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Federalism. I. 3 Forms of governmental structures Federalism: -a way of organizing a nation so that 2 or more levels of government have authority over the same area and people 2. Most governments today = unitary- all political power resides in the central government

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I. 3 Forms of governmental structures


-a way of organizing a nation so that 2 or more levels of government have authority over the same area and people

2. Most governments today = unitary- all political power resides in the central government

Only 11 countries in the world= federal

U.S.= Federal only at the national level.

States= unitary- local governments are created by states (can also be changed or abolished by states

3. Confederation:

-the National government is weak, most power is in the hands of its components (such as states)

II. Intergovernmental relations:

-the entire set of interactions among national, state, and local governments in a federal system

1. Our system decentralizes our politics

  • Senators are elected to represent individual states not the nation as a whole

a. More layers of government= more opportunities for political participation

  • More points of access in our government
  • = more opportunities for interests to be heard and have demands for public policies satisfied
2. Federalism also decentralizes our policies
  • History of our federal system demonstrates the tensions between the states and national government over who controls policy

3. The states have always been policy innovators

  • Most policies adapted by national government had their beginnings in the states
  • States= “national laboratories” to develop, test public policies
Clean air legislation
  • Welfare reform
  • Historical= child labor laws, minimum wages, unemployment compensation, civil rights protection, income tax
  • Recently= health care reforms, education, immigration
III. The Constitutional Basis of Federalism

1. The word appears no where in the Constitution

  • 18th century- Americans= loyal to state governments- had the Framers tried to abolish state governments the Constitution would have never been ratified
  • In 18th century a cent. govt. could not have governed whole country
  • People were too widely dispersed
  • Transportation and communications systems too primitive

c. 1787 Federalism= only practical choice

2. The Division of Power (not separation of powers!!!!)
  • Framers carefully defined state and national powers

(Know chart 3.2 on page 71)

  • Each state guaranteed equal representation in the Senate (Article V made this unamendable)
  • States responsible for state and national elections
  • Congress cannot create new states by chopping up old ones
  • National government obligated to protect states from violence and invasion
b. What if there is a dispute between state and national governments?
  • Article VI of the Constitution
  • The Supremacy Clause- the ladder of the laws

1st- the Constitution= the Supreme Law of the Land

2nd- Federal laws (if consistent with Constitution)

3rd- treaties

4th- state laws

c. The sphere of the National government

* It cannot usurp the states’ powers…what are those 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”

What exactly does this mean? Debate goes on

  • United States v. Darby (1941)- 10th Amendment= only that states have some of their own powers, but even in these areas not superior to national government
  • National League of Cities v. Usery (1976)- unconstitutional for national government to extend min. wage and max. work hour laws to state and local governments- based on the 10th Amendment
Garcia v. San Antonio Metro (1985)- overturned National League decision- up to Congress (not state governments) to decide which actions of states should be regulated by the national government.

e. Other examples of where states challenged authority of national government

    • Late 1980s- governors of states refused to allow their state National Guards to engage in training exercises in Central Asia

*1990- Supreme Court ruled National Guards are state militias, but President can nationalize them

Drinking age-laws, speed limit laws

f. Federal Courts can order the states to obey the Constitution or federal laws….

  • but 11th Amendment does prohibit individual damage suits against state officials

IV. Establishing National Supremacy- Today= clear National government has gained power relative to the states- why?

  • The Implied Powers- debate all the way back to Jefferson and Hamilton
a. 1819- McCulloch v. Maryland

-Luther Martin argued the Constitution was very clear what the powers of Congress were- look at Article I= clear establishing a National bank exceeded its powers

-Daniel Webster argued for a broader interpretation on powers of national government

-The necessary and proper clause (Article I, Sect. 8)-authorizes Congress to pass all laws necessary and proper to carry out the enumerated powers

-Webster argued that the Bank was necessary and proper

-Chief Justice John Marshall- ruled for the bank- the decision set forth 2 great constitutional principles:

1st- the supremacy of the national government over the states

If anyone proposition could command the universal assent of mankind, we might expect it to be this- that the government of the United States, though limited in its power, is supreme within its sphere of action

  • As long as the national government stayed within bounds of Constitution its policies always take precedence over state policies

2nd- the national government has certain implied powers that go beyond its enumerated powers

Enumerated powers?
  • Implied powers?
  • The elastic clause
  • Necessary and proper or convenient and easy?

2. The Commerce Power

a. One of Congress’ enumerated powers= power to regulate interstate and international commerce?

b. 1824- Gibbons v. Ogden- the Court broadly interpreted this power to encompass virtually every form of business activity

FDR and the New Deal
  • 1964- Congress prohibited racial discrimination in places of public accommodation (restaurants, hotels, movie theaters)
  • 1950s- The interstate highway system

c. The Court recently has been backing off

  • 1995- United States v. Lopez
  • 2000- United States v. Morrison and the 1994 Violence Against Women Act
  • Printz v. United States and Mack v. United States (both 1997) and the Brady Handgun Violence Prevention Act
united states v lopez
United States v. Lopez
  • Lopez arrested for carrying a handgun to high school

2. Arrested and charged under Texas law…Federal authorities came in and charged him with a federal crime

3. Gun-Free School Zones Act of 1990

  • This law was passed based on Congress using its implied power of interstate commerce

4. His lawyers argued it was unconstitutional- Congress had no power to legislate over public schools= states

5. Supreme Court ruled that Congress had gone beyond it authority to regulate interstate commerce

3. The Civil War= really a struggle between national government and states

4. The Struggle for Racial Equality

  • Brown v. Board of Education (1954)

V. States’ Obligations to each other

  • Full Faith and Credit Clause- clause is Article IV, Sect. 1
  • Each state is required to recognize the official documents and civil judgments rendered by other state courts
  • Think of marriages, business contracts

b. Usually not much controversy…but

1996 Hawaii and same-sex marriages?
  • Defense of Marriage Act- permits states to disregard gay marriages even if they are legal in other states
  • Hawaii overturned this law, but 2000= Vermont?

2. Extradition

  • Almost all crimes= state laws (not federal)
  • States are required to return a person charged with a crime in another state (in Constitution)

3. Privileges and Immunities

a. Most complicated of state obligations to each other

b. Clause of Article IV, section 2: Gives citizens of each state most of the privileges of other states

c. Its goal= to prohibit states from discriminating against citizens of other states

d. Many exceptions- still on ongoing debates

College tuition

State elections

Hotel taxes

e. In general- the more fundamental the right= the less likely a state can discriminate against citizens of another state (owning property, police protection)

*1999- Saenz v. Roe- welfare benefits

VI. Intergovernmental relations today- 2 big changes
  • Gradual shift from dual federalism to cooperative federalism- emphasizes power sharing between states and national government
  • Fiscal Federalism- federal grants-in-aid to states

VII. Dual to Cooperative Federalism

  • Dual Federalism- national and state governments= supreme within their own spheres
  • Layer cake federalism
  • Most politicians, political scientists see it as outdated
2. Cooperative Federalism- the powers and policy assignments are shared between the states and the national government.
  • Marble cake- mingled responsibilities
  • After 9/11 National government asked state governments to investigate suspected terrorists AND state public health officials to deal with anthrax threat

b. In some ways it existed even before National govt. became dominant

  • Articles of Confederation set up land in NW to be used for schools
  • Civil War- national government and land grant colleges
c. 1950s, 60s= more national support of education- 1958- National Defense Education Act (response to Soviet success in space race)

d. Federal government today in all schools

  • almost all school districts receive federal assistance, but must comply with federal assistance

e. Highways= another good example of cooperative federalism

  • Early on states and cities built all roads
  • 1956- the Interstate Highway System
3. Operating standards of cooperative federalism
  • Shared costs
  • Federal guidelines- federal $ comes with strings attached- example= highways funds and drinking age
  • Shared administration- state officials operate under some federal guidelines...but wide latitude on how

*example Dept. of Labor gives states billions to states for job retraining- but up to states how to spend $

4. Reducing Cooperative Federalism?

a. Ronald Regan insisted states had primary responsibility in most areas of governing

b. He promised to “restore the balance between the levels of government”

c. His opposition to national govt. $ going to domestic policies and huge federal deficits did reduce some $ going to states

d. Republican majorities in Congress -1995- “revolution”

  • States more control over welfare policy, while National govt. reduced some of $ it provided
  • More environmental protection up to states- if National govt. imposed new environmental laws on states, had to provide $ too
the welfare reform act of 1996
The Welfare Reform Act of 1996
  • This act gave the states the power and money to run their own welfare programs

2. States were given discretion to determine how to implement the federal goal of transferring people from welfare to work.

Repealed national speed limit laws
  • Made it more difficult for prisoners to challenge authority constitutionality of their sentences in federal courts

5. At same time- Republicans turning to Federal government

  • Removing state requirements on businesses
  • Example nullified state laws that restrict telecommunications competition
b. Also threats of cutting federal funds if states:
  • New antifraud legislation on drivers’ licenses, birth certificates to control immigration
  • Federal crimes on stalking, domestic terrorism
  • States required to increase jail time for violent crimes
  • Child-support violators
  • Clean drinking water laws
VIII. Fiscal Federalism
  • The pattern of spending, taxing, and providing grants in the federal system= the cornerstone of the national government’s relations with state governments
  • National governments have a huge source of influence over states= $$$
  • Despite Regan rhetoric- 2004- National government granted $400 billion to states- federal grants
  • Federal aid= about ¼ of all $ spent by state governments
  • 2004= about 18% of what federal government spent


IX. The Grant System (Distributing the Federal Pie)

Categorical Grants

Main source of federal aid to state governments

Can only be used for specific purposes (or categories) of state and local spending

They come with strings attached

Direct orders from federal govt. to states are rare- this is more indirect way

Common string= nondiscrimination provisions

* Another= federal funds may not support construction projects that pay below the local union wage

* Environmental provisions

f. cross-over sanctions- using federal $ in one program to influence state policy in another= drinking age of 21 for highway funds

g. cross-cutting requirements- when a condition of 1 federal grant is extended to all activities supported by federal funds

  • Best example= Civil Rights Act of 1964- bars discrimination in the use of federal funds because of race, color, national origin, gender, physical disability
  • Say a university discriminates in 1 area- athletics- loses all federal funding for all of its programs
h. 2 types of categorical grants

1st= project grants- given for specific purposes and awarded on the basis of competitive applications

National Science Foundation awards to professors

2nd= formula grants- distributed according to a formula specified in legislation or in administrative regulations

Vary from grant to grant- computed on the basis of population, per capita income, % of rural population etc.

The formula determines how much $ the state gets

examples= Medicare, child nutrition programs, public housing, training/employment programs

Categorical grants= lots of paperwork and strings attached

2. Block Grants

  • Given almost automatically to states to support broad programs in areas such as community development and social services

b. The amount has gone up with Republican control of Congress

X. The Scramble for Federal Dollars

1. With all of that $ out there, most states have full-time staffs in Washington DC

  • purpose= keep track of how much $ is available for what AND get some of it
  • In general principle of universalism is followed

XI. The Mandate Blues

  • Times when states would prefer not to have federal aid
  • When Congress extends a program that is administered by the states and only partly funded by the National government= an unfunded mandate
States have to budget more funds for the project in order to receive federal $
  • Great example= Medicaid
  • Administered by states, receives support from both parties
  • Since 1984- Congress has continued to expand it
  • National government pays 50 to 83% of bill- states pick up the rest
  • As Congress expands it, costs for states increase too
3. Worse for states= unfunded mandates- require states to spend $ to comply with federal laws, but provides no funds to meet these new obligations
  • 1970- Clean Air Act
  • 1990- Americans with Disabilities Act

4. 1995- Republican controlled Congress tried to cut back on underfunded and unfunded mandates

  • Cong. passed, Clinton signed bill- both houses have to take public, separate vote on any bill with mandates of $50 million or more
  • 9/11 led to some sizeable mandates
5. Federal Courts and mandates
  • Prison construction, school desegregation etc. require states to spend $

6. 1994- CA, TX, NY, FL sued federal govt. to reimburse massive amounts they had to spend on education, health care, prisons

  • why? Illegal residents
  • National government failed its duty to protect borders= cost on state treasuries
  • States did not win, but a valid point?
selective incorporation
Selective incorporation
  • The process by which certain parts of the guarantees expressed in the Bill of Rights become applicable to the states through the 14th Amendment.

*This increases federal influence over the states by applying national government standards to the state level

XII. Federalism and Democracy
  • 1 reason the Framers decided on it= allay the fears that a distant, central govt. would tyrannize the states, give them no voice
  • It was supposed to contribute to democracy- did it?

2. Advantages for Democracy

  • More levels of govt.= more levels of opportunities for political participation
  • 2 levels of govt. increase the opportunities for govt. to respond to demands
c. If a party loses ground on the national level, can rebuild, groom leaders at state level

d. Our country= a diversity of opinion- this can be reflected in different states having different policies

  • Death penalty to alcoholic beverage control

e. Many disputes handled at state level= reduces decision making and conflict at national level

f. National problems/concerns handled on national level

3. Disadvantages

a. Quality of services is heavily dependent on the state that provides it- example= education

b. Diversity in policy can discourage states from providing better services for fear poor people from other states may move for better benefits

c. Local interests may impede national majority support- the Civil Rights Movement in the South

d. Vast number of local governments makes it hard for many citizens to know which government is responsible for what

XIII. Federalism and the growth of the National government

1. National govt. has always been into economic affairs- right from the Founding

2. As the U.S. moved from agriculture to industry- new problems arose= new demands for government action

3. U.S. moved from dual to cooperative federalism

4. Why not state governments? More efficient for states to combine their efforts in one national program

5. Scope of National Government

  • Since 1929- government expenditures has increased big time- today= 20% of GDP, states= about 9%
  • States still important – see figure 3.5 page 90