to public schools attended by white children under
laws requiring or permitting segregation according to the races. The white and black
schools approached equality in terms of buildings, curricula, qualifications, and teacher
salaries. This case was decided together with Briggs v. Elliott and Davis v. County
School Board of Prince Edward County.
Does the segregation of children in public schools solely on the basis of race deprive the
minority children of the equal protection of the laws guaranteed by the 14th Amendment?
In a unanimous decision, the Court that despite the equalization of the schools by
“objective” factors, intangible issues foster and maintain inequality. Racial segregation in
public education has a detrimental effect on minority children because it is interpreted as a
sign of inferiority. The long-held doctrine that separate facilities were permissible provided
they were equal was rejected. Separate but equal is inherently unequal in the context of
public education. The unanimous opinion sounded the death-knell for all forms of statemaintained racial separation.
United States v. Darby, 312 U.S. 100 (1941)
commerce clause, congress, criminal, labor, Tenth Amendment, Federalism
In 1938, Congress passed the Fair Labor Standards Act to regulate many aspects of
employment including minimum wages, maximum weekly hours, and child labor.
Corporations that engaged in interstate commerce or produced goods, which were sold in
other states, were punished for violating the statute.
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Question:
Finding:
Was the act a legitimate exercise of Congress’s power to regulate interstate commerce?
In a unanimous decision, the Court affirmed the right of Congress to exercise “to its utmost
extent” the powers reserved for it in the Commerce Clause. Relying heavily on the Court’s
decision in Gibbons v. Ogden (1824), Justice Stone argued that the “motive and purpose of
a regulation of interstate commerce are matters for the legislative judgment…over which
the courts are given no control.” Congress acted with proper authority in outlawing
substandard labor conditions since they have a significant impact on interstate commerce.
Similar Cases:
National League of Cities v. Usery
Garcia v. San Antonio Metro
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Board of Trustees v. Garrett, 531 U.S. 356 (2001)
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Federalism, Natural Resources, Eleventh Amendment
After Patricia Garrett, Director of Nursing for the University of Alabama, was diagnosed
with breast cancer, her treatment forced her to take a substantial leave from work. Upon
her return, her supervisor informed her she would have to give up her position. Milton Ash,
a security officer for the Alabama Department of Youth Services, who suffers from chronic
asthma, requested that his employer modify his duties to accommodate him. Ultimately,
none of Ash’s requested relief was granted and his job performance evaluations fell. Both
Garrett and Ash filed discrimination suits against their Alabama state employers, seeking
money damages under Title I of the Americans with Disabilities Act of 1990 (ADA), which
prohibits the States and other employers from “discriminating against a qualified individual
with a disability because of that disability… in regard to… terms, conditions, and privileges
of employment.” The District Court disposed of both cases by ruling that the ADA exceeds
Congress’ authority to abrogate the State’s Eleventh Amendment immunity. The Court of
Appeals reversed.
May an individual sue a state for damages in federal court under the Americans with
Disabilities Act of 1990?
In a 5-4 decision, the Court held that suits in federal court by state employees to recover
money damages by reason of the state’s failure to comply with Title I of the ADA are
barred by the Eleventh Amendment. Chief Justice William Rehnquist wrote for the
majority that “in order to authorize private individuals to recover money damages against
States, there must be a pattern of discrimination by the States which violates the
Fourteenth Amendment, and the remedy imposed by Congress must be congruent and
proportional to the targeted violation.” Rehnquist added that none of these requirements
had been met.
Gibbons v. Ogden, 22 U.S. 1 (1824)
commerce clause, federalism, supremacy clause, tenth amendment
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.
Did the State of New York exercise authority in a realm reserved exclusively to Congress,
namely, the regulation of interstate commerce?
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Finding:
In a unanimous decision, the Court found that New York’s licensing requirement for out-ofstate operators was inconsistent with a congressional act regulating the coasting trade. The
New York law was invalid by virtue of the Supremacy Clause. In his opinion, Chief Justice
Marshall developed a clear definition of the word commerce, which included navigation on
interstate waterways. He also gave meaning to the phrase “among the several states” in the
Commerce Clause. Marshall’s was one of the earliest and most influential opinions
concerning this important clause. He concluded that regulation of navigation by steamboat
operators and others for purposes of conducting interstate commerce was a power reserved
to and exercised by the Congress.
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Saenz v. Roe, 526 U.S. 489 (1999)
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I.
Civil Rights, Residency Requirements, Equal Protection, Fourteenth Amendment,
Privileges and Immunities, Welfare Benefits, Federalism
Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), states receiving Temporary Assistance to Needy Families (TANF) can pay
the benefit amount of another State’s TANF program to residents who have lived in the
State for less than 12 months. When California announced it would enforce this option,
Brenda Roe brought this class action, on behalf of other first year residents, challenging the
constitutionality of the durational residency requirement. On appeal from successive
adverse rulings in the lower courts, the Supreme Court granted Rita Saenz, the Director of
California’s Department of Social Services, certiorari (review of the lower court’s decision).
Does a state statute, authorizing states receiving Temporary Assistance to Needy Families
to pay the benefit amount of another State’s TANF to its first year residents, violate the
Fourteenth Amendment’s right-to-travel protections?
Yes. In a 7-to-2 decision, the Court held that the Fourteenth Amendment protects the right
to travel in three ways by: (a) allowing citizens to move freely between states, (2) securing
the right to be treated equally in all states when visiting, and (3) securing the rights of new
citizens to be treated like long-time citizens of a state. The Court explained that by paying
first-year residents the same TNF benefits they received in their state of origin, states
treated new residents differently than others who have lived in their borders for over one
year. As such, enforcement of the PRWORA power unconstitutionally discriminated among
residents.
Defining Federalism (pp 66-69)
A.
Federalism is the division of power between the federal government and state (50) governments.
1.
Only 11 (out of approximately 190 nations of the world) have federal systems; including,
Germany, Mexico, Argentina, Canada, Australia, and India.
2.
The workings of the American system are sometimes called intergovernmental
relations, which refers to interactions among national, state, and local governments.
a)
To fight the War on Terror, for example, the FBI, a federal organization, seeks to
cooperate with state and local police forces.
b)
Worries about an impending avian flue epidemic have state health agencies and
local hospitals working with the Centers for Disease Control and Prevention and
the federal Department of Health.
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II.
B.
Most governments in the world today have unitary governments, in which all power resides in
the central government.
1.
American states are unitary in form – local governments get their authority from the
states; they can be created or abolished by the states. States, however, receive their
authority not from the national government, but directly from the Constitution.
2.
The French Assembly can redraw boundaries of local governments; however, if the U.S.
Congress wants to abolish Alabama or Oregon, it cannot.
C.
In a confederation, the national government is weak and most or all of the power is in the hands
of its components.
D.
Why is Federalism Important?
1.
Allows the national government to be concerned with broader issues affecting the entire
country such as foreign policy, interstate matters, and immigration while allowing the
local governments to be concerned with matters that have a direct impact on the daily
lives of their citizens such as motor vehicle laws, garbage, education, and public health
and welfare.
2.
The federal system decentralizes our politics.
a)
Senators are elected as representatives of individual states, not of the entire
nation.
b)
On election day, there are 51 presidential elections, one in each state and one in
Washington D.C. (per the 23rd Amendment).
c)
The more levels of government, the more opportunities there are for participation
in politics.
3.
Federalism decentralizes our policies (in addition to our politics).
a)
Should states or the national government regulate abortion, determine speed
limits on highways, or tell 18-year olds they cannot drink alcohol?
b)
The overlapping powers of the two levels of government mean that most of our
public policy debates are also debates about federalism.
c)
There is one national government and 83,000 governments (state, county,
municipalities, towns, villages, and schools).
The Constitutional Basis of Federalism (pp. 69-76)
A.
The word federalism is not mentioned in the Constitution; however, the writers of the
Constitution carefully defined the powers of state and national governments.
Some Powers Granted by the Constitution
To the National Government
Concurrent Powers
Coin money
Tax
Conduct foreign relations
Lend and Borrow Money
Regulate commerce with foreign
Establish Courts
nations and among states
Make and Enforce Laws
Provide an army and a navy
Charter banks and corporations
Declare war
Transportation
Establish courts inferior to the
Spend money for the general
To the State Governments
Establish local governments
Regulate commerce within a state
Conduct elections
Ratify amendments to the federal
Constitution
Take measures for public health,
safety, and morals
Exert powers the Constitution does
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Supreme Court
welfare
Establish post offices
Take private property for public
purpose, with just compensation
Make laws necessary and proper to
carry out the foregoing powers
Some Powers Denied by the Constitution
Tax articles exported from one
Grant titles of nobility
state to another
Permit slavery (13th Amendment)
Violate the Bill of Rights
Deny citizens the right to vote
Change State Boundaries
because of race, color, or
previous servitude (15th
Grant Titles of Nobility to Citizens
Amendment)
Deny citizens the right to vote
because of gender (19th
Amendment)
B.
not delegate to the national
government or prohibit the
states from using.
Tax imports or exports
Coin money
Enter into treaties
Impair obligations or contracts
Abridge the privileges or
immunities of citizens or deny
due process and equal
protection of the law (14th
Amendment)
National Government
1.
The supremacy clause (Article VI) deals with the question of which government should
prevail in disputes between the states and the national government; three items are the
supreme law of the land:
a)
The Constitution
b)
National Laws (when consistent with the Constitution)
c)
Treaties (which can only be made by the national government)
2.
Enumerated Powers a.k.a expressed powers (Article 1, Section 8) powers granted
specifically to Congress. The powers include the declaring war, coining money, and
regulating interstate commerce.
3.
Implied Powers (Article 1, Section 8) grants Congress the power to do anything
“necessary and proper” to carry out its duties. This clause is known as the necessary and
proper clause or the elastic clause because of its mutability (ability to stretch like a
rubber band without breaking). Because the powers bestowed by this clause are implied
rather than stated, they also are known as implied powers.
a)
The Constitution does not specifically grant Congress the power to regulate
telecommunications because such technology did not exist at the time of the
founding. But according the Constitution, Congress has the power to regulate
interstate commerce. Regulating telecommunications is considered necessary for
Congress to properly regulate interstate commerce, and so Congress has since
assumed this power.
b)
McCulloch v. Maryland (1819)
(1)
The case that first brought the issue of state versus national power before
the Supreme Court.
(2)
The Supreme Court ruled that national policies take precedence over
state policies (supremacy clause): Chief Justice John Marshall wrote that
“the government of the United States, though limited in its power, is
supreme within its sphere of action.”
(3)
The Court also established 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 1, Section 8.
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4.
5.
C.
Inherent Powers (Preamble) powers natural to a sovereign nation; those powers
necessary to protect its citizens and defend its right to exist. The primary inherent
power is self-preservation: the right to defend itself from foreign and domestic enemies.
Prohibited Powers (Article 1, Section 9) – The Constitution also explicitly denies the
national government certain powers.
a)
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.”
(1)
The national government can only operate within its appropriate sphere
and cannot usurp the states’ powers.
(2)
Questions remain concerning the boundaries of the national
government’s powers and thus this Amendment is often cited in
arguments in favor of states’ rights.
(3)
There have been variations in the Court’s interpretation of the Tenth
Amendment. (United States v. Darby, Garcia v. San Antonio Metro,
National League of Cities v. Usery)
The State Governments
1.
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 these are also known as the reserved powers.
2.
Full Faith and Credit (Article IV Section 1) – States are required to respect the laws and
decisions of other state governments including public acts, records, and civil judicial
proceedings of every other state. Reciprocity (res-uh-pros-i-tee) is essential to the
functioning of society and the economy.
a)
Hawaii’s (1996) and Vermont’s (2000) legal status to gay marriages has been
countered by Congress’s Defense of Marriage Act (DOMA), which permits states
to disregard gay marriages of other states.
b)
Ensures people cannot avoid their obligations to loans by escaping to another
state.
3.
Extradition (Article IV Section 2) – States are required to return a person charged with a
crime in another state to that state for trial or imprisonment.
4.
Privileges and Immunities of Citizens (Article IV Section 2) – Citizens of each state
receive all the privileges and immunities of any other state in which they happen to be.
a)
The purpose is to prohibit states from discriminating against citizens of other
states.
(1)
Example: A Texan visiting California will pay the same sales tax and receive the
same police protection.
(2)
Exception: Out of state tuition to state colleges / universities.
(3)
Exception: Must be a resident of the state in order to vote.
b)
States often attempt to pass the burdens of financing the state government to
those outside of the state.
(1)
Example: Out-of-State tuition at a public university.
(2)
Example: Special taxes on hotel rooms rented by tourists.
c)
The U.S. Supreme Court has never clarified which privileges a state must make
available to all Americans and which privileges can be limited to its own citizens.
d)
Saenz v. Roe (1999) – the court held that a state could not require a new resident
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to wait a year before becoming eligible for welfare benefits that exceeded those
available in the state from which the new resident came.
D.
III.
Challenges/Conflicts Within Federalism
1.
Commerce Power was defined broadly in the case of Gibbons v. Ogden to encompass
virtually every form of commercial activity including the movement of goods, radio signals,
electricity, telephone messages, the Internet, insurance transactions, and much more.
a)
United States v. Lopez (1995) – Guns in a school zone have nothing to do with
commerce.
b)
United States v. Morrison (2000) – Gender-motivated crimes of violence are
not, in any sense, economic activity.
2.
The Civil Rights Movement addressed the policy issue of equality while balancing state rights.
a)
In 1954, the Supreme Court held that school segregation was unconstitutional
(Brown v. Board of Education) thus overturning its 1896 ruling that states had
the right to impose separate but equal facilities on its citizens (Plessy v.
Ferguson)
b)
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.
Intergovernmental Relations Today (pp. 76-85)
A.
From Dual to Cooperative Federalism
1.
Dual Federalism (“layer cake federalism”) is a form of federalism in which states and
the national government each remain supreme within their own spheres / layers. Existed
through 1930.
a)
National Government – exclusive control over foreign and military policy, the
postal system, and monetary policy.
b)
State Government – exclusive control over schools, law enforcement, and road
building.
2.
Cooperative Federalism (“marble cake federalism”) is a form of federalism with
mingled responsibilities (shared costs and shared administrations) and blurred
distinctions between the levels of government. It involves shared costs, federal guidelines,
and shared administrations. Existed through 1964.
a)
Education – usually thought of as being manly a sate and local responsibility;
however Congress set aside land in the Northwest Territory to be used for
schools and American Universities such as Texas A&M owe their origins to the
national policy of land grants.
b)
B.
Highways – states and cities were largely responsible for building roads,
although the Constitution does authorize Congress to construct “post roads.” In
1956, Congress passed an act creating an interstate highway system.
Creative Federalism – increased the marble cake approach of intergovernmental relations.
1.
Was seen during the Great Society of Lyndon Johnson (democrat).
2.
Sharing the costs between the national and state governments for programs that typically
would fall under the purview of state control.
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3.
4.
Guidelines and rules set down by the federal government in order for the states to reap
the benefits of federally funded programs.
Providing for the dual administration of programs such as Medicaid, which has a shared
approach financially as well as administratively.
C.
Competitive Federalism (a.k.a. New Federalism) – reversed the marble cake nature, creating a
“new federalism” where the states were given more responsibility.
1.
Seen during the Nixon and Reagan, and Bush Administrations (republicans).
a)
Party Politics – Republicans tend to believe that the national government should
be involved less in domestic issues.
b)
Sign of the Times – Federal deficits of the 1980s forced a reduction in federal
funds for state and local governments thereby shifting some responsibility for
policy and funding back to the states.
2.
The aim of competitive federalism was to offer states pieces of the marble cake but to have
them accept it with conditions and with a promise to develop programs on their own.
3.
Placed restrictions on other federal programs if a state did not meet the criteria of a
specific program.
4.
If a state is going to receive federal money, it must agree to do something in return.
5.
No Child Left Behind Act (2001) According to the Department of Education, NCLB
“incorporates increased accountability for state, school districts, and schools; greater
choice for parents and students, particularly those attending low-performing schools;
flexibility for states and local educational agencies in the use of federal education dollars;
and a stronger emphasis on reading, especially for our youngest children.”
D.
Fiscal Federalism is the pattern of spending, taxing, and providing grants in the federal system.
Grants-in-Aid, federal funds appropriated by Congress (approximately $408 billion in 2004), are
the main instrument the national government uses for both aiding and influencing states and
localities. The national government regularly publishes the Catalogue of Federal Domestic
Assistance, a massive volume listing federal aid programs available to states, cities, and other local
governments.
There are two major types of federal aid for states and localities: categorical grants and block
grants.
1.
Categorical Grants (the main source of federal aid) are grants that can be used only for
specific purposes, or categories, as defined by federal law. There are two types of categorical
grants (project and formula).
a)
State and local agencies can obtain categorical grants only by applying for them
and by meeting certain qualifications and often requires that the state or locality
put up money to match some part of the grant (such as building an airport or a
college dormitory).
b)
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.
(1)
Cross-Over Sanctions uses federal dollars in one program to influence
state and local policy in another, such as when funds are withheld for
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c)
highway construction unless states raise the drinking age to 21 or
establish highway beautification program.
(2)
Cross-Cutting Requirements occurs when a condition on one federal
grant is extended to all activities supported by federal funds, regardless of
their source. Example: Title VI of the 1964 Civil Rights Act bars
discrimination in the use of federal funds because of race, color, national
origin, gender, or physical disability. If a university discriminates illegally
in one program – such as athletics – it may lose the federal aid it receives
for all its programs.
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)
d)
2.
3.
Formula Grants – distributed (not applied for) 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 to Families with Dependent Children, and public housing).
Block Grants are used to support broad programs in areas like community development
and social services with very few strings attached.
a)
In response to complaints about the cumbersome paperwork and restrictive
federal requirements attached to categorical grants, Congress established block
grants to support broad programs.
b)
States have discretion in deciding how to spend the money.
c)
Example…Clinton’s Welfare Reform Bill in 1996 transferred the responsibility of
welfare to the states. The federal government eliminated the entitlement and
gave block grants to the states. The states then developed their own programs to
move people from welfare to work within a five-year period.
Revenue Sharing – Federal aid with no requirement as to matching funds and freedom
to spend the money on almost any governmental purpose. It occurs when there is a
budget surplus.
a)
General Revenue Sharing was enacted in 1974 and discontinued in 1986.
b)
Special Revenue Sharing – block grants developed by the Nixon administration
in which a number of categorical grants were bundled into Special Revenue
Sharing grants intended to enhance state and local discretion over programs and
spending.
E.
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. Senators and
representatives regularly go to the voters with stories of their influence in securing federal funds
for their constituencies to ensure continued support at the polls.
F.
The Mandate Blues
1.
Mandates are when the federal government imposes its will outside the context of
grants.
2.
Underfunded mandate means that the states have to budget more funds for the project
in order to receive federal grant money. 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.
3.
Unfunded mandates require state and local governments to spend money to comply
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with laws with NO financial help from the federal government that enacted the laws. In
additional federal courts create unfunded mandates for states regarding school
desegregation, prison construction, and other policies.
a)
Example: American with Disabilities Act of 1990 required states to make
facilities, such as state colleges and universities, accessible to individuals with
disabilities but were allocated NO funds to implement such a policy.
b)
Example: Clean Air Act of 1970 established national air quality standards but
requires states to administer them and to appropriate funds for their
implementation.
IV.
A New Federalism: Devolution
A.
Devolution embodies the idea that American federalism will be strengthened by a partial shift in
authority from the federal government to the state and local governments.
B.
Budgetary Pressures and Public Opinion
1.
When the federal government faces huge budget deficits, and awarding new grants-in-aid
to states are not feasible, budgetary pressures intensify.
2.
A slowdown in the annual increase in federal assistance forces states and localities to pay
an increasingly larger share of the costs of joint programs.
3.
As state and local governments raise taxes or cut other services to meet the costs of joint
programs, taxpayer criticism of programs intensify.
C.
Republican Revolution (1994): The Republican “Contract with America”
1.
After the Republicans scored a decisive victory in the 1994 congressional elections, they
moved to a more decentralized form of federalism.
2.
Moved to reduce unfunded mandates, federal programs that require action by states or
localities but provide no or insufficient funds to pay for it.
3.
The GOP-controlled Congress also took action to lump additional categorical grants into
block grants, thereby giving states more control over how federal money would be spent.
4.
The Welfare Reform Act with its key element, the Temporary Assistance for Needy
Families block grant (TANF), ended cash assistance to poor families with children.
TANF gave the states the power to set benefit levels, eligibility criteria, and other
regulations.
D.
Devolution, Judicial Style
1.
United States v. Lopez (1995) gave power to the states versus Congress (federal
government).
2.
Printz v. United States (1997) stated that Congress cannot require state officials to
enforce federal regulatory programs.
3.
Kimel v. Florida Board of Regents (2000) and Board of Trustees of the University of
Alabama v. Garrett (2002) established that the states cannot be sued by their own
employees for violations of federal age and disability discrimination laws because they are
not “protected categories”.
NOTES:
Coercive Federalism – A pejorative term to describe federalism in the 1960s and 1970s suggesting that national
Chapter 3 Notes
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government was using its fiscal muscle to coerce and intimidate the states into following national dictates as
opposed to serving local needs.
Dred Scott v. Verona – Key Case from 1857 in which Chief Justice Taney declared that slaves carried by their
owners from a slave state into a free state remained property property and were ineligible for American citizenship.
New Covenant – Name given to President Clinton’s commitment to reform federalism by returning power and
financial resources to the states to deal with a wide range of domestic issues such as health care, welfare, and job
training.