Federalism How the circle and the squares get along.

Federalism

How the circle and the squares get along

What is Federalism?

• Federalism – Two or more governments exercise power and authority over the same people in the same territory

• OR… the relationship between the federal government (circle) and the state governments (squares)

Federalist #51

• Defends the Constitution

• Explains why a strong gov’t is necessary– “If men were angels, no government would be

necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

• Defends separation of powers between state and national gov’t

Powers

- Delegated Powers (enumerated powers) – powers given to Fed gov’t by Constitution

- Reserved Powers – state power alone

- Concurrent Powers – shared

- Prohibited Powers – denied from both- Ex. Neither gov’t can tax exports

Elastic Clause

• Aka – “Necessary and Proper Clause”• Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power -

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."

• Impossible to predict all powers Congress will need to function, sometimes we might have to allow Congress extra powers to fulfill their delegated powers

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

McCulloch v. Maryland (1819)

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

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.”

• Congress given the power to regulate commerce between foreign countries and US as well as state to state… they control business law.

Gibbons v. Ogden (1824)

• 1824 – aka “The Steamboat Case”

• 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

Gibbons v. Ogden (1824)

Result – Gibbons wins

• Expanded national power in all areas of commerce law because nation overruled state in interstate trade issues

• Fed Gov’t gets STRONGER

• All trade today is primarily controlled by national law

Commerce Clause

• Who cares? Why is it important?

• Gibbons v. Ogden ruling makes a loop hole giving Congress power to take control over any issue involving the movement of people, or things

• Fed gov’t power increased

2 Federalisms?

• OLD SCHOOL – Dual Federalism– Federal and state governments remain

dominant in their separate spheres of influence

– Gibbons v. Ogden proved life is not that simple

• NEW SCHOOL – Cooperative Federalism– State and Federal governments work together

to solve complex problems

2 Federalisms

TWO METAPHORS…

• Dual Federalism – Layer Cake

• Cooperative Federalism – Marble Cake

Federal

State

Fiscal Federalism

• Fiscal means $

• Q – How do you get the states to do things they normally wouldn’t do?

• A – Money

• Q – What is the answer to any question ever asked?

• A – Money

Grants-in-Aid

• Money paid from one level of government to another to be spent for a specific purpose

• Categorical Grants - target specific purposes and “strings attached.” (States receive funds if state raised age to 21 and lowered BAC to .08)

• Block Grants – given for broad, general purposes and allow more discretion on how the money is spent (ex. Welfare reform)

Mandates

• A requirement that a state undertake an activity or provide a service

• Most apply to Civil Rights and the Environment

• Often times the states or local gov’ts have to pay the bill of the mandate set by Congress

Mandates

• 1986 – Asbestos Emergency Response Act, Handicapped Children’s Protection Act

• 1988 – Drug-free Workplace Acts, Ocean Dumping Ban Act

• 1990 – Clean Air Act• EX – Columbus, OH spends 23% of the city

budget trying to meet environmental mandates (including testing for pesticides used on rice and pineapple)

• EX – Public schools have to use Internet filtering or schools lose e-rate subsidies

Devolution

• Devolution is the return of power to the state gov

• Idea is fueled by distrust of the federal gov and the desire to save money by reducing the size of the “bloated federal government”

Devolution Example

• Personal Responsibility and Work Opportunity Reconciliation Act of 1996

• Eliminated welfare and transferred the money to states as block grants

• States received wide latitude on how to administer “workfare” but with the knowledge that Congress was counting on anti-poverty spending”

• Strings attached: head of family must work or lose benefit; lifetime benefits limited to 5 years; unmarried mother < 18 only receive $ if stay in school and live with adult; immigrants ineligible for 5 years

Federalism is good

Living under 2 governments is great…

• Built on compromise, promotes unity

• Gov’t duties can be split up

• Brings gov’t closer to people

• Allows for state gov’t to address issues in unique regions of the country

• Allows states to experiment with policy before enacting it at the federal level – Ex. Vermont’s free health care for children

Federalism is bad

Living under 2 governments is bad…

• States can impede progress of Nation

• States are unequal

• States have different policy

• Easier for states to be dominated by interest groups

• Giving state governments greater discretion in deciding how to achieve the specific goals of welfare reform is an example of

a. An unfunded mandateb. Implied powersc. Dual federalismd. Devolution e. Affirmative action

• Which of the following is the best example of a categorical grant?

a. Money given to states for special education programs

b. Money given to individuals in the form of tax rebates

c. Money given to state unconditionally

d. Money given to states to spend at their discretion on transportation

e. Money given directly to private business for economic development

• Which of the following constitutional principles most directly addresses the relationship between the national and state governments?

a. Checks and balancesb. The Bill of Rightsc. Separation of powersd. Representation

e. Federalism

• Which of the following is the most likely consequence of divided government?

a. Reorganization of the federal bureaucracy

b. Conflicts between states

c. Delays in confirmation of federal court nominees

d. Conflicts between national government and states

e. Elimination of the seniority rule in Congress

• Cooperative federalism can best be described by which of the following statements?

a. Different levels of government are involved in common policy areas

b. Government must have cooperation from the people in order to make legislative decisions

c. Local levels of government can make decisions on issues more efficiently than state and national governments can

d. The federal government must make regulations that can be applied across every state in the same way

e. Business and government can work together to more effectively accomplish shared goals