Federalism

1. Federalism

2. Disaster Relief • Who’s job was it to clean up New Orleans and the rest of the coast after Katrina?

3. No Child Left Behind • Should the national gov’t step in to regulate school performance?

4. What is Federalism? • Federalism – Two or more governments exercise power and authority over the same people in the same territory • It is not a Federal System unless both governments can act independently of each other • The most obvious effect of Federalism on the U.S. is that it mobilizes political activity and protects liberty

5. Governmental Structure Federal Systems Unitary Systems France Great Britain Italy Sweden With a unitary system, lower governments can be altered or abolished by the federal government • United States • Canada • Australia • India • Germany • Switzerland

6. 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 • Madison believed in national supremacy first, then states’ rights

7. 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

8. 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

9. 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

10. McCulloch v. Maryland (1819) • Is a Bank of the US Constitutional? YES. The national gov’t has certain implied powers that go beyond delegated powers. US needs a national bank for borrowing, lending, holding minted money, etc. All of which are delegated powers.

11. 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 -States do not have the right of Nullification -National (Federal) Gov gets STRONGER

12. 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.

13. Gibbons v. Ogden (1824) • 1824 – aka “The Steamboat Case” • Ogden received a state license 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

14. 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

15. 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

16. 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

17. 2 Federalisms TWO METAPHORS… • Dual Federalism – Layer Cake Federal State • Cooperative Federalism – Marble Cake

18. Fiscal Federalism • Fiscal means $ • Q – How do you get the states to do things they normally wouldn’t do? • A – Money

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

20. Grants-in-Aid • The grants-in-aid program grew quickly because it allowed federal money to be given to the states without violating the Constitution • In the 1960s the focus of federal aid programs shifted to meeting national needs rather then state needs such as pollution • Ex. Between 1960-2001 there was a decrease in funds for transportation and highways

21. 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

22. Mandates • 1986 – Asbestos Emergency Response Act, Handicapped Children’s Protection Act • 1988 – Drug-free Workplace Acts, Ocean Dumping Ban Act • 1990 – Clean Air Act, Americans with Disabilities 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

23. Change in Spending • Shift towards Federal Gov’t Spending

24. Devolution • Devolution is the return of power to the state gov • Second-Order Devolution is to shift power from the states to local governments • Third-Order Devolution is to increase the role of nonprofit organizations and private groups

25. Devolution Example • Personal Responsibility and Work Opportunity Reconciliation Act of 1994 • 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

26. 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

27. 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

28. United States v. Lopez (1995) • Commerce clause quiz!!! • 1995 – “Gun Free School Zone” law banned possession of a firearm within 1000 feet of a school, 12 year old Lopez carried a gun on to the property • Declared law unconstitutional – “nothing to do with commerce” – carrying a weapon through a school zone is too much of a stretch for “commerce” • LIMITED National government power

29. Gonzalez v. Raich (2005) • Commerce clause quiz!!! Medicinal Marijuana • Controlled Substance Act (1970) – US gov regulates the manufacture, importation, possession, and distribution of certain drugs • Medicinal marijuana was legalized in California, but illegal to US government. Raich argued commerce clause should not take effect because 1) there was no business transactions and 2) there were no state border issues. • Supreme Court ruled 6-3 against Raich saying that the federal government could trump state laws that permitted medicinal marijuana