federalism

What is federalism

  • The division of sovereign power across the local, state, and national governments

  • Sovereign power- each unit of gov have some level of authority

  • Side note- federal gov is national government, federalism is the division 

Levels of Gov and the autonomy

  • Autonomy int his case- each level of gov can do some things w/o interference from other levels

  • Ex. National gov- national defense foreign policy. State gov- public safety, run elections

  • Police powers- the powers to enforce laws and provide for public safety

  • Concurrent powers- the power to enforce laws and provide for public safety

  • Ex. Transportation, taxation, establishing courts

  • Chart on page 92

  • Local governments are created by state charters

  • They lack autonomy, but still provide important services. Ex. Education, police, fire etc.

A comparative perspective

  • Unitary government- national, centralized gov holds ultimate authority, most common type of gov

  • Ex. UK, Scotland may have its own gov but the national gov can dissolve it at any time

  • Confederate Government- states have most of the power with a limited national government

  • Ex. Us under the articles of confederation

  • Intergovernmental organizations- to coordinate policy across member nations

  • Ex. UN, NATO, EU and more

Balancing Nation and State power in the constitution

  • The founders wanted a stronger national gov than under the articles

  • But they also wanted to ensure the states still held some power

A strong national government

  • Limits on state power and the powers of interstate commerce and national defense being secured fort he national gov

  • Necessary and proper clause (Art 1, sec 8)

  • National supremacy clause (Art VI) - supreme law of the land

  • Nation-centered focus on the constitution

State powers and limits of national power

  • There are many provisions, upholding the power of the states ex. Art II (states choose electors) and Art V (3/4 must ratify amendments)

  • Limits on congress's ability to regulate interstate commerce only

  • 10th amendment- powers not given to the national gov are reserved for the states and the people as long as the states are not prohibited from having that power

Clauses that favor both perspectives

  • In Art IV

  • Full faith and credit clause- each states laws must be honored by other states. Ex. Drivers license

  • Privileges and immunities clause- all states must treat non-state residents within their border the same as they would treat their own residents Ex. Public services

  • States are allowed to have some differences. Voting and tuition for example

The evolving concept of federalism

  • Overtime, the national government has gained more power relative to the states

The early years

  • The federalists- George Washington, John Adams, and Alexander Hamiltion. Favored strong national government

  • Democratic republicans- Thomas Jefferson, James Madison, favored state power

Establishing national supremacy

  • First confrontation- federalists established a national bank in 1791. Came to a head in 1816 with the second national bank

  • Mary land tried to kill it with taxes. 2nd national bank refused to pay

  • Could congress make a national bank? Could states tax it?

  • McCulloch v. Maryland (1819)- the court ruled in favor of the national government on both questions

  • Congress had the power to coin money and levy tazed and borrow money so you need a bank to do that even if its not stated in the constitution per say (this is an implied power). States cannot tax the national bank b/c of the national supremacy clause

  • Gibbons v. Ogden (1824)- Congress has broad power to regulate interstate commerce. Struck down NY law which gave monopoly to a private steamboat company to operate on the Hudson river

  • New York cannot interfere with interstate commerce

The emerge of state's rights

  • This was especially prevalent in the south

  • State's rights- states are entitled to a certain amount of self-government, free of federal gov intervention. Central issue leading up to the civil war

  • Nullification- suppose state's right to ignore a law passed by congress if it thought that the law was unconstitutional

  • The was especially fraught around the issue of slavery

Dual federalism

  • Defined intergovernmental relations for almost the first 150 years

  • Court has a narrow interpretation of the 14th amendment and the commerce clause

  • This limited the power of the national government

The Marshall court vs. the Taney court

  • John Marshall- 1801-1835- federalists who opposed state's rights

  • Roger Taney- 1835-1864- Supported state's rights. Dual federalism

  • Pg 98 has a good breakdown of federalism-related cases

  • Dual federalism- national and state government are seen as distinct entities providing separate services. Limits the power of the national government

  • Ex. Bill of rights only applies to national citizenship, not state citizenship

Dred Scott and Civil War

  • Dred Scott v. Sandford(1857)- Scott petitioned for his freedom after his master died. He had lived with his master in the free Wisconsin territory and therefor, under the Missouri Compromise he should be free

  • The court ruled that slaves were not citizens. They were property and that the Missouri compromise was unconstitutional b/c it violated the 5th amendment b/c it deprived slave owners of property w/o due process

  • The contributed to the Civil War b/c it showed that there was not a political solution to slavery

  • After the war, the 13th Amendment - banned slavery and the 14th amendment - equal protection under the laws and due process protections from states and the 15th amendment- newly freed male ex-slaves have the right to vote

  • 14th has been the most important to federalism. Justifies civil rights laws passed by congress

The supreme court and limited national government

  • This assertion of national power would not last

  • 1873, court ruled that due process and equal protection only applied to the national citizenship, not state citizenship. This further applied to the bill of rights. It held that this only applied to laws passed by congress, not state laws.

  • This paved the way for Jim Crow laws in the south

  • The court also endorsed laissez-faire capitalism. Made a clear distinction between interstate and intrastate commerce.

  • Held congress could not regulate commerce that occurred entirely within a state

  • Focused on the transportation, not manufactured as a definition of commerce.

Cooperative Federalism

  • 1930s' new ear

  • 17th amendment- direct election of senators instead of being elected by state legislatures

  • Progressives were worried about corruption in the state legislatures

  • National government started to gain more influence and power- Commerce distinctions began to blur

  • Cooperative Federalism aka marble cake- national and state gov.s work together to provide services. Less concrete boundaries between the state and national gov.

Shifting national- state relations

  • The great depression made it apparent that state were not equipped to handle large social problems

  • Picket fence federalism- another way to thin of Co-op federalism. The picket is a policy area, and the framing boards make up the different levels of gov.

  • The is a more accurate analogy. There is intergovernmental cooperation within policy areas.

Co-op federalism lives on: fiscal federalism

  • Fiscal federalism- federal funds are allocated to lower levels of gov through transfer payments or grants. Sometime the federal gov has strict rules for how the money is spent and other times not.

  • Coercive federalism- the federal gov pressures the states to change their policies using regulations, mandates, and conditions

Fiscal federalism- Grants in aid

  • Categorical grants- for a specific purpose

  • Block grants- financial aid to states for use within a given policy area

  • Ex. National gov sees a problem and gives the states money to work on that problem but the states can decide how to do it

  • Unfunded mandates- federal laws that require states to do something, but do not give them federal finding to do it

Expanding national power

  • The national gov.'s supremacy is still prevalent for 3 reasons

  • Reliance on the national gov. in times of crisis and war

  • The rights revolution of the 50s and 60s and the great society programs

  • The rise of coercive federalism

Crisis and war

  • Think about 9/11, WWII, the great depression

  • Americans usually look to the national rather than the states government to solve those problems

The rights revolution and pres. Johnson's great society programs

  • Represented an increase in federal control over state policies

  • Influential court cases involving education and elections. Increased national influence. Ex. Schools desegregation dn bussing etc.

  • Legislation as well ex. 1965 voting rights act

Other shifts toward national supremacy

  • Coercive federalism

  • Can also use federal preemptions

  • Federal preemptions- based on the supremacy clause. They impose national policies on the states. Can include unfunded mandates

The states fight back

  • It seems that people tend to see state and local government more favorably than the national government

  • The states have pushed back against federal power expansion and in some cases pass stricter laws than the federal government does.

Competitive federalism

  • Competitive federalism- when the states compete to have the best policies to attract businesses and jobs

  • This is also and check on tyranny. People will move to another state if they don’t like the laws

  • Can also cause a race to the bottom ex. Removing environmental or labor policies to make it cheaper to do business. Low taxes might also lead to fewer public services and benefits.

Fighting for state rights: the role of the modern supreme court-the 10th amendment

  • As the court has shifted in a more conservative way, it required congress to provide an unambiguous state of its intent to overrule state authority

  • This makes congress likely to miss things. Ex. The Missouri judge rule and the age discrimination in employment act.

Continue- the 14th amendment

  • The 14th amendment was designed to give the federal government control over potentially discriminatory  state laws

  • This power has started to be chipped away in the 1990s

  • There has been a new standard to require congress to justify remedial legislation

  • Laws should also not place an unfair burden on the states

Continue- the commerce clause

  • Gun free School Zone act of 1990- congress thought they could do this b/c guns were often sold across state lines and people worrying about guns in schools could affect their education and therefore their economic output so it related to the commerce clause

  • They did not explicitly state this

  • In united states v. Lopez, the court said that having a gun near a school had nothing to do with interstate commerce, striking down the law

  • Future legislations made a stronger link the commerce

  • It is important to note that the court rules against states frequently as well.

Assessing the federalism- ideological complexities

  • Generally speaking, liberal tend to favor a stronger national government and the conservatives tend to favor stringer states governments

  • This is not always the case though. Ex. State laws being often more lenient on mary jane use than federal law

Continue- advantages of a strong role for the states

  • States can be laboratories for democracy- lots of creative solutions means that the best ideas might be adopted by other states or at the national level

  • State and local governments is closer to the people- this encourages participation and improves responsiveness

  • States provide more access to the political system- you can pursue complaints under state or federal law

  • States provide an important check on national tyranny- people can vote with their feet. This encourages competition for better policies

Continue- disadvantages

  • Unequal distribution of resources across the states- ex. Pollution that goes across the state lines and cross state infrastructure

  • Unequal protection for civil rights- some states simply do more of this than others

  • Competitive federalism that produces a race to the bottom- too lax environmental or worker protection standards. Not enough tax revenue for social programs