POLS 207- Developments in US Federalism

A Changing Balance of Power

• Federalism in the US consists of both the legal and political relationships between states and federal government

  • these relationships have changed over time via constitutional and historical development

• Mechanisms driving development of federalism

  • legal changes in law and judicial interpretation

  • political shifts in how money and power are used

• Overall trend has seen a shift toward more “nation-centered” federalism

The development of Federalism

Nationalistic interpreations of the constitution advanced by several key Marshall Court decisions

• McCulloch v. Maryland (1819)

  • created the doctrine of implied powers

  • limited states ability to impede federal govt

• Gibbons v Ogden (1824)

  • held that power to regulate commerce includes power to regulate navigation

  • States cannot interfere with congressional commerce power (even if congress itself is not regulating it)

Interstate Commerce Clause

Legal definition of “interstate commerce” has led to the increased regulatory power of federal government

Key developments in interpretation:

1. answer to “what counts as commerce?” reaches further beyond the point of trade

   1. local activities such as mining and manufacture

   2. Even product withheld from the market!

2. Broadening of the purposes for which can Congress regulate commerce

   1. to regulate the economy in general, to pass labor laws

   2. to prohibit private (non-state) acts of racial discrimination

Taxing and Spending Power

• general welfare clause

  • congress has the “power to tax and spend” for the “general welfare of the US”

• What is meant by the statement “for the general welfare”

  • two competing legal interpretations:

    • 1. it is a mere statement of purpose

    • 2. it constitutes an independent grant of power to the federal government

• Language of the clause is very similar to states police powers

For the General Welfare

• early federal grants were largely land-grants

  • morril Land- grant acts

• 16th amendment (1913)

  • progressive income tax of corporations and individuals

  • fundamental shift in federal revenue

• Federal grants-in-aid

  • these become a powerful tool of federal influence

Grants-in-Aid and “Fiscal Federalism”

• fed govt gives funds to states and local govt

  • this redistributes money throughout states

  • some states are net recipients; others net contributors

• Grants-in-Aid are a powerful tool of national policy

  • offer monetary incentives for states to enact certain policies and advance national policy goals

  • traditionally, liberals were more amenable to using grants to encourage common standards and spur change

    • (Not necessarily the case anymore)

Commandeering- requiring states to be agents of federal policy

Types of Grants-in-Aid

Categorical grants

• money tied to specific, narrow projects with more federal oversight and control

general revenue-sharing grants

• short lived policy giving states federal money with essentially “no-strings attached”

Block Grants

• money given for a broad “function” such as “public health” or “community development”

• states and communities have more discretion in choosing the projects getting the funds

Federalism and Federal Grants

• states ARENT mere administrative arms of federal government

  • states cannot be commanded or commandeered

  • but fed govt can influence state policy

• Fed govt cannot coerce states or force them to take the money if they dont like conditions

  • states are heavily reliant on federal aid as a source of state revenue

Eras of US Federalism

• shifting relationship between federal government and states

• can be delineated into historical eras, usually set off by a major event, legal, or policy change

1. dual federalism

2. cooperative federalism

3. centralized federalism

4. new federalism

5. ad hoc federalism

Dual Federalism (1789-1933)

• clear division between nat and state functions

• within their proper sphere of authority, each level of govt is sovereign and free to operate without interference from the other

• SCOTUS often sought to limit fed govt to a narrow interpretation of enumerated powers

• Layer cake model of authority

Cooperative federalism (1933-1964)

• govt mix resourves to solve common problems and advance shared interests

• intertwining of govts and their authority accelerated by

  • industrialization, the income tax, the world wars, and the great depression

• Exemplified by FDRs New Deal

• Marble cake model of authority

Centralized Federalism (1964-1980s)

• fiction of “cooperation” and federal govt “assistance” breaks down

• increasingly, federal got takes lead in setting agenda and objectives

  • not just helping with state/local problems

  • acting beyond traditional national powers

• Characterized by use of categorical grants and ever-more-stringent cross-cutting sanctions (conditions)

  • introduction of unfunded mandates: new conditions, but no new money

New Federalism (1980-2002)

• devolution revolution transfers back some policy responsibility to states

• reduced dependence on federal funds

• more block grants with state flexibility and discretion in use of federal funds

• associated with modern conservative movement

  • presidential administrations of Ronald Reagan and George Bush

  • Newt Gingrichs “contract with america”

Legal Revival of Federalism

• 1936-1994: SCOTUS did not strike down any federal laws on the grounds of Congressional overreach via the commerce clause

• by the 1990s, the court had several justices nominated by “New Federalists” and handed down rulings:

  • scaling back the commerce power

  • invalidating laws “commandeering the states

  • strengthening interpretation of states reserved powers and their sovereign immunity

Ad hoc Federalism (2002-)

• ones view of federalism adopted based largely on partisan convenience

  • breakdown of association of Reps. with state-centered approaches and dems with nation-centered approaches

    • George w bushs no child left behind policy

• Fewer principled philosophical commitments to federalism as a Constitutional doctrine

  • federalism a nuisance when in power in washington

  • …suddenly very important when out of power

Federalism Today

• states both taking the lead to address problems and pushing back against federal policy mandates

  • depending on partisanship and party control

• Issue with a federal angle:

  • immigration enforcement, abortion, marijuana, healthcare, environmental regulation, voting, policing, and many more

• Multistate lawsuits against federal government

  • during the obama and biden administrations: from conservative republican-controlled states

  • during the first and second trump administration: from liberal democratic controlled states

The federalists claim re: federalism

• states and their powers would be protected by political dynamics, not by institutional designs

• ie not by institutions like SCOTUS

• in fact, states and their govt would have the advantage

  • greater danger was actually states hindering the operation of the federal govt and its laws

  • why?

    • closer to the people

    • more offices and positions of trust

    • more familiar, supported by public affection