Federalism Lecture
Ok - so now we're moving onto federalism
For those of us who have always lived in the
So what are the other systems?
1. Unitary
2. Confederal
3. Federal
A UNITARY system is a CENTRALIZED GOVERNMENTAL SYSTEM that decides all policy.
There can be smaller divisions of govt - however, they are ONLY authorized to do what the central gov't wants them to do.
Who can give me an example?
All policy was decided in Parliament, at
So local Scottish councils could make decisions - but if they did something
2. Confederal system
System consisting of a league of independent states, each having essentially sovereign powers. The central govt has only limited powers over the states.
Best example: (Not mentioned in txt)
Confederal states have problems - provinces sometimes want to secede (
3. Federal system -
Shares power between central government and other levels. Authority is divided between national govt and regional govt (states, towns), usually aided with a WRITTEN CONSTITUTION (officially delineates how levels interact). It is assumed that each is supreme in its own sphere.
So the federal govt cannot dictate NYC policy. However, NYC mayor cannot make political decisions for DC.
Why Federalism?
Practicality
colonists were already used to having considerable power within their towns and states, and did not want to give that up
founders realized that, given the size of the
plus - regions are very different (North and South). better to have more levels
Other benefits -
Means that one level of govt doesnt take all the blame
When state decides to raise taxes - it's state officials who hear it, not local or national
Brings govt closer to the people - so people actually feel like the democracy is working for them
Direct access - heads of revolutionaries, makes people believe in the system, less likely to overthrow it
In the
Allows leaders to prove themselves on multiple levels
Pataki: started out as mayor of
In unitary states, there is no such training ground - Blair was an MP in small town northern
Also - you get to try out POLICY on local levels first before taking it national
Ex: unemployment compensation in WI, air pollution measures in CA
Also - allows for POLITICAL SUBCULTURES
Not everybody is going to have the same idea about policy. Abortion, gun control, same sex marriage - all up for debate, nearly impossible to form a NATIONAL CONSENSUS on these matters. So why is federalism good?
Allows regions to decide for themselves
San Fran - allows same sex marriage
Alabama/Mississippi/Georgia - abortion is illegal
Wyoming/middle states - gun laws reflect desires of hunters
Arguments against Federalism
Some people think these blocs/groups/regions could block national progress
So if you're pro-choice, you might think that the southern states are standing in the way of real national consensus
Same thing if you're anti-gun or anti-gay marriage
Also an argument that federalism results in inequality - in safety, in crime, in wealth. Certain states, because of their policies, are better at attracting industries and funds, while others might be driving capital away
So how did our constitution create this federal system?
Gives separate powers to the national government, to the state government, and to the local government
Powers of the Federal Government
ENUMERATED POWERS - powers SPECIFICALLY laid out by the constitution.
Includes: setting standards for measurements, admitting new states, starting wars, regulate commerce
NECESSARY AND PROPER CLAUSE: (also referred to as the ELASTIC CLAUSE)
Founding fathers were smart enough to realize that situations would arise that they could not anticipate. Not wanting the federal government to be PARALYZED due to their lack of foresight, they created this clause
Grants CONGRESS (not the President) the power to do whatever is necessary to execute is specifically granted powers
INHERENT POWERS
Deals with foreign policy
Recognizes that the US FEDERAL govt is the only govt that can represent the American people in dealing with other nations
So in making treaties, engaging in war, creating trade alliances, negotiating land deals - all fall under the purview of the federal govt
Remember - in AofC time is was individual states who took this upon themselves
POWERS OF THE STATE GOVERNMENTS
Constitution does not outline what powers states have. Instead, they say that everything that is NOT included in the list of the federal powers, is assumed to be the rights of the states. As it happens, sometimes there is real conflict over what is a state's right and what is the national govt's right.
Usually, it is assumed to include the right of states to regulate commerce WITHIN their borders, and to maintain order within their borders. States also have the right to make laws and policies that do not contradict the constitution.
States also have POLICE POWER - not what it sounds like
It's the right to "legislate for the protection of the health, morals, safety, and welfare of the people." Morals - illegality of birth control
The nature of the 10th amendment changes depending on the situation. At times, states are militant about protecting their rights. But, if they want a particular policy really badly, they encourage the national government to take a stand on it.
Discussion: Does the system work smoothly as is? Or would it have been better for the founders to outline state rights more clearly?
CONCURRENT POWERS
Powers shared by the national and state governments
Power of tax - you pay state tax and federal tax (IRS). But this limited somewhat - states cannot tax imports, for example
Other concurrent powers - power to create banks and courts
PROHIBITED POWERS
C. specifically says the national government CANNOT:
1. tax exports
2. cannot assume to have powers that are not given to it by the constitution
States are limited too - cannot negotiate treaties with other countries
SUPREMACY CLAUSE
States that the C. is the SUPREME LAW OF THE LAND
It is supreme over conflicting state laws. And also, conflicting court opinion.
Lately, this has been used more and more by the federal government - over the past 90 years, Congress has passed 120 statutes that directly override state legislation
VERTICAL CHECKS AND BALANCES
(Draw difference between horizontal - executive, legislative - and vertical -state and nation-)
` Federal can change the constitution (amend) without states
States can act as check on govtal power.
INTERSTATE RELATIONS
Equally important in Am. govt, but tends to be overshadowed by state-national relations
States are obliged to recognize each other's laws - so a fugitive in one state is a fugitive in another states.
But what about gay marriage? If it's performed in MA, is NY required to recognize it?
Discuss.
States also enter into INTERSTATE COMPACTS - an agreement between 2+ states. Minor agreements can be done without congress knowing about it, but in a situation where the compact allows a group of states to become more powerful can be a problem, and must be approved by Congress
CONSTITUTIONAL POWERS - THE EARLY YEARS
Still had to get the relationship between the federal government and the state government down
This took some ironing out
This was when the Supreme Court first began to assert its importance in Am govt. Remember - this was the first judicial body in the world to have a real impact on governmental affairs. Set the precedent for many other countries to follow.
Referred to as the
One of the biggest cases - McCulloch vs
NATIONAL BANKS
The constitution said nothing about the federal govt's right to create national banks. So, when it established the First and Second Banks of the
Questions before the Court:
Did the national government have the power to create banks?
If it did, did the states have the right to tax it?
1. The national government had the right to charter the bank
Why? 3 reasons
a. The government was created by the people at the Constitutional convention. Therefore, the govt derived this right FROM THE PEOPLE.
b. Because there are 'implied powers,' Congress has the right to USE them. So, although the right to establish a bank is not written explicitly, Congress has the right to collect taxes, borrow money, and regulate commerce - it is only natural that the right to create a bank should exist.
c. Because a national bank assists the government in the exercise of its designated powers, it is therefore constitutional
Because of
Gibbons v.
And so the fights between NY and NJ began....
Issue of steamboats shuttling between NY and Elizabeth - NY attempted to grant one steamboat company a monopoly over this path
Thomas Gibbons wanted to operate a competing ferry service. NY barred him, he took it to court
What the decision said:
The issue here centered around the word "commerce." NY thought it could get away with this inter-state monopoly because it did not involve the exchange.
However,
Set the stage for the national govt to play more of a role in economic affairs and determining economic policy
States' Rights and the push for civil war
Common perception that the Civil War was fought purely over slavery - but really, it wasnt about that. It was about who had the power to decide.
So as you can infer,
However, during the Jacksonian era (Andrew Jackson - very populist, was all about bringing the power home to the people) - there was a remarkable swing back to states' rights. First example - when federal govt passed a tariff in 1828, SC refused to abide by it. And so it began.
The textbook really skims over a lot of the landmark constitutional decisions and fights over states rights - but if you're interested, I definitely recommend reading up on the Compromise of 1820 (Missouri Compromise), and the Compromise of 1850. Unfortunately, no time to go over these.
Fast forwarding to the Civil War - war declared in 1861, when SC secedes, followed by six other southern states.
End of the Civil War - North (or
1865 - because so many people had to work to create this victory, the federal govt was suddenly saddled with a bevy of debts. Had to pass the first formal budget in
Also imposed the INCOME TAX for the first time - govt needed money badly, and it was considered the best way to raise it.
Heralded the EXPANSION OF THE FEDERAL GOVERNMENT at a newer pace than ever before.
Affect of the Civil War on the Constitution:
"Civil War Amendments" - national government realized newly readmitted states could not be trusted to pass these regulations on their own, so did it themselves.
13th Amendment - abolished slavery altogether, and consequently, got rid of the 3/5 rule
14th Amendment - made slaves formal citizens of each state, with all rights included
15th Amendment - African-Americans have the right to vote. Had to say this specifically, to ensure that Southern states would allow this. Of course - they found ways around it. But the fed govt did make a great effort at the end of the Civil War to preclude this.
Where has the debate between states' rights and federal rights gone since the Civil War?
Two paths:
Dual Federalism/Retreat of National Authority
Dual Federalism:
System in which states and national government each remain supreme within their own spheres. Sees the nation and the state as equal in stature. Neither can interfere in other spheres.
Reestablished teh constitutional status quo as was before the expansion of national authority. Ex: National income tax repealed in 1872. 1877 - President Rutherford P. Hayes withdrew last of federal troops from the South.
ROLE OF THE SUPREME COURT
While the SC had been growing in prominence in the wars before the Civil War, its power was drastically reduced in the years following it.
Because of its Dred Scott decision, the SC ruled that the federal government did not have the power to decide issues of slavery. Obviously, after the Civil War, that question was put to rest.
Testament to lack of confidence in the SC - Congress said all legal questions resulting from Southern reconstruction is not subject to judicial review.
How did the SC then regain its previous stature?
By working through the context of dual federalism, siding more often with the federal government.
Ex: 1895 - declared federal income tax to be unconstitutional
However, over the years it had mollified this decision, and finally, allowed the federal government to impose an income tax once again. (16th Amendment - 1913).
How did SC view dual federalism?
Federal government had a wide reach of power - but when it came to purely local issues, it was up to them to decide, not the feds, esp when concerning police power.
THE NEW DEAL - a new chapter in American govt
Great depression and worldwide economic collapse triggered a series of responses throughout the world. In the
Herbert Hoover - really held on to this idea of dual federalism.
In essence, he viewed poverty and unemployment as local issues, that should have local solutions. However, he failed to recognize that the CAUSE for local unemployment and local poverty was much larger, and needed to be addressed by the state and national governments.
FDR - recognized that serious actions needed to be taken to get the
IMPLEMENTED THE NEW DEAL - A TURNING POINT
Previously, Am. politicians had held fast to "laissez-faire economics" - distrusted state interference
However, New Deal said, capitalism is an imperfect system, and needs the assistance of the state
So - first 100 days - Emergency Banking Act, Economy Act, Agricultural Adjustment Administration, Farm Security Administration, Tennessee Valley Authority, employment programs, social security programs
National Recovery Administration (NRA) - restrict competition and regulate labor relations
All of this was necessary to get the American economy back on its feet. But it marked a growth in the federal government, while states remained weak
The SC attempted to declare these programs unconstitutional, on the grounds that it dealt with INTRAstate commerce and
So if it's the end of dual federalism, what do we have?
Some describe it as COOPERATIVE FEDERALISM
states and the national government should cooperate when solving problems
before, states did their thing, the nat'l gov't did its thing, and they never really met to discuss problems
now - it's more of a cooperative effort.
Marble cake imagery - it's not so cut-and-dried where states' rights end and fed's rights begin
So we left off with the idea of “cooperative federalism” – but there’s another interpretation of how the American gov’t works today
PICKET FENCE FEDERALISM – specific programs and policies involve all levels of gov’t (draw illustration, higher education, agriculture, welfare, mental health)
Horizontal boards – levels of gov’t
Vertical – policy
Overall, scholars prefer to discuss Am gov’t in terms of cooperative federalism
So how does cooperate federalism really work?
Federal gov’t imposes a policy – and hands state gov’t the funds to implement them
CATEGORICAL GRANTS – federal grants to states or local governments for specific programs or projects
In 1985, categorical grants totaled more than $100 bn/year
Biggest five programs – Medicaid, highway construction, unemployment, housing assistance, and welfare for mothers and the disabled
$225 bn in 2005 – signals a shift in more central gov’t
What does this say about conservatives?
2 types of categorical grants:
Formula grants: determine how much a state gets by population, need, and ability to match funds
Program grants: states must apply for grants for specific programs (not just automatically given by the fed gov’t) – give fed govt greater degree of control
Why the increase?
States don’t usually have to contribute any funds
Congress likes it because they can have direct impact on state policy
Strings attached?
Some critics claim that it’s a way for the fed gov’t to overrule state power
Block Grants: federal programs that provide funds to state and local governments for general functional areas (like mental health programs, etc)
Gives much more flexibility to the states to determine how to use the funds
State gov’ts prefer these to categorical grants
FEDERAL MANDATES
A requirement in federal legislation that forces states and municipalities to comply with certain rules
So – in environmental regulation, there have been federal mandates to curtail pollution levels and implement environmental protections
States are MANDATED to follow this legislation
However, sometimes states are granted WAIVERS – meaning, states can decide HOW they meet these mandates, but they must still meet them
The Politics of Federalism
Usually, conservatives are on the side of states’ rights, while liberals are on the side of fed gov’t
Liberals just believe national govt is more likely to pursue liberal policy than some states
Has Nat’l Authority accomplished much?
Txtbook claims nat’l gov’t has been an agent of social change
In altering the status quo, who starts the ball rolling? States or feds?
New Deal changed ideas about role of gov’t, SC changed ideas about banning child labor altogether
Civil Rights/War on Poverty
Got rid of Jim Crow laws
War on Poverty – major increases in govt spending – entrenched the idea that nat’l govt can implement these policies for its citizens, doesn’t just have to wait for states
From the States’ Perspective:
We talked about a variety of political subcultures
Different states want different things – for example, assisted suicide in
States favor limited gov’t for this reason – they do not want the national gov’t to come in and order them to pass legislation that is not supported by the people in that state
State competition is another one. Each state decides its level of taxation and environmental accords, and competes with each other for large businesses. For example –
States create a “favorable business climate” – and if you pay attention to the gubernatorial campaign, you’ll see this mentioned often.
What might a favorable business climate entail?
Limited taxation
Corporate income tax is 50% deductible from federal taxes
No sales tax on manufacturing purchases
No property tax on new equipment
Right-to-work state (workers not required to join unions)
Lowest unemployment insurance rates in the
Also, if a large company sets up shop in a small state (Intel, in NM), it can have considerable political pull
Federalism – a Republican Issue
New definition of FEDERALISM
Taken to include DEVOLUTION – transfer of powers from central gov’t to state or regional gov’t
Republicans are now staunchly in favor of this trend
Started as a response to LBJ’s war on poverty
Nixon began the idea of “New Federalism” – a shift from categorical to block grants
Revenue sharing was also a key factor – gov’t provides direct support to states WITHOUT STRINGS
Is the perspective on federalism purely a Republican/Democrat issue?
Under
Federalism and the Supreme Court
Commerce clause – continues to be an issue
US v. Lopez – dealt with guns in the vicinity of schools
Congress passed the Gun-Free School Zones Act in 1990, said people could not carry guns within 1000 feet of a school
Lopez was arrested for breaking this law
However, the SC found this law to be unconstitutional – because the fed govt did not have the right to pass it, because it had nothing to do with commerce
US V Morrison (2000)
Dealt with the Violence Against Women Act (originated after the rape of a student at VA Tech)
Basically, Congress said that a federal remedy (not entirely sure what this is) could be applied to those who had suffered a gender-based crime
However, SC threw this out, saying that Congress did not have the right to enact this law, as it had nothing to do with commerce
State sovereignty and 11th Amendment
SC takes this to mean that states cannot be sued for violations of rights as a result of FEDERAL policy (unless state gives permission)
Ex: Kimel vs Florida Board of Regents – state university enforced a federal law regarding age restrictions at a state university
But could not be sued
10th Amendment Issues
Powers not given to federal govt are regulated to states
Still used to check the power of the national govt
posted by JaxJacobsen @ 1:21 PM
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