GOVT 2306
Texas and the States within the
National Governing Landscape:
Federalism
Prior to digging into the nature of
government and politics in the states,
it’s a good idea to place Texas – and all
states – with the greater context of
national government.
Doing so allows us to look at the
concept of federalism, and the relative
roles that the national, state and local
governments have within it.
If you’d like to review the concept of
federalism itself, click here for a great
slide show put together by a University
of Kentucky professor.
One of the distinguishing features
of American Government is that it
is a federal system. This means that
authority (sovereignty) is split
between two levels of government:
The national and state.
Since states have the (reserved)
power to establish local and single
purpose governments, our federal
system actually has three layers,
though local governments are not
sovereign in the same sense as are
the national and state
governments.
This brief introduction might
require some additional
clarification in order to establish
what the words “nation,” “state”
and “local government” refer to.
Yes, more definitions. Deal with it ok?
What is a nation?
“a large body of people, associated
with a particular territory, that is
sufficiently conscious of its unity to
seek or to possess a government
peculiarly its own: The president
spoke to the nation about the new
tax.” – Dictionary.com
It is a sovereign entity that
possesses territory and for which
there are no eternal powers that
are involved in its domestic
institutions.
See: Nation state.
The modern concept of a nation was
developed in the mid 1650s with the
signing of the treaty of Westphalia which
ended over 100 years of religious warfare
in Europe. Empires based on hereditary
monarchies were replaced with sovereign
nations with defined borders. Each nation
had to respect the territorial integrity of
the others and agreed not to interfere with
each other’s internal affairs (at least
officially).
Theorists still struggle with what
exactly a nation is.
The USA and Somalia are both nations . . .
but not really.
FYI: As of January 3, 2012 the US
State Department recognizes 195
independent nations.
What is a state?
There are many definitions, some
basically the same as the definition
of a nation, but the one that best
fits us is: “One of the more or less
internally autonomous territorial
and political units composing a
federation under a sovereign
government.” – Free Dictionary
Note that the terms “state” and
“nation” are often used to mean
the same thing.
Yes this can be confusing.
In the United States (note the
name), states preceded and
created the national government
at least partly as a way to ensure
that differences among them could
be worked out effectively.
The question was always: How?
One of the areas of early controversy was the
fact that the early states that bordered the west
claimed all territory to the Mississippi River. The
land locked state protested and ultimately all
states ceded those lands to the national
government which then worked out a process
by which these lands became new states.
Its how we ended up with 50, rather than stuck
with 13.
No process for creating new states
was established in the Articles of
Confederation, but the Congress
passed two laws, the Land
Ordinance of 1785 and the
Northwest Ordinance, that did so.
The US Constitution does contain
explicit language stating that new
states can be admitted into the
union and instructions on how this
would be done.
It is contained in the third and
fourth sections of Article 4, which
concerns state relations in general.
Article Four, Section Three
New States may be admitted by the Congress into this Union; but
no new States shall be formed or erected within the Jurisdiction
of any other State; nor any State be formed by the Junction of
two or more States, or parts of States, without the Consent of
the Legislatures of the States concerned as well as of the
Congress.
The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other
Property belonging to the United States; and nothing in this
Constitution shall be so construed as to Prejudice any Claims of
the United States, or of any particular State.
Article Four, Section Four
The United States shall guarantee to every
State in this Union a Republican Form of
Government, and shall protect each of
them against Invasion; and on Application
of the Legislature, or of the Executive
(when the Legislature cannot be convened)
against domestic Violence.
In summary these establish that new
states shall be admitted, but that
existing state borders are to be
honored, the US shall have the ability
to pass all types of laws in the
territories, the states are guaranteed a
republican form of government, and
shall be protected both against
invasion and domestic violence.
This encouraged further expansion
westward in a process later called
manifest destiny. Some brave souls
ended up here.
The annexation of Texas was a major
part of this effort, and it was a very
controversial one at that since it
impacted the balance of power
between slave and free states.
As we cover in various places in
this class, as Americans moved
westward, pressures emerged to
enlarge the governing process and
allow categories of people to vote
that previously had not.
The new states were more
democratic that the original 13.
Texas, as we know, is unusual in that it has
been both a nation and a state – and state
within more than one nation. This has led
to legal disputes that still exist today.
The fact that it once was a nation matters,
it makes circumstances different in this
state than it does in others – especially
those that started out as federal territories.
Those states do not control much of the
open undeveloped land within their
borders. Texas does because that land was
never federal territory.
As we will see below, states are granted
reserved powers and one of these if the
power to establish local governments. Let’s
now define related terms:
What is a county?
A county is a political subdivision
within a state that is assigned
some government functions. These
will be detailed more fully in a later
section, but they include
maintaining birth and death
records, conducting elections, tax
assessment and law enforcement
in unincorporated areas.
Texas has 254 counties that range
greatly in size and population.
- US Census info.
- Texas Association of Counties.
What is a city?
A city is a settlement that is
generally based on some shared
set of economic interests that has
been granted legal status –
including a city charter (click here
for Houston’s) - by the state. This
allows them to make, implement
and adjudicate their own laws.
The official, legal term for a city is a
municipal corporation. Article 11 of
the Texas Constitution establishes
how municipal corporations are to
be chartered. Note that the US
Constitution says nothing about
cities, or local government in
general.
Click here for city-data info about
Texas cities.
- The National League of Cities.
- Click here for the NLC’s description of
local governments.
What is a single purpose
government?
Cities and counties are sometimes
referred to as multi purpose
governments, since they serve a
variety of functions.
Some functions, however, are
granted to specific governing units.
These are called single (or special)
purpose governments.
The one you might be best familiar
with is the independent school
district. You are probably also
familiar with the community
college district, at least Alvin’s.
See this entry in TSHA:
Special Tax District.
From the TSHA site: “Other special districts
include over 900 water and utility districts,
326 housing authorities, 210 soil and water
conservation districts, 86 hospital districts,
46 hospital authorities, 10 rural fire
prevention districts, 8 mosquito control
districts, 8 health districts, 5 noxious weed
control districts, 3 three urban renewal
agencies, 3 wind erosion conservation
districts, one waste disposal authority, and
one ground water subsidence district.”
Local governments also set up
special, narrowly defined tax
districts that allow residents or
business interests in those districts
to provide either basic services or
special
Municipal Utility Districts: a small
district established in order to
provide public utilities to an area –
quite often a newly created
subdivision.
Tax Increment Reinvestment Zone:
Click here for a description if TIRZs
from the City of Houston’s website.
That’s enough of a description of
these specific levels of government
for now – more on these later.
The point is to know what these
are, and the fact that the federal
system is complex.
The pros and cons of federalism.
Its not the easiest system to manage.
Unitary systems, where sovereignty
rests with the national government,
and confederated systems, where it
rests with the states governments, are
simpler in concept.
Its tough to have two (and maybe
three or more) bosses.
See also the Wikipedia site on
Federalism in the United States.
This next slide should give you an
idea of how many unique
governing systems exist in the
United States
National – 1
State – 50
Counties – 3,034
Municipalities – 19,429
Township – 16,504
School Districts – 13,506
Special Districts – 35,052
Source: US Census Bureau
It not only has a unique defined set
of responsibilities (each claiming
rights of sovereignty), but also
exists in relation with other
governments and private
institutions in order to solve
mutual problems.
This should help illustrate a central
dilemma of federalism.
It attempts to balance the desire for
self control (sovereignty) against the
desire to coordinate and cooperate
with other governments and
institutions sharing the same set of
interests.
This is difficult to do.
But this arrangement is argued to
have advantages. Certain policies
may be best suited to be designed
and implemented on certain levels
of government.
We will this question repeatedly in this class.
States can serve as “laboratories of
democracy.”
50 different solutions to a
problems is likely to lead to
successful outcome if nothing else
than by trial and error.
That’s not why we have a federal
system though. It was not an
intended, deliberate outcome of
the Constitutional Convention. It
exists because that was what was
necessary to get a majority to sign
onto the Constitution in 1787.
There was general discontent with
the confederated system
established under the Articles of
Confederation.
National objectives – those
common to the states – were
difficult to obtain.
Federalist required a stronger central
government in order to ensure that
certain policies they thought essential
to the development of a commercial
republic would be implemented
consistently across the nation.
This is why they engineered the calling
of the convention in the first place.
Anti-Federalists distrusted national
power and saw it as a threat to the
interests of the states, or more
accurately their separate states.
They distrusted each other as well.
Leading Anti Federalists included:
George Mason
Elbridge Gerry
Patrick Henry
George Clinton
Recall that state governments were
older than the national government.
They had colonial histories dating back
a century and a half.
People identified with the states
primarily and the nation secondarily.
They didn’t want their self
determination limited by either the
nation, or by those in other states.
The language of the Declaration of
Independence treated states like
separate nations: “ . . . as Free and
Independent States, they have full
Power to levy War, conclude Peace,
contract Alliances, establish
Commerce, and to do all other Acts
and Things which Independent
States may of right do.”
But this arrangement made it
difficult for the new nation to win
the Revolutionary War and to
establish a strong footing in its
infancy.
Supporters of state power at the
Constitutional Convention balked at
efforts by James Madison and
Alexander Hamilton to minimize state
power in order to strengthen the
ability of the national government to
efficiently provide for the objectives of
the Federalists.
Neither plan designed by each man
would have allowed states to send
representatives to the national
legislature, and state laws were
subject to veto by the national
government.
This was unacceptable to supporters
of states’ rights.
Multiple compromises were
necessary in order to ensure that
both sides could agree on a
document that could then be
signed and put into effect.
As a result, the US Constitution is
full of text which carves out
powers the states continue to hold,
and places where the states can
continue to exert influence over
the national government.
Three examples:
1 - The Great Compromise created the
Senate, which was originally staffed
(until the 17th Amendment) by people
appointed by the state legislatures.
They could then check the House of
Representatives which was designed
to directly represent the people of the
nation by bypassing the states.
2 - Suffrage and the conduction of
elections was granted fully to the
states – though several subsequent
amendments have restricted the
criteria states can use to deny the
right to vote. They still have full
ability to conduct elections
however.
3 – The 10th Amendment grants to
states – and to the people – powers
not specifically granted to the national
government. Though there can be a
great deal of controversy about what
powers have been granted to the
national government since different
people can have different
interpretations of the language
granting those powers.
Here’s a bit more detail on each.
1
The original Senate – as written in
Article One, Section Three – grants
the legislature of each state the
right to send two people to
represent it in the Senate for six
year terms.
It allowed equal representation to
the states, not the people.
As opposed to the House, which
represented states according to population
and was composed of people chosen by
the eligible electorate in the state, the
Senate was composed of people sent to
represent the interests of the state as
defined by the legislature – not the people.
This gave the states influence over what
the national government did.
The Senators were divided into
three classes so that one third
would face the voters every tow
years.
Texas’ Senators are in class one and two.
This system was in place until the 17th
Amendment (Wikipedia) was ratified
in 1913 in the wake of concerns that
the Senate was being dominated by
corporate interests in each of the
states. They were no longer
representing the interest of the
people, but of whichever corporation
dominated a specific state.
Senators were accused of buying
their elections in the state
legislatures.
State legislatures would deadlock
on who they would send to the
Senate.
But the change severely reduced
the power of the state legislatures
in the US Congress. It is argued
that this allowed for the passage of
New Deal policies – as well as
others - that limited state power in
the service of national goals.
This is a key point. States are weaker
now than they once were in the
national government due to this
change.
States are now just another interest
group, whereas they once they were
part of the governing system itself.
2
The US House of Representatives is
designed in Article 1, Section 2.
While it was intended to bypass
the states and allow for the general
population to have a direct
connection to the national
government, the states are able to
determine who could vote.
The states were given control over
suffrage and election laws.
“The House of Representatives
shall be composed of Members
chosen every second Year by the
People of the several States, and
the Electors in each State shall
have the Qualifications requisite
for Electors of the most numerous
Branch of the State Legislature.”
Control over suffrage was a principle
way states could determine the nature
of their delegations to the House of
Representatives.
Not all interests in the state would be
able to influence them as long as
suffrage was limited.
“Delegation” is the term often
used to describe the group of
people elected to represent the
various districts in the state for
each two year session of Congress.
Click here for delegations from
Texas dating back to 1845.
Several amendments have been added
that prevent the states from restricting
suffrage for various reasons, such age
race, gender and being 18,19, or 20
years old.
Other restrictions still exist, like mental
incompetence and felony convictions. Click
here for the Texas Constitution’s Article 6.
Suffrage.
Article 1, Section 4 grants to states
the right to determine how to run
elections, with some ability given
to Congress to regulate the
process.
“The Times, Places and Manner of
holding Elections for Senators and
Representatives, shall be prescribed in
each State by the Legislature thereof;
but the Congress may at any time by
Law make or alter such Regulations,
except as to the Place of Chusing
Senators.”
In Texas, the Secretary of State
oversees the conducting of
elections. The specific job of
running them is given to each
county. Each county has an
elections department that carries
out this function, but state and
local actions can be overseen by
the national government.
In a future section we will cover
the various laws on the national
level that have impacted how
elections are conducted.
A brief word should on the Voting
Rights Act of 1965 is appropriate
though.
The act outlawed discriminatory
election and voting laws and
targeted states like Texas that had
a history of such laws.
It has made all elections decisions
– including the drawing of districts,
subject to pre-clearance.
This has been a major source of
conflict between the affected
states and the national
government – especially Texas.
A related conflict is the current
controversy between Texas and the
US is whether the Voter ID laws
passed by the Texas Legislature in
the 82nd Session is an attempt to
discriminate against poor voters.
Are the laws attempting to curb
fraud or manipulate the voter
pool?
Is this an issue that justifies
national intervention?
3
The US Constitution categorizes
different types of powers and
grants them to different levels of
government.
But the language used to mark
these distinctions is vague and has
been the subject of debate.
The terms commonly used to refer
to these powers are:
Delegated
Implied
Reserved
Denied
Delegated Powers
The delegated powers are those
that are specifically granted to the
national government. They are
sometimes also referred to as the
numerated or expressed powers.
The term comes from the 10th
Amendment – as does the related
term the “reserved powers.”
“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.”
They delegated powers are
outlined in two parts of the
Constitution.
1 - Article One, Section Eight states
what Congress can pass laws
about, meaning what its powers
are.
2 - Article Two, Section Two states
what the President’s powers are.
Altogether they grant each branch
power over commercial, security
and foreign powers.
Article Three, Section Two lists the
powers of the judiciary, which
primarily concern what types of
disputes it can hear in its courts.
After ratification, the states pushed
back against one of the types of
disputes the national courts could
hear.
One of the more problematic aspects
of the powers granted to the president
is the Commander-in-Chief Powers.
Presidents often claim that many
powers are “inherent” within a broad
understanding of this heading. There
are no clearly defined limits to what
these might be.
These can impact states.
Example: President Eisenhower’s
use of federal troops to enforce
school desegregation in Arkansas.
The original Constitution stated
that the national courts could hear
cases “between a State and
Citizens of another State.”
This meant that if you wanted to
sue a state, you could do so in the
federal courts.
But states claimed this violated
their right of sovereign immunity.
They can only be sued if they allow
it, they cannot be forced to answer
a lawsuit in a different court.
The original Constitution, however,
did force them to.
This power was affirmed in
Chisholm v. Georgia, which allowed
a lawsuit against Georgia initiated
by a citizen of South Carolina to go
forward. The states responded by
ratifying the Eleventh Amendment
that overturned the decision.
States are still subject to lawsuits
under the Fourteenth Amendment
under privileges or immunities and
equal protection clauses.
As with the 17th Amendment
discussed above, this granted
additional power to the national
government.
The conflict over the extent of
state sovereign immunity from
lawsuits authorized in the US
Constitution is ongoing. The
Supreme Court regularly rules on
such cases.
The principle power that the US Judiciary has
over states is not stated anywhere in the
Constitution. It is the power of judicial review.
While the application of judicial review was
controversial when applied to laws passed by
the national government it was never
controversial as far as state laws go. The
Supremacy Clause was taken to imply that the
national government could overturn state laws
judges to violate the US Constitution. It did not
establish a process for doing so however.
Controversy:
The fact that the national
government is granted “delegated”
powers which are defined in the
Constitution suggests that they
might be limited. James Madison
says as much in Federalist #45.
The powers delegated by the proposed Constitution to
the federal government, are few and defined. Those
which are to remain in the State governments are
numerous and indefinite. The former will be exercised
principally on external objects, as war, peace,
negotiation, and foreign commerce; with which last the
power of taxation will, for the most part, be connected.
The powers reserved to the several States will extend
to all the objects which, in the ordinary course of
affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement, and
prosperity of the State.
What this means is that any law or
action of the national government
has to be based on language in the
Constitution that authorizes that
action.
Whether it has done so is up to the
judiciary, and ultimately to the
Supreme Court.
The courts are often used as
venues for challenging the
constitutionality of various laws,
both state and national.
Texas has a history of taking legal
action against the national
government.
States are different.
Since their powers are “numerous and
undefined” they do not need
authorization under the US
Constitution to do something – unless
the US Constitution forbids the
activity, or establishes that they need
congressional authorization.
Put it this way. While the
constitutionality of “Obamacare”
can be challenged because it does
not clearly fit under the commerce
clause, the constitutionality of
“Romneycare” cannot since it fits
under the reserved powers.
The Denied Powers
Closely related to the Delegated
Powers are the Denied Powers.
Two sections in Article One deny
powers to the national government
(Section 9) and the states (Section 10).
The Bill of Rights and the Fourteenth
Amendment also deny powers as well.
Article One, Section 10 limits states
from powers that are national in
character, or anything that might
interfere with international relations.
- entering into treaties
- coining money
- tax imports or exports
- have a standing army
- engage in war
This is intended to explicitly state –
contrary to the Declaration of
Independence – that states are not
nations and do not have national
powers.
Article Four states what rights and
obligations states have to each
other. Sections One and Two
outline them.
Article Four Section One:
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.
This is hugely controversial since it
means that states must respect the
contracts that others allow their
citizens to enter into.
Does this mean states have to recognize
gay marriages? The Supreme Court has yet
to decide on this.
Article Four Section Two:
The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several
States.
A Person charged in any State with Treason, Felony, or
other Crime, who shall flee from Justice, and be found
in another State, shall on demand of the executive
Authority of the State from which he fled, be delivered
up, to be removed to the State having Jurisdiction of
the Crime.
Article Four Section Two (Continued):
(No Person held to Service or Labour in one
State, under the Laws thereof, escaping into
another, shall, in Consequence of any Law or
Regulation therein, be discharged from such
Service or Labour, But shall be delivered up on
Claim of the Party to whom such Service or
Labour may be due.) (This clause in parentheses
is superseded by the 13th Amendment.)
States cannot treat citizens from
one state differently than how they
treat their own.
Any they cannot harbor criminal
fleeing from other states.
Implied Powers
These are powers the national
government claims by virtue of
several clauses that have an elastic
quality to them. There are three:
Commerce
Necessary and Proper
Taxing and Spending for the General
Welfare
Each is the subject of ongoing
conflict between the national and
state governments that involves
debate over how constitutional
text is to be interpreted.
Many of the disputes between the
Texas and the US governments
concern these clauses.
A quick word on each
The Commerce Clause: Congress
has the power to “to regulate
commerce with foreign nations,
and among the several states, and
with the Indian tribes.”
States commonly interfered with the
commerce of other states under the
Articles of Confederacy. Trade wars almost
broke out a few times. The Annapolis
Convention was specifically called in order
to address those concerns – but failed to
reach a quorum. Thus the Convention.
National control over commerce was one
of the goals of the Federalists and a key
purpose of the convention.
But there is huge debate – now
and over American history – about
what “commerce” means.
Does it simply refer to trade, or
does it also allow for regulations
that are indirectly related to it?
Can it allow for prosecution of
price fixing? The breaking apart of
monopolies?
This applies to criminal justice also. Crime
is not mentioned in the US Constitution, so
what authorizes the existence of the FBI
and other agencies?
Criminal activity is often commercial in
nature – or it impacts the commercial
process. If it does do over state lines, the
national government argues this fits
constitutional language.
During the New Deal, the Supreme
Court expanded the interpretation
of commerce to allow for the
regulation of manufacturing and
labor, activities that were part of
the commercial process. Other
rulings also expanded national
regulatory power.
Since then there has been a push
back against the use of the
Commerce Clause to facilitate
expansions of national power.
Texas has been part of this effort.
Some of these controversies
involve civil rights policies.
The Civil Rights Act is based on the
commerce clause since it applies to
public accommodation which serve
individuals who may be involved in
interstate travel.
Necessary and Proper Clause: Congress has
the power "to make all Laws which shall be
necessary and proper for carrying into
Execution the foregoing Powers, and all
other Powers vested by this Constitution in
the Government of the United States, or
any Department or Officer thereof".
As with “commerce” there has
been a dispute over what
“necessary and proper” means.
Does it mean “useful” or
“essential?” The former provides
for broad powers, while the latter
constricts them.
The early struggle between Maryland and
the US over the constitutionality of a
chartered US bank centered on the terms
meaning. John Marshall argued that the
bank was a legitimate exercise of national
power, but later Andrew Jackson – when
he vetoed and extension of the charter –
would disagree.
See McCullough v Maryland.
Maryland, and others, thought the
US government was limiting the
ability of the states to control
banking within its borders. And this
was true. But the court ultimately
argued that this interfered with the
constitutional authority granted to
the national government to
regulate national commerce.
Finally:
“The Congress shall have Power To
lay and collect Taxes, Duties,
Imposts and Excises, to pay the
Debts and provide for the common
Defence and general Welfare of the
United States . . .”
This part can be a bit confusing
since it is referred to in several
ways:
Taxing and Spending Clause
General Welfare Clause
The power to tax and spend is tied
into efforts to promote the
common interests of the states.
“the general welfare and the
common defense”
One controversy here concerns the
meaning of “general welfare.” Does
it refer to how the powers granted
in the Constitution are to be
conferred (not for specific private
interests), or does it grant broad
authority to pass laws on any
subject Congress deems oriented
toward the general welfare.
A fierce struggle over the meaning
of this clause occurred in the early
years of the republic. The
Federalists argued for a broad
interpretation of it, the Democrat
Republicans argued for a limited
interpretation.
Prior to the New Deal, the Supreme
Court tended to take a narrow view of
the clause and overturned legislation
that attempted to punish various
practices – such as child labor – by
imposing taxes on products made by
children.
See: Bailey v. Drexel Furniture Co.
The court would reverse itself soon
enough, most notably in Helvering
v. Davis, which stated that
Congress had the authority to
create a unique tax in order to
spend money on Social Security.
This established the constitutionality of the
Social Security Act.
The controversy persists.
Current efforts to roll back the size
and scope of the national
government at least partially focus
on efforts to limit what is meant by
the phrase “general welfare.”
An additional controversy exists
over whether the national
government’s spending power can
be used to ensure common
standards and policies across the
states.
For some interesting reading in
that direction you might want to
look at the following comment on
Ron Paul and the General Welfare
Clause,
In addition to funding programs
that provide for the general
welfare, taxes can also be used as
mechanisms for ensuring certain
standards are maintained across
the states.
One example was the successful
effort to get all states to raise their
legal drinking age to 21. The
National Minimum Drinking Age
Act attempted to compel states to
increase their drinking ages by
threatening to a decrease in
highway funding.
South Dakota challenged the law,
but a 7-2 majority on the Supreme
Court ruled that the Taxing and
Spending Clause allowed Congress
to exert pressure on the states to
comply with a national standard.
This controversy continues to heat up
as the court has grown more
suspicious of national power.
A current dispute concerns whether
the US can entice the states to
broaden Medicaid coverage. Click here
for one view, and here for another.
Again, these are all different types
of implied powers that are argued
(not conclusively) to be justified by
the elastic clauses. Disputes
continually arise based on how
elastic one believes these clauses
to in fact be.
Reserved Powers
The term “reserved powers” comes
from the 10th 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.”
The reserved powers are taken to
refer specifically to the police
powers, these are powers to
regulate the health, safety, morals
and welfare of a community.
These powers have an open ended
quality to them.
Recall the “numerous and
undefined” nature of state power.
The scope of the expressed powers
is vast.
Many of these are delegated to
local governments to implement.
As with the rest of the Bill of Rights, the
Tenth Amendment was intended to clarify
a limit on the powers of the national
government, but ongoing disagreement
has existed over whether the intent was to
grant the reserved powers fully to the
states, and prevent the national
government from exercising them, or
stating that the states were free to exercise
those power, along with the national
government.
What degree is overlap between
national and state powers is
allowable?
Is the line clean and clear, or is there a
gray area? This became less and less
easy to define as commerce and
related matters like crime became easy
to take across state borders.
Again, controversy between the
power of the nation and that of the
state became inevitable.
States habitually complain that the
national government aggressively uses the
commerce clause to justify expanding the
extent of its regulatory powers, at the
expense of its ability to regulate business
within its own borders.
A common source of tension
between Texas and the US is
between the Environmental
Protection Agency – which
attempts to minimize pollution –
and the efforts of Texas to protect
the oil and gas industry.
A final word on the various types
of powers:
The Concurrent Powers
This refers to the types of powers
that exist on all levels of
governments.
The most obvious is the power of
taxation. Other powers include the
creation of courts, the building of
roads and other things.
If you have the time (and of course
you do) here is an exhaustive
exposition of the concurrent
powers from Leonard Levy.
One last topic:
The stages of federalism
Over its 200+ year history, the precise
relationship between the national and
state governments has changed.
Political scientists who study these changes
have developed different terms to describe
these changes. They vary from one another
in many ways, but here are a few terms
that help us understand when these
changes happen and what forces drove
those changes.
Dual Federalism
Cooperative Federalism
New Federalism
- for an early overview of these subjects as they relate
to Texas click here for: Texas’s Federal Heritage.
A quick reminder – the Supreme
Court play a huge role in marking
each of these eras. It is up to them
to determine how to define the
elastic clauses. As they –
collectively – determine whether
these clauses permit or deny the
national government to engage in
certain policies.
The period of Dual Federalism is
argued to have existed from 1787 –
1937; from the ratification of the
Constitution until the Supreme
Court accepted an expanded
definition of “commerce” in the
case NLRB v. Jones.
During that time, the national and
state governments had clearly
defined roles to play – their
relationship was like a layer cake.
National Powers:
Internal improvements
Subsidies (mainly to shipping)
Tariffs
Disposal of public lands
Immigration law
Centralized National Defense
Foreign policy
Copyrights
Patents
Currency
State Powers:
Property law
Education
Estate and inheritance law
Commerce laws of ownership and exchange
Banking and credit laws
Labour law and professional licensure
Insurance laws
Family laws
Morals laws
Public health and quarantine laws
Public works laws, including eminent domain
Building codes
Corporations law
Land use laws
Water and mineral resource laws
Judiciary and criminal procedure laws
Electoral laws, including parties
Civil service laws
(never mind local governments for now)
This is an obviously simplistic story.
As we know from the information above,
there was a debate among those who
wrote and signed the Constitution about
the roles of the national and state
governments and there was early jockeying
between the advocates of either side to
determine the extent of national power.
Alexis de Tocqueville, among
others, argued that there would be
a natural tendency for the national
government to expand it powers
over the states.
As we will see, he was correct.
Supreme Court Chief Justice John Marshall
was a supporter of national power and
early court decisions established the power
of judicial review, solidified the national
government’s power to regulate commerce
between the states, and expanded the
necessary and proper clause to include the
power of the national government to
charter a bank.
But he was replaced with Roger
Taney, an equally strong advocate
of state power. He helped protect
the states (southern mostly) from
efforts to limit their rights to
determine internal matters
without interference. Mostly this
meant limiting the ability of
abolitionists to limit slavery.
Conflict continued between the
commercial interests that saw the
national government as the best
way to pursue their commercial
interests and agrarian interests
that saw the states as best able to
protect themselves from those
commercial powers.
Texas was a strong supporter of
efforts to limit efforts to expand
the power of the national
government not only because it
was a slave state, but because
commercial interests – especially
railroads – were jeopardizing
agrarian interests in the state.
It didn’t help that As part of the
Confederacy, Texas had an
antagonistic relationship with the
national (union) government.
Beginning in the 1880s, the
national government began to
slowly and steadily expand its
influence over industry (through
regulations, not just promotion)
and other matters.
Here is a sample list of legislation
which expanded national powers:
1873 – Comstock Laws
1887 – Interstate Commerce Act
1906 – Pure Food and Drug Act
1910 – Mann Act
1913 – Federal Reserve Act
1913 – The 16th Amendment
1916 – Federal Farm Loan Act
1916 – Federal Child Labor Act
These efforts were limited however,
and were not fully supported by the
Supreme Court, which adopted a strict
view of federalism. Changes did not
occur until the election in 1932 of
Franklin Roosevelt who sought greater
authority for the national government
through a packet of laws labeled the
New Deal.
This marked the beginning of the
era of cooperative federalism.
He ran on a ticket with a Texan –
John Nance Garner, who was
Speaker of the House and as vice
president would work with
congressional leaders to engineer
the passage of New Deal
legislation.
Texas was conflicted over the New Deal. In the
previous decades Texas businessmen – thanks to
the growing oil industry – became more
powerful. Not only oil, but related industries like
construction and steel production flourished.
Agrarian interests were being challenged within
the state. It is important to note that Texas
remained an agrarian state for longer than most
other states. This impacted not only internal
politics, the relationship the state had with the
national government.
The national government’s
orientation towards business
began to change as well. Instead of
simply promoting business
interests, they began to regulate
business’s as well.
Regulatory agencies like the Securities and
Exchange Commission were established.
The New Deal sought to address
high unemployment by developing
large scale infrastructure projects.
Texas businessmen liked the jobs,
but the New Deal also pushed for
expanded rights for workers –
notably collective bargaining rights.
Business interests did not like that
part of the New Deal.
That last point is huge:
Texas, as a whole, does not support collective
bargaining rights. Those rights are more
protected by the national government. This
creates the obvious tension, with the national
government promoting the interests of unions
and the state of Texas promoting that of
businesses. We will highlight these conflicts as
we go forward.
It is crucial to note that as it became
increasingly obvious in the late 1930s
that the United States was going to
enter into war efforts were made to
ramp up production of war materials.
This gave the national government
huge control over the economic sector
and provided huge contracts for well
placed businesses.
The Houston area benefitted
greatly. The further development
of the Port of Houston and the
petro-chemical industry (and
related manufacturing industries as
well) was spurred by this effort.
Think: Brown and Root among others.
A historical side note is useful here.
The Port of Houston was one of
the first projects funded with
matching grants between national
and local governments. This
arrangement was designed by
noted Houstonian Jesse Jones.
Along with John Nance Garner, Jones
was one of the Texans who played a
dominant role in the Roosevelt
Administration. He also has a position
in the Hoover Administration. He
headed the Reconstruction Finance
Corporation and for a while was
judged to be the second most
powerful person in the nation.
During the New Deal, the national
government began taking the well being of
citizens seriously, and passed laws
addressing those (most famously Social
Security). It no longer left these decisions
to the states, because the states may not
feel like addressing those issue, or of they
did, did so in a way that that only served
the interests of the majority, not the
general welfare.
The mechanism for promoting those
policies was the intergovernmental grant.
The federal government began
encouraging certain actions among
different institutions and people by
providing grants to promote those actions.
The encouragement could also take the
form of coercion (at least in the minds of
the states) when non-compliance with
national directives could lead to a state
losing funding.
This process is sometimes also
referred to as “fiscal federalism.”
Here some essays on the subject if
you feel adventurous:
- An Essay on Fiscal Federalism.
- Federalism and Government Finance.
- The Political Economy of Federalism.
- The Impact of the New Deal on American
Federalism.
It began to tie all levels of
government more closely together
fiscally (fiscal meaning: “of or
relating to government finances,
esp. tax revenues”).
There are many different types of
grants, each with its own
advantages, disadvantages and
political baggage.
Categorical Grants: These are
issued to address narrowly defined
purposes including highway
funding, Head Start, Food Stamps
and Medicaid. Generally upwards
of 90% of funds are provided by
the national government with the
requirement that the states
provide the remaining 10%.
These grants can be project grants
or categorical grants.
Project grants are generally
targeted for a research project of
some sort, often these are
oriented towards medical or
defense purposes.
Formula grants are designed to
achieve a specific – ongoing –
purpose and to define who is
eligible for the support and how
much the recipient (be it an
individual or institution) is eligible
to receive. Loans for higher
education are an example you
might be most familiar with.
More recently block grants have been used to
provide funding for a specific purpose, but few
restrictions are placed on how exactly the
money is to be spent.
These were created in order to respond to
criticisms that categorical grants placed to much
power in the national government and did not
allow the states to fine tune policies so they
would be appropriate for their needs.
Earmarks are also a mechanism
that members of Congress can use
to direct federal funding for
specific purposes within their
districts.
In addition to grants which encourage
state and local governments to
perform functions with national goals
are a variety of laws that require them
to do so, without the funding
mechanisms to support them. These
are called unfunded mandates, and
they’ve been the source of additional
friction between the state and national
governments.
These are most often imposed in
order to enforce civil rights,
environmental and poverty
legislation.
For more detail: Unfunded Mandates
Many of these grants have allowed the
national government to forge direct
relationships with local governments
and other institutional and individuals,
bypassing the states.
Little surprise then that the states
(some more than others – like Texas)
reacted to this.
The use of these grants was expanded
considerably under the Great Society – and
reinforced by Supreme Court decisions that
increased federal power over the states.
Some argue that this created a separate
unique era at the tail end of cooperative
federalism called “creative federalism.”
Here’s an attempt at a definition: ” also
known as "picket fence federalism,"
predominated during the period of 1960 to
1980. This relationship was characterized
by overloaded cooperation and
crosscutting regulations.”
For additional info on creative federalism – see
Eugene Boyd, here you will see the same stage
referred to as “regulated federalism.” And click
here for power point slides on the subject.
The purpose of this stage of federalism was
to impose on state and local governments
policies that attempted to rectify racial and
economic imbalances in society.
Most notable, the range of programs that
fit under the heading of the “War on
Poverty” and the policies that were
intended to give weight to the Civil Rights
Act of 1964.
While popular in certain circles,
these imposed national policies
places that opposed them. The
New Deal did not touch civil rights
or structural poverty. The Great
Society did.
This led to a backlash especially in
places like Texas.
Conservative political forces in Texas
that had been willing to accept the
New Deal, reacted against the further
reorientation of government towards
civil rights and structural poverty by
developing and promoting a
contraction of national power and a
revitalization of state power / rights.
This is the period of New
Federalism
In brief, New Federalism refers to
efforts to devolve power from the
national to the state governments
and to undo many of the
regulations over business passed in
previous decades. It also attempts
to decentralize power as much as
possible.
Note: There is no sudden change from
cooperative to new federalism. Beginning
in the late 1960s – with the election of
Richard Nixon – a slow process began
where the expansion of the national
government was challenged. This is an
ongoing process. As of yet, the national
government has roughly the same
dimensions as it had in the 1960s, but
further expansion has been halted.
Many of the early efforts to scale
back the scope of national power
involved efforts to place Justices on
the Supreme Court who pushed for
a limited interpretation of the
commerce clause as well as other
parts of the Constitution that had
authorized and expansive use of
national power.
Ronal Reagan’s election in 1980
allowed proponents of New
Federalism to limit the activities of
executive agencies by placing
people in them that did not share
the goals and aspirations of those
who created the agencies.
For example, The Equal Employment
Opportunity Commission can only achieve
its mandate if it is staffed with people who
want to aggressively pursue equal
employment as a goal. Those who see this
as an unwarranted interference with the
rights of employers, want to see the
commission derailed.
Texas political leaders chief among them.
When Republicans took control of
Congress in 1994, they were in a
better position to terminate or
scale back federal programs, and
some were. Welfare reform for an
example. But other aspects of the
federal government have proved
popular and are very risky to
terminate.
Two programs – Social Security and
Medicaid – are very popular with
older voters. So is the Defense
Department, which was replaced
the Department of War in 1947.
So where does that leave us?
The current balance between
national and state power appears
to have stalemated.
But every election invites the
opportunity for change. These will
be discussed in class as current
events come and go.