Fundamentals of Federalism

1. Fundamentals of Federalism How the circle and the squares get along

2. DEFINING FEDERALISM • Federalism: a system of government that divides power and sovereignty over a territory between two or more separate governments • The United States has three main tiers: • national government (1) • state governments (50) • local governments (87,000)

4. CONSTITUTIONAL BASIS • Combined the features of a confederacy with features of a unitary government • DIVIDE THE POWER! • Single most persistent source of political conflict b/t national government and states • “national interest” v. “states’ rights” • Loose interpretation v. strict interpretation • Who has the right to legislate?

5. DECENTRALIZATION • Federalism decentralizespower: If no one person holds more power than another, than there is no room for abuse of that power. (Madisonian principle- Federalist #51)

7. IN COMPARISON • Unitary Governments: all power resides in the central government • Confederation: national government is weak and most or all power in hands of components (A of C)

8. FEDERALIST #10 • Separation of powers to safeguard liberties • "Ambition must be made to counteract ambition.” • The only way to counteract the effects of factions is to have more factions

9. POWERS OF GOVERNMENT • Delegated Powers (enumerated powers) – powers given to Fed gov’t by Constitution • Reserved Powers – state power alone (10th amendment) • Concurrent Powers – shared • Prohibited Powers – denied from both

10. RESERVED POWERS • 10th Amendment: Those powers not delegated at National government are reserved to the states

11. IMPLIED POWERS "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.” (Article 1 Section 8 Clause 18)

12. 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 • 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, all of which are delegated powers. “The power to tax is the power to destroy” 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

13. 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.”

14. GIBBONS V. OGDEN (1824) • BACKGROUND • 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 Result – Gibbons won • Expanded national power in all areas of commerce law because nation overruled state in interstate trade issues • Fed Gov’t gets STRONGER

15. US V. LOPEZ (1995) • Commerce clause quiz!!! • 1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school, 12th grader Lopez carried a gun on to the property • Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce” • LIMITED National government power

16. OPPOSING PERSPECTIVES • Hamilton – national government was superior and leading force in political affairs, since the people created it and its laws were the “supreme law of the land” • Jefferson – believed that “the people” were the ultimate sovereigns, and since the states was a result of agreement among the states, the states were supreme over the national gov.

17. HISTORICAL FEDERALISM • Continuing dispute over division of power: • Dual Federalism • supremacy within own spheres • Cooperative Federalism • Expanded role of national government • Creative federalism – New Deal, Great Society • New Federalism • Financial power shift from federal to state control (fiscal federalism)

18. DUAL FEDERALISM

19. SUPREME SPHERES – An Evolution • Constitution was created • Ratification of the Constitution • Bill of Rights added • Chartering of the National Bank • Passage of the Alien & Sedition Acts • Doctrine of Nullification • McCulloch v. Maryland • Passage of the Fugitive Slave Act • Civil War

20. COOPERATIVE FEDERALISM

21. SHARED SPHERES • Roosevelt’s New Nationalism • Wilson’s New Freedom • Passage of the 16th, 17th, 19th Amendments • Roosevelt’s New Deal • Brown v. Board of Education • LBJ Great Society programs • NEW FEDERALISM – fed. gov’t is not an appropriate vehicle for addressing social problems

22. FISCAL FEDERALISM • Fiscal Federalism: pattern of spending, taxing, and providing grants in the federal system

23. GRANTS-IN-AID • Money paid from one level of government to another, 2 major types: • Categorical Grants- target specific purposes and “strings attached.” • 80% of all aid to state and local gov • Preferred by nat’l level • Formula and Project • Ensures state compliance and policy uniformity • Block Grants– given for broad, general purposes and allow more discretion on how the money is spent (ex. Welfare reform) • Preferred by governors

24. MANDATES • A requirement that a state undertake an activity or provide a service • Why would this cause a power struggle? • Often times the states or local gov’ts have to pay the bill of the mandate set by Congress • Americans with Disabilities Act (1990) • Civil Rights Act of 1964

25. (Unfunded) Mandates • Direct orders to state governments to do something. • Little to no funding by the federal government; all or most funding by the state governments. • Examples: • Clean Air Act • No Child Left Behind • Americans with Disabilities Act (ADA)

26. NEW FEDERALISM • DEVOLUTION REVOLUTION • Nixon-Reagan: give states more control • “Our Federalism” - power of the federal government is limited in favor of the broad powers reserved to the states. • Extension of block • Goal: lessen federal domestic spending and give the states more control over spending • Unfunded mandates

27. WELFARE ACT • Personal Responsibility and Work Opportunity Reconciliation Act of 1996

28. FEDERALISM: GOOD OR BAD? • Political power too widely spread??? • James Madison – Federalist #10 • In a large republic one would find the greatest opportunity for all relevant interest to be heard • NOT CLEARLY EXECUTED • Gov’t duties can be split up • Brings gov’t closer to people • National government sometimes catches up to states • Pass laws that attack segregation, regulate harmful economic practices, purify politics, environment • James Madison – Federalist #10 • In a large republic one would find the greatest opportunity for all relevant interest to be heard • NOT CLEARLY EXECUTED