Chapter 3- Federalism
-Federalism- Constitutional arrangement whereby power is divided between national & sub-national
government
- initially crafted for states to constrain the fed’l gov’t & balance states’ rights w/ fed’l gov’t
-Each enforces its own laws directly on its citizens
-Neither can alter the arrangements without consent of the other.
Compromise between a unitary system and confederal system.
Tocqueville
Framers recognized that: "every village is a sort of republic accustomed to ruling itself.”
Federalist 51
“If men were angels, no government would be necessary.”
Uniqueness of U.S. federal system. Importance of states
Federalism
Allocates power between the states and federal government
Federalist # 45th and 46th
10th Amendment; Powers not specifically given to the federal government remain with the states or
the people. (Reserved powers)
Today the debate centers around devolving power to the states.
-1789-1930- Balance favored states rights’
- State-Centered Federalism (layer cake)
Narrow view of the powers of the national government
Argued that states could overrule the national laws.
Believed the federal government should only have those powers that were specifically enumerated in
the Constitution (Madison).
-1930-1990s- balance swung heavily in favor of fed’l gov’t due to the expansion of the commerce clause and
creation of a welfare state- (-1964- apex of big gov’t under LBJ and Great Society -institutionalization of big
gov’t - i.e. Ike & building highways
- Nation-Centered Federalism (Marble Cake)
Necessary and Proper Clause
Argued that the necessary and proper clause (1,8) and the principle
of national supremacy means the federal government has powers
beyond those listed in the Constitution (Hamilton).
Supremacy Clause
Article VI of the Constitution that mandates that national law is supreme.
-1990s-Present-Now we are swinging the other way to devolution (Legacy of Reagan) --death of nationalized
healthcare
-however legacy of FDR still apparent (i.e. Bush and No Child Left Behind & most evidenced thru Dep’t of
Homeland Security) and big gov’t is not dead just a shift from the apex of 1964
-Amendment Process- 2/3s pf Congress & 3/4s of state legs (reflects federal process, American system of
federalism gives state/local a veto over changes
-Presidential Election- reflects federalism as state are represented, candidates need to win states bc of
winner take all, with no majority in EC, House picks Prez w/ each state getting 1 vote- once again states
determining federal election
-Judges- Prez appts w/ senate approval, senatorial courtesy
I. Federalism
A. Local units actually have ability to make final decisions on policy
B. Examples:
1. Highways- $ from federal but states build it & set speed
limits (1995 Congress repealed penalties for higher speed
limits--$$ used as means to force states to comply)
2. Education, Police, Land Use- all truly state/local
C. Negatives
1. States can get away w/ bad (i.e. South in Reconstruction or the 1960’s or environmental
laws diff’t in states)
2. Complexity
-Different laws in different states
3. Accountability
Which organization is responsible if something goes wrong (Immigration or Katrina)
Federal govt. sets immigration policy and States deal with consequences
4. Duplication
Expensive
D. Positives
1. State can look out for citizens & prevent unpopular national decisions (i.e. blocking route 53
extension, 22 widening, Peotone airport vs. Ohare expansion)
2. People feel efficacy-- more likely to get involved in local politics/vote etc.-- maintains the
hearts & minds of people
3. Experimentation (right on red)
4. Flexibility
5. Additional Checks & Balances (i.e. if one level of gov’t seems
abusive you can take grievance to the other- Rodney
King Case)
Post-Civil War Federalism
Dual Federalism
Federal/State governments act free from interference from the other.
Cooperative Federalism
Shared responsibility
Fiscal Federalism
Made possible by the 16th Amendment
Authorized Congress to enact a national income tax; done to finance WWI
Even though the Founders agree this is good 2 views evolve over supremacy
- Hamiltonian federalism vs. Jeffersonian states’ rights
1. Hamilton -nat’l is due to need for defense, trade
2. Jefferson-State ok’d federal idea--they retain most power
3. Who was right over supremacy? Who has more power now?
II. Supremacy/Federalism in Practice
A. Supreme Court has helped settle debate
1. McCulloch vs. Maryland
a. Can Congress create a nat’l bank?
-yes (elastic clause allow for implied powers)
b. Can state tax a Bank of Us?
-no federal gov’t is supreme, state can’t destroy a federal institution
2. Nullification
a. Judicial review of federal by state (i.e. civil war and slavery)
3. State Still Retain Rights - “Dual Federalism”
-ex.- intrastate trade-fireworks, lottery
- or concurrent powers-- taxes, prisons etc.
4. Despite this Fed’s limit state’s power- Why?
a. Use leverage & keep reps from their states happy
using money and pork
5. Interstate Commerce-- Gibbons v. Ogden (1824)-established supremacy of the nat’l gov’t in all matters
affecting interstate commerce
-however police power (the power reserved to the
states for the protection of the health, safety &
morals of their citizens)
-after 1937 commerce power used not to limit but
expand fed’l power to cultivate a welfare state
III. Money & Federalism
-despite national supremacy you still need individual votes from individual Congressman from various
states- so how do you get that support?
A. Good Example of how federalism works-1. Fed’s allocate $ & give state to spend as they want/
need (money available to states called GRANTS-IN-AID)
2. $ available so states go for it, $ spent increases
3. By 60’s fed’s want to know how $ is spent-- harder to
get--fed’s say programs had to benefit the whole country (poor, crime, pollution)
- less easy to get money which leads to growth of lobbys & intergovernmental lobbies
-growth of cooperative federalism vs. dual federalism
b/c the fed’s begin to subsidize state & local activities
in hopes of encouraging nat’l goals
-Morton Grodzin argues the post-New Deal switch
from dual to cooperative a shift from “layer cake”
federalism to “marble cake federalism” -b/c intergovernmental sharing have blurred the distinguishing
line making if diff’t to say where the nat’l gov’t ends
& state & local gov’t begin
B. Categorical vs. Block Grant (revenue sharing)
1. Categorical- specified & funds matched by state
-Federal control (i.e. big federal gov’t)
2. Block Grant- (Revenue sharing- ie. b/c state can’t
afford or raise taxes)- lump sum spent as state sees fit
-State control (ie. small federal gov’t)
3. Block grants slow down because
a. State agencies don’t want to share $ with each
other- get categorical grant (intergovernmental lobby)
b. Fed’s like control of categorical grant
c. All communities get revenue share $, rich or
poor-- waste on rich -- ABOLISHED
d. Flaws in system from bad census reports etc.
-key to getting $- demographic qualifications
4. Mandates- Big gov’t vs. Small gov’t
-can cause states to have to spend (prisons, school
building, discrimination)
a. To get money states must comply in “conditions
of aid” (optional- ie. lower drinking age) or
b. Follow mandate- orders
-ie. ADA (American Disabilities Act)- 1990, Civil Rights Act of 1964,
Voting Rights Act of 1965, Clean Air Act
c. Unfounded & Unclear Criticisms
-What does equal access mean? What is a
disability?
d. “Free” $ is not “free” b/c it signals federal
power- conditions of aid make it hard to get $
5. So is federal or state stronger?
-fed’s- they are more strings for money now
IV. Devolution- The giving of authority to states (i.e. block grant rebirth)
A. Block Grants
1. Entitlements- $ to Poor/Needy (AFDC & Medicaid)
B. Republicans Want to Devolve These so States Run Own Program (i.e. TANF and block
grants from AFDC)
1. Pro- End dependency on gov’t & promote self sufficiency
2. Con- Create more poverty & Hurt disadvantaged
C. Why has devolution grown?
1. Ideology -Republicans like it- Distrust “Big” Gov’t
2. Cut deficit (Programs)- Reduce spending
3. American negativity towards entitlements (ie. AFDC to
TANF)- Welfare as devolution
V. Who does Congress favor with $?
A. Interest Groups tend to get $ by powerful lobbying
B. Who do people want to see in power (national or local)
-Depends on SES
1. Poor- National (Big Programs)
2. Rich- Local (Few Programs)
-**Shows need for federalism and party preferences**
VI. 10th Amendment- Reserved Powers Clause
-Supreme Court in 90s invoking 10th amend. to curb fed’l gov’t
-some conservatives today (like Jefferson) believe a strong fed’l
gov’t enroaches upon civil liberties
-US vs. Lopez (Free School Safe Zones act) & Printz v. US (Brady
Bill)
VII. 11th Amendment- State sovereign immunity- states are immune from lawsuits by private persons or
groups claiming that the state violated a statute enacted by Congress
-1996- SC prevented Native Americans suing state of Florida in
fed’l court
-2000- US v. Morrison- SC invalidated the provision of the 1994
Violence Against Women Act- which allowed women to bring
private damage suits in federal court