Agenda: 9 /27/ 2012

1. Agenda: 9/27/2012 • Attendance sheet • Review next week • STATE HOUSE TOUR on October 4, 2012 at 1 PM • Exam Study Guide • NYT with Gianna, Richard, and Lisa • Federalism

2. Key Questions on Federalism • What level of government should pay for … • Schools? • Defense? • Health care? • Roads? • What is the Constitutional basis for one level v. another? • Is there a rationale for having some government services supplied locally, others by the states, and still others by the national government? • Despite the Framers’ efforts to keep the national government out of the states’ business, was it inevitable that so many policies once left to the states are now handled by the federal government? • When elected officials from the states challenge national authority, what determines who will have the final say over policy?

3. Kettl • Responsibilities of different levels of government collide — argues federalism is a battle over who does what, causing unending conflict. • AZ and MI challenge federal immigration policy • MA passes health care • Founders: made the states the centerpiece in the name of the country: the United STATES • “We are a collection of states, uneasily united in a single nation.”

4. Katrina • http://www.youtube.com/watch?v=RD0-dvQfARk • http://www.youtube.com/watch?v=IblL_rXpdu8

5. State Budget

6. American Federalism • In a federal system, the constitution divides authority between two or more distinct levels of government. • In the United States the division is between the national (federal) government and the states.

7. Qualifications of Federal Systems • A government must have constitutional relations across levels, interactions that satisfy three general conditions: • The same people and territory are included in both levels of government. • The nation’s constitution protects units at each level of government from encroachment by the other units. • Each unit is in a position to exert some leverage over the other.

8. Qualifications of Federal Systems • The second condition, independence, sets the stage for the third condition, mutual influence. • Independence was the missing ingredient that made the national government impotent under the Articles of Confederation.

9. Qualifications of Federal Systems • Note also that local governments are not a separate level of government. • They are established by the state and do not exercise independent, constitutional authority. • State law establishes their responsibilities and the extent of their discretion over policies.

10. Evolving Definitions of Federalism • Two distinct forms of American federalism have been identified. • Dual federalism • Shared federalism

11. Evolving Definitions of Federalism • Dual Federalism • The simplest possible arrangement. • This type of federalism leaves the states and the national government presiding over mutually exclusive “spheres of sovereignty.” • The nation, however, has never divided authority so neatly.

12. Evolving Definitions of Federalism • From the early days of quite limited responsibility for the national government, nationalization has shifted authority to the national side and away from state governments. • Today the national government has a hand in almost all policies that “concern the lives” of the citizenry. • Dual federalism no longer describes that nature of federal-state relations.

13. Evolving Definitions of Federalism • From the early days of quite limited responsibility for the national government, nationalization has shifted authority to the national side and away from state governments. • Today the national government has a hand in almost all policies that “concern the lives” of the citizenry. • Dual federalism no longer describes that nature of federal-state relations.

14. Evolving Definitions of Federalism • The second and more accurate conception of federalism is called shared (or “cooperative”) federalism. • It recognizes that the national and state governments jointly supply services to the citizenry. • Over the years progressive nationalization has moved American federalism from mostly dual to mostly shared.

15. Evolving Definitions of Federalism • Often the scope and complexity of modern problems mandate a joint, cooperative strategy across states and levels of government. • Pollution does not honor state boundaries, nor does unemployment, inflation, crime, and so on. • Hurricane Katrina • BP Oil Spill in Gulf of Mexico • Complex dilemmas

16. Evolving Definitions of Federalism • Also there are incentives for federal officials, members of Congress, etc., to expand federal government’s reach. • When either logic, need, or desire leads to an expansion of federal authority that the states resist, the critical question becomes: Who gets to decide whether this expansion is legitimate?

17. The Constitution and Federalism:Transformation of the Senate • Greatest victory of states’ righters during the Constitutional Convention was the creation of a Senate whose members were to be selected by the state legislatures. • Thus Senators are beholden to the state legislators.

18. Transformation of the Senate • In the 19th century the equal representation of states regardless of population, combined with the selection of senators by the state legislatures, gave the Senate the motive and means to defend state prerogatives. • In 1913 public pressure forced Congress and state legislatures to ratify the Seventeenth Amendment — rising from complaints that individuals were buying Senate seats with bribes to legislators. • Consequence: diminishment of one of the props of federalism by removing senators’ ties to the state legislature.

19. The Constitution and Federalism:Constitutional Provisions Governing Federalism • Constitution gives national government substantial responsibility for overseeing the integrity of the states as the national government. • All states but the original 13 became states via an act of Congress. • National government defined the boundaries of territories, administered them, and made them states. • States must adhere to republican principles. • Cannot destroy an established state.

20. The Constitution and Federalism:Constitutional Provisions Governing Federalism • Language governing the relationship of the national government to the states runs throughout the Constitution. • Framers worked within a structure of dual federalism. • Attempted to specify boundaries between the two levels of government. • But the end result was a system open to nationalizing forces. • Need to understand why this occurred

21. The Constitution and Federalism: The Supremacy Clause • “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof [that is, in keeping with the principles of the Constitution] … shall be the supreme law of the land.”

22. The Constitution and Federalism: The Supremacy Clause • The provision of the Constitution with the most profound implication for modern American federalism is the so-called supremacy clause in Article IV. • This clause does not give the federal government free license. • Prohibits certain kinds of federal activities • Original intent was to have the national government prevail over states when both were acting in a constitutionally correct manner.

23. Looking Ahead: What is Coming Up next week and beyond Next week: Week 4 Week: 4, Tuesday, 9/25/2012 Federalism Reading: LAP, Ch 3, 88-134 Week: 4, Thursday, 9/27/2012 Federalism Today Reading: PPA, Section 3-2 Kettl, 80-103 Blackboard Reading Quiz 3 New York Times Op-Ed 2 Week: 5, Tuesday, 10/2/2012 Political Parties as Institutions and Review for Midterm Reading: LAP, Ch. 12 Prepare for Mid-Term Week: 5, Thursday, 10/4/2012 MIDTERM

24. The Constitution and Federalism: The Powers of Congress • Article I, Section 8 lists powers of Congress (enumerated powers). • These powers are important to federalism because they create jurisdictional boundaries between the states and the national government. • Also gave the national government specific authority that would allow it to deal with problems the states could not affectively address.

25. The Constitution and Federalism: The Powers of Congress • The elastic clause (necessary and proper clause) • Put in place to deal with contingencies requiring future national intervention. Also eventually undermined the restrictive purpose of the enumerated powers. • Some powers are broadly stated and thus helped open up state policy to national intervention. • Example: the commerce clause.

26. The Constitution and Federalism: The Tenth Amendment • “The powers NOT delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” • Given the fear of tyranny as articulated by the Anti-federalists it is not surprising that Madison had to promise the addition of a bill of rights as an incentive for ratification. • Many members of the first Congress wanted protections for the states as well as for individual citizens within these rights. • Tenth Amendment reserves to the states (or the people) all powers not directly given to the national government.

27. The Constitution and Federalism: The Tenth Amendment • The Tenth Amendment offers the most explicit endorsement of federalism to be found in the Constitution. • Yet despite its plain language, the Tenth Amendment has failed to play a major role in fending off national authority. • Why? • The powerful combination of the supremacy and the elastic clauses have kept the Tenth Amendment from fending off federal/national authority.

28. The Constitution and Federalism: Interpreting the Constitution’s Provisions • Sweeping language with which the Constitution variously endorses national power and states’ rights has given politicians easy openings to interpret the Constitution according to their own political objectives. • The “wall” between federal government and the states is not as impregnable as the Framers had supposed.

29. The Constitution and Federalism: Interpreting the Constitution’s Provisions • The Framers envisioned the Supreme Court as the referee of disputes between the national and state governments. • When these disputes were resolved, they created powerful precedents. • Allowed national policy to develop free of state prerogatives.

30. The Constitution and Federalism: Interpreting the Constitution’s Provisions • McCulloch v. Maryland(1819) • Protected the national government from actions of the state. • Gibbons v. Ogden (1824) • Only Congress possesses authority to regulate commerce. • Gitlow v. New York (1925) • States could not abridge the free speech rights of their residents. • Near v. Minnesota (1931) • Applied the First Amendment’s protections of a free press to the states. • Palko v. Connecticut (1937) • States could not violate rights without which “neither liberty nor justice could exist.”

31. The Constitution and Federalism: Interpreting the Constitution’s Provisions • Griswold v. Connecticut (1965) • Court held that a state prohibition on the use of contraceptives violated the inherent right to privacy of its residents. • Roe v. Wade (1973) • Ruled that states could not impose strict limits on abortions as had existed in the Texas law that was scrutinized in Roe v. Wade.

32. The Constitution and Federalism: Interpreting the Constitution’s Provisions • These cases demonstrate that the judiciary has often been as aggressive as Congress in expanding the national authority over the states. • Nationalization did not just happen. • Reflects political decisions; competition of interests. • Civil War at its heart was a conflict involving federalism.

33. The Logic of Nationalization • How does policy become nationalized? • Generally, two scenarios: • Realities of collective action (problem solving). • Purely political considerations (i.e., opportunities for political advantage).

34. http://www.slideshare.net/darkyla/electoral-college-10778363

35. Federalism • http://www.youtube.com/watch?v=4ph2Ix85b18&feature=relmfu • http://www.youtube.com/watch?v=Pf5m0AmA9uU

36. Key Questions • Is there a rationale for having some government services supplied locally, others by the states, and still others by the national government? • Despite the Framers’ efforts to keep the national government out of the states’ business, was it inevitable that so many policies once left to the states are now handled by the federal government?

38. Externality • Pollution and climate change are policy challenges that cross state borders • Environmental damage done represents an externality — an effect felt by more people than just the one who chose to cause it. • Who pays for externalities? • What are some examples?

46. Modern Federalism • National government’s primacy in setting domestic policy is secure. • Recent Supreme Court decisions beginning to fence in the federal government’s ability to dictate policy. • Gains have been modest. • Easily circumvented by an alternative strategy of financial inducements.

47. The National Government’s Advantage in the Courts • Today’s constitutional litigation over federalism typically concerns direct efforts by the federal government to regulate the activities of state and local governments and their employees. • Garcia v. San Antonio Metropolitan Transit Authority (1985) • Supreme Court approved the application of federal wage-and-hour laws to state and local employees

48. The National Government’s Advantage in the Courts • Recently the Supreme Court has sought to preserve some state independence in federal-state relations. • United States v. Lopez (1995) • Court narrowly decided in favor of a student who had been carrying a handgun onto Campus. • Violation of Gun-Free School Zones Act of 1990 • National government had not shown a connection between law’s provision and actual effect on interstate commerce (which it had used to intercede in an area of jurisdiction heretofore belonging to the states) • Small victories for states’ righters overall.

49. Preemption Legislation • Federal laws that assert the national government’s prerogative to control public policy in a field. • Relatively little preemption prior to the New Deal. Afterwards, much more. • Owes its existence to the supremacy clause. • On balance, federal government has not usurped states’ jurisdictions so much as it has joined with the states in formulating policy. • Result: shared federalism. • How does the federal government induce cooperation from the constitutionally independent states? • Two ways: Carrots and sticks.

50. The Carrot: Federal Grants to the States • During the last fifty years federal grants-in-aid become an important part of intergovernmental relations. • Few grants prior to New Deal. • These grants are more than simply inducements to states to carry out particular programs; they also allow the national government to define these state programs.