chapter 3 (federalism)

3.1

Conflict over Medical Marijuana

Objective: Explain the tension in American federalism between state and federal laws.

Overview

• under the a.o.c most power was given to state governments
  • congress was left to struggle for the cooperation of state governments
• under the constitution power was divided between states and national governments
  • examples of federal power: defense, national security, and the economy
  • examples of state power: police powers
  • examples of shared powers: taxation
• federalism: a system that divides power between the national and state governments

Medical Marijuana Case

• in 2002 angel mcclary raich and diane monson filed lawsuits against the u.s. government
  • they claimed their use of medical marijuana, which was legal under the laws of california but illegal under federal law was protected by their state laws and the constitution
• they were in compliance with the california state law and the compassionate use act (1996)
  • compassionate use act (1996): made the use and cultivation of marijuana for medical purposes legal if undertaken under the supervision of a licensed physician and in accordance with state regulations
• however, they were not in compliance with the controlled substances act of 1970
  • controlled substances act (1970): marijuana is classified as a schedule I drug, among the most dangerous substances, such as heroin and LSD; enacted under congress’s constitutional authority to regulate interstate commerce
• august 2002: federal drug enforcement administration (dea) came to monson’s home; she was claimed to be within regulation but her plants were taken and destroyed
  • monson alleged that the dea’s actions violated her civil rights and her rights under california law
• appeals court ruled in their favor after she sued
• supreme court became involved
  • the attorney general and the dea countered that they were rightfully upholding federal law and federal authority
  • supreme court was asked to decide whether the controlled substances act prevailed over the california law that legalized medical marijuana

3.2

Federalism and the Constitution

Objective: Describe how the Constitution divides power between the national and state governments.

Systems of Government

• unitary systems: one central government exercises authority over the subnational governments (ex. states)
  • national government can delegate powers to subnational governments but it has the authority to take them back
  • most countries follow this system
  • examples: united kingdom, china, iran
• confederal systems: subnational governments (ex. states) have more power than the national government
  • national governments heavily depend on states to carry out and pay for public policies
  • examples: a.o.c, switzerland
• federal systems: power is divided between the states and the national government
  • each level of government retains some exclusive powers and has some denied
  • have constitutional protections for each level against encroachment on its powers by the other levels
  • examples: u.s., mexico, nigeria, russia

National and State Powers

• enumerated (expressed) powers: powers explicitly granted to the national government through the constitution
  • most are granted to legislative branch
• exclusive powers: powers only the national government may exercise
  • examples: power to coin money, declare war, raise and support an army and navy, make treaties, provide for the naturalization of american citizens, and regulate interstate and foreign commerce
  • reserved powers: only for states
• implied powers: not specifically granted to the federal government
  • necessary and proper clause: congress can make laws to carry out its enumerated powers
  • gives power to implied power
• constitution denies certain powers to the national government
  • prohibits bills of attainder: the legislature declares someone guilty without a trial
  • cannot pass ex post facto laws: punish actions that were legal when they occurred
  • cannot suspend writ of habeas corpus: giving defendants the right to be informed of the charges and evidence against them
  • cannot admit new states to union or change boundaries (without consent of states)
  • cannot impose taxes on goods and services exported/imported between states

Commerce, Necessary and Proper, and Supremacy Clauses

• commerce clause: grants congress the authority to regulate interstate business and commercial activity
  • the combination of all three of these clauses allows congress to deem (nearly) any productive activity as commerce and therefore under their regulation
  • example: monson’s homegrown marijuana was never sold and did not leave her home state, the federal government claimed the authority to regulate it as interstate commerce
• necessary and proper clause: grants the federal government the authority to pass laws required to carry out its enumerated powers; aka elastic clause
• supremacy clause: establishes the constitution and the laws of the federal government passed under its authority as the highest laws of the land
  • means that the states must abide by the laws passed by congress, even if state constitutional provisions conflict with them
  • state courts must abide by national treaties and state courts must follow the constitution

Powers of the State Governments

• 10th amendment: reserves powers not delegated to the national government to the states and the people
  • the basis of federalism
  • responsible for much of protection for state authority
• advocates of 10th amendment argue that it limits federal power to enumerated powers and all other powers belong to people
  • u.s. v. darby (1941): the supreme court labeled that interpretation of the 10th amendment as a “truism”
  • truism: it was not supposed to give the states and people powers that supersede those of the national government
• garcia v. san antonio marta (1985): involved whether or not theaSan antonio metropolitan transit authority had to comply with the fair labor standards act in paying its workers
  • court ruled that congress could decide when to regulate activities by state and local governments
• reserved powers: powers not given to the national government, which are retained by the states and the people
  • examples: police powers (safety/health), conducting elections, establishing town, county, etc.
  • article V: gives states the power to decide whether an amendment is made to the constitution (3/4 of consent required)
• concurrent powers: powers granted to both states and the federal government in the constitution
  • where the national and state government powers overlap
  • example: the power to tax, pass/enforce laws, create/operate systems of court, charter banks and corporations

Regional and Local Governments’ Reliance on the States

• constitution doesn’t describe powers of governments in levels lower than states (ex. county, cities, towns, districts)
• state and local governments are usually unitary (local depends on states for power distribution)
• states can disband local governments
• federalism only applies to state and national government because state and local is unitary
• federalism can also be between two or more states
  • full faith and credit clause: constitutional clause requiring states to recognize the public acts, records, and civil court proceedings from another state
  • extradition: the requirement that officials in one state return a defendant to another state where a crime was committed
  • privileges and immunities clause: constitutional clause that prevents states from discriminating against people from out of state

3.3

Dynamic Nature of Federalism

Objective: Describe the development of American federalism over time.

Marshall Court

• federalism changes over time; it’s a dynamic political process that has to constantly balance the powers of the state and national governments
• john marshall: most defining figure for federalism in 20th century; longest serving chief justice of supreme court (1801-1835)
• mcculloch v. maryland (1819): emphasizes that the states and people ceded some of their sovereignty to the national government in ratifying the constitution
  • several states (including maryland) passed laws to tax the second bank of the u.s.
  • bank officials in maryland refused to pay the state tax so the dispute went to the supreme court
  • marshall court ruled in favor of authority of national government
  • marshall used the necessary and proper clause to emphasize the right of congress to establish a bank
  • emphasis on implied powers of government
  • ruled that congress wasn’t limited by expressed powers
  • marshall court also ruled that maryland (and other states) did not have the authority to tax the bank’s state branches
  • “the power to tax is the power to destroy”
• gibbons v. ogden (1824): court decided that the federal government has exclusive power over interstate commerce
  • arose from a battle between two powerful businessmen in the steamboat business in ny and nj
  • aaron ogden: granted a monopoly by a ny state state law that protected his routes within ny and between ny and nj
  • thomas gibbons: a steamboat operator who had been granted a license by the federal government to operate on the same route; filed suit to block the monopoly that ny granted to ogden
  • marshall affirmed the exclusive authority of congress to regulate interstate commerce including all the states and in steamboat territory

13th, 14th, & 15th Amendments

• 13th amendment: outlawed slavery
• 14th amendment: contains several clauses that place limits on state actions
  • provides that all persons born in the u.s are citizens
  • equal protection clause: states may not deny persons equal protection under the laws
  • due process clause: prevents states from denying persons due process under the law
• 15th amendment: gave African Americans the right to vote
• after civil war: supreme court didn’t strongly protect/support african americans
  • instead it affirmed a vision of federalism that recognized state authority, even if that authority was used to restrict the rights of citizens based only on their racial identity
• plessy v. ferguson (1896): supreme court upheld the constitutionality of legalized racial segregation (separate but equal) and the ability of states to pass such laws
  • homer plessy: a light-skinned man who described himself as ‘seven-eighths Caucasian’; a test case organized by the black community in new orleans to challenge louisiana’s segregation laws
  • he was arrested and fined for violating a state law requiring separate railroad facilities for whites and blacks
  • justice henry billings brown declared that louisiana’s law did not violate the 14th amendment
  • declared that “separate but equal” doesn’t violate the constitution

Shifting from Dual to Cooperative Federalism

• dual federalism: a form of american federalism in which the states and the nation operate independently in their own areas of public policy
  • presumes distinct but not complete separation of state and national governments
  • this has been muddied over the years
• national government has tried to control regulations usually left up to the state (ex. wages, working conditions, right to unionize, child labor, etc.)
  • lochner v. new york (1905): ny tried to limit the working hours of bakers to 60 hrs/week
• selective incorporation: the process through which the supreme court applies fundamental rights in the bill of rights to the states on a case-by-case basis
  • gitlow v. new york (1925): court ruled that freedom of speech and the press are fundamental liberties protected by the due process clause from violations by the states
  • limited states’ actions in taking away the personal freedoms guaranteed in the 1st amendment
• cooperative federalism: a form of american federalism in which the states and the national government work together to shape public policy
  • replaced dual federalism in the early 20th century
  • national government: responsible for raising revenues and setting standards
  • state/local governments: responsible for administering the programs

Great Depression and Changes to Federalism

• the great depression changed the nature of american federalism because states couldn’t handle the crisis and the national government increased in power
• states borrowed a lot of money to provide programs for the state
  • crisis took place and states experienced shortfalls and couldn’t help residents
  • states appealed to national government for help
• president frank roosevelt: inaugurated in 1993; made it clear that he was prepared to bring the full power of the executive branch to bear on the great depression
  • he knew state governments weren’t in the position to refuse the big sums of federal aid he gave
  • this shift in dependency changed the relationship between the state and national government
  • it also strengthed the role of the national government in the economy
• new deal programs greatly changed congress’s authority to regulate interstate commerce; many of the programs defined modern cooperative federalism
  • social security act (1935): established unemployment insurance for american workers; set up old-age insurance and old-age assistance programs; later supplemented with disability insurance
  • works progress administration (wpa): largest new deal program; created to provide jobs for the thousands of people who were unemployed during great depression
  • by 1943: WPA had brought 8.5 million Americans into the workforce
• revolution to federalism was made possible by economic crisis and the states’ inability to cope with the fallout

3.4

Modern American Federalism

Objective: Explain how federalism changed in the 20th and 21st centuries.

Grants-in-Aid and Expansion of Cooperative Federalism

• grants-in-aid: federal money provided to states to implement public policy objectives
  • fiscal federalism: the federal government’s use of grants-in-aid to influence policies in the states
• categorial grants: grants-in-aid provided to states with specific provisions on their use
  • may involve the requirement that the state, local, or regional authority provide matching funds, have specific instruction on how the funds are received, etc.
  • important source of national power
  • states have to accept the national regulation that comes along with the money they receive
  • once a state establishes a program based on categorical grant-in-aid, it depends on the continued provision of those funds by the national government to support the program for citizens
• categorial grants can:
  • encourage states to carry out national policy objectives
  • threaten states by withholding of funds if they don’t carry out policy objectives
  • act as a bribe to induce subnational governments to execute national policies
  • ex. national drinking age raised to 21 for block grant to provide transportation funds to states
• administration of these programs requires further expansion of both national and state governments
• unfunded mandates: federal requirements that states must follow without being provided with funding
  • americans with disabilities act (1990): required states to change existing public buildings to make them accessible to those with disabilities
• social welfare: involves health, safety, education, and opportunities for citizens
  • social welfare with dual federalism: mostly under state control
  • social welfare with cooperative federalism: role of national government is expanded
  • ex. great society program (lyndon b. johnson) from mid-1960s
    • medicaid (1965): provided health-care assistance to low-income individuals receiving other forms of aid as well as to those “who were medically indigent but not on welfare”
    • elementary and secondary education act of 1965: provided for the first time, general federal support for public elementary and secondary education; provided federal assistance to children from low-income families in both public and private schools

Devolution and Block Grants

• block grant: a type of grant-in-aid that gives state officials more authority in the disbursement of federal funds
  • established by richard nixon in 1968 as a promise to roll back the expansion of the national government and return some power to the states
  • ronald reagan increased use of block grants for social welfare programs
• revenue sharing: when the federal government apportions tax money to the states with no strings attached
  • ended in 1986 to prevent mounting federal deficits
• devolution: returning more authority to state or local governments; decentralizing control and administration of programs
  • focused on social welfare programs
  • work opportunity reconciliation act (1996): devolved social welfare programs to states
    • replaced aid to families with dependent children act with temporary assistance for needy families
    • temporary assistance for needy families (tanf): placed time limits on welfare assistance and added work requirements
  • block grants gave states more authority in setting and enforcing rules of welfare programs

Federalism and Public Policy (Education)

• elementary and secondary school act (1965): passed as part of lyndon b johnson’s great society to provide equal education opportunities
  • provided federal grant money for states to create programs to reduce dropout rates and improve schools
• no child left behind (2002): controversial law that provided states with grant money if they agreed to give standardized assessment to students at certain grade levels
  • replaced by every child succeeds act (2015) to reduce competitive pressure of standardized testing (but testing is still required)
• advocates of state control: argue that the federal government has overstepped its bounds in asserting control over what has traditionally been a state issue
• advocates of federal education: argue that students should not be educationally disadvantaged based on the state in which they live

3.5

Supreme Court and Modern Federalism

Objective: Discuss the current status of American federalism and how it might continue to evolve.

U.S. v. Lopez (Preserving States’ Authority)

• march 1992: student tried to sell gun on school campus; he was charged under texas law (prohibited firearms in schools)
  • state charges were dropped and lopez was charged with violating the gun-free school zones act of 1990
  • lopez moved to dismiss the charges, claiming that the act was unconstitutional because congress did not have the power to regulate public schools
  • court denied this because the act was within enumerated powers because activities in schools are related to interstate commerce
• lopez was convicted and appealed to u.s. court of appeals for 5th circuit in hopes of reversing their decision
  • they agreed and the conviction was reversed
  • supreme court agreed to hear case; debate over whether schools were considered interstate commerce came up because technically anything could be considered interstate commerce with the “slippery slope” logic
• the supreme court decision reverses the trend toward expanding national power and reaffirms state police powers under the 10th amendment

Same-Sex Marriage

• loving v. virginia (1967): supreme court overturned a virginia law prohibiting interracial marriage
• defense of marriage act: stated that for purposes of federal law, marriage meant a legal union between a man and a woman
  • reaffirmed the power of the states to make their own decisions about marriage and how same-sex marriage didn’t have to (and wouldn’t) be recognized legally
  • made clear that same-sex marriage did not fall under the protection of the full faith and credit clause (individual states didn’t have to recognize the marriage)
  • passed by congress during clinton presidency
• u.s. v. windsor (2013): supreme court ruled that the section of DOMA classifying only opposite-sex marriages as legal under federal law was unconstitutional
  • supreme court validated state-recognized same-sex marriages for federal purposes but still allowed states to reject same-sex marriage licenses from other states
• obergefell v. hodges (2015): supreme court affirmed the legality of obergefell and arthur’s marriage and guaranteed the right of all couples to marry
  • case legalized same-sex marriage nationwide

Gonzalez v. Raich

• boundaries between state power and national power were not definitively settled
  • local governments were caught in the middle because the laws in their states conflicted with federal law
• gonzalez v. raich (2004): court ruled against raich and monson; court sided with the authority of the federal government under the commerce and supremacy clauses of the constitution
  • supreme court determined that it did not matter if they were personally involved in interstate commerce because congress had a rational basis for concluding that the market for marijuana as a whole substantially impacted interstate commerce
  • supports “slippery slope” argument of federalism
  • defining the proper limits of the commerce clause remains a hotly contested issue
• since then quite a few states have legalized use of marijuana but it is still illegal under federal law
  • controlled substances act became difficult to uphold because of differences in legality of drugs between states and national law
• american federalism is loosely defined
  • it is still unsure of how to deal with the fact that an individual may comply with the laws of her or his state but at the same time break federal law

Summaries

Explain the tension in American federalism between state and federal laws.

The American federalism system was established after the Constitution was made. The Constitution divided powers between the state and federal laws, but some powers overlap or are not explicit in the Constitution, which yields controversy over their interpretation. It also becomes muddled because some states have laws that are not aligned with the federal law, leaving citizens to struggle with complying with either. Historically, the Supreme Court has usually ruled in favor of the federal law, such as with Gonzalez v. Raich.

Describe how the Constitution divides power between the national and state governments.

The Constitution divides power between national and subnational levels based on the policies in the Constitution. However, powers may be held by the states if they aren’t controlled by the national government, as stated by the 10th amendment (reserved powers). There are 3 types of government: unitary (single authority), federal (strong national), and confederal (strong subnational). American federalism follows a federal system, and powers are delegated by the national government to the states, while the national government carries out its expressed (enumerated) powers, as well as implied powers if necessary (constitutional clause). Some powers, such as taxation, are shared between the national and subnational governments (concurrent powers). Federalism extends to the subnational level, where states must comply with each others laws under the full faith and credit clause, privileges and immunities clause, and policies like extradition.

Describe the development of American federalism over time.

American federalism was loosely interpreted from the start of the Constitution, until the establishment and reign of the Marshall Court. Marshall Court strove to establish the constitution, as well as an implied powers, as used by the federal government, to trump state powers. The McCulloch v. Maryland case established this premise. The 13th, 14th, and 15th amendments established equal rights and suffrage for black americans, but clauses such as separate but equal (as delegated by the national government), were still seen as superior to state laws. In Plessy v. Ferguson, the Supreme Court defended a state law that promoted segregation as constitutional, which shows how the federal law can be used to support subnational laws. Prior to cooperative federalism, dual federalism was America’s system. After shifting to cooperative federalism, more controversy over the interpretation of the national regulations was common. Cooperative federalism introduced a number of new practices, such as the establishment of various grants during both Roosevelt and Johnson’s presidency. The shift in federalism, especially during the Great Depression, gave more power to the national government. State governments were influenced to comply with the cooperative federalism policies to compensate for the fallout from the economic depression.

Explain how federalism changed in the 20th and 21st centuries.

Modern federalism became about when America became more heavy-handed and generous in their grants to subnational governments. Grants-in-aid, which is federal money given to the states, can be broken down by their intended purpose and requirements for obtainment. They serve as an important source of national power because subnational governments may become more dependent on federal aid, making them more compliant to federally-imposed policies and regulations. Categorial grants have specific provisions on their use, and in turn, can directly influence subnational governments to comply with the imposed provisions for the grant in return. Sometimes however, the federal government exercises its power and requires some states to follow provisions without funding (unfunded mandate). Most of these grants are meant to fund social welfare programs, which involve the safety, health, education, etc. of citizens. These programs vary between states, but most states comply with certain regulations imposed by the national government to get funding for these programs. Block grants are another type of aid meant to return power to the states (devolution).

Discuss the current status of American federalism and how it might continue to evolve.

With the development of modern federalism, states’ authority has decreased or become more loosely interpreted so that the federal government could find a loophole to exercise power through. An example of this is U.S. v. Lopez, where gun control was suspected to be considered interstate commerce and the controversy raised the case to the supreme court. This was an important case because if the court hadn’t ruled in Lopez’s favor, anything could’ve been considered interstate commerce. Then, a “slippery slope” of federal power would’ve occurred and states would’ve lost power. Some states have laws that aren’t in direct compliance with national laws, but this allows them to exercise their reserved powers (ex. marijuana laws in states). American federalism remains a loosely defined concept because people are still unsure of how individuals are meant to comply with the laws both within their state, as well as their whole nation.