FEDERALISM (S) AND SUPREME COURT DECISIONS
Dr. East
10/20/2013
FEDERALISM IN GENERAL
• What is the definition of Federalism?
– Ans. = system of government where power is
divided between central gov. (Feds) and states’
governments
• Did the Constitution say anything about local governments?
– NO
– State gov. and Constitutions explain how to create and
govern local areas like Arlington
• 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
12,880 Individual School Districts
3,031 Counties
50 States
1 Federal Gov.
90,107Total Gov.
• Source:
http://factfinder2.census.gov/faces/tableservices/jsf/pages/p
roductview.xhtml?src=bkmk
TIME CHANGES INTERPRETATIONS OF FEDERALISM
• Court Decisions under Chief Justice John Marshall (1801-1835)
affirmed Federal Supremacy and 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, …grants used and
planned with cooperation of states
– Grants that 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)
• 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
– money was 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 were requirements that directed states to
comply with federal laws; unfunded mandates were
requirements that made no allowances for the costs
stats would incur
– 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 and regulation of public school
education with federal standards
– Gonzales v. Raich: upheld Fed power to prosecute med.
Marijuana arrests in states that had legalized medical marijuana
– Gonzales v. Carhart: Congress has right to ban some abortion
procedures
– Supreme Court recently declared the Federal Defense of
Marriage Act unconstitutional…this act withheld fed. benefits
for same-sex partners of federal employees
• this is one step away from making states’ laws banning
same-sex marriages illegal
– Obamacare under constant judicial and Congressional review
CONCLUSION: ADVANTAGES AND DISADVANTAGES TO
FEDERALISM
Advantages
• Political Activity is Easily
mobilized
• Interest groups cannot take
over
• Diversity of policies 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 can block the will of
the majority for an extended
time
• Different policies in different
states create inequality
• Different policies even for
driving age and speed limits
creates confusion and
inequality