FEDERALISM
Disaster Relief
• Who’s job was it to
clean up New Orleans
and the rest of the coast
after Katrina?
No Child Left Behind
• Should the national gov’t step in to regulate
school performance?
1. The Roots of the Federal System
• The Framers worked to create a political
system that was halfway between the failed
confederation of the Articles of Confederation
and the tyrannical unitary system of Great
Britain.
• The three major arguments for federalism are:
1. the prevention of tyranny;
2. the provision for increased participation in politics;
3. and the use of the states as testing grounds or
laboratories for new policies and programs.
Federalism Defined
Federalism is a political system in
which power is divided and shared
between the national/central
government and the states
(regional units) in order to limit the
power of government.
2. The Powers of Government
in the Federal System
The distribution of powers in the federal
system consists of several parts:
– exclusive powers
– shared powers
– denied powers
– enumerated powers
– and implied powers.
Article I, Section 8
The enumerated/implied powers of the central
government consist of the power to:
• lay and collect taxes, duties, and imposts
• provide for the common defense and general
welfare of the United States
• regulate commerce with foreign nations, and
among the states, and with Indian tribes
• coin money and regulate the value thereof
• declare war
Implied Powers
• The central government may make all
laws which shall be necessary and
proper for carrying into execution the
enumerated powers.
• The necessary and proper clause has
often been used to expand the powers of
the national government.
State Powers
• Most of State powers come from the 10th
Amendment that says: "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."
• These are often referred to as reserve or police
powers. States also have some powers that the
central government also wields called concurrent
powers such as the right to tax, borrow money,
establish courts, and make and enforce laws.
• Obligations of the state governments
− State Governments (Art. IV, Sec. 1&2)
• Full Faith and Credit Clause: each state must honor
the laws and legal proceedings of other states, e.g.,
marriages, debts.
• Privileges and Immunities Clause: each state must
grant to citizens of other states the same rights and
privileges that they grant to their own citizens.
• Extradition: Governors must return suspects to the
states in which they allegedly committed their crimes.
• Interstate Compacts: Agreements between state that
alter their power relative to other states, requires
consent of Congress.
Denied Powers
• Article I, section 9 lays out powers denied
to the central/Federal government.
– For example: give preference to ports of
one state over another
• Article I, section 10 lays out the powers
denied to the states.
– For example: enter into treaties,
alliances, or confederations
Powers actually stated
in the Constitution (aka
Expressed or Stated)
Held by both
national &
Implied – not stated
state
explicitly (Elastic Clause)
governments
Inherent – not stated
explicitly, but allowed by
virtue of its being a
national government
Enumerated Powers
State powers
10th Amendment – any
powers not granted to
the national
government are
reserved for the states.
Decided by
courts
Reserved Powers
Concurrent Powers
Defend the country
Create
standards
for schools
Protect rights
Punish law
breakers
Levy taxes
Declare war
Make arrangements with
foreign countries
Coin money
Issue drivers’ licenses
Create marriage laws
Conduct elections
Make laws
Enumerated Powers
Reserved Powers
Concurrent Powers
Relations among the States
• The Framers wanted a single country, not
thirteen squabbling semi-countries.
• Article IV requires states to give “full
faith and credit” to each others’ laws.
• States are also required to extradite
criminals if asked by another state.
3. The Evolution and
Development of Federalism
• The allocation of powers in our federal system
has changed dramatically over the years.
• The Supreme Court in its role as interpreter of
constitution has been a major player in the
redefinition of our Federal system.
– McCulloch v. Maryland (1819)
– Gibbons v. Ogden (1824)
– Dred Scott v. Sandford (1857)
Elastic Clause
• Aka – “Necessary and Proper Clause”
• Art. I, Sec. 8, Cl. 18 - "The Congress shall have 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 in any Department or Officer thereof."
• Impossible to predict all powers Congress will need
to function, sometimes we might have to allow
Congress extra powers to fulfill their delegated
powers
McCulloch v. Maryland (1819)
• McCulluch was the first major decision by the
Supreme Court under Chief Justice John Marshall
about the relationship between the states and the
national government.
• The Court upheld the power of the national
government and denied the right of a state to tax the
bank.
• The Court’s broad interpretation of the necessary and
proper clause paved the way for later rulings
upholding expansive federal powers.
McCulloch v. Maryland (1819)
Background
• Bank of the US operated in Maryland
• Maryland did not want BoUS to operate in
state, competition unwanted, unfair
• Maryland taxed the bank to put it out of
business
• McCulloch, BoUS employee, refused to pay
the state tax
McCulloch v. Maryland (1819)
• Is a Bank of the US Constitutional?
YES. The national gov’t has certain implied
powers that go beyond delegated powers.
US needs a national bank for borrowing,
lending, holding minted money, etc. All of
which are delegated powers.
McCulloch v. Maryland (1819)
Can a state tax the federal gov’t?
-NO. The federal gov’t is supreme. Since the
BoUS is constitutional, only the feds may tax
it.
-John Marshall reaffirmed Supremacy Clause
and Elastic Clause
-National (Federal) Gov gets STRONGER
Commerce clause
• Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have power
- To regulate commerce with foreign nations, and
among the several states, and with the Indian tribes.”
• Congress has used the elastic clause to stretch this
power
• What is commerce? “Buying and selling of goods and
services.”
• Congress given the power to regulate commerce
between foreign countries and US as well as state to
state… they control business law.
Gibbons v. Ogden (1824)
• 1824 – aka “The Steamboat Case”
• Ogden received a state licensed monopoly to
run a ferry across the Hudson River
• Gibbons also saw the potential of the traffic
between NJ and NY and obtained a federal
license.
• Ogden sued saying he had the valid state
license, even though Gibbons had US license
Gibbons v. Ogden (1824)
• The Gibbons case centered on the conflict between the
states and the powers of Congress.
• Could New York grant a monopoly concession on the
navigation of the Hudson River? The Hudson River
forms part of the border between New York and New
Jersey and the U.S. Congress also licensed a ship to sail
the Hudson.
• The main constitutional question in Gibbons was about
the scope of Congress' authority under the Commerce
Clause.
• In Gibbons, the Court upheld broad congressional
power over interstate commerce.
Gibbons v. Ogden (1824)
Result – Gibbons wins
• Expanded national power in all areas of
commerce law because nation overruled
state in interstate trade issues
• Fed Gov’t gets STRONGER
• All trade today is primarily controlled by
national law
Dred Scott v. Sandford (1857)
• The Supreme Court articulated the idea of concurrent
powers and dual federalism in which separate but
equally powerful levels of government is preferable,
and the national government should not exceed its
enumerated powers.
• The Taney Court held that Mr. Scott was not a U.S.
citizen and therefore not entitled to sue in federal court.
• The case was dismissed and Scott remained a slave.
• Taney further wrote that Congress had no power to
abolish slavery in the territories and slaves were private
property protected by the Constitution.
The Civil War and Beyond
• Dual federalism remained the Supreme
Court's framework for federalism even
after the adoption of the Thirteenth,
Fourteenth, and Fifteenth amendments.
• Dual federalism finally ended in the 1930s,
when the crisis of the Great Depression
demanded powerful actions from the
national government.
Cooperative Federalism
• Prior to the 1930s, many scholars used the analogy
of a layer cake to describe federalism.
– Each layer had clearly defined powers and responsibilities.
2 Federalisms
TWO METAPHORS…
• Dual Federalism – Layer Cake
Federal
State
Cooperative Federalism
• Prior to the 1930s, many scholars used the analogy
of a layer cake to describe federalism.
– Each layer had clearly defined powers and responsibilities.
• After the New Deal, the analogy of a marble cake
seemed more appropriate because the lines of
authority were much more mixed.
2 Federalisms
TWO METAPHORS…
• Dual Federalism – Layer Cake
Federal
State
• Cooperative Federalism – Marble Cake
Cooperative Federalism
• Prior to the 1930s, many scholars used the analogy
of a layer cake to describe federalism.
– Each layer had clearly defined powers and responsibilities.
• After the New Deal, the analogy of a marble cake
seemed more appropriate because the lines of
authority were much more mixed.
• This marble cake federalism is often called
cooperative federalism and has a much more
powerful national government.
• States have a cooperative role, as did many cities.
2 Federalisms?
• OLD SCHOOL – Dual Federalism
– Federal and state governments remain dominant
in their separate spheres of influence
– Gibbons v. Ogden proved life is not that simple
• NEW SCHOOL – Cooperative Federalism
– State and Federal governments work together to
solve complex problems
Federalism gets Creative which is
called creative federalism
• Federal grants: allocation of federal money
to the states for a specific purpose.
• Federal leadership saw these grants as a way
to compel individual states to behave in ways
desired by the national government. If the
states refused to cooperate with the federal
government, it would withhold funds.
Federal Grant-in-Aid Outlays, 1940-2005
Fiscal Federalism
• Fiscal means $
• Q – How do you get the states to do things
they normally wouldn’t do?
• A – Money
• Q – What is the answer to any question ever
asked?
• A – Money
Change in Spending
• Shift towards Federal Gov’t Spending
Federal
State
Local
(City)
1929 17% 23% 60%
1939 47% 23% 30%
1960 64% 17% 19%
1997 66% 19% 15%
Fiscal
Federalism
The pattern of
spending, taxing, and
providing grants in the
federal system; it is the
cornerstone of the
national government’s
relations with state and
local governments.
Figure 3.2
Fiscal Federalism
• Federal Grants to State and Local Governments (Figure 3.1)
Fiscal Federalism
Grants-in-Aid
• Money paid from one level of government to another to
be spent for a specific purpose
• The Grant System: Distributing the Federal Pie
– Categorical Grants: Federal grants that can be used
for specific purposes. They have strings attached.
(States receive funds if state raised age to 21 and lowered
BAC to .08)
• Project Grants- based on merit
• Formula Grants: amount varies based on formulas
Fiscal Federalism
• The Grant System: Distributing the
Federal Pie
–Block Grants: Federal grants given
more or less automatically to support
broad programs. (ex. Welfare reform)
–Grants are given to states & local
governments
Fiscal Federalism
• The Scramble for Federal Dollars
• $350 billion in grants every
year
• Universalism- a little
something for everybody
Fiscal Federalism
• The Mandate Blues
• Mandates are the “strings”
attached to federal money
• Unfunded mandates are
requirements on state & local
governments- but no money
Mandates
• A requirement that a state undertake an
activity or provide a service
• Most apply to Civil Rights and the
Environment
• Often times the states or local gov’ts have
to pay the bill of the mandate set by
Congress
Mandates
• 1986 – Asbestos Emergency Response Act,
Handicapped Children’s Protection Act
• 1988 – Drug-free Workplace Acts, Ocean
Dumping Ban Act
• 1990 – Clean Air Act
• EX – Columbus, OH spends 23% of the city
budget trying to meet environmental mandates
(including testing for pesticides used on rice and
pineapple)
• EX – Public schools have to use Internet filtering
or schools lose e-rate subsidies
Change in Spending
• Shift towards Federal Gov’t Spending
Federal
State
Local
(City)
1929 17% 23% 60%
1939 47% 23% 30%
1960 64% 17% 19%
1997 66% 19% 15%
The Reagan Revolution
Shortly after taking office in 1980, former
California Governor Ronald Reagan set to
work enacting his vision of the “New
Federalism” by drastically cutting federal
domestic programs and income taxes in an
attempt to reestablish the primacy of the
states. For the first time in thirty years,
federal aid to state and local governments
declined.
The Devolution Revolution
Growth in power of the national government
during the Clinton administration due to a
Republican majority in both houses of
Congress.
• Preemption: allows the national government to
override state or local actions in certain areas.
• Unfunded mandates: laws that require states to
comply with federal regulations or face civil
and/or criminal penalties.
4. Federalism and the Supreme Court
• By the 1980s and 1990s, many Americans
began to think that the national government
was too big, too strong, and too distant to
understand their concerns.
• The Supreme Court, once again, played a
role in this new evolution of federalism.
– For example: Since 1989, the Court has been
allowing states to introduce limitations on the
right to an abortion.
State-by-State Report Card on
Access to Abortion
Devolution Example
• Personal Responsibility and Work Opportunity
Reconciliation Act of 1996
• Eliminated welfare and transferred the money to
states as block grants
• States received wide latitude on how to administer “workfare”
but with the knowledge that Congress was counting on antipoverty spending”
• Strings attached: head of family must work or lose benefit;
lifetime benefits limited to 5 years; unmarried mother < 18
only receive $ if stay in school and live with adult; immigrants
ineligible for 5 years
Federalism is good
Living under 2 governments is great…
• Built on compromise, promotes unity
• Gov’t duties can be split up
• Brings gov’t closer to people
• Allows for state gov’t to address issues in
unique regions of the country
• Allows states to experiment with policy before
enacting it at the federal level – Ex. Vermont’s
free health care for children
Federalism is bad
Living under 2 governments is bad…
• States can impede progress of Nation
• States are unequal
• States have different policy
• Easier for states to be dominated by interest
groups
The Policymaking System
• The process by
which policy
comes into being
and evolves over
time.