FEDERALISM Unit 2 I. U.S. FEDERAL SYSTEM Federalism defined: Powers shared between the national government and the states, but… Federal law is supreme over any state law when they conflict. National v. Federal Fed Paper #39: The government derives all power from the people and is administered by those elected by the people for a limited time. It is BOTH national and federal in design. National gov’t represents a union of the states carrying out expressed powers under the Constitution on behalf of the nation. It represents the Union’s “great and aggregate interests” and the states’ local & particular powers. National v. Federal (cont’d) Federal gov’t is a confederacy of the sovereign states and the national government, each level exercising power and authority over the same people and territory, but only within the expressed domains of their powers. II. WHY FEDERALISM? A. Serves as part of the checks and balances of our republic. The unitary British gov’t was all powerful and viewed with hostility. Sharing powers with the states reduced the chance of tyranny by the national government. B. Framers wanted the two levels of gov’t to help preserve freedoms, but still maintain order. States were to have vast reserved powers, but federal government would have only limited powers extended to it by the Constitution C. Framers’ View of Federalism Key federalists (Hamilton, Madison, Jay, Franklin, Adams) believed strong national government to be a protective entity for the people. - Prevent “tyranny of the majority” - Increase citizens’ political participation - States would be “laboratories” for new programs and ideas III. CONSTITUTIONAL POWERS The federal government is divided into 3 branches each holding unique and complimentary powers as given to them by the Constitution. These powers are NOT transferable to another branch except through a constitutional amendment. Types of Powers 1. Expressed (enumerated)- Powers written directly into the Constitution for each branch. Examples: Declare war, appoint federal judges, control immigration, coin money, raise an army and navy 2. Implied – Unspecified powers, but needed to carry out the expressed powers. They may be expanded to intrude upon the states’ reserved powers if such actions are found to be “necessary and proper.” Examples: - create the Federal Reserve Bank - institute a military draft - create a specific tax The Powers (cont’d) 3. Inherent – self-evident powers each branch possesses because of what each does under the Constitution. - Legislature makes laws - Executive enforces laws - Judiciary interprets (reviews) laws The Powers (cont’d) 4. Reserved– Powers left exclusively to the states under the 10th Amendment that are not given to the federal gov’t in the USC. Examples: - Public education - Intrastate commerce - Roads and transportation - Regulate marriage - Establish local governments - Issue licenses The Powers (cont’d) 5. Concurrent– each level of government has some similar powers Examples: levy taxes, borrow money, law enforcement, establish courts 6. Denied– things that are prohibited to Congress or the states to do. (Art. I, Sect. 9) IV. AMENDMENT PROCESS A. Article V requires supermajorities of Congress and the states to amend the Constitution. PROPOSAL VIA: 2/3 vote of the members of each house of Congress RATIFICATION VIA: 3/4 of the state legislatures directly ratify changes Congress calls for a national convention proposed by 2/3 of the states 3/4 of the states’ constitutional conventions ratify changes V. Ideological Definitions A. Article IV describes relations among the states and citizens. - Guarantees a republican form of gov’t to the states. - States have sovereignty on many issues as per 10th Amendment. B. Supremacy clause (Article VI) makes state law and policies subordinate to federal law when they conflict. - Forces compromise to be reached between both levels. Dual Federalism (1835-1932) • The relationship between the national government and the states as seen by the Framers. Both levels are supreme in their own sphere of power and are not to interfere with the other’s. • Federal government has limited scope and purpose through its expressed powers only; states have large number of reserved powers not given to the national gov’t. Ideological Definitions (cont’d) A metaphor for the idea of Dual Federalism is the ... Layer cake Each level of government is supreme in its own area, but some areas are concurrently shared (shown by the middle layer). COOPERATIVE FEDERALISM (1933-1980) The concept that the people are both citizens of the U.S. and their state concurrently so functions between the state and national governments overlap. Spheres of power are blurred. 1. Many federal and state functions are now cooperatively undertaken (e.g. transportation, schools, prisons, welfare) and Feds and states share powers anyhow (police, taxes, health care, etc.). 2. Tax money should be returned to the states to improve public services (New Deal programs). Cooperative Federalism (cont) In the 1960s and 1970s the federal government directly funded massive social programs designed to promote “equality of outcome.” The money given to the states for their implementation often bypassed state approval and was mandatory. Examples: the Great Society and the War on Poverty provided welfare, public housing, Medicare/Medicaid, school lunch programs, etc. Cooperative Federalism The marble cake is a good metaphor for cooperative federalism. NEW FEDERALISM-1980s The return of more power and authority back to the states by reformulating revenue sharing programs and by cutting or eliminating federal programs. President Reagan used New Federalism to redress the balance of power between Washington and the states and successive Presidents have embraced this model. How did it work? - States would administer most federal programs such as job training, Welfare, Medicaid, urban development, etc. and experiment with running them more efficiently. - This is called devolution. Results: Lessened federal rules and control over states, but greater costs for the states in helping pay for government services. What About Today? Since 2009, the Obama administration has consistently tried to undermine state powers through increased numbers of mandatory federal programs and policies, threatening sanctions on states to pressure their compliance, or taking states to court to force their acceptance. Perhaps the metaphor for this style of federalism should be the FRUIT CAKE. Horizontal Federalism The relationship of the states to each other as required by Article IV of the Constitution: 1. Full Faith and Credit Clause - The states must accept the legal documents, records, public acts and judicial decisions of each other. Ex: marriages, divorces (some), adoptions, titles to property, convictions, lawsuit results, etc. - Some exceptions allowable when laws between states conflict 2. Privileges and Immunities Clause - Citizens do not forfeit certain rights just because they cross state lines. They shall have the same privileges as citizens of the other states, such as owning property there, living and travelling in those states, and using their courts. - However, states may legally discriminate against citizens of other states in certain areas such as: - out-of-state tuition - driver licenses - professional licensing - voting and holding office qualifications 3. Extradition - A person fleeing from justice from one state to another shall be returned to the state having jurisdiction of the crime. 4. Interstate compacts - States must try and work out their differences with one another by formal agreements. The Supreme Court will be a neutral arbiter if the states cannot come to agreement. VI. IDEOLOGICAL ARGUMENTS A. Conservatives believe that… - federal control over states should be lessened; devolution is the best federal-state relationship. - states are more sensitive to citizen’s needs; let the states, not the feds, determine how grant money is to be used. - there should be less costs to the states in administering federal grant money. - making states pay for federal mandates is an unjust exercise of power. B. Liberals believe that… - states don’t have the resources, expertise, or willingness to do the job. - the federal government should be the watchdog for state compliance with federal regulations. - states are too narrow-minded and don’t care about the needs of the nation and will therefore resist raising necessary revenues through taxes. - federally controlled social programs are individual rights. (e.g. Medicare, Social Security, food stamps, national healthcare). C. Refereeing Federalism The Supreme Court has been used by both the conservative and liberal factions in government to advance their views of federalism. Both believe judicial activism should be used to overturn a state law or action they don’t like or that the Court should use judicial restraint if they agree with those laws. D. BUSH v. GORE (2000) VII. EARLY FEDERAL SUPREMACY CASES McCulloch v. Maryland (1819) Issue #1: Does Congress have power under the Constitution to create a national bank? Answer: Yes. The federal gov’t derives its authority from the “people”, not the states. “It is the gov’t of all, its powers are delegated by all, it represents and acts for all.” -The federal gov’t is accountable to the citizens, not the states. The Bank was created under Congress’s implied powers to “promote the general welfare.” McCulloch v. Maryland (cont’d) Issue #2: Can a state tax an institution of the Federal gov’t? Answer: No. Federal law is supreme over any state law when the laws of both conflict. “The power to tax is the power to destroy.” Gibbons v. Ogden (1824) The first challenge to the federal government’s expressed power to regulate interstate commerce (Commerce clause). Issue 1: What does the term “commerce” include? Issue 2: Did federal authority under the commerce clause extend within the waters of state boundaries? Is its authority overlapping here? Issue 3: Did New York monopoly law conflict with federal law? Gibbons v. Ogden (cont’d) Marshall – (1) Commerce is not just the buying and selling of goods, but their transportation too. (2) When state regulations have any tendency to conflict with federal control, the federal position is supreme. New York monopoly law is therefore void. Marshall - States have a part in regulating interstate commerce in the absence of federal authority however, “navigation” is part of commerce and that is under federal supremacy so Gibbons’ federal license takes precedence. U.S. has the power to regulate commerce going through states as well as between them. BARRON v. BALTIMORE (1833) Issue: Was John Barron duly deprived of his 5th Amendment property rights because the city of Baltimore refused to pay him for rendering his wharf unusable due to city actions, and therefore ruining his ability to conduct business? Barron v. Baltimore (cont’d) Decision: No. The Court said that the 5th Amendment in eminent domain cases does not apply to the states, only to the federal government. The Bill of Rights nowhere limits the actions of state governments (a strict interpretation) and thus the USSC had no jurisdiction to rule on the case. After the 14th Amendment passed in 1868, most of the Bill of Rights was seen as applying to the states as well (“equal protection” clause). Today, Barron probably would win his case. D. Property Rights 1. 5th Amendment’s eminent domain power (Takings clause) allows the government to seize private property under two conditions: - Must be for “public use.” - Owner must be given a fair price in exchange. 2. During time of war the gov’t may take property deemed essential for the war effort: (e.g. ships/boats for naval use; factories for war goods productions; higher tax rates on income) Kelo v. New London (2005) • The City of New London wanted to condemn a lower class neighborhood, with no blight, and give it to a land developer who would raze it and build high value townhomes on the same sight which would raise more property tax revenue that could be used to pay for critical city needs. Kelo v. New London (cont’d) • Issue: Can local gov’t use its eminent domain power to seize private property and give it to another private entity for the “public good”? The Constitution says “public use”, not “public good.” • Decision: Yes, according to the USSC. The increased taxes would have direct public benefit so therefore “public good” was synonymous with “public use.” Heart of Atlanta Motel v. U.S. (1964) Issue #1: Is the Civil Rights Act of 1964 constitutional? Yes. Congress has the right to regulate interstate trade within a state on businesses that have a direct and substantial relation to the interstate flow of goods and people. “The power of Congress to promote such commerce also includes the power to regulate local incidents thereof.” Heart of Atlanta Motel (cont’d) Issue #2: What constitutes interstate trade and what is its true scope? - Movement of people and goods through states. Public accommodation is therefore also included as interstate commerce. Issue #3: Can the federal government prohibit segregated public accommodations even on private property? - Yes. Segregation places a burden on some citizens and therefore interferes with commerce through practices harmful to trade. It also violates the 14th Amendment’s Equal protection clause. - To some degree it also violates the ability of people to move freely through the states. It is the right of Congress to legislate as necessary and proper” under implied powers. IX. FEDERALISM: THE HEART OF TAXING AND SPENDING A. What is “revenue”? - Any money obtained by the government through taxes, loans, interest, etc. - 2012 federal budget was $3.7 trillion with a $1.3 trillion deficit; our GDP was $15 trillion; our 2012 national debt is $16.2 trillion as of Sept. 2012 (was $500 billion in 1980) B. Federal taxes are redistributed back to the states for assistance programs. Poor states get back more per capita than rich states. C. Grants-in-aid: Return of federal money gathered from all 50 states and then given back to the states for funding & implementing federal programs and state projects based on need. D. Types of Federal Grants 1. Categorical: Federal aid that targets specific needs of the states and has strict restrictions and conditions placed on them by the U.S. gov’t. * Favored by Democrats who believe Feds should fully control money given to states. Types of Categorical Grants Formula Grants - How much each state gets from money allocated to a specific program is based on a cost-sharing / matching formula between Feds and states (e.g. hi-way construction; Medicaid, public housing construction) Project grants - Awarded on the basis of competitive state applications for the performance of a specific task or function. (e.g. cancer research, education initiatives, employment of homeless, toxic waste cleanup) 2. Block Grants - Federal money given to states with very few “strings” attached for broad-based issues (e.g. healthcare; transportation, education). States have wide discretion to use the funds as they see fit. - Republicans mostly favor block grants so states can decide how best to use the money. * Pros: States may be able to innovatively use money in cost effective ways (laboratories!) * Cons: Lack of federal oversight on funds may lead to waste, duplication, or fraud. E. HOW FEDERALISM WORKS FOR US 1. Equalizes financial resources between rich and poor states thus saving U.S. government $$. 2. Allows unity without uniformity. One state’s needs are not another’s (Florida doesn’t need help clearing snow, but may need hurricane disaster help; Ohio doesn’t need oil spill cleanup money, but Louisiana could). 3. States can experiment with programs and decide what works best for their citizens and budgets. X. GRANTS = CONTROL OVER STATES Direct orders (mandates)States must do some required action or refrain from taking certain actions. Failure to comply can result in penalties on a state. (Example: Clean up your waters and air or be fined or your businesses shutdown.) PREEMPTION When federal laws or regulations totally or partially end up taking responsibility for a state gov’t function thereby restricting state powers (Ex: No state taxing of the Internet = total preemption) (Ex: Do Not Call Act; REAL ID Act = partial preemptions) Cross-over Sanctions Withholding grant money for one funded program by forcing states to meet the conditions of another program. (Example: Increase your state drinking age or lose federal highway funding.) D. UNFUNDED MANDATES Examples: The Federal government makes regulations for programs that it requires states to implement at their own cost. - Pollution cleanup - Provide services for illegal aliens and the poor in your schools/hospitals, provide food stamps, etc.) - Auto emissions standards - NO CHILD LEFT BEHIND (partially funded mandate) Unfunded mandates banned in 1996 under the Unfunded Mandates Reform Act. So, how does Congress get away with still enacting them? By writing mandates so precisely that many things can fall out of its scope. Stating that mandates placed on state/local gov’ts over $50 million, and those over $100 million that are placed on businesses are exempt from funding. Creating anti-discrimination laws that are exempt from mandate funding. (e.g. Americans With Disabilities Act) Spreading mandates out over many years and not including inflationary protection such as anti-terrorism and ObamaCare. End of Unit 2 QUESTIONS?