GOVT 2306 Texas and the States within the National Governing Landscape: Federalism.

GOVT 2306

Texas and the States within the National Governing Landscape:

Federalism

Prior to digging into the nature of government and politics in the states,

it’s a good idea to place Texas – and all states – with the greater context of

national government.

Doing so allows us to look at the concept of federalism, and the relative roles that the national, state and local

governments have within it.

If you’d like to review the concept of federalism itself, click here for a great

slide show put together by a University of Kentucky professor.

One of the distinguishing features of American Government is that it

is a federal system. This means that authority (sovereignty) is split

between two levels of government: The national and

state.

Since states have the (reserved) power to establish local and single purpose governments, our federal system actually has three layers,

though local governments are not sovereign in the same sense as are

the national and state governments.

This brief introduction might require some additional

clarification in order to establish what the words “nation,” “state” and “local government” refer to.

Yes, more definitions. Deal with it ok?

What is a nation?

“a large body of people, associated with a particular territory, that is

sufficiently conscious of its unity to seek or to possess a government peculiarly its own: The president

spoke to the nation about the new tax.” – Dictionary.com

It is a sovereign entity that possesses territory and for which there are no eternal powers that

are involved in its domestic institutions.

See: Nation state.

The modern concept of a nation was developed in the mid 1650s with the

signing of the treaty of Westphalia which ended over 100 years of religious warfare in Europe. Empires based on hereditary

monarchies were replaced with sovereign nations with defined borders. Each nation had to respect the territorial integrity of

the others and agreed not to interfere with each other’s internal affairs (at least

officially).

Theorists still struggle with what exactly a nation is.

The USA and Somalia are both nations . . . but not really.

FYI: As of January 3, 2012 the US State Department recognizes 195

independent nations.

What is a state?

There are many definitions, some basically the same as the definition of a nation, but the one that best fits us is: “One of the more or less internally autonomous territorial and political units composing a federation under a sovereign

government.” – Free Dictionary

Note that the terms “state” and “nation” are often used to mean

the same thing.

Yes this can be confusing.

In the United States (note the name), states preceded and

created the national government at least partly as a way to ensure

that differences among them could be worked out effectively.

The question was always: How?

One of the areas of early controversy was the fact that the early states that bordered the west claimed all territory to the Mississippi River. The

land locked state protested and ultimately all states ceded those lands to the national

government which then worked out a process by which these lands became new states.

Its how we ended up with 50, rather than stuck with 13.

No process for creating new states was established in the Articles of Confederation, but the Congress

passed two laws, the Land Ordinance of 1785 and the

Northwest Ordinance, that did so.

The US Constitution does contain explicit language stating that new

states can be admitted into the union and instructions on how this

would be done.

It is contained in the third and fourth sections of Article 4, which

concerns state relations in general.

Article Four, Section Three

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the

Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the

Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other

Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of

the United States, or of any particular State.

Article Four, Section Four

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of

them against Invasion; and on Application of the Legislature, or of the Executive

(when the Legislature cannot be convened) against domestic Violence.

In summary these establish that new states shall be admitted, but that existing state borders are to be

honored, the US shall have the ability to pass all types of laws in the

territories, the states are guaranteed a republican form of government, and

shall be protected both against invasion and domestic violence.

This encouraged further expansion westward in a process later called

manifest destiny. Some brave souls ended up here.

The annexation of Texas was a major part of this effort, and it was a very

controversial one at that since it impacted the balance of power between slave and free states.

As we cover in various places in this class, as Americans moved

westward, pressures emerged to enlarge the governing process and allow categories of people to vote

that previously had not.

The new states were more democratic that the original 13.

Texas, as we know, is unusual in that it has been both a nation and a state – and state within more than one nation. This has led

to legal disputes that still exist today.

The fact that it once was a nation matters, it makes circumstances different in this state than it does in others – especially

those that started out as federal territories.

Those states do not control much of the open undeveloped land within their

borders. Texas does because that land was never federal territory.

As we will see below, states are granted reserved powers and one of these if the power to establish local governments.

Let’s now define related terms:

What is a county?

A county is a political subdivision within a state that is assigned

some government functions. These will be detailed more fully in a later

section, but they include maintaining birth and death

records, conducting elections, tax assessment and law enforcement

in unincorporated areas.

Texas has 254 counties that range greatly in size and population.

- US Census info.- Texas Association of Counties.

What is a city?

A city is a settlement that is generally based on some shared

set of economic interests that has been granted legal status –

including a city charter (click here for Houston’s) - by the state. This allows them to make, implement

and adjudicate their own laws.

The official, legal term for a city is a municipal corporation. Article 11

of the Texas Constitution establishes how municipal

corporations are to be chartered. Note that the US Constitution says

nothing about cities, or local government in general.

Click here for city-data info about Texas cities.

- The National League of Cities.- Click here for the NLC’s description of

local governments.

What is a single purpose government?

Cities and counties are sometimes referred to as multi purpose

governments, since they serve a variety of functions.

Some functions, however, are granted to specific governing units. These are called single (or special)

purpose governments.

The one you might be best familiar with is the independent school district. You are probably also familiar with the community

college district, at least Alvin’s.

See this entry in TSHA: Special Tax District.

From the TSHA site: “Other special districts include over 900 water and utility districts, 326 housing authorities, 210 soil and water conservation districts, 86 hospital districts,

46 hospital authorities, 10 rural fire prevention districts, 8 mosquito control

districts, 8 health districts, 5 noxious weed control districts, 3 three urban renewal agencies, 3 wind erosion conservation

districts, one waste disposal authority, and one ground water subsidence district.”

Local governments also set up special, narrowly defined tax

districts that allow residents or business interests in those districts to provide either basic services or

special

Municipal Utility Districts: a small district established in order to

provide public utilities to an area – quite often a newly created

subdivision.

Tax Increment Reinvestment Zone:

Click here for a description if TIRZs from the City of Houston’s

website.

That’s enough of a description of these specific levels of government

for now – more on these later.

The point is to know what these are, and the fact that the federal

system is complex.

The pros and cons of federalism.

Its not the easiest system to manage. Unitary systems, where sovereignty rests with the national government, and confederated systems, where it

rests with the states governments, are simpler in concept.

Its tough to have two (and maybe three or more) bosses.

See also the Wikipedia site on Federalism in the United States.

This next slide should give you an idea of how many unique

governing systems exist in the United States

National – 1State – 50

Counties – 3,034Municipalities – 19,429

Township – 16,504 School Districts – 13,506Special Districts – 35,052

Source: US Census Bureau

It not only has a unique defined set of responsibilities (each claiming rights of sovereignty), but also

exists in relation with other governments and private

institutions in order to solve mutual problems.

This should help illustrate a central dilemma of federalism.

It attempts to balance the desire for self control (sovereignty) against the desire to coordinate and cooperate

with other governments and institutions sharing the same set of

interests.

This is difficult to do.

But this arrangement is argued to have advantages. Certain policies may be best suited to be designed and implemented on certain levels

of government.

We will this question repeatedly in this class.

States can serve as “laboratories of democracy.”

50 different solutions to a problems is likely to lead to

successful outcome if nothing else than by trial and error.

That’s not why we have a federal system though. It was not an

intended, deliberate outcome of the Constitutional Convention. It exists because that was what was necessary to get a majority to sign

onto the Constitution in 1787.

There was general discontent with the confederated system

established under the Articles of Confederation.

National objectives – those common to the states – were

difficult to obtain.

Federalist required a stronger central government in order to ensure that

certain policies they thought essential to the development of a commercial

republic would be implemented consistently across the nation.

This is why they engineered the calling of the convention in the first place.

Anti-Federalists distrusted national power and saw it as a threat to the

interests of the states, or more accurately their separate states.

They distrusted each other as well.

Leading Anti Federalists included:

George MasonElbridge GerryPatrick Henry

George Clinton

Recall that state governments were older than the national government.

They had colonial histories dating back a century and a half.

People identified with the states primarily and the nation secondarily.

They didn’t want their self determination limited by either the nation, or by those in other states.

The language of the Declaration of Independence treated states like

separate nations: “ . . . as Free and Independent States, they have full

Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts

and Things which Independent States may of right do.”

But this arrangement made it difficult for the new nation to win

the Revolutionary War and to establish a strong footing in its

infancy.

Supporters of state power at the Constitutional Convention balked at

efforts by James Madison and Alexander Hamilton to minimize state

power in order to strengthen the ability of the national government to

efficiently provide for the objectives of the Federalists.

Neither plan designed by each man would have allowed states to send

representatives to the national legislature, and state laws were subject to veto by the national

government.

This was unacceptable to supporters of states’ rights.

Multiple compromises were necessary in order to ensure that

both sides could agree on a document that could then be

signed and put into effect.

As a result, the US Constitution is full of text which carves out

powers the states continue to hold, and places where the states

can continue to exert influence over the national government.

Three examples:

1 - The Great Compromise created the Senate, which was originally staffed

(until the 17th Amendment) by people appointed by the state legislatures. They could then check the House of Representatives which was designed

to directly represent the people of the nation by bypassing the states.

2 - Suffrage and the conduction of elections was granted fully to the

states – though several subsequent amendments have restricted the criteria states can

use to deny the right to vote. They still have full ability to conduct

elections however.

3 – The 10th Amendment grants to states – and to the people – powers

not specifically granted to the national government. Though there can be a

great deal of controversy about what powers have been granted to the

national government since different people can have different

interpretations of the language granting those powers.

Here’s a bit more detail on each.

1

The original Senate – as written in Article One, Section Three – grants

the legislature of each state the right to send two people to

represent it in the Senate for six year terms.

It allowed equal representation to the states, not the people.

As opposed to the House, which represented states according to population

and was composed of people chosen by the eligible electorate in the state, the

Senate was composed of people sent to represent the interests of the state as

defined by the legislature – not the people.

This gave the states influence over what the national government did.

The Senators were divided into three classes so that one third

would face the voters every tow years.

Texas’ Senators are in class one and two.

This system was in place until the 17th Amendment (Wikipedia) was ratified in 1913 in the wake of concerns that the Senate was being dominated by

corporate interests in each of the states. They were no longer

representing the interest of the people, but of whichever corporation

dominated a specific state.

Senators were accused of buying their elections in the state

legislatures.

State legislatures would deadlock on who they would send to the

Senate.

But the change severely reduced the power of the state legislatures

in the US Congress. It is argued that this allowed for the passage of

New Deal policies – as well as others - that limited state power in

the service of national goals.

This is a key point. States are weaker now than they once were in the national government due to this

change.

States are now just another interest group, whereas they once they were part of the governing system itself.

2

The US House of Representatives is designed in Article 1, Section 2. While it was intended to bypass

the states and allow for the general population to have a direct

connection to the national government, the states are able to

determine who could vote.

The states were given control over suffrage and election laws.

“The House of Representatives shall be composed of Members

chosen every second Year by the People of the several States, and

the Electors in each State shall have the Qualifications requisite

for Electors of the most numerous Branch of the State Legislature.”

Control over suffrage was a principle way states could determine the nature

of their delegations to the House of Representatives.

Not all interests in the state would be able to influence them as long as

suffrage was limited.

“Delegation” is the term often used to describe the group of

people elected to represent the various districts in the state for

each two year session of Congress.

Click here for delegations from Texas dating back to 1845.

Several amendments have been added that prevent the states from

restricting suffrage for various reasons, such age race, gender and

being 18,19, or 20 years old.

Other restrictions still exist, like mental incompetence and felony convictions. Click here for the Texas Constitution’s Article 6.

Suffrage.

Article 1, Section 4 grants to states the right to determine how to run elections, with some ability given

to Congress to regulate the process.

“The Times, Places and Manner of holding Elections for Senators and

Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,

except as to the Place of Chusing Senators.”

In Texas, the Secretary of State oversees the conducting of

elections. The specific job of running them is given to each

county. Each county has an elections department that carries

out this function, but state and local actions can be overseen by

the national government.

In a future section we will cover the various laws on the national

level that have impacted how elections are conducted.

A brief word should on the Voting Rights Act of 1965 is appropriate

though.

The act outlawed discriminatory election and voting laws and

targeted states like Texas that had a history of such laws.

It has made all elections decisions – including the drawing of districts,

subject to pre-clearance.

This has been a major source of conflict between the affected

states and the national government – especially Texas.

A related conflict is the current controversy between Texas and the US is whether the Voter ID

laws passed by the Texas Legislature in the 82nd Session is an

attempt to discriminate against poor voters.

Are the laws attempting to curb fraud or manipulate the voter

pool?

Is this an issue that justifies national intervention?

3

The US Constitution categorizes different types of powers and

grants them to different levels of government.

But the language used to mark these distinctions is vague and has

been the subject of debate.

The terms commonly used to refer to these powers are:

DelegatedImplied

ReservedDenied

Delegated Powers

The delegated powers are those that are specifically granted to the

national government. They are sometimes also referred to as the numerated or expressed powers.

The term comes from the 10th Amendment – as does the related

term the “reserved powers.”

“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.”

They delegated powers are outlined in two parts of the

Constitution.

1 - Article One, Section Eight states what Congress can pass laws

about, meaning what its powers are.

2 - Article Two, Section Two states what the President’s powers are.

Altogether they grant each branch power over commercial, security

and foreign powers.

Article Three, Section Two lists the powers of the judiciary, which

primarily concern what types of disputes it can hear in its courts.

After ratification, the states pushed back against one of the types of disputes the national

courts could hear.

One of the more problematic aspects of the powers granted to the president

is the Commander-in-Chief Powers. Presidents often claim that many

powers are “inherent” within a broad understanding of this heading. There are no clearly defined limits to what

these might be.

These can impact states.

Example: President Eisenhower’s use of federal troops to enforce

school desegregation in Arkansas.

The original Constitution stated that the national courts could hear

cases “between a State and Citizens of another State.”

This meant that if you wanted to sue a state, you could do so in the

federal courts.

But states claimed this violated their right of sovereign immunity.

They can only be sued if they allow it, they cannot be forced to answer

a lawsuit in a different court.

The original Constitution, however, did force them to.

This power was affirmed in Chisholm v. Georgia, which

allowed a lawsuit against Georgia initiated by a citizen of South

Carolina to go forward. The states responded by ratifying the Eleventh Amendment that overturned the decision.

States are still subject to lawsuits under the Fourteenth Amendment under privileges or immunities and

equal protection clauses.

As with the 17th Amendment discussed above, this granted

additional power to the national government.

The conflict over the extent of state sovereign immunity from lawsuits authorized in the US Constitution is ongoing. The

Supreme Court regularly rules on such cases.

The principle power that the US Judiciary has over states is not stated anywhere in the

Constitution. It is the power of judicial review. While the application of judicial review was

controversial when applied to laws passed by the national government it was never

controversial as far as state laws go. The Supremacy Clause was taken to imply that the national government could overturn state laws judges to violate the US Constitution. It did not

establish a process for doing so however.

Controversy:

The fact that the national government is granted “delegated”

powers which are defined in the Constitution suggests that they

might be limited. James Madison says as much in Federalist #45.

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those

which are to remain in the State governments are numerous and indefinite. The former will be exercised

principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend

to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of

the people, and the internal order, improvement, and prosperity of the State.

What this means is that any law or action of the national government has to be based on language in the Constitution that authorizes that

action.

Whether it has done so is up to the judiciary, and ultimately to the

Supreme Court.

The courts are often used as venues for challenging the

constitutionality of various laws, both state and national.

Texas has a history of taking legal action against the national

government.

States are different.

Since their powers are “numerous and undefined” they do not need authorization under the US

Constitution to do something – unless the US Constitution forbids the

activity, or establishes that they need congressional authorization.

Put it this way. While the constitutionality of “Obamacare” can be challenged because it does not clearly fit under the commerce

clause, the constitutionality of “Romneycare” cannot since it fits

under the reserved powers.

The Denied Powers

Closely related to the Delegated Powers are the Denied Powers.

Two sections in Article One deny powers to the national government

(Section 9) and the states (Section 10). The Bill of Rights and the Fourteenth

Amendment also deny powers as well.

Article One, Section 10 limits states from powers that are national in character, or anything that might

interfere with international relations.

- entering into treaties- coining money

- tax imports or exports- have a standing army

- engage in war

This is intended to explicitly state – contrary to the Declaration of

Independence – that states are not nations and do not have national

powers.

Article Four states what rights and obligations states have to each other. Sections One and Two

outline them.

Article Four Section One:

Full Faith and Credit shall be given in each State to the public Acts, Records, and

judicial Proceedings of every other State. And the Congress may by general Laws

prescribe the Manner in which such Acts, Records and Proceedings shall be proved,

and the Effect thereof.

This is hugely controversial since it means that states must respect the

contracts that others allow their citizens to enter into.

Does this mean states have to recognize gay marriages? The Supreme Court has yet

to decide on this.

Article Four Section Two:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several

States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found

in another State, shall on demand of the executive Authority of the State from which he fled, be delivered

up, to be removed to the State having Jurisdiction of the Crime.

Article Four Section Two (Continued):

(No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such

Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or

Labour may be due.) (This clause in parentheses is superseded by the 13th Amendment.)

States cannot treat citizens from one state differently than how

they treat their own.

Any they cannot harbor criminal fleeing from other states.

Implied Powers

These are powers the national government claims by virtue of

several clauses that have an elastic quality to them. There are three:

CommerceNecessary and Proper

Taxing and Spending for the General Welfare

Each is the subject of ongoing conflict between the national and state governments that involves debate over how constitutional

text is to be interpreted.

Many of the disputes between the Texas and the US governments

concern these clauses.

A quick word on each

The Commerce Clause: Congress has the power to “to regulate

commerce with foreign nations, and among the several states, and

with the Indian tribes.”

States commonly interfered with the commerce of other states under the

Articles of Confederacy. Trade wars almost broke out a few times. The Annapolis

Convention was specifically called in order to address those concerns – but failed to

reach a quorum. Thus the Convention.

National control over commerce was one of the goals of the Federalists and a key

purpose of the convention.

But there is huge debate – now and over American history – about

what “commerce” means.

Does it simply refer to trade, or does it also allow for regulations that are indirectly related to it?

Can it allow for prosecution of price fixing? The breaking apart of

monopolies?

This applies to criminal justice also. Crime is not mentioned in the US Constitution, so

what authorizes the existence of the FBI and other agencies?

Criminal activity is often commercial in nature – or it impacts the commercial

process. If it does do over state lines, the national government argues this fits

constitutional language.

During the New Deal, the Supreme Court expanded the interpretation

of commerce to allow for the regulation of manufacturing and labor, activities that were part of the commercial process. Other rulings also expanded national

regulatory power.

Since then there has been a push back against the use of the

Commerce Clause to facilitate expansions of national power.

Texas has been part of this effort.

Some of these controversies involve civil rights policies.

The Civil Rights Act is based on the commerce clause since it applies to public accommodation which serve individuals who may be involved in

interstate travel.

Necessary and Proper Clause: Congress has the 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

any Department or Officer thereof".

As with “commerce” there has been a dispute over what

“necessary and proper” means.

Does it mean “useful” or “essential?” The former provides for broad powers, while the latter

constricts them.

The early struggle between Maryland and the US over the constitutionality of a

chartered US bank centered on the terms meaning. John Marshall argued that the

bank was a legitimate exercise of national power, but later Andrew Jackson – when he vetoed and extension of the charter –

would disagree.

See McCullough v Maryland.

Maryland, and others, thought the US government was limiting the

ability of the states to control banking within its borders. And

this was true. But the court ultimately argued that this

interfered with the constitutional authority granted to the national government to regulate national

commerce.

Finally:

“The Congress shall have Power To lay and collect Taxes, Duties,

Imposts and Excises, to pay the Debts and provide for the common

Defence and general Welfare of the United States . . .”

This part can be a bit confusing since it is referred to in several

ways:

Taxing and Spending ClauseGeneral Welfare Clause

The power to tax and spend is tied into efforts to promote the

common interests of the states.

“the general welfare and the common defense”

One controversy here concerns the meaning of “general welfare.”

Does it refer to how the powers granted in the Constitution are to

be conferred (not for specific private interests), or does it grant broad authority to pass laws on

any subject Congress deems oriented toward the general

welfare.

A fierce struggle over the meaning of this clause occurred in the early

years of the republic. The Federalists argued for a broad

interpretation of it, the Democrat Republicans argued for a limited

interpretation.

Prior to the New Deal, the Supreme Court tended to take a narrow view of the clause and overturned legislation

that attempted to punish various practices – such as child labor – by

imposing taxes on products made by children.

See: Bailey v. Drexel Furniture Co.

The court would reverse itself soon enough, most notably in Helvering

v. Davis, which stated that Congress had the authority to create a unique tax in order to

spend money on Social Security.

This established the constitutionality of the Social Security Act.

The controversy persists.

Current efforts to roll back the size and scope of the national

government at least partially focus on efforts to limit what is meant by

the phrase “general welfare.”

An additional controversy exists over whether the national

government’s spending power can be used to ensure common

standards and policies across the states.

For some interesting reading in that direction you might want to

look at the following comment on Ron Paul and the General Welfare

Clause,

In addition to funding programs that provide for the general

welfare, taxes can also be used as mechanisms for ensuring certain standards are maintained across

the states.

One example was the successful effort to get all states to raise their

legal drinking age to 21. The National Minimum Drinking Age

Act attempted to compel states to increase their drinking ages by

threatening to a decrease in highway funding.

South Dakota challenged the law, but a 7-2 majority on the Supreme

Court ruled that the Taxing and Spending Clause allowed Congress to exert pressure on the states to comply with a national standard.

This controversy continues to heat up as the court has grown more suspicious of national power.

A current dispute concerns whether the US can entice the states to

broaden Medicaid coverage. Click here for one view, and here for another.

Again, these are all different types of implied powers that are argued (not conclusively) to be justified by

the elastic clauses. Disputes continually arise based on how

elastic one believes these clauses to in fact be.

Reserved Powers

The term “reserved powers” comes from the 10th Amendment.

“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.”

The reserved powers are taken to refer specifically to the police powers, these are powers to

regulate the health, safety, morals and welfare of a community.

These powers have an open ended quality to them.

Recall the “numerous and undefined” nature of state power. The scope of the expressed powers

is vast.

Many of these are delegated to local governments to implement.

As with the rest of the Bill of Rights, the Tenth Amendment was intended to clarify

a limit on the powers of the national government, but ongoing disagreement

has existed over whether the intent was to grant the reserved powers fully to the

states, and prevent the national government from exercising them, or

stating that the states were free to exercise those power, along with the

national government.

What degree is overlap between national and state powers is

allowable?

Is the line clean and clear, or is there a gray area? This became less and less

easy to define as commerce and related matters like crime became easy to take across state borders.

Again, controversy between the power of the nation and that of

the state became inevitable.

States habitually complain that the national government aggressively uses the commerce clause to justify expanding the

extent of its regulatory powers, at the expense of its ability to regulate business

within its own borders.

A common source of tension between Texas and the US is between the Environmental Protection Agency – which

attempts to minimize pollution – and the efforts of Texas to protect

the oil and gas industry.

A final word on the various types of powers:

The Concurrent Powers

This refers to the types of powers that exist on all levels of

governments.

The most obvious is the power of taxation. Other powers include the creation of courts, the building of

roads and other things.

If you have the time (and of course you do) here is an exhaustive exposition of the concurrent powers from Leonard Levy.

One last topic:

The stages of federalism

Over its 200+ year history, the precise relationship between the national and

state governments has changed.

Political scientists who study these changes have developed different terms to

describe these changes. They vary from one another in many ways, but here are a few terms that help us understand when these changes happen and what forces

drove those changes.

Dual FederalismCooperative Federalism

New Federalism

- for an early overview of these subjects as they relate to Texas click here for: Texas’s Federal Heritage.

A quick reminder – the Supreme Court play a huge role in marking

each of these eras. It is up to them to determine how to define the

elastic clauses. As they – collectively – determine whether these clauses permit or deny the

national government to engage in certain policies.

The period of Dual Federalism is argued to have existed from 1787 – 1937; from the ratification of the

Constitution until the Supreme Court accepted an expanded

definition of “commerce” in the case NLRB v. Jones.

During that time, the national and state governments had clearly

defined roles to play – their relationship was like a layer cake.

National Powers:

Internal improvementsSubsidies (mainly to shipping)

TariffsDisposal of public lands

Immigration lawCentralized National Defense

Foreign policyCopyrights

PatentsCurrency

State Powers: Property law

EducationEstate and inheritance law

Commerce laws of ownership and exchangeBanking and credit laws

Labour law and professional licensureInsurance laws

Family lawsMorals laws

Public health and quarantine lawsPublic works laws, including eminent domain

Building codesCorporations law

Land use lawsWater and mineral resource laws

Judiciary and criminal procedure lawsElectoral laws, including parties

Civil service laws

(never mind local governments for now)

This is an obviously simplistic story.

As we know from the information above, there was a debate among those who

wrote and signed the Constitution about the roles of the national and state governments and there was early

jockeying between the advocates of either side to determine the extent of national

power.

Alexis de Tocqueville, among others, argued that there would be a natural tendency for the national government to expand it powers

over the states.

As we will see, he was correct.

Supreme Court Chief Justice John Marshall was a supporter of national power and

early court decisions established the power of judicial review, solidified the

national government’s power to regulate commerce between the states, and

expanded the necessary and proper clause to include the power of the national

government to charter a bank.

But he was replaced with Roger Taney, an equally strong advocate of state power. He helped protect the states (southern mostly) from

efforts to limit their rights to determine internal matters

without interference. Mostly this meant limiting the ability of abolitionists to limit slavery.

Conflict continued between the commercial interests that saw the national government as the best way to pursue their commercial interests and agrarian interests

that saw the states as best able to protect themselves from those

commercial powers.

Texas was a strong supporter of efforts to limit efforts to expand

the power of the national government not only because it was a slave state, but because

commercial interests – especially railroads – were jeopardizing agrarian interests in the state.

It didn’t help that As part of the Confederacy, Texas had an

antagonistic relationship with the national (union) government.

Beginning in the 1880s, the national government began to slowly and steadily expand its

influence over industry (through regulations, not just promotion)

and other matters.

Here is a sample list of legislation which expanded national powers:

1873 – Comstock Laws1887 – Interstate Commerce Act 1906 – Pure Food and Drug Act

1910 – Mann Act1913 – Federal Reserve Act

1913 – The 16th Amendment1916 – Federal Farm Loan Act1916 – Federal Child Labor Act

These efforts were limited however, and were not fully supported by the

Supreme Court, which adopted a strict view of federalism. Changes did not occur until the election in 1932 of

Franklin Roosevelt who sought greater authority for the national government through a packet of laws labeled the

New Deal.

This marked the beginning of the era of cooperative federalism.

He ran on a ticket with a Texan – John Nance Garner, who was

Speaker of the House and as vice president would work with

congressional leaders to engineer the passage of New Deal

legislation.

Texas was conflicted over the New Deal. In the previous decades Texas businessmen – thanks

to the growing oil industry – became more powerful. Not only oil, but related industries like

construction and steel production flourished. Agrarian interests were being challenged within

the state. It is important to note that Texas remained an agrarian state for longer than most

other states. This impacted not only internal politics, the relationship the state had with the

national government.

The national government’s orientation towards business

began to change as well. Instead of simply promoting business

interests, they began to regulate business’s as well.

Regulatory agencies like the Securities and Exchange Commission were established.

The New Deal sought to address high unemployment by developing large scale infrastructure projects. Texas businessmen liked the jobs, but the New Deal also pushed for

expanded rights for workers – notably collective bargaining

rights. Business interests did not like that part of the New Deal.

That last point is huge:

Texas, as a whole, does not support collective bargaining rights. Those rights are more

protected by the national government. This creates the obvious tension, with the national government promoting the interests of unions

and the state of Texas promoting that of businesses. We will highlight these conflicts as

we go forward.

It is crucial to note that as it became increasingly obvious in the late 1930s that the United States was going to enter into war efforts were made to

ramp up production of war materials. This gave the national government

huge control over the economic sector and provided huge contracts for well

placed businesses.

The Houston area benefitted greatly. The further development

of the Port of Houston and the petro-chemical industry (and

related manufacturing industries as well) was spurred by this effort.

Think: Brown and Root among others.

A historical side note is useful here.

The Port of Houston was one of the first projects funded with

matching grants between national and local governments. This

arrangement was designed by noted Houstonian Jesse Jones.

Along with John Nance Garner, Jones was one of the Texans who played a

dominant role in the Roosevelt Administration. He also has a position

in the Hoover Administration. He headed the Reconstruction Finance

Corporation and for a while was judged to be the second most

powerful person in the nation.

During the New Deal, the national government began taking the well being of

citizens seriously, and passed laws addressing those (most famously Social

Security). It no longer left these decisions to the states, because the states may not feel like addressing those issue, or of they did, did so in a way that that only served

the interests of the majority, not the general welfare.

The mechanism for promoting those policies was the intergovernmental grant.

The federal government began encouraging certain actions among different institutions and people by

providing grants to promote those actions. The encouragement could also take the

form of coercion (at least in the minds of the states) when non-compliance with national directives could lead to a state

losing funding.

This process is sometimes also referred to as “fiscal federalism.”

Here some essays on the subject if you feel adventurous:

- An Essay on Fiscal Federalism.- Federalism and Government Finance.- The Political Economy of Federalism.

- The Impact of the New Deal on American Federalism.

It began to tie all levels of government more closely together

fiscally (fiscal meaning: “of or relating to government finances,

esp. tax revenues”).

There are many different types of grants, each with its own

advantages, disadvantages and political baggage.

Categorical Grants: These are issued to address narrowly defined

purposes including highway funding, Head Start, Food Stamps and Medicaid. Generally upwards of 90% of funds are provided by

the national government with the requirement that the states provide the remaining 10%.

These grants can be project grants or categorical grants.

Project grants are generally targeted for a research project of

some sort, often these are oriented towards medical or

defense purposes.

Formula grants are designed to achieve a specific – ongoing – purpose and to define who is

eligible for the support and how much the recipient (be it an

individual or institution) is eligible to receive. Loans for higher

education are an example you might be most familiar with.

More recently block grants have been used to provide funding for a specific purpose, but few

restrictions are placed on how exactly the money is to be spent.

These were created in order to respond to criticisms that categorical grants placed to much power in the national government and did not

allow the states to fine tune policies so they would be appropriate for their needs.

Earmarks are also a mechanism that members of Congress can use

to direct federal funding for specific purposes within their

districts.

In addition to grants which encourage state and local governments to

perform functions with national goals are a variety of laws that require them

to do so, without the funding mechanisms to support them. These are called unfunded mandates, and

they’ve been the source of additional friction between the state and

national governments.

These are most often imposed in order to enforce civil rights, environmental and poverty

legislation.

For more detail: Unfunded Mandates

Many of these grants have allowed the national government to forge direct relationships with local governments

and other institutional and individuals, bypassing the states.

Little surprise then that the states (some more than others – like Texas)

reacted to this.

The use of these grants was expanded considerably under the Great Society – and

reinforced by Supreme Court decisions that increased federal power over the

states.

Some argue that this created a separate unique era at the tail end of cooperative federalism called “creative federalism.”

Here’s an attempt at a definition: ” also known as "picket fence federalism,"

predominated during the period of 1960 to 1980. This relationship was characterized

by overloaded cooperation and crosscutting regulations.”

For additional info on creative federalism – see Eugene Boyd, here you will see the same stage referred to as “regulated federalism.” And click

here for power point slides on the subject.

The purpose of this stage of federalism was to impose on state and local

governments policies that attempted to rectify racial and economic imbalances in

society.

Most notable, the range of programs that fit under the heading of the “War on Poverty” and the policies that were

intended to give weight to the Civil Rights Act of 1964.

While popular in certain circles, these imposed national policies places that opposed them. The

New Deal did not touch civil rights or structural poverty. The Great

Society did.

This led to a backlash especially in places like Texas.

Conservative political forces in Texas that had been willing to accept the

New Deal, reacted against the further reorientation of government towards civil rights and structural poverty by

developing and promoting a contraction of national power and a

revitalization of state power / rights.

This is the period of New Federalism

In brief, New Federalism refers to efforts to devolve power from the national to the state governments

and to undo many of the regulations over business passed in previous decades. It also attempts to decentralize power as much as

possible.

Note: There is no sudden change from cooperative to new federalism. Beginning

in the late 1960s – with the election of Richard Nixon – a slow process began where the expansion of the national

government was challenged. This is an ongoing process. As of yet, the national

government has roughly the same dimensions as it had in the 1960s, but

further expansion has been halted.

Many of the early efforts to scale back the scope of national power involved efforts to place Justices

on the Supreme Court who pushed for a limited interpretation of the commerce clause as well as other parts of the Constitution that had authorized and expansive use of

national power.

Ronal Reagan’s election in 1980 allowed proponents of New

Federalism to limit the activities of executive agencies by placing

people in them that did not share the goals and aspirations of those

who created the agencies.

For example, The Equal Employment Opportunity Commission can only achieve its mandate if it is staffed with people who

want to aggressively pursue equal employment as a goal. Those who see this as an unwarranted interference with the

rights of employers, want to see the commission derailed.

Texas political leaders chief among them.

When Republicans took control of Congress in 1994, they were in a better position to terminate or

scale back federal programs, and some were. Welfare reform for an example. But other aspects of the federal government have proved

popular and are very risky to terminate.

Two programs – Social Security and Medicaid – are very popular

with older voters. So is the Defense Department, which was

replaced the Department of War in 1947.

So where does that leave us?

The current balance between national and state power appears

to have stalemated.

But every election invites the opportunity for change. These will

be discussed in class as current events come and go.