Federalism National power vs State: reoccurring debate

1. FederalismNational power vs State:reoccurring debate A political system in which power is divided and shared national/central gov. & states/subnational units limits the power of government. It is not easy to draw a line between what is state and what is federal.

2. Founding Fathers Thinking • Created a compromise between two failed governments: Articles of Confed. & tyrannical system of Great Britain • Federalism based on sovereignty of the people • Delegate power to central government • Delegate power to state government

3. Arguments for Federalism • Prevention of tyranny • Shifting allegiance, limiting power • Provision for increased participation in politics • Diverse policies are needed to accommodate a diverse population • economically & socially • The use of the states as testing grounds or laboratories for new policies and programs • Welfare • Suffrage • education

4. Strengths of Federal System • Strong national government to meet national needs • Currency • Tax • Declare war etc. • Preserves state rights • Marriage • Gun laws • Death penalty • education

5. Local action in local concerns • Gambling • Illegal immigrants – AZ • Legalization of marijuana Medicinal / recreational • Keeps government close to the people • Local ordinances • State laws • National action in National concerns • Security • Engaging troops/war • Immigration • See a conflict??

6. Sometimes state laws become federal laws -Abortion / Capital Punishment • EMTALA-emergency medical treatment & labor act • Patient access for emergency treatment regardless of ability to pay – 1986 • Impetus for medical insurance legislation • Medicinal Marijuana?? / Recreational??

7. Weaknesses • Expensive • Inefficient • Too much bureaucracy • Gridlock • Federal blackmail • $ given to states under certain circumstances • No Child Left Behind • .08 drinking level • Drinking age • Categorical Grants - grant in aid, made for specific, closely defined purpose.

8. Forcing a state to do something through legislation • Clean Water Act • NCLB • Known as unfunded mandate • States receive no $ to meet the demands • Americans with Disabilities Act • Poor regions are unable or unwilling to provide the same services as wealthy ones • Education • Social services

9. Roots of the Federal System • National Powers • Enumerated • 17 powers granted in A1, S8 • Powers exclusive to National Government • Figure 3.3, p. 101 in textbook • Coin money, regulate commerce declare and conduct war • Necessary and Proper Clause • A1, S8, clause 18 • Powers necessary to carry out enumerated powers • Increases national power • These powers are known as implied powers

10. Supremacy Clause • A6, S2 • Solves issues between state and federal governments • “the laws of the United States, and its treaties are to be supreme law of the land” • McCulloch v Maryland (1819) • Gibbons v Ogden (1824)

11. State Powers • Often called State Reserve Powers or Police powers • A1, A2, A4, and 10th Amendment • P. 101, figure 3.3 in textbook • Elections, amendments to Cons., estab. local govt. • Privileges & Immunities Clause A4 S2 • Guarantees citizens of each state are afforded the same as citizens of all other states • No unreasonable distinctions - NJ requiring state employees to reside in state or lose their jobs? • NJ First Act 2011

12. Relations among the States • Framers wanted a united country • Constitution designates the Supreme Court arbiter of state disputes - A3 S2 • A4: Full Faith & Credit “. . .given to each State to the public Acts, Records, and judicial Proceedings of every other State.” • Wms. vs. N. Carolina – denied full faith and credit for quickie divorces.

13. 10th Amendment • States retain powers not enumerated in the Constitution as belonging to the national government, and not denied to the states • US v Lopez: Carrying a weapon within a school zone is a crime punishable by the state, not Federal authority - general police power held only by the states under the 10th amendment

14. 9th & 10th Amendments • Why included in Bill of Rights? • What do these amendments protect? • Issues today not designated by the Framers?

15. Concurrent Powers • Powers shared by the national and state governments • Never tried before • Same power, own set of officials – each level would also be supreme in some spheres • Taxing power • Borrow $ • Establish court systems • Supremacy Clause would not be able to interfer states ability to tax, borrow $, estab. Courts • Figure 3.3, page 101

16. Powers Denied • National Government A1, S9 • Suspend Habeas corpus (rebellion or invasion) • Pass bill of attainder, ex post facto laws • Denies gov. authority to take arbitrary actions affecting constitutional rights and liberties. • Tax items exported from any state • Give preference to ports of one state over another

17. Powers Denied • States A1, S10 • Enter into treaties, alliances • Coin money • Pass ex post facto laws • Enter into compacts with other states or foreign powers • consent of Congress for interstate • Approx 200 in force today • Engage in war

18. Pre John Marshall • Increased Nationalism • Articles of Confederation inadequate • US federal system devised • Bill of Rights added – 10th Amendment • Madison & Jefferson write legislation giving states right to void federal legislation they judge unconstitutional • Sedition Act of 1798 • Crime to criticize gov of US

19. Marshall Court: 1801-1835 • John Marshall increased power of Federal Gov • Shaped the court decisions and raised its stature • Served as Chief Justice for 35 years • Marbury v Madison (1803) – established judicial review • McCulloch v Maryland (1819) • Gibbon v Ogden (1824) • Favored strong government action • Supported supremacy of the federal government over state authorities • Why does Congress have the power to create a national bank?

20. Period of Dual Federalism • Practice of allowing states and nation to exercise power separately in areas of concern to them • Concurrent power / Dual Federalism • Period of Dual Federalism [1835-1932] • Federal and state governments are co-equals, each sovereign in own sphere- layered cake • Narrow interpretation of elastic clause (implied powers) • National Government should not exceed its constitutionally enumerated powers • Separate and equal

21. Main Elements of Dual Federalism supreme in its own “layer” • Necessary and Proper clause (Elastic Clause) • Should be narrowly interpreted • National government rules by enumerated powers only • National and States are sovereign in their own spheres – layer cake federalism • Gov powers are separate • Relationship between nation and state is characterized by tension rather than cooperation.

22. Federal government has jurisdiction if clearly expressed in the Constitution • Money • Foreign affairs • Tenth Amendment states all other powers are, and should be, reserved to the states • States have greater role and powers • Public education • Race relations

23. Strong Emphasis on States RightsTaney Court - different notion about Federalism • Dred Scott decision • Sued to be free under Missouri Compromise • Only citizens of the US could sue in federal court • Scott was property • S.C. declared Missouri Compromise unconstitutional • limiting federal authority re: slavery • Declared Congress did not have the authority to bar slavery in the territories • What view of federalism is applied in the Dred Scott decision?

24. Civil War - Continuation of Dual • Federal Government/Constitution begin to reign • National Government grew in size and power • Imposed its will on states through the Civil War Amendments - 13th, 14th, 15th • Court allowed Federal Gov. more power regarding economy - regulating commerce • Interstate Commerce Act • Sherman Anti-Trust Act • SC also supported states police power laws • Plessy v Ferguson (1898) separate but equal was constitutional – Jim Crow laws 1876-1954 • Civil rights and voting cases became state matters-13th, 14th, 15th – federal laws – 10th amendment

25. Power shift from states to Stronger National Government - the beginning of change • Civil War: states threaten to secede, national gov steps in • 14th Amendment (1868): due process and equal protection • 16th Amendment (1895): authorized Congress to mandate a national income tax • 17th Amendment (1913): made senators directly elected by the people • Baker v Carr: SC forced states to redraw voting district lines – one man one vote

26. Cooperative FederalismStrong active gov :1933~1980’s • Federal Government intervenes or assists in some areas traditionally left to the states • Education / Healthcare / Civil rights • Began with the New Deal in the 1930’s • Sweeping national programs • Supreme Court eventually confirmed FDR’s right to intervene • Layer cake Federalism to Marble cake federal. • No clear distinctions • National & state work together-jointly

27. Cooperative Federalism • broad interpretation of • the necessary and proper clause (elastic clause) • 10th Amendment • Supremacy clause • Commerce clause • Elements of Cooperative Federalism • National and state agencies work together • National and state governments routinely share power • Power not concentrated in any one area • Grants in aid: categorical, block, revenue sharing • Strong, active national government • Known as marble cake

28. Differences between Dual and Cooperative Federalism • Interprets the necessary and proper clause • Dual: narrow interpretation of elastic clause (implied power) and states’ rights • Cooperative: broad interpretation of necessary and proper clause and what the Tenth Amendment actually states • Conservatives favor layer-cake • Liberals favor marble cake • Why power shifted? (1930’s) How? • Commerce clause A1S8cl3, elastic clause A1S8cl18 interpretations – narrow or broad

29. Brown v Board of Education 1954 • Supreme Court mandated school integration - Eisenhower enforced • LBJ and the “Great Society 1964-68 • programs to fight poverty • programs to fight civil rights violations • Increased federal spending with strings attached • Picket fence federalism: crosses gov lines • Connects officials who work at different levels • Intergovernmental relations to address interest of lobbyists and groups inside and outside gov.

30. Nixon and 1970’s • Clean Air and Clean Water Acts - direct orders • Federal programs funded through “block grants • States have some discretion over spending • Revenue sharing 1972-87 • Money for state and local programs with virtually no strings attached. • Congress had little control over these grants, ended the program

31. Categorical grants – • method to redistribute income Specific purposes • Little independence on how money is spent • Two types: Can be political in Congress • Formula grants – formula used to determine who is eligible and how much is granted • State per capita income, number of school age children, number families below poverty line etc • Project grants – grants awarded on the basis of competitive applications – AIDS, homelessness • Block grants: broad general purposes • More freedom with allocation of funds

32. New Federalism: Devolving Power to the States 1980’s-2001 • Reagan Revolution • Took steps to shrink the size of the federal government – lowered federal taxes • Favored programs administered by state • Used block grants with strings attached • what kind of powers should be held by the states alone? Powers not delegated to the national gov. • Consequences: higher state taxes to pay for services that were once shared.

33. Declining funds lead to competition for $-state • local gov’s hired lobbyists (intergovernmental lobby) • led to state government deficits - unfunded mandates Americans with Disabilities Act clean air / water act • US v Lopez strengthened state rights • Gun control on school property does not fall under federal authority-narrow interp. Commerce clause • Clinton declares era of big government over resp. of welfare to states using block grants • Role of national gov. in secondary education? • Dept of Ed: commerce clause? Elastic clause? • A1 S8 Cl 3 , A1 S8 CL 18

34. 9/11 Era - Reversal • Greater federal control – attack on US soil forced Pres Bush to increase size of gov • Law enforcement - Homeland Security, TSA • Education • NCLB - increased fed requirements and state costs • Security • Patriot Act / habeaus corpus rights of citizens & non. • War on Terrorism • Deficits • Disaster Relief - Katrina, tornados, Irene, Sandy, Irma, Harvey, Marie, Nate, CA fires • FEMA

35. Supreme Court - Return to Nationals’ Rights? • 1980’s to 2001 - state power expanded • Trend reversing – p.118 chart • Webster v Reproductive Health Services 1989 • Planned Parenthood of SE PA v Casey 1992 • restricted federal powers – increase role of states • Bush v Gore 2000 (?) • AZ SB 1070 • Affordable Care Act • Restricted state powers increase role of the fed. • Medicinal / Recreational Marijuana?

36. New New Federalism orSymbiotic Federalism • Little attention paid to states during war on terrorism • Room for states to address own problems • AZ SB1070 • CA prop 8 – eliminate same sex marriages • Legalization marijuana • Sanctuary cities • Transgender bathroom laws

37. What direction are we going in? • Is the Supreme Court deciding the direction? • What would out National government look like today if it possessed only the enumerated powers? • What if founders designed a unitary gov? http://knowledgecenter.csg.org/kc/content/supreme-court-hears-number-significant-federalism-cases • Christie vs NCAA – 2017-18 SC docket