National Government
Since 1787, the single most persistent source of
political conflict has been the relations between
the national and state governments.
[Fight in terms of “national interests” v. “states rights”]
State Governments
Federalism – system of government in which power is
shared by the national government and the fifty states.
What is Federalism [This word is not in the constitution]?
Federalism: a way of organizing a nation so that two or more
levels of government have formal authority over the land & people.
• Why Is Federalism So Important?
Only 11 Countries have
– Decentralizes our politics
Federal Systems. They are:
• More opportunities to participate
– Decentralizes our policies
• Federal and state governments
handle different problems.
1. U.S.
2. Australia
3. Argentina
4. Switzerland
5. Germany
6. Malaysia
7. Brazil
8. Canada
9. India
10. Mexico
11. Austria
– States regulate drinking ages, marriage, and speed limits.
• States can solve the same problem in different ways and
tend to be policy innovators.
Dual Federalism a system of government in which both the
states and the national government remain supreme within
their own spheres, each responsible for some policies. It is
like a layer cake and ended in the 1930s.
Dual Federalism – 1789-1930 – delegated powers go to the federal government
and reserved powers to the States, then there are powers shared by both.
Layer Cake Federalism – after Civil War, this was an extension of Dual
Federalism. Here, the national government exercised its power
independently from State governments. Reconstruction dictated this approach.
Marble Cake Federalism - 1932-1960s. This was a cooperative federalism that
developed during the New Deal and until the Great Society. It resulted in greater
growth of the federal government. The federal government becomes more intrusive
in State government affairs. Public policy became more of a sharing between the
two, with the national government providing the money and the State
governments administering the programs.
Creative Federalism – 1965 – increased the marble cake approach of
intergovernmental relations. There was greater reliance on federal programs
[Medicare, Medicaid, the War on Poverty, increased civil rights legislation]. It also
created an era of further cooperation among the many levels of government.
The following components describe the creative approach to federalism:
-sharing the costs between the national and State governments for programs that typically would
fall under the purview of State control,
-guidelines and rules set down by the federal government in order for the States to reap the
benefits of federally funded programs,
-providing for the dual administration of programs such as Medicaid, which has a shared approach
financially as well as administratively.
Competitive Federalism – 1970s – 1980s -under Nixon in the 1970s and
Reagan and Bush in the 1980s reversed the marble cake nature, creating a
“new federalism,” where the States were given more responsibility. The
aim of competitive federalism was to offer States pieces of the marble cake
but to have them accept it with conditions and with a promise to develop
programs on their own. Nixon was decentralizing many of the Great
Society programs. There were “strings” attached to federal money, such
as if they were going to get money for highway repairs, they would have to
agree to limit highway speed limits to 55 mph.
Fiscal Federalism – through different grant programs, slices up the marble
cake into many different pieces, making it even more difficult to differentiate
the functions of the levels of government. It can be classified in 3 major
programs areas: categorical grants – federal aid that meets the criteria of a
specific category, block grants which force States to bow to the dictates of
the federal government in order to get aid, and revenue sharing. All are
aimed at assisting the States in areas of health, income security, education,
employment, and transportation.
Devolution – the effort to transfer responsibility for many public programs
and services from the Federal government to the States.
Advocates of a strong federal system believe that State and local
governments do not have the sophistication to deal with the major
problems facing the country. They feel that local politicians are provincial in
their point of view and would advocate sectional issues that do not take into
account the interest of an entire nation. People favoring a strong federal
system point to the inability of State and local governments to support the
vast programs without an extensive tax base. They also feel that an elitist
group would gain control and ignore the needs of the minority.
Critics of a strong federal system point to the fact that local leaders are most
sensitive to the needs of their constituents. They also feel that States have
a better ability to develop public policy that can be supported by a broad
tax base. And critics point to the many demands made upon local
governments by the federal government in order for the States to receive
financial aid from the federal government.
It is important to have a strong relationship between the States and federal
government. Such issues as a national drinking age, a national speed limit,
and consistent emission standards in every State have emerged in the
debate over which level of government is best suited to solve the problems
facing the country.
Federalism is a form of government where smaller States agree to become members
of a larger government.
• Federalism as a Madisonian device.
• A way to limit federal authority
• The division of powers between
two sovereign governments
• Supremacy Clause
• Enumerated Powers
• Reserved Powers and
10th Amendment
• Concurrent Powers
• Implied Powers
– McCulloch v. Maryland (1809)
• Madison writes in Federalist 10:
• “It clearly appears, that the same advantage
which a republic has over a democracy, in
controlling the effects of faction, is enjoyed
by a large over a small republic--is enjoyed
James Madison
by the Union over the States composing it . . .
The influence of factious leaders may kindle
a flame within their particular States, but will
be unable to spread a general conflagration
through the other States."
• James Madison, Alexander Hamilton, and John
Jay, The Federalist Papers, (New York: Penguin
Books, 1987), p. 128.
•
•With Federalism the framers sought to limit the national government with
a 2nd layer of State government. BUT even they had different views on
what federalism meant. Hamilton thought the “national government” was
superior & Jefferson thought “the people” were the ultimate sovereigns.
• Nullification and John C.
Calhoun
– 1832
– Tariff of Abominations
– Claimed issue: “states
rights”
– Real issue: preference
of Northern business
over southern business
John C. Calhoun
–Claimed Issue: States Rights
–Real Issue: slavery
–secession studies verify slavery as the issue
“When they say the issue is federalism,
the issue is rarely federalism”
Dual
Sovereignty
Creative Federalism
Under LBJ
*Great Society
New Federalism
Under Reagan
Fiscal Federalism
*Grants
1789 1865
1932
Dual
Cooperative
“Competitive”
[“marble cake”]
New Federalism
[“Layer cake”]
Federalism
Federalism
1964 1968 1980 1994
[National government
focused on promoting [*New Deal gives
commerce and
expanded role
distributing resources. for national gov.
States retain most
as they could
remaining powers] regulate & promote
The icing [Fed G]
interstate commerce.
connects the layers
Grants-in-aid
while keeping them
helped cooperation]
separate.
2004
“Devolution”
[returning power Devolution
to the States G.W. Bush
Under Nixon back
in the name of
Fiscal Federalism unfunded mandates] *Social
*Revenue sharing
*Unfunded mandates
[Fiscal Federalism is the
manner in which government
offers assistance through
grants to state & local govs.]
Republican
Revolution
Security
Reform
*Contract *Tax Reform
With
America
Dual Federalism
Cooperative Federalism
Cooperate
on some
policies.
“Layer Cake”
“Marble Cake”
Regulated Federalism
New Federalism
National
government
mandates the
“recipe”.
State governments
mandated to provide
the “ingredients”.
National government determines
policies; State governments pay
for and administer them.
State
governments
provide the
“recipe”.
National government
provides “ingredients”.
State governments have more
flexibility to make policy and
administer programs.
American Federalism
[Marble Cake or Layer Cake?]
Layer Cake
I prefer ice
cream and pie
over either layer
or marble cake.
Based on a clear delineation of
authority and programs among
the levels of government.
Marble Cake
Based on a pragmatic mixing of
authority and programs among the
national, state, & local governments.
• Federalism represented a compromise, or “middle ground”,
between those who favored a centralized government and
those who wanted to keep a looser confederation.
• In federalism there is a division of powers between the
national government and the States. Separation of powers
and federalism are a force for limited government.
• The division of power between the national government and
the States produces a system in which both governments may
have authority over the same area and the same people.
• In these cases, the “supremacy clause” of the
Constitution says the State laws can’t conflict
with national laws.
Federalism history is a history of the growth of national power.
The expansion of the national government rests on 3 constitutional
powers: the war power, the power to tax & spend for the general
welfare, and the power to regulate interstate commerce.
• Article I, Section 8 sets forth the “enumerated
powers that belong to the national level.”
• The 10th Amendment to the Constitution reserves
powers not granted to the national government to
“the States or to the people.”
• The “necessary and proper clause” of Article I,
Section 8, opens the door to implied powers for
the national government.
• Article VI includes the “supremacy clause”
stipulates the national law supersedes conflicting
State laws.
• Madison said, “The federal & State governments
are in fact but different agents and trustees of the
people, instituted with different powers, and
designated for different purposes.”
• U.S. Government
• State Governments
• Local Governments
•
County
•
Municipal (city)
•
Townships
•
School Districts
•
Special Districts
1
50
87,858
[3,043]
[19,431]
[16,506]
[13,522]
[35,356]
[regulate water control, fire protection, conservation, sewage treatment, etc.]
• Total
87,909
1. Define the concept of federalism.
2. Identify the powers delegated to the National
Government and reserved to the States.
3. Identify the powers denied to the National Government
and the States.
Can you name three State or federal laws that affect you in
your day-to-day activities.
Federalism – a dual system of government that provides two levels of
government, [National government and the States] each with its own sphere
of authority. Each operates over the same people and territory at the same time.
Its major strength is that it allows local actions in matters of local concern
and national action in matters of wider concern.
The Framers were advocates of limited government. They believed:
a. that any governmental power threatens individual liberty,
b. that therefore the exercise of governmental power must be curbed,
c. that to divide governmental power is to restrict it and thus prevent its abuse.
Alexander Hamilton believed that people
could shift their support between State and
federal levels of government as needed to
keep the two in balance.
Alexander Hamilton
“If their rights are invaded by either, they can make
use of the other as the instrument of redress.”
States were thought to be responsible for poverty,
public safety, health, and education.
Because of the constitutional vagueness, the
COURTS have largely defined the division of
authority between the federal government and
the States.
• Federal law says young men must register for the draft at age
18; most employers must pay their workers the minimum wage;
& no one can be denied a job based on his race or ethnicity.
• State law says that you must have a driver’s license in order
to drive a car; it is illegal for anyone under age 21 to buy beer,
wine, or liquor; only those who can meet certain requirements can vote in elections.
• Other examples include:
•
New Jersey buses private school students as well as
•
public school students free of charge, but most States do not.
•
Most forms of gambling are legal in Nevada but
•
against the law in most other States.
•
North Dakota is the only State not to require voter registration.
•
Only in North Carolina does the governor not have power to
veto acts of the legislature.
• Federalism gives strength to union. If there is a natural disaster like a flood,
drought, winter storm, or earth quake, the resources of the National
Government and the other States may be mobilized to aid the stricken area.
• Like this!!!
There are Three Delegated [granted] Powers of the National Government
1. Expressed Powers of the National Government – written in constitution.
2. Implied Powers of the National government – not written but implied in the
constitution by the elastic clause [“shall make all laws necessary and
proper” (which means “convenient and useful”)]
3. Inherent Powers of the National Government – because of nationhood [like
acquiring territory or deporting aliens]
Delegated Powers
Expressed Powers
[enumerated]
Implied Powers
[suggested]
Written in the
Constitution [17]
Elastic Clause:
Necessary & Proper [thousands]
Example:
*Congress can coin
money & declare war
Example:
*Congress builds
interstate hwy sys
Inherent Powers
[historically possess]
Just because
it’s a nation [few]
Example:
*Congress regulates
immigration and
acquires territory
FEDERAL POWERS
• Regulate interstate
and foreign trade
• Create and maintain
armed forces
• Coin Money
• Declare War
• Admit new states
• Conduct foreign policy
• Make peace treaties
•Establish a national
court system
•Make laws necessary
and proper to carry out
the foregoing powers
•Issue patents/copyrights
STATE POWERS
SHARED POWERS
• Raise Taxes
• Build Roads
• Create & impose
penalties for crimes
• Charter Banks
• Provide for the
public welfare
• Establish courts
• Borrow money
• Regulate trade within
state borders
• Conduct Elections
• Create local
governments
• Provide public safety
• Establish laws about
marriage & divorce
• Control Education
• Set time, place and
manner of elections
• Ratify amendments to
the federal Constitution
State
Government
National
Government
Delegated powers
the National Gov.
Powers denied
the National Gov.
.
Concurrent
Powers
Powers denied both
the National Gov.
and the States
Reserved powers
of the States
Powers denied
the States
Powers Denied to the
National Government
1. To deny freedom of
religion, speech,
press, or assembly.
2. To conduct illegal
searches or seizures.
3. To deny any person
a speedy and public
trial.
4. To deny any person
a trial by jury.
5. Can’t create a public
school system for
the nation.
6. Can’t enact uniform
marriage & divorce
laws.
7. Can’t set up units of
local government.
8. Can’t tax the States
in carrying out duties.
Reserved Powers of
The States
1. Can forbid persons
under 18 to marry
Powers Denied To
The States
1. No State can enter
into any treaty,
without parental consent.
alliance, or
2. Can forbid those under
confederation.
21 to buy liquor.
2. Can not print or coin
3. Can require licensing.
money.
4. Can set up public
3. Can not deprive any
school systems.
person of life, liberty,
5. Can set up local
or property without
government.
due process of law.
6. Set conditions for
4. Cannot tax any of the
divorces.
agencies or functions
7. Permit certain forms
of the national gov.
of gambling.
5. State constitutions
8. Can outlaw certain
deny even more
forms of gambling.
powers to the State.
The Exclusive Powers
The Supreme Law of the Land
[Can be exercised only by the
National Government]
1. Coin money
2. Make treaties
3. Lay import duties
4. Regulate interstate commerce
[The Constitution stands above all
other forms of law in the U.S.]
1. The Supremacy Clause creates
a “ladder of laws” in the U.S.
2. Constitution is on to topmost rung.
3. Acts of Congress come next.
4. Each State’s constitutions come next.
5. State statutes are on the next rung.
6. Local laws are at the base.
7. The Supreme Court is the “umpire”
in the federal court system. They
reversed the Maryland courts in
the McCulloch v. Maryland case.
U.S. Constitution
Acts of Congress
State Constitutions
State Statutes
City and County Charters/Ordinances
“Ladder of Laws”
[Supreme court affirms supremacy of national government]
James McCulloch, of the 2nd National Bank, refused
to pay the state of Maryland a tax of $15,000 a year
because they were not chartered by the State.
John Marshall
In 1819 McCulloch v. Maryland, Chief Justice John Marshall
considered whether Congress had the power to incorporate a
bank. He also considered whether a State could tax the bank.
He wrote: Since the Constitution had given Congress the
power to “make all laws which shall be necessary and
proper for carrying into execution of the forgoing power, the
Bank of the United States was constitutional.” Also, the
Maryland state tax of $15,000 violated the supremacy clause,
because individual states cannot interfere with the operations
of the national government, whose laws are supreme. The
necessary and proper clause is used today to justify federal
action in education, health care, and welfare.
[A “National” license takes precedence over a “State” license]
Thomas
Gibbons
Gibbons v. Ogden (1824) vastly expanded the powers of Congress through a single
clause in the Constitution: the Commerce Clause of Article I, Section 8. The Court ruled
that under that clause Congress had powers to regulate any aspect of commerce
that crossed state lines, including modes of transportation, and that such regulation
preempted conflicting regulation by the states. Since Gibbons, the Commerce Clause
has provided the basis for sweeping congressional power over many national issues.
The dispute in Gibbons concerned competing claims of rival steamship franchises. The
state of New York gave Aaron Ogden an exclusive license to operate steamboat ferries
between New Jersey and New York City on the Hudson River. Thomas Gibbons,
another steamboat operator, ran two ferries along the same route. Ogden sought an
injunction against Gibbons in a New York state court, claiming that the state had given
him exclusive rights to operate the route. In response, Gibbons claimed he had the right
to operate on the route pursuant to a 1793 act of Congress regulating coastal commerce.
The New York court found for Ogden and ordered Gibbons to cease operating his
steamships; on appeal, the New York Supreme Court affirmed the order. Gibbons
appealed to the U.S. Supreme Court, which reviewed the case in 1824.
Marshall ruled for Gibbons, holding that New York's exclusive grant to Ogden violated
the federal licensing act of 1793. In reaching its decision, the Court interpreted the
Commerce Clause of the U.S. Constitution for the first time. The clause reads that
"Congress shall have power to regulate commerce ... among the several States."
According to the Court, the word "commerce" included not just articles in interstate
trade but also the "intercourse" among the states, including navigation.
Next, the Court examined the clause's phrase "commerce among the several States,"
concluding that the word "among" means "intermingled with.“ Accordingly, Congress'
power to regulate interstate commerce does not "stop at the external boundary
line of each State, but may be introduced into the interior." In other words,
Congress may pass any law that regulates commerce, so long as that commerce is not
wholly confined within a single state, and its power to regulate such commerce is
plenary. Under this interpretation of the Commerce Clause, Congress' clearly had the
authority to regulate the commercial steamboat route between New York and New
Jersey. It was assumed that the licensing act of 1793 did this and that the New York law
in question was in conflict with it. Thus, the New York law was unconstitutional and
New York's injunction against Gibbons was overturned. Thomas Gibbons was free to
operate his steamships.
Gibbons v. Ogden set the stage for future expansion of congressional power over
commercial activity and a vast range of other activities once thought to come within the
jurisdiction of the states. After Gibbons, Congress had preemptive authority over the
states to regulate any aspect of commerce crossing state lines.
Thus, any state law regulating in-state commercial activities (e.g., workers'
minimum wages in an in-state factory) could potentially be overturned by
Congress if that activity was somehow connected to interstate commerce
(e.g., that factory's goods were sold across state lines). Indeed, more than
any other case, Ogden set the stage for the federal government's
overwhelming growth in power affecting interstate commerce into
the 20th century.
Thomas Gibbons
• Objectives:
• 1. What are the obligations of the
National Government to the States
under the Constitution?
• 2. What kinds of aid does the National
Government grant to the States?
• 3. What kinds of aid do the States
provide the National Government?
• The Constitution, in order to preserve the union:
• 1. requires the National Government to guarantee certain
things to the States.
• 2. makes it possible for the National Government to do
several things to the States.
• 1. Guarantee of a Republican Form of Government.
•
•
•
•
•
•
•
A. This means a “representative government”.
B. An example of this was after the Civil War, Congress
declared that several southern States did not have republican
form of governments. They had to ratify the 13th, 14th, and 15th
Amendments and recognize the voting rights of African
Americans.
2. Protection Against Invasion & Domestic Violence.
A. An invasion of any of the 50 States would
be treated as an attack on the U.S. Or this!!!
B. If a State cannot control domestic violence
situation, the U.S. will control the situation.
C. In the 1960s, there were several instances where federal
force had to restore order within a State.
D. The federal government will also aid States
when there are ravages of nature, like floods,
droughts, or forest fires. Like this!!!
• 3. Respect for Territorial Integrity
•
A. The National Government must recognize the legal
existence and the physical boundaries of each State.
• B. Congress must include in both the House and Senate
members chosen in each one of the States.
• 4. Admitting New States – 37 have been admitted.
•
A. Admission Procedure involves the area desiring
statehood petition Congress for admission. They pass an
enabling act requiring the State to frame a constitution,
which is put to a popular vote in that State. If the voters
approve, then Congress passes an act of admission and
the President signs the act.
• B. Conditions for Admission examples are:
•
1.) Utah in 1896 was admitted if it outlawed polygamy.
•
2.) Alaska in 1959 had to agree not to claim title
to lands legally held by any Native American.
 5. Cooperative Federalism – intergovernmental cooperation
for the purpose of joint problem solving. 1930’s to 1970’s
 A. Federal Grants-in-Aid. These are grants of federal money
given to cities or other local units to carry out their functions.
There are more than 500 programs in education, mass transit,
highway construction, health care, on-the-job training, etc.
Most carry “strings attached” [kind of like “bribery”, such as:
 1.) use the funds only for the purpose specified,
 2.) make its own contribution, often of an equal amount,
 3.) set up an agency and procedures to manage the grant, &
 4.) obey the federal guidelines for which the aid is given.
 B. Block Grants. These are grants to State and local
governments with more broadly defined purposes and fewer
strings attached, so States had more power.
 C. Revenue Sharing. From 1972-1987, Congress gave $83
billion to the States & other government units with virtually no
strings attached. Fell victim to the large budget deficits of the 80s.
•
Stated issue: “Interstate Commerce Power”
•
Real Issue: FDR’s economic policies
•
“Switch in time that saved nine,” Justice
Owen Roberts (in West Coast Hotel v.
Parrish) joined a 5-4 majority opinion creating
an expansive view of federal legislative power
The national government would ensure State cooperation
with federal policies by offering grants-in-aid.
2005 Grants broken
down by research field.
Block grants are given
to States for general
purposes and allow
state officials greater
discretion over how
funds will be spent.
Categorical grants are given
to States for more specific
purposes and most of the
discretion remains in the
hands of federal officials
and officeholders.
1960
2006
Health 3%
Ed. & Training 8%
Transportation
and Highways
43%
Medicaid
43%
Income
Security
21%
Income Security 38%
Transportation
& Highways
10%
Community &
regional
development
5%
The New Deal was the beginning of Cooperative
[Shared] Federalism [1930’s-] after over 100 years
[1800’s -1930’s] of Dual Federalism.
The New Deal set forth a program that was dictated at the
national level but carried out at the state level.
The new legislation included massive job programs
that provided work for unemployed Americans.
Other programs, like Aid to Families with
Dependent Children (AFDC) & Social Security,
offered assistance to people who could not work.
In 1937, the Supreme Court threw out the old distinction
between interstate and intrastate commerce, giving the
national government more power.
Cooperative Federalism meant the States & federal
government came to be seen as partners.
As State and local governments came to depend on
grant-in-aid support, the national government further
intervened in state government decision-making
by threatening to withhold such grants. This is
also known as “COERCIVE FEDERALISM.”
To regulate speed limits within States, the national
government threatens to withhold federal
transportation dollars thus “coercing” states to
comply with federal mandates.
In 1984, the federal government
denied highway funds to
States that failed to raise
their drinking age to 21.
What Wallace said: “The
unwelcomed, unwanted, unwarranted
and force-induced intrusion upon the
campus of the University of Alabama
today of the might of the Central
Government offers frightful example of
the oppression of the rights, privileges
and sovereignty of this State.”
What Wallace meant:
• “Segregation now, segregation
tomorrow, segregation forever.”
• Later in his career, Wallace sought African American
votes and said, “I was wrong, those days are over.”
The waning in some respects of Franklin Roosevelt’s “New Deal” coalition and
programs sparks a counter-federal trend, known as NEW FEDERALISM,
that begins to return discretion to the State and local governments.
The “new federalism” trend of returning discretion to the states began in the
executive branch as the Nixon, Carter, and Reagan Administrations gave
States a larger role in administering federal policies thru “block grants”.
The Republican takeover of Congress after the 1994 elections led to a series of
policies where the federal government “devolved” power to the states.
Welfare reform is a good example of such “devolution.”
In United States v. Lopez (1995) and United States v. Morrison (2000), the
Supreme Court reversed its course by restricting its interpretation of
what constituted “interstate commerce” to justify federal government
involvement in the States.
“We would have to pile inference upon inference in a manner that would
… convert congressional authority under the Commerce Clause to a
general police power of the sort retained by the States. Admittedly,
some of our prior cases have taken long steps down that road …, but
we decline to proceed any further.” --Chief Justice William Rehnquist,
writing for the majority in United States v. Lopez (1995)
•
•
The Claim: a desire to devolve [“devolution”]
power to the states-- "the federal government
did not create the states, the states created
the federal government.“
The Real Issue: Cutting Government
Spending
Definition: 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.
[$460 billion in grants every year]
Diversity in Public Policy: State Welfare Benefits
.
Because the federal system allocates
major responsibilities for public policy
to the states, policies often vary in
different locations. This figure shows
that the emotionally charged issue of
welfare, different states have adopted
quite different policies, ranging from
$631 per month for a family of three
in Alaska to $154 in South Carolina.
*Generous welfare benefits can strain a state’s treasury by
attracting poor people from states with lower benefits.
Because the federal system allocates major responsibilities for
public policy to the states, policies often vary with the different
views of the population in different locations. The differences
among public policies are especially dramatic in the criminal
justice system.
A conviction for first-degree murder in 38 states may well
mean the death penalty for the convicted murderer. In 12 other
states and the District of Columbia, first-degree murderers are
subject only to a maximum penalty of life behind bars.
Some people see diversity in public policy as one of the
advantages of federalism. Others may argue that citizens of the
same country ought to be subject to uniform penalties.
So, should “whether you live” depend on “where you live”?
The Downside of Diversity: spending on Public Education
*New York spend an average of $12,408 for each child in the
public schools; in Utah, the figure was $5,556.
Diversity in Public Policy:
State Welfare Benefits
Fiscal Federalism: The Public Sector and the Federal System
• October of 2003, President George
W. Bush’s Administration announced
a new fiscal federalism plan,
proposing to turn “at least six
existing federal programs serving
low-income families - Medicaid,
housing, workforce development,
child protection, transportation,
and Head Start - into block grants,”
• Block grants allow the states to
have a great deal of flexibility in
spending money transferred to
them from the national government.
• February of 2004, President Bush made an
announcement at the White House that the
“Defense of Marriage requires a
constitutional amendment.”
• A Constitutional Amendment would take
the tradition power of the States to regulate
family law and make it a national power.
• Categorical grants, giving
the national government more
influence over the spending of
federal aid to the States.
• Oppose a constitutional
amendment to ban it,
maintaining the issue should
be left to the States.
• 5.
Other Forms of Federal Aid.
•
•
A. FBI’s extensive help to State and local police.
B. “lulu payments” – federal monies that go to local
governments that have large federal landholdings. This money
is in “lieu of” [take the place of] property taxes the local
governments cannot collect on the federal land.
• C. The army and air force train each State’s
National Guard.
• 6. State Aid to the National Government.
• A. State & local election officials conduct national elections.
• B. States process aliens into citizens, called naturalization.
• C. State and local police pick up those who commit federal
crimes.
 Proposal to return social and economic programs
from the federal government back to the States.
 The huge national economic programs during the
Depression and the huge effort to fight World War II
gave the national government great new powers.
 This weakened the federal system. What we saw in
Washington was the growth of hundreds of new
government agencies with huge new bureaucracies.
 Local officials began looking to Washington for
solutions for almost everything. This was something
new in America.
 Ronald Reagan tried to reverse this. His policies
restored power to the States and cities, & reduced
the power of the central government in Washington.
DEVOLUTION – returning power to the
States.
Devolution was the effort to transfer responsibility for many public
programs [welfare, health care, & job training] from the federal
government to the States.
Advantages
Disadvantages
1. Put Power “Closer to the
People”
2. Innovation
3. Efficiency
4. Traditional interpretation
of the states’ power to
regulate health, welfare
and safety
1. Fiscal Responsibility of
Congress
2. Oversight
3. “Irresponsibility” of the
States
4. Need to accomplish
national goals with
federal dollars
Administratively, the devolution of welfare has triggered second-order devolution,
a flow of money and power from the States to the local governments, and thirdorder devolution, the increased role of non-profit organizations and private
groups in policy implementation.
• Up until the 1930s, the federal government’s role was
limited and restricted by the Supreme Court.
• From the mid-1930s to the mid-1960s, Cooperative
Federalism created a partnership between the national
government and the States.
• Starting in the mid-1960s to the mid-1990s, national
government began to be overly dominant in the federal
system.
• The Reagan economic policy limited the federal fiscal
role during the 1980s.
• The Republican Congress that took office in 1995 made
some effort to restrain the use of unfunded mandates
and reformed the welfare system.
• Federal Grants-in-Aid began to grow again in the 1990s.
• In the mid-1990s, the Supreme Court began to reassert
limits on national power.
• Lately, we’ve had competitive federalism where all
88,000 governments compete with each other over ways
to put together packages of services and taxes.
 Objective: How do several of the Constitution’s




previsions promote cooperation between and among the
States?
1. Interstate Compacts. There are over 200 agreements
between States and foreign countries. These compacts must
have the consent of Congress. These first two compacts involve
all 50 States.
A. Compact for the Supervision of Parolees and
Probationers
B. Compact on Juveniles allows sharing law-enforcing data.
C. Compacts between States on conservation of water, oil,
wildlife, and fish; forest fire protection; stream and harbor
pollution; tax collections; motor vehicle safety; & the licensing
of drivers.
• 2. Full Faith and Credit. Article IV, Section 1 of the
Constitution says, “Full faith and credit shall be given in
each State to the public acts [laws], records, and judicial
proceedings [court action outcomes] of every other State.”
• A. Legal papers in one State are normally valid in another.
• B. Criminal convictions in one State is also valid in another.
• C. Gay marriages in VT & MA are “civil unions” but other
States don’t have to recognize same sex “civil unions”. [1996]
•
1.)Two Exceptions. The “faith” clause applies only to
civil matters, not criminal matters. One State cannot enforce
another’s criminal law. Also, a divorce can be granted only to
a resident of the State that granted it. Another State cannot
grant a divorce to a resident of another State.
•
2.) Residents outside of Nevada who get
a “quickie divorce” there can be convicted
of the crime of bigamous cohabitation.
• 3. Extradition. Sending escaped suspects back.
• The Constitution says, “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.”
• In 1987, the Supreme Court overturned an 1861 ruling, saying
in Puerto Rico v. Branstad, that the federal courts can order
an unwilling governor to extradite a fugitive.
• 4. Privileges and Immunities.
• The Constitution says, “The citizens of each State shall be entitled to
all privileges and immunities of citizens of the several States.”
• Or, the resident of one State cannot be discriminated in another.
• That is, he can pass through or reside in any other State. He
can use their courts, make contracts, buy, own, rent and sell
property, and marry in that State.
FEDERALISM’S
CHALLENGE:
National, state and
local governments
must overcome their
natural conflicts to
work together to meet
terrorist threats.
SEPARATION OF
POWERS CHALLENGE:
The legislative,
executive, and judicial
branches must
overcome the natural
struggle between their
various “ambitions” to
act collectively.
Basic National Powers
• Delegated powers: expressed, enumerated, implied, and inherent in the
•
•
•
Constitution. These are found in the Preamble, Article I Section 8, Article II, Article III,
Article IV Section 4, and Article VI. Examples include:
A. Treason
B. Counterfeiting
C. Disrupting postal service
D. Issues of interstate trade
Interpretations by the Supreme court. For example: Marbury v. Madison, 1803
and McCulloch v. Maryland, 1819.
Rights incorporated from the 14th Amendment. Incorporation is the concept of
federal rights being applied to State rights minimums. The key phrases used in most
of such cases are the 14th Amendment requirements that States may not “deprive
any person of life, liberty, or property without due process of law: nor…the equal
protection of the laws.”
Issues made federal by acts of Congress include:
A. Kidnapping
B. Crossing State lines with intent to commit crimes
C. Threatening or attacking federal officials
D. Violating the civil rights of citizens
Basic State Powers
• Reserved to the States: conduct elections, select local officials, and
select electors
• Rights under the 10th Amendment
• Traditional rights held by Sates. Examples include:
A. Business licenses
B. Marriage licenses
C. Legal practice licenses
D. Professional licenses
E. Civil laws not involving federal issues
F. Criminal laws not made federal
G. Educational rules
1789-Civil War Dual federalism is dominant. States can define full citizenship.
Specific Court cases are used to define federal authority over
trade, interstate commerce, and banking.
Civil War
The 13th, 14th, and 15th amendments take from the States the
Amendments rights to allow slavery, define levels of citizenship, and to stop
[1860s]
black men from voting.
Post Reconstruction States regain authority over status of citizens in areas of voting &
1876-early 1900s segregation, formalized in the case of Plessy v. Ferguson, 1896.
New Deal & WWII Federal authority over commerce is expanded during the New
[1930s & 1940s]
Deal & legislation after the war. Ex: The Employment Act of 1946
Civil Rights Era With Brown v. Board of Education, the Civil Rights Act of 1964,
[1950s -1970s] and The Great Society Programs, the federal authority over
civil liberties and public welfare is expanded.
Devolution Era With election of Reagan in 1980 & Republican majorities in Congress
[New Federalism]
in 1994, efforts have grown to limit federal controls & influence. More
[1980s-Present] control is given to States. More emphasis is being given to private
companies in areas of schooling and federal assistance..
• Federalism is a basic characteristic of
American politics
• Since the beginning, federalism has
been used as an rationale for preferring
one policy over another
• Since the beginning, the real issues
have been something other than
federalism!
When they say the issue is federalism, the
issue is rarely federalism.
To stop the terrorists,
we need to account for
the money. But there
are so many blind
alleys, false leads, dead
ends, and detours, I’m
afraid…
It’s
hopeless.