Federalism

What is federalism?

Federalism is a system of government where power is divided between a central authority and individual states

Why was federalism introduced?

• There was tension between those who wanted a strong federal government

• And those who wanted limited federal government

  • To give individual states their own autonomy

• framers of the constitution sought a ‘middle ground’:

  • Government would do what they considered essential

  • Left citizens fundamental rights and freedoms as untouched

What is a limited government?

Principle that the scope of federal government should be limited to that which is necessary for the common good of the people

E Pluribus Unum

Out of many,one

How is federalism written into the Constitution?

• Written into the enumerated powers of the 3 branches of the federal govt

  • Congress was to ‘coin money’

  • The president was to be ‘commander in chief’

• Included in the implied powers of the federal government

  • Implied powers of the federal govt

    • Powers that flow from the elastic clause of the constitution

• concurrent powers

  • The power to tax

• 10th Amendment

  • Reserved all remaining powers ‘to the states and to the people’

• SC was to be the umpire of all disagreements between federal and state governments

What are the federal powers? (6)

• Creating and maintains armed forces

• Conducting foreign relations and making treaties

• Declaring war

• Coining money

• Regulating foreign and interstate commerce

• Making laws ‘necessary and proper’ to achieve their constitutional powers

What are the concurrent powers (federal and state)? (5)

• Making constitutional amendments

• Levying taxes

• Establishing courts

• Making and enforcing laws

• Chartering banks and corporations

What are state government powers? (4)

• Establishing local governments

• Regulating elections

• Mainintaing militia

• Assuming powers not listed in the Constitution (under 10th Amendment)

Three types of federalism

• Dual federalism

• Cooperative federalism

• New federalism

What is dual federalism?

• State and governments were co-equal with distinct policy boundaries

• States undertook most governing

• Individual state governments exercised the most political power

Explain layered cake analogy for dual federalism

• Dual federalism as a layered cake

• Clearly defined levels and a clear dispersal power

When and why did cooperative federalism emerge? (1930s)

• Aftermath of the Wall Street Crash

• 1930s

• WW2

• Roosevelt introduced the New Deal

  • Federal government took direct responsibility in matters such as unemployment benefit

    • Work programmes

    • Providing local schools

• acted as a break from dual federalism

• Clear distinctions between state and federal had been blurred

What is the marble cake analogy for cooperative federalism?

• Cooperative government was a mixture of federal and state

• Marble-cake federalism

• More intervention of the federal govt

How did cooperative federalism change the role of the state and federal?

• When president Johnson left office in 1969, cooperative federalism had changed the role of federal govt

• Welfare of citizens had changed from being preserve of the states to that of the federal govt

• Spending → increased from $10.6 billion a year

  • Rose to $259 billion before he left

What is new federalism?

• Back to original federalism

• Attempt to reduce federal power and return autonomy to the states

• Resembles cooperative federalism more than dual

Arguments that the state retain autonomy and sovereignty

• Laws vary across states

  • Criminal punishment

  • Taxes

  • Legal status of marijuana

• Healthcare

• Differences in electoral practices

• Illegal immigration

• The states have autonomy in handling of nation a crises

How does the variation in law mean that states are autonomous ? (Taxation)

• On top of federal taxation, taxation is set at a state level

• Huge differences in types of tax

  • Sales tax, and property tax

• 7 states have 0% taxation while California has 13% taxation

How has the variation in law meant that states retain autonomy? (Legal status of marijuana)

• 24 states have legalised the recreational use of cannabis

• Legal for medicinal use in 33 states

• However it is illegal at fed level

  • Federal govt can enact supremacy clause of Article VI of the Constitution

• HOWEVER- fed government has continued to ignore recreational cannabis users, meaning states are free to decide their own laws

• E.g. Cole memorandum in 2013

  • During Obama presidency stated that the Justice Department would not enforce federal restrictions on marijuana when states had legalised it

  • EXCEPT in certain circumstances such as firearms being involved

    • 2018- the memo was revoked by Trump

    • however states continue to enjoy autonomy in their marijuana laws

      • As Trump did little to change Obama’s policy

How has healthcare variation helped retain states autonomy?

• States have power over the provision of medical insurance after the passage of Obamacare in 2010

How has illegal immigration shown that states retain autonomy and sovereignty?

• sanctuary cities→ local law enforcement agencies are prohibited by state law from helping federal immigration officials to identify illegal immigrants

• however Trump issued an executive order in 2017 which proposed that sanctuary cities would be at risk of losing various federal grants

• DoJ sued California over its sancurtary city laws, reinforcing the autonomy of the state

How does the variation in electoral practices mean the states have retained autonomy?

• Article 1 of the constitution allows sates to run their own elections and there is a wide variety of election practices

• State governments are also allowed to set their own boundaries for the districts in their states

How does the autonomy of the states during national crises reinforce their autonomy? (Covid)

COVID-19

• Demonstrated the importance of the 10th amendment → Elected governors of the states could decide to take action they felt is appropriate

  • e.g. 32 state governors issued their own state of emergency before national declaration by Trump

  • was also a variety of responses

    • Some quick to act like Republican Ohio governor DeWine → first governor to call for state-wide closure of schools

    • Democrat California governor Gavin Newsom was first to issue state wide order to close business

    • 7 states did not issue orders to stay at home for non-essential activities between March and April 2020 → felt it inappropriate to do so for their states

Conflict between federal and state govt (COVID)

• Due to negative effects on the economy, Trump was keen to open the USA economy again from lockdown

• However it was the state governors who decided when their states came out of lockdowns

How can the fact that SC rulings support states over federal government reinforce state autonomy?

• Obama health reforms impacted the federal-state relationship

  • Argument entered on the provision in law where people who could not afford to buy health insurance would be covered by an expansions of the federal-state Medicaid programme

  • States had to participate in this expansion or lose their federal funding for Medicaid

  • States argued that this was a violation of the principles of federalism and therefore unconstitutional

  • So in National Federation of Independent v Sebelius (2012) the SC agreed and struck down Medicaid provision in the law- victory for states

• United States v Texas (2016)

  • SC struck down Obama’s use of an executive order to implement his immigration reform programme

  • Ruled it to be unconstitutional due to the cost to the states

What is Medicaid?

State and federal programme that provides health coverage for those who are on low income

What is Medicare?

Federal programme that provides health coverage for 65+ or under 65 if they have a disability, regardless of their income

Arguments that federal govt is challenging state autonomy

• Taxation and federal financing

• Healthcare

• Federal government involvement on state issues

• Fed govt involvement on state autonomy during national crises

• SC rulings supporting federal govt over states

How does federal taxation and financing mean that federal govt is challenging state autonomy?

• Some citizens have to pay federal income tax

• the states themselves rely on support from federal govt when finances run low

• E.g. Hurricane Katrina 2005

  • Federal government gave $120 billion worth of aid

• e.g. after stock market crash of 2008.

  • Congress passed American Recovery and Reinvestment Act 2009

    • $787 billion of federal economic stimulus

How has healthcare exemplified how the federal govt is challenging state autonomy?

• Healthcare provision is heavily dependent on federal funding

• December 2003

  • W Bush signed MPDM Act

    • Medicare Prescription Drug Modernisation Act

• ACA (Obamacare) expanded American’s health coverage options

  • Meant that federal govt provided most of the financing for subsidised coverage

  • All but 14 states have now expanded the programme and Medicaid enrolment increased by 34% between 2013-2019

  • Despite Sebelius case

How has federal government involvement on state issues challenged state autonomy? (education)

• EDUCATION

  • No Child left Behind Act

  • signed by W Bush → Jan 2002

    • new law stated that states should test children anually

    • example of marble cake model

      • mix of authrority between federal government and the states

    • Obama continued this policy:

      • investing $4 billion in the Race to the Top programme to boost education in the states

How has federal government involvement on state issues challenged state autonomy? (security and defence)

• HOMELAND SECURITY AND NATIONAL DEFENCE

  • 2001-2009 → spending by the Dep of Defense increased from $290 mil to $651 million in response to 9/11 attacks

    • 125% increase

  • US patriot Act (2001) gave federal government new powers to detain people and hold information on them

  • (new) department of Homeland Security created

    • directs states and cities on how to provide protection against potential terrorist attacks

    • federal response to homeland security and national defence continued under Obama and Trump

How has federal government involvement on state issues challenged state autonomy? (immigration)

• Trump’s wall policy was federal

• 16 states filed suits against federal governents

• May 2019

  • Judge Gilliam blocked funding of the wall on grounds that executive had overstepped its authority

• however in July 2019 a SC ruling allowed the administration to continue construction while legal action continued

  • example of fed govt attempting to involve themself on state authority

How has the federal government involvement during national crises challenged state autonomy?

• while the state governors ave autonomy in dealing with natural disasters, they still depend on the fed govt and the Federal Emergency Management Agency

• e.g.:

  • federal govt response to Hurricane Katrina 2005

    • $120 billion in aid

  • CARES Act→ response to covid 19

    • $2.2 trillion economic relief package

• sharing of responsibility in dealing with national crises is an example cooperative federalism

How has the SC rulings support for fed govt over the states challenged state autonomy?

• Although the SC case National Federation of Independent Business v Sebelius (2012) struck down the Medicaid provision in the law, it upheld the ACA

  • left fed govt with significant control over healthcare

YES- the USA is still a federal nation

• all citizens pay federal tax and states depend on financial support from fed govt

• healthcare provision is depedent on federal funding with the majority of states provising Medicaid

• federal govt has mandated parts of education policy

• Homeland Security department coordinates and controls responses to threats to nation

• states dependent on FEMA (Federal Emergency Management Agency) → they cant do what the fed govt does during national crises

• SC rulings have favoured the fed govt over states

NO- the USA is not a federal nation

• Laws still vary significantly over the states

  • capital punishment, state taxes and status of marijuana

• states control provision of medical insurance

• electoral practices vary significantly from state to state

• presence of sanctuary cities to prohibit local law offices from helping federal immigration officers

• state governors act in the best interests of their state

  • during national crises or national disasters such as COVID-19

• the SC has made rulings in favour of a state over fed govt

  • US v Texas (2016)