The State in American Bedrooms
“…crossing a state boundary can involve ‘stepping into another moral
universe’. Oral sex for example, was illegal in 15 of the 50 states as
late as 1999. Adultery remained a crime in 24 of them. Eight states
had prohibited the sale, though not the use of ‘marital aids’. Thirtythree states had no statute relating to fornication, but in 17 it was
considered a misdemeanour or felony. Incest was a felony in 48 states
but only a misdemeanour in Virginia and did not even merit a statute in
Rhode Island. Prostitution was only a misdemeanour in most states but
the strongest condemnatory language in American sex law was
reserved for sodomy, although 23 states had no statutes at all
pertaining to the practice. Theoretically the state of Alabama allows
sex with donkeys and corpses (no law exists against either bestiality or
necrophilia), but punishes oral sex between husbands and wives.”
Robert Singh, American Government & Politics p243
ORIGINS OF FEDERALISM
Learning Objectives


To examine the origins of federalism
To identify the role of federalism in the constitution
Federalism




Federalism is a political concept in which a group of
members are bound together by covenant with a governing
representative head.
The term "federalism" is also used to describe a system of
the government in which sovereignty is constitutionally
divided between a central governing authority and
constituent political units (like states or provinces).
Federalism is a system based upon democratic rules and
institutions in which the power to govern is shared between
national and provincial/state governments, creating what is
often called a federation.
Proponents are often called federalists.
The USA is composed of 6
administrative divisions (regions).
The USA is composed of 50 self-governing
states and several territories.
Federalism
Origins of Federalism
Powers of the National Government
Powers Denied to the National Government
The States
Exclusive and Concurrent Powers
Local Government
Origins of Federalism
The Framers were dedicated to the concept of limited
government. They were convinced
(1) that governmental power poses a threat to individual liberty,
(2) that therefore the exercise of governmental power must be
restrained, and
(3) that to divide governmental power, as federalism does, is to
curb it and so prevent its abuse.
Federalism is a system of government in which a
written constitution divides the powers of
government on a territorial basis between a
central, or national, government and several
regional governments, usually called states or
provinces.
The Constitution provides for a division of powers, assigning
certain powers to the National Government and certain powers
to the States.
Powers of the National Government
The National Government is a government of delegated
powers, meaning that it only has those powers delegated
(granted) to it in the Constitution. There are three types of
delegated powers:
1.
2.
3.
The expressed powers are those found directly within the
Constitution.
The implied powers are not expressly stated in the Constitution,
but are reasonably suggested, or implied by, the expressed
powers.
The inherent powers belong to the National Government
because it is the government of a sovereign state within the
world community. There are few inherent powers, with an
example being the National Government’s ability to regulate
immigration.
Who should make decisions on…






Marriage
Death penalty
Environmental standards
Education
Gun Control
Welfare reform
How many govts are there?







1 federal government
50 state governments
3,000 counties
19,000 municipalities
Townships 17,000
14,000 School districts
31,555 Special districts (i.e. Port Authority)
Constitutional Basis of Federalism

National Government



Article 1- “No state shall”
coin money, engage in treaty,
lay duties, engage in war
Article 1, Section Congress
shall do what is "necessary
and proper" and “general
welfare”
Article 6-Supremacy Clause
"supreme law of the land“

States


guarantee to every state in
this union a republican form
of government
“The powers not delegated to
(fed govt) are reserved to the
states respectively, or to the
people.”
Constitution & Federalism



Fed #51 “ a double security against majority
tyranny”
Divide the power of government within the levels of
government (sep of powers) but also across
governments (between state and national
governments)
Different governments will control each other against
the oppression of governments
States Rights vs. Nationalists
 Then
and Now
Rick Perry
John Adams – Second
President and strong
advocater of central
government
Dual Federalism



1789-1937, Layer cake
model
two distinct layers of
government
Separate powers and
spheres of influence


Feds, internal improvements,
tariffs, etc
States- commerce, banking,
insurance, slavery, health,
education, criminal, etc
Hammer v. Dagenhart (1918)

Hammer v. Dagenhart, 247 U.S.
251 (1918), was a United States
Supreme Court decision involving
the power of Congress to enact
child labor laws. The Court held
regulation of child labor in purely
internal (to a single state)
manufacturing, the products of
which may never enter interstate
commerce, to be beyond the power
of Congress, distinguishing the
Lottery line of cases, which
concerned Congressional regulation
of harms (e.g. interstate sale of
lottery tickets) that required the use
of interstate commerce.[1]
Great Depression and Demise of
Dual Federalism
Federal Emergency Relief Act of 1933
Cooperative Federalism

Eisenhower Era




Great Society programs




Interstate Highways
Urban Renewal
Airport Construction
Medicaid and Medicare
Education Aid
Model Cities
Today



Clinton crime, education policy (100k new police)
Bush – Leave No Child Behind
Obama- stimulus package, health care
Categorical grants



Federal grant of $ to state
interstate highways, poverty, crime, education,
pollution
Categorical grants specified use of money
 Head
Start Education programme – 1965 then 1981
then 2007
Marble Cake Federalism


Intermingling of federal,
state, and local authority
Example of education



Feds- Leave no child behind,
Special education, Labour
laws
States- labour laws,
curriculum, testing
Local- hire the teachers,
finance
Food Stamp Program



National Goal- improve nutrition in low income
households
Feds provide $, pay 62% of administrative costs
States- determine eligibility standards
Supplemental Nutrition Assistance
Program

Feds revise eligibility criteria
 Up
to 130% of poverty line (2,389 family of 4)
 Able bodied adults can receive for 3 months
 Disabled vet, child of vet
 State EBT/Debit Card
 No discrimination race, gender, sex orientation
 Most legal immigrants eligible
Rick Perry- happy or sad?
New Federalism

1968-present
 Reduce
the power of the national government
 Less $$, fewer strings (?)
Block Grants


provided unrestricted grants to states and localities
Entitlement, not competition
Energy Efficiency and Conservation Block
Grant Program (2009)

”$2.7 billion will be awarded through formula
grants. In addition, approximately $454 million will
be allocated through competitive grants”
(energy.gov)
Grants can be used for











Development of an energy efficiency and conservation strategy
Building energy audits and retrofits, including weatherization
Financial incentive programs for energy efficiency
Transportation programs to conserve energy and support renewable fuel
infrastructure
Building code development, implementation, and inspections
Installation of distributed energy technologies
source reduction, recycling, and recycled content programs
Reduction and capture of greenhouse gas emissions generated by landfills or similar
waste-related sources
Installation of energy efficient traffic signals and street lighting
Installation of renewable energy technologies on government buildings
Any other appropriate activity that meets the purposes of the program and is
approved by DOE
Rick Perry- happy or sad?
Reagan’s New Federalism
More block grants, less money
 Federal aid to state and local govts fell by 39%.
 Buffalo 1977- 31% of their revenues from
Washington, by 1992 they got only 6%.
Reagan’s New Federalism

Choose your own?
You can make any kind
of cake you want
 You have fewer
ingredients
 Have to pay for it
yourself

Rick Perry- happy or sad?
Popular Support

In which of the following people in government do
you have the most trust and confidence?
 Federal
government 19%
 State government 22%
 Local government 37%
Coercive or Regulatory Federalism,
1980
Democratic Unfunded Mandates
Asbestos Hazard Emergence Act of 1986
 Safe Drinking Water Act 1986
 Americans with Disabilities Act of 1990
 National Voter Registration Act of 1993


GOP Unfunded Mandates
No Internet taxation
 No Child Left Behind
 Help America Vote Act

HAVA



Update their voting machines (no punch card)
each polling location have at least one voting
system accessible to individuals with disabilities
develop a single, uniform, official, centralized,
interactive computerized statewide voter
registration list
Cake Analogy?

Baking Analogy- You
can have any cake
you want as long as it
has chocolate
State Mandates Under Obamacare



Adjust eligibility in Medicaid to new federal rules
(16 million+)
Establish high risk insurance pools for people with
preexisting conditions (by Jan 1, 2014); create
insurance exchanges
Require insurance companies to allow dependents
up to 26 stay on parent’s insurance
Rick Perry- happy or sad?
Who Pays
Who Decides
Example
Categorical
Grants
70%/Feds/ 30%
states
National
government sets
goals, states
limited discretion
Food Stamps
Block Grants
60% Feds/O%
states (less money
State government
Energy Efficiency
Unfunded
Mandates
0% Feds/100%
States
National
government
HAVA, ADA
Popular Support

Which level of government does the best job of
dealing with the problems it faces
 Federal
government 14%
 State government 21%
 Local government 41%
Constitution & Federalism Redux



Fed #51 “ a double security against majority
tyranny”
Divide the power of government within the levels of
government (sep of powers) but also across
governments (between state and national
governments)
Different governments will control each other against
the oppression of governments
General Trends




Primary constraints are political, not constitutional
Federal role is reduced, 16% of state and local
governments budgets
Intense state experimentation
Bipartisan belief in devolution
Devolution Theory

“enhance the responsiveness and efficiency of the
federal system based on the theory that state and
local governments can do a better job of providing
services for citizens"
How Much Devolution is there?

"if we exclude Social Security, Medicare, net
interest on the federal debt, and defense from the
total expenditures of federal, state, and local
governments in the United States, 80 percent of
what remains is administered by state and local
governments" (1999, 3).
Constitution

Article 1, Section 8
 Congress
shall do what is “necessary and proper” to
promote “interstate commerce”

10th Amendment


powers not delegated to federal government are
"reserved to the states or the people”
Supreme Court’s changing interpretation of the
commerce clause
Revisiting the Commerce Clause


21 drinking Age and highway funding
US v. Lopez
 Gun
Free School Zones Act of 1990
 Does it relate to commerce
Why Federalism Matters




Determines who pays (welfare $148 v. $360)
Determines how much uniformity of policy there will
be (death penalty)
Determines who makes the decisions (textbooks)
Determines accountability
Basic Tradeoff


a more centralized system is likely to be more
uniform, equitable, and accountable
decentralized system is likely to be more
democratic and flexible
Powers Denied to the National Government
Powers are denied to the National Government in three distinct
ways:
Some powers, such as the power to levy duties on exports
or prohibit the freedom of religion, speech, press, or
assembly, are expressly denied to the National
Government in the Constitution.
Also, some powers are denied to the National Government
because the Constitution is silent on the issue.
Finally, some powers are denied to the National
Government because the federal system does not intend
the National Government to carry out those functions.
The States
Powers Reserved
to the States


The 10th Amendment
declares that the States
are governments of
reserved powers.
The reserved powers are
those powers that the
Constitution does not grant
to the National
Government and does not,
at the same time, deny to
the States.
Powers Denied to
the States


Just as the Constitution
denies many powers the
National Government, it
also denies many powers
to the States.
Powers denied to the
States are denied in much
the same way that powers
are denied to the National
Government; both
expressly and inherently.
Exclusive and Concurrent Powers
Exclusive Powers


Powers that can be
exercised by the National
Government alone are
known as the exclusive
powers.
Examples of the exclusive
powers are the National
treaties with foreign states,
and to lay duties (taxes) on
imports.
Concurrent Powers


The concurrent powers
are those powers that both
the National Government
and the States possess and
exercise.
Some of the concurrent
powers include the power
to levy and collect taxes,
to define crimes and set
punishments for them, and
to claim private property
for public use.
Local Government



There are more than 87,000 units of local government
in the United States today.
Each of these local units is located within one of the 50
States. Each State has created these units through its
constitution and laws.
Local governments, since they are created by States,
are exercising State law through their own means.
Federalism in the Constitution
Exclusive Powers of the National Government
Exclusive Powers of the State Government
Shared Powers by both Governments
The Supremacy Clause
Advantages of Federalism
Disadvantages of Federalism
Citizen Ignorance
Federalism in the Constitution





The U.S. Constitution establishes a government based on
"federalism," or the sharing of power between the national, and
state (and local) governments.
This power-sharing form of government is the opposite of
"centralized" governments, such as those in the UK and France, under
which national government maintains total power or sovereignty.
While each of the 50 states has its own constitution, all provisions of
state constitutions must comply with the U.S. Constitution.
For example, a state constitution cannot deny accused criminals the
right to a trial by jury, as assured by the U.S. Constitution's 6th
Amendment.
Under the U.S. Constitution, both the national and state governments
are granted certain exclusive powers and share other powers.
Exclusive Powers of the National
Government







Print money (bills and coins)
Declare war
Establish an army and navy
Enter into treaties with foreign governments
Regulate commerce between states and
international trade
Establish post offices and issue postage
Make laws necessary to enforce the Constitution
Exclusive Powers of the Stage
Governments







Establish local governments
Issue licenses (driver, hunting, marriage, etc.)
Regulate intrastate (within the state) commerce
Conduct elections
Ratify amendments to the U.S. Constitution
Provide for public health and safety
Exercise powers neither delegated to the national
government or prohibited from the states by the U.S.
Constitution (For example, setting legal drinking and
smoking ages.)
Shared Powers by National and State
Governments








Setting up courts
Creating and collecting taxes
Building highways
Borrowing money
Making and enforcing laws
Chartering banks and corporations
Spending money for the betterment of the general
welfare
Taking (condemning) private property with just
compensation
The Supremacy Clause
The Supremacy Clause in the Constitution establishes the
Constitution and United States laws as the “supreme Law
of the Land.”
Advantages of Federalism



Fosters state loyalties: Many Americans feel close ties to
their home state, and federalism maintains that connection
by giving power to the states.
Practices pragmatism: Running a country the size of the
United States, with such a diverse population, is much easier
to do if power is given to local officials. Likewise, state and
local officials are closer to the problems of their areas, so it
makes sense for them to choose policies to solve those
problems.
Creates laboratories of democracy: State governments can
experiment with policies, and other states (and the federal
government) can learn from their successes and failures.


California has frequently led the nation in
environmental regulations: Many measures adopted
by California are subsequently adopted by other
states.
And during the 1990s, Wisconsin governor Tommy
Thompson experimented with welfare policy, and
those experiments influenced federal welfare
reform.
Advantages of Federalism



Leads to political stability: By removing the national government
from some contentious issue areas, federalism allowed the early U.S.
government to achieve and maintain stability.
Encourages pluralism: Federal systems expand government on
national, state, and local levels, giving people more access to
leaders and opportunities to get involved in their government.
Ensures the separation of powers and prevents tyranny: Even if
one person or group took control of all three branches of the
federal government, federalism ensures that state governments
would still function independently. Federalism, therefore, fulfils the
framers’ vision of a governmental structure that ensures liberty.
Disadvantages of Federalism


Prevents the creation of a national policy: The
United States does not have a single policy on
issues; instead, it has fifty-one policies, which often
leads to confusion.
Leads to a lack of accountability: The overlap of
the boundaries among national and state
governments makes it tricky to assign blame for
failed policies.
Citizen Ignorance



Critics argue that federalism cannot function well
due to ignorance.
Most Americans know little about their state and
local governments, and turnout in state and local
elections is often less than 25 percent.
Citizens consequently often ignore state and local
governments, even though these governments have
a lot of power to affect people’s lives.
Homework

Reading and Note Taking, Chapter 1, The Changing
Federal-State Relationship p22-26