Federalism

1. Federalism

2. Forms of Government Based on the Distribution of Power • Unitary: All of the power resides in the central government. - North Korea, Cuba • Confederation: All of the power resides with the state or local governments. - Articles of Confederation, C.S.A. • Federalism: Power is shared between thecentral and state, local or other governments.- United States

3. Three Essential features of Federalism • There must be a provision for more than one level of government to act simultaneously on the same territory and on the same citizens. • Each government must have its own authority and sphere of power, though they may overlap. • Neither level of government can abolish the other.

4. Advantages of Federalism • Overcomes weaknesses of the Articles of Confederation. • The states, operating as sovereign units, have closer ties to the electorate than the national government does. • Fifty different sets of rules allow policy experimentation and greater flexibility. • Experimentation allows a more efficient pursuit of national policy goals.

5. Disadvantages of Federalism • Multiple political actors can promote duplication and confusion. • Coordination becomes difficult because states operate as independent and sovereign units. • Fifty different sets of rules and regulations not only increase complexity but also create potential for inequality in services and policy across states.

6. The Evolution and Development of Federalism • The allocation of powers in our federal system has changed dramatically over the years. • The Supreme Court in its role as interpreter of constitution has been a major player in the redefinition of our federal system. • McCulloch v. Maryland (1819) • Gibbons v. Ogden (1824) • Dred Scott v. Sandford (1857)

7. American Federalism: 1776 to Present • Pre-Federalism Period: 1776 – 1789 • Dual Federalism Phase I: 1789 – 1865 • Dual Federalism Phase II: 1865 – 1901 • Cooperative Federalism: 1901 – 1960 • Creative Federalism: 1960 – 1968 • Contemporary Federalism: 1970 -

8. Pre-Federalism: The Critical Period and The “Disunited States”1776 – 1789

9. The Roots of the Federal System • The Framers worked to create a political system that was halfway between the failed confederation of the Articles of Confederation and the tyrannical unitary system of Great Britain. • The three major arguments for federalism are: • the prevention of tyranny; • the provision for increased participation in politics; • and the use of the states as testing grounds or laboratories for new policies and programs.

10. Dual Federalism Phase I: 1789 – 1865 The concept of dual federalism is the idea that the national and state governments were equal partners with separate and distinct spheres of authority. There existed little collaboration between the national and state governments.

11. State - Centered Federalism (Jefferson)vsNation-Centered Federalism ( Hamilton)

12. The Powers of Government National Government - one of delegated powers. 3 types of delegated power: - enumerated (expressed) - implied - concurrent

13. National Powers • Enumerated powers: Specific grants of authority • Implied powers: Federal government has the power to pass all laws “necessary and proper” to provide for the “general welfare” of the United States. • National supremacy clause: Federal law trumps state law; “preemption”

14. Enumerated powers - literally expressed Article I, section 8 • lay and collect taxes, duties, and imposts • provide for the common defense and general welfare of the United States • regulate commerce with foreign nations, and among the states, and with Indian tribes • coin money and regulate the value thereof • declare war

15. Implied Powers- not literally stated but reasonable implied • Article I, Section 8, clause 18 “necessary and proper clause” or elastic clause • The necessaryandproper clause has often been used to expand the powers of the national government.Example: McCulloch v. Maryland

16. Concurrent powers- Powers shared by the national and state governments: thepower to tax

17. Reserved Powers or State Powers (police powers) • Most of State powers come from the Tenth Amendment that says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

18. State Powers • 10th Amendment gives all powers not designated to the federal government nor denied to the states to the states and the people. • 14th Amendment says that no state shall abridge upon the privileges or immunities of any citizen and that each state must provide due process and equal protection for all citizens.

19. Denied Powers • Article I, section 9 lays out powers denied to the central government. • For example: give preference to ports of one state over another • Article I, section 10 lays out the powers denied to the states. • For example: enter into treaties, alliances, or confederations

20. The Supremacy Clause Article IV says that federal law is supreme. (So if the states and federal government argue, the feds win.)

21. McCulloch v. Maryland (1819) • McCulluch was the first major decision by the Supreme Court under Chief Justice John Marshall about the relationship between the states and the national government. • The Court upheld the power of the national government and denied the right of a state to tax the bank. • The Court’s broad interpretation of the necessary and proper clause paved the way for later rulings upholding expansive federal powers.

22. Gibbons v. Ogden (1824) • The Gibbons case centered on the conflict between the states and the powers of Congress. • Could New York grant a monopoly concession on the navigation of the Hudson River? The Hudson River forms part of the border between New York and New Jersey and the U.S. Congress also licensed a ship to sail the Hudson. • The main constitutional question in Gibbons was about the scope of Congress' authority under the Commerce Clause. • In Gibbons, the Court upheld broad congressional power over interstate commerce.

23. Doctrine of Nullification (1828) • South Carolina Exposition – Calhoun’s contention that the national government was but a servant of the states. • 1830 - Webster / Hayne Debate on the Doctrine of Nullification. • 1832 – South Carolina’s Nullification Ordinance.

24. Worcester v. Georgia (1832) The Marshall court had previously ruled in Cherokee Nation v. Georgia (1830) that Indian tribes in the United States did not have the status of foreign nations (famously describing them as "domestic dependent nations"); here the court ruled that the Cherokee nation was a "distinct community" with self-government, "in which the laws of Georgia can have no force". This ruling established the doctrine that the national government of the United States—and not individual states—had authority in Indian affairs.

25. Dred Scott v. Sandford (1857) • The Supreme Court articulated the idea of concurrent powers and dual federalism in which separate but equally powerful levels of government is preferable, and the national government should not exceed its enumerated powers. • The Taney Court held that Mr. Scott was not a U.S. citizen and therefore not entitled to sue in federal court. • The case was dismissed and Scott remained a slave. • Taney further wrote that Congress had no power to abolish slavery in the territories and slaves were private property protected by the Constitution.

26. Dual Federalism Phase II: 1865 – 1901 Although the era of Dual federalism continued, this period was marked by erratic but increasing presence of the national government into areas that had previously been the purview of the states such as the power to regulate business and the economy as well as civil rights.

27. Dual Federalism Phase II: 1865 – 1901 • Due Process and Equal Protection Clause of the 14th Amendment. - Besides protecting newly freed slaves from state actions it was also used to constrain unfair business practices. • The Sherman Anti-Trust Act (1890). • The Interstate Commerce Act (1887). • Plessy v. Ferguson (1890). • Bradwell v. Illinois (1873).

28. Cooperative Federalism: 1901 – 1960 • This period marked an era of greater cooperation and collaboration between the various levels of government. • 16th Amendment – Income Tax. • The New Deal and FDR, 16 on-going projects established. • States’ Rights Reconsidered - Brown v. Board of Education, Topeka, Kansas

29. Cooperative Federalism in action • Grants-in-aid • Categorical grants: “Here’s some money, but you do exactly what I tell you to do with it.” • Block grants: “Here’s some money, spend it how you like as long as you it relates to what I want.” • General revenue sharing grants: “Here’s some money, do whatever you want with it.” • Unfunded mandates: “I don’t have the money, but you still gotta do exactly what I tell you to do.”

30. Creative Federalism: 1960 – 1968 • LBJ’s Creative Federalism was a major departure from the past. It further shifted the power relationship between governmental levels toward the national government through the expansion of grant-in-aid system and the increasing use of regulations. • 1962 – Baker v. Carr. Reapportionment and gerrymandering. • 1964 – The Great Society programs used states and local governments as agents to implement national policies and the volume of federal regulations increased.

31. Contemporary Federalism: 1970 - This period has been characterized by shifts in the intergovernmental grant system, the growth of unfunded federal mandates, concerns about federal regulations, and continuing disputes over the nature of the federal system.

32. New Federalism: Phase I • Attempts by the Nixon and Ford Administrations to redirect power relations within the federal system. The principal tools were revenue sharing and the consolidation of federal aid programs into six special revenue sharing programs. • The intent was to shift funds, authority, and responsibility to states and local governments in an effort to more effectively manage the intergovernmental grant system.

33. New Federalism: Phase II • President Reagan, rather than attempt to more rationally manage federal aid as was the case in the Nixon Administration, sought to fundamentally restructure the system of governance. • “The federal government did not create the states, the states created the federal government.” • 1981 Omnibus Budget Reconciliation Act consolidated a number of social programs into nine block grants which allowed for greater state and local autonomy and flexibility in the fashioning of local strategies to address federal objectives.

34. New Federalism: Phase III • Clinton Administration’s Reinventing Government Initiative and the House Republicans’ Contract with America were both efforts to rearrange the power relationships in the federal system and sought to greater devolve authority to lower levels of government. • 1988 - Seminole Tribe of Florida v. Florida. • Congressional Term and the Concept of Dual Citizenship. • 1996 - Brady Gun Control Act.

35. Federalism and the Supreme Court • By the 1980s and 1990s, many Americans began to think that the national government was too big, too strong, and too distant to understand their concerns. • The Supreme Court, once again, played a role in this new evolution of federalism.

36. Stages of federalism (cont’d) • New Federalism • Transfer of policy responsibility from the federal government to state governments. • Decrease federal funding while increasing policymaking authority of the states—“devolution.” • Tradeoff between financial dependence and discretionary power

37. Federalism in action No Child Left Behind Act • Problem: • Declining student performance • Solution: • Federal funding requires tough performance standards • Unintended consequences: • Localities forced to make huge investment to implement testing requirements. • Localities suing states, arguing that testing requirements represent an unfunded mandate. • States opting out of federal funds and performance standards.

38. Conclusion • Federalism provides a means for accomplishing both federal and state policy goals. • Federalism offers distinct advantages and disadvantages. • In general, policy responsibility is shifting toward state governments. • However, power sharing relationships between the federal government and state governments vary across time and across issues.

39. Continuity and Change • Federalism as outlined at Philadelphia in 1787 has evolved considerably over time. • Initially, the states remained quite powerful, and the national government was small and weak. • Over time the national government became progressively stronger. • However, we have a Court today that is more interested in reinvesting power in the Tenth Amendment and in the states.