FEDERALISM (S) AND SUPREME COURT DECISIONS
Dr. East
11/2015
WHAT HAPPENED NOV. 4?
• State-wide elections for the VA General Assembly (the
Legislative Branch of VA) and city and county elections
– VA gen. assembly: composed of bicameral body 100
member House of Delegates, serving 2 year terms, and 40
VA Senators, serving 4 year terms
• Voter turnout is usually incredibly low for a mid-term, off-year
election with no Federal seats at stake
• https://vote.arlingtonva.us/elections/elected-officials/
• https://solutions.virginia.gov/GovOrgChart/OrgChart2013.pdf
KEY SEATS FOR VA SENATE 2015
NOT MUCH CHANGED IN VA HOUSE
LOCAL GENERAL ELECTIONS ALWAYS FIRST TUES. IN NOV.
SAMPLE BALLOT FOR GENERAL ELECTION IN ARLINGTON
SAMPLE BALLOT FOR LOCAL ELECTIONS
Lines in Blue are
Arlington Voting
Precincts and Red
indicate VA State
Congressional
Districts
BACK TO FEDERALISM
• What was the definition of federalism?
– Ans. = system of government where power is
divided/shared/distributed between central gov. (Feds,
national gov.) and states’ governments (regional
govs.)
• Did the Constitution say anything about local governments?
– NO
– State gov. and each states’ constitution explain how to create
and govern local areas like Arlington …state constitutions
allowed by 10th Amendment
• Power is divided, so is taxing and spending (gotta pay for gov.
somehow; gotta spend money for public good)
– Gov. not supposed to make a profit (unlike businesses)
– Spending also called budget appropriations
– Taxing also called revenue creation
DEPENDING UPON WHERE YOU LIVE, YOUR LIFE
MAY BE REGULATED BY 6 LEVELS OF GOV. (2012
COUNTS)
Special Districts (like
zoning, water
38,266 use, flood prone, etc.)
35,879 Cities and Towns
Individual School
12,880 Districts
3,031 Counties
50 States
1 Federal Gov.
90,107 Total Gov.
•
•
Each of these places may tax
you too (generate revenue)
so that they can pay for
things
2013 Arling. Co Taxes =
2013 VA State Taxes =
2013 VA Inc. Taxes =
2013 VA Prop. Taxes =
2013 US Revenue Tax =
$901,222,812
$19,186,853,000
$11,672,861,000
$33,188,000
$2,780,000,000,000
Source: http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk
POWER SHARING MUST BE DETERMINED IN A
FEDERALIST SYSTEM
• The Supreme Court and ideas of representatives from political
parties have determined how federalism has been applied in
American government(s)
• 1803 – Marbury V. Madison – resolved the question of
whether or not the Supreme Court had the right to apply
judicial review to the laws of states and actions of the other
Federal branches of Government (since these activities of the
court were not directly/ explicitly written into the
Constitution)
• They asserted that the Supremacy Clause of the Constitution
gave them the right to do this.
• Judicial Review = the process in which the Supreme Court can
rule on whether or not a law or government action is allowed
by the Constitution.
TIME CHANGES INTERPRETATIONS OF FEDERALISM
• Court Decisions under Chief Justice John Marshall (1801-1835)
affirmed Federal Supremacy and created a broad interpretation of
National over State Power
– McCulloch v. Maryland (1819)
• Issues:
– 1) Can Congress establish a federal bank?
– 2) Could state of Maryland or any state tax a federal bank?
• Decisions:
– 1) Constitution enumerates Congress’ power to borrow
and coin money, it also has power to make all laws that
are necessary and proper to achieve functions of
government; thus it has implied power to create a bank;
– 2) NO to state taxes of federal operations (like banks)
…such taxes would violate the supremacy clause
• Lasting effect: necessary and proper clause “stretched” to
allow gov. to create social welfare programs, national parks,
regulate environment etc.
– Gibbons v. Ogden (1824)
• Issues: Conflict between steamboat operators in states of
New Jersey and New York for control of shipping and trade
in lower Hudson River.
– 1) States wanted fed. gov. to interpret commerce clause
narrowly to regulate only trade in specific products, not
manage overall commercial activity,
– 2) Feds wanted broader and more general control over
commercial activity between states so that it could
settle disputes between states, etc.
• Decisions:
– 1) no state has monopoly power over trade as that
would interfere with interstate commerce
– 2) Feds had power to control trade in general for public
good of all
• Lasting Effect:
– Used to justify fed. regulation of many things,
– Highways, stock markets, etc.
– Helped decide in favor of Gov. regulation in Wickard v
Filbourn and the agriculture planting limits
DUAL FEDERALISM (FROM ABOUT 1835 – 1930)
• Later courts often interpreted Federalism in a more balanced
manner for states
• Chief Justice Roger B. Taney’s court (Marshall’s successor, 18351863) promoted Dual Federalism (nicknamed Layer Cake
Federalism)
– Definition: the belief that having separate, yet equally powerful
levels of government (State and Fed.) is the best arrangement
– Generally courts that believed this argued for a strict
interpretation of Constitution and did not favor stretching the
necessary and proper clause, they strictly upheld rights of
states per 10th amendment and the reserved powers
• Ex. Dred Scott v. Sandford (1857) – court declared that
Congress did not have authority to make slavery illegal in
western territories
• Ex. Plessy v. Ferguson (1896) – upheld separate but equal
laws in states (this despite amendments like 13th, 14th, and
15th after Civil War)
COOPERATIVE FEDERALISM (BEGINS AROUND 1930)
• 16th Amendment (1913) = allows Feds. to keep taxes (revenues) it
collects for things it needs rather than returning all of this income
to states (can now run Federal programs all across country)
• Bank failure and Great Depression ushers in large numbers of
federal programs in the New Deal package (FDR’s creation of all
the alphabet agencies, FBI, FHA, Labor Relations agencies, etc.)
– Courts initially found these programs illegal and
unconstitutional
– by 1937, FDR pushed his will through courts and courts were
again applying a very broad interpretation of the interstate
commerce clause and they were allowing government programs
to operate if they affected commerce in any way.
• Now federal, state, and local governments are intertwined …
nicknamed Marble Cake Federalism
• Became an era where Feds and States influenced each other
with fiscal (money) revenue sharing programs
• 1st instances of this was categorical grants,
– Def. = grants used and planned with cooperation of states
– Categorical grants give money to states for specific purposes
and require states to provide some matching funds and can
only be used for specific reasons or purposes (under lots of
fed restrictions)
– Monies used here often started urban job programs, head
start programs, urban redevelopment and housing programs
etc.
– Used often in 1960s and 70s, still around
NEW FEDERALISM (REAGAN CHANGES AFTER 1980)
• Pres. Regan (Republican), wanted to retrieve power from Feds
back to states
• Era lasted until 9/11
• Era of devolution (called Devolution Revolution)
– return of monetary and administrative power back to
states
• New grants of monies to states were called Block Grants
– Block grant = money given to states with fewer
restrictions, meaning states could use it for what they
needed, not what Feds. thought they needed
• Under Pres. Clinton (Democrat) – congressional Republicans
(elected under a “Contract with America platform” were able
to pass the …
– Unfunded Mandates Reform Act: this act prevented
Congress from passing laws on federally required programs
without debate on how to fund them or providing monies
back to states to pay for them.
• Mandates = requirements that direct states to comply
with federal laws; unfunded mandates were
requirements that made no allowances for the costs
stats would incur
– Ex. TANF (Temporary Assistance to Needy Families)
program which replaced the Aid to Families with
Dependent Children (AFDC) … this returned power to
administer such funded programs to the states (away
from Fed. gov.)
FEDERALISM UNDER BUSH AND OBAMA
• Looks like power is swinging back to Feds but kind of unclear yet:
– Ex. No Child Left Behind (Bush) and regulation of public school
education with federal monies granted to states for adopting
common core standards (Race to the Top, Obama)… both are
examples of Fiscal federalism
– Gonzales v. Raich: Supreme Court upheld Fed power to
prosecute med. Marijuana arrests in states that had legalized
medical marijuana
– Gonzales v. Carhart: Supreme Court said Congress has right to
ban some abortion procedures
– Also, Supreme Court recently declared the Federal Defense
of Marriage Act (DOMA) unconstitutional…this act
withheld fed. benefits for same-sex partners of federal
employees
• This was one step away from making states’ laws
banning same-sex marriages illegal and they did that
this year in June 2015
– Supreme Court recently refused to consider state appeals
that would have prevented same-sex marriages in various
states
– Obamacare, Affordable Care Act, under constant judicial
and Congressional review
– 2001 – Congress Passed Patriot Act – allowed more
government surveillance of populace in age of terrorism
(idea was that some infringement on personal rights to
privacy was necessary for good of all public)
CONCLUSION: ADVANTAGES AND DISADVANTAGES TO
FEDERALISM
Advantages
• Political Activity is Easily
mobilized given the specific
localized nature of most
governments
• Interest groups cannot take
over
• Diversity of policies and
laws allow for political
experimentation
• Different policies in
different states make more
sense than uniform laws
Disadvantages
• Pol. Activity can be confusing
• Small but motivated interest
groups and/or political parties
can block the will of the
majority for an extended time
– Ex. problem with divided
government between
Congress and President
• Different policies in different
states create inequality
• Different policies even for
driving age, pot possession,
and speed limits creates
confusion and inequality