Federalism and Federalism and the Separation of the Separation of

Powers Powers Sharing Power, Preventing Sharing Power, Preventing

TyrannyTyranny

Types of PowersTypes of Powers ConcurrentConcurrent

Shared by the State/National Shared by the State/National GovernmentGovernment

Tax, Charter Tax, Charter banks/businesses, etc.banks/businesses, etc.

National Government:National Government: Expressed (Enumerated)Expressed (Enumerated) Implied (granted through the Implied (granted through the

necessary and proper clause)necessary and proper clause) State Government:State Government:

Reserved (Tenth Reserved (Tenth Amendment)Amendment)

Coercion (the power to Coercion (the power to develop and enforce develop and enforce criminal codes, administer criminal codes, administer health and safety rules, and health and safety rules, and regulate the family)regulate the family)

The authority to regulate The authority to regulate these fundamental matters these fundamental matters is referred to as the is referred to as the police police powerpower

America’s Social America’s Social ContractContract

The contract we call the American The contract we call the American Constitution is this: Constitution is this: the people will give their the people will give their consent to a strong national government if consent to a strong national government if that government would in turn accept certain that government would in turn accept certain strict limitations on its powersstrict limitations on its powers. We call this . We call this exchange of power for limits exchange of power for limits constitutionalismconstitutionalism

The Constitution contains three fundamental The Constitution contains three fundamental limitationslimitations

Federalism Federalism Separation of PowersSeparation of Powers Individual RightsIndividual Rights

Limitations DefinedLimitations Defined FederalismFederalism divides government into two divides government into two

levels – national and state – each with levels – national and state – each with sufficient independence (or sufficient independence (or sovereigntysovereignty), ), thereby restraining the power of boththereby restraining the power of both

Separation of Powers Separation of Powers sought of limit the sought of limit the power of the national government by power of the national government by dividing government against itself dividing government against itself

Individual RightsIndividual Rights, as embodied by the , as embodied by the Bill of Rights, sought to limit government Bill of Rights, sought to limit government by defining the by defining the peoplepeople as separate from as separate from it, and granting each individual an identityit, and granting each individual an identity

FederalismFederalism

The Constitution created two layers of The Constitution created two layers of government; national and state governments. government; national and state governments. This is called This is called dual federalism.dual federalism.

This is also called the “traditional system” This is also called the “traditional system” because it prevailed for ¾ of our history, and because it prevailed for ¾ of our history, and most closely resembles the desires of the most closely resembles the desires of the founding fathers.founding fathers.

As the chart in the next slide demonstrates, As the chart in the next slide demonstrates, this system invoked a weak national this system invoked a weak national government and strong state responsibility for government and strong state responsibility for policies.policies.

The Federal System:The Federal System:

Specialization of Governmental Functions in Specialization of Governmental Functions in the Traditional System (1789 – 1937)the Traditional System (1789 – 1937)National National

Government Government PoliciesPolicies

State Government State Government PoliciesPolicies

Local Government Local Government PoliciesPolicies

Internal improvementsInternal improvements

SubsidiesSubsidies

TariffsTariffs

Public lands disposalPublic lands disposal

PatentsPatents

CurrencyCurrency

Property lawsProperty laws

Estate lawsEstate laws

Commerce lawsCommerce laws

Banking and credit lawsBanking and credit laws

Corporate lawsCorporate laws

Insurance lawsInsurance laws

Family lawsFamily laws

Morality lawsMorality laws

Public health lawsPublic health laws

Education lawsEducation laws

General criminal lawsGeneral criminal laws

Eminent domain lawsEminent domain laws

Construction codesConstruction codes

Land-use lawsLand-use laws

Electoral lawsElectoral laws

Local government lawsLocal government laws

Occupations and professions Occupations and professions lawslaws

Adaptation of state lawsAdaptation of state laws

Public worksPublic works

Basic public servicesBasic public services

Nullification CrisisNullification Crisis

Southern states attempted to settle Southern states attempted to settle the ongoing power struggle through the ongoing power struggle through the doctrine of nullificationthe doctrine of nullification

Jefferson and Madison authored the Jefferson and Madison authored the Virginia and Kentucky Virginia and Kentucky resolutionsresolutions, which suggested that , which suggested that states have the right to declare null states have the right to declare null and void a federal law that a state and void a federal law that a state considered unconstitutionalconsidered unconstitutional

The Commerce Clause and The Commerce Clause and Expanding National PowerExpanding National Power

In the 19In the 19thth Century, the Supreme Court Century, the Supreme Court expands the power of the federal expands the power of the federal government through consistently expansive government through consistently expansive interpretations of the Commerce Clause.interpretations of the Commerce Clause.

McCulloch v. MarylandMcCulloch v. Maryland Chief Justice Marshall explains doctrine of “implied Chief Justice Marshall explains doctrine of “implied

powers”powers” Allows Congress to use “necessary and proper” clause Allows Congress to use “necessary and proper” clause

to interpret its delegated powersto interpret its delegated powers Marshall concluded that whenever a state law conflicted Marshall concluded that whenever a state law conflicted

with a federal law, the state law would be deemed with a federal law, the state law would be deemed invalid (interpretation of the Supremacy Clause)invalid (interpretation of the Supremacy Clause)

Gibbons v. Ogden (1824)Gibbons v. Ogden (1824)

Marshall interprets the commerce clause to include all Marshall interprets the commerce clause to include all “species of commercial intercourse”“species of commercial intercourse”

Establishes national supremacy in all matters Establishes national supremacy in all matters concerning interstate commerceconcerning interstate commerce

Despite expansive interpretation, national Despite expansive interpretation, national government does not readily expand its government does not readily expand its influenceinfluence

In fact, in areas of governmental regulation In fact, in areas of governmental regulation late in the 19late in the 19thth Century, this interpretation Century, this interpretation serves as a cause of restraint, as most serves as a cause of restraint, as most goods and commerce is not yet “interstate”goods and commerce is not yet “interstate”

Arguments For/Against Arguments For/Against FederalismFederalism

Federalism is good Federalism is good because…because…

Federalism is bad because…Federalism is bad because…

sustains American commitment & sustains American commitment & tradition of local self-governmenttradition of local self-government

State governments can block State governments can block important national actions, prevent important national actions, prevent progress, and upset national plansprogress, and upset national plans

Congress consists of people who are Congress consists of people who are beholden to local constituenciesbeholden to local constituencies

It has historically allowed It has historically allowed perpetuation of slavery, segregation, perpetuation of slavery, segregation, and racismand racism

Creates a beneficial separation of Creates a beneficial separation of power between national and state power between national and state governmentsgovernments

Ensures political flexibility and Ensures political flexibility and protects individual rightsprotects individual rights

It facilitates political It facilitates political participation and activity participation and activity (small (small constituency increases citizen constituency increases citizen involvement)involvement)

Federalism, an Evolving Federalism, an Evolving SystemSystem

While the Constitution outlines a broad While the Constitution outlines a broad framework for the division of authority framework for the division of authority between the national government and the between the national government and the states, much adaptation and innovation has states, much adaptation and innovation has taken placetaken place

Politicians are Politicians are goal-oriented, goal-oriented, and are and are constantly exploring the possibilities provided constantly exploring the possibilities provided them by changing institutional positions. them by changing institutional positions. Federalism has adapted to fit the needs of Federalism has adapted to fit the needs of specific political playersspecific political players

Since the time of the Founding, Federalism has Since the time of the Founding, Federalism has been shaped strongly by the Supreme Courtbeen shaped strongly by the Supreme Court

State Obligations to One State Obligations to One AnotherAnother

““Comity” ClauseComity” Clause Ensures that citizens of one state be Ensures that citizens of one state be

granted the same “privileges and granted the same “privileges and immunities” in all statesimmunities” in all states

Also regulates criminal justice Also regulates criminal justice (extradition)(extradition)

““Full Faith and Credit” ClauseFull Faith and Credit” Clause Requires states to honor the “Public Requires states to honor the “Public

Acts, records, and judicial Acts, records, and judicial proceedings” of other statesproceedings” of other states

Supreme Court has allowed Supreme Court has allowed exceptions for “public policy” reasons exceptions for “public policy” reasons (if states have strong objections to (if states have strong objections to the law, they do not have to honor it)the law, they do not have to honor it)

Hawaii/Vermont gay marriage Hawaii/Vermont gay marriage initiativesinitiatives

Both designed to promote Both designed to promote national unitynational unity

Local Government and the Local Government and the Constitution Constitution

The status of local government is probably The status of local government is probably unique in world experience in that local unique in world experience in that local government has no status in the government has no status in the Constitution.Constitution.

StateState legislatures created local legislatures created local governments, to permit them to take on governments, to permit them to take on some of the responsibilities of some of the responsibilities of statestate governmentgovernment

Most states have amended their Most states have amended their constitutions to give their larger cities constitutions to give their larger cities home home rulerule – a guarantee of noninterference in – a guarantee of noninterference in local affairs. local affairs.

Cooperative FederalismCooperative Federalism Refers to supportive relations between the state and Refers to supportive relations between the state and

national government, which defines the U.S. system since national government, which defines the U.S. system since the 1930s, also called “marble cake federalism” (as the 1930s, also called “marble cake federalism” (as opposed to “layer cake”)opposed to “layer cake”)

This comes in the form of federal subsidization of special This comes in the form of federal subsidization of special state and local activities called state and local activities called grants-in-aidgrants-in-aid

Grants-in-aid are an important part of federal influence, as Grants-in-aid are an important part of federal influence, as it presents a “carrot” whereby Congress appropriates it presents a “carrot” whereby Congress appropriates money for state and local governments with the condition money for state and local governments with the condition that the money be spent for a specific purpose.that the money be spent for a specific purpose.

Congress relies upon grants-in-aid because it lacks the Congress relies upon grants-in-aid because it lacks the Constitutional or political power to make the states do Constitutional or political power to make the states do their bidding.their bidding.

Grants-In-Aid started with farmers, as a means of avoiding Grants-In-Aid started with farmers, as a means of avoiding the Constitutional question of interstate commerce while the Constitutional question of interstate commerce while still achieving the goal of agricultural improvement (a still achieving the goal of agricultural improvement (a national goal)national goal)

Historical Trend of Historical Trend of Grants-In-AidGrants-In-Aid

GIA expands to the GIA expands to the cities in the 1930s, cities in the 1930s, as Congress looks to as Congress looks to assist the assist the unemployed, provide unemployed, provide public housing.public housing.

Following WWII, Following WWII, Congress provides Congress provides grants for urban grants for urban development and development and school lunches.school lunches.

Historical Trend of Federal Historical Trend of Federal Grants-In-AidGrants-In-Aid

0

50

100

150

200

250

300

350

400

Am

ou

nt

of

gra

nts

-in

-aid

(in

b

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1950 1960 1970 1980 1990 2000

Fiscal Year

Types of Grants-in-AidTypes of Grants-in-Aid

Categorical GrantsCategorical Grants Funds given to the states and localities, earmarked Funds given to the states and localities, earmarked

by law for specific categories such as education or by law for specific categories such as education or crime preventioncrime prevention

Project GrantsProject Grants Program in which state/local governments submit Program in which state/local governments submit

proposals to federal agencies and for which funding proposals to federal agencies and for which funding is provided on a competitive basisis provided on a competitive basis

Formula GrantsFormula Grants Grants in which a formula is used to determine the Grants in which a formula is used to determine the

amount of federal funds a state or local government amount of federal funds a state or local government will receive will receive

Regulated Federalism Regulated Federalism

Starting in the 1960s, cooperative federalism Starting in the 1960s, cooperative federalism gave way to “regulated federalism”gave way to “regulated federalism”

The national government regulates states by The national government regulates states by threatening to withhold grant money unless threatening to withhold grant money unless states conform to national standardsstates conform to national standards Used to help achieve civil rights, combat poverty, Used to help achieve civil rights, combat poverty,

and protect the environmentand protect the environment Regulated federalism reflects a general shift Regulated federalism reflects a general shift

in federal regulation away from strictly in federal regulation away from strictly economic activities towards more “social economic activities towards more “social regulation”regulation”

““Setting National Setting National Standards”Standards”

Asbestos Hazard Emergency Act of 1986Asbestos Hazard Emergency Act of 1986 Required school districts to inspect for Required school districts to inspect for

asbestos hazardsasbestos hazards Americans with Disabilities Act of 1990Americans with Disabilities Act of 1990

Requires all state and local governments to Requires all state and local governments to promote access for the handicapped to all promote access for the handicapped to all government buildingsgovernment buildings

Net effect of these standards is that state Net effect of these standards is that state and local policies are more uniform from and local policies are more uniform from coast to coastcoast to coast

MandatesMandates Requirements placed Requirements placed

on states by the on states by the federal government federal government are referred to as are referred to as mandatesmandates

Unfunded MandatesUnfunded Mandates refer to federal refer to federal programs imposed on programs imposed on the states without the states without any any funding at allfunding at all from the from the national government national government (no grants-in-aid)(no grants-in-aid)

Unfunded Mandates: The Unfunded Mandates: The ResponseResponse

Anger over federal unfunded mandates helped Anger over federal unfunded mandates helped lead to the “Contract with America” lead to the “Contract with America” revolution of 1994 that gave Republicans revolution of 1994 that gave Republicans control of the House.control of the House.

In one of its first acts, Congress passed the In one of its first acts, Congress passed the “Unfunded Mandates Reform Act (UMRA)“Unfunded Mandates Reform Act (UMRA) Any mandate with uncompensated state and local Any mandate with uncompensated state and local

cost of more than $50 million could be stopped by a cost of more than $50 million could be stopped by a point of order on the House floor (stop, look, listen)point of order on the House floor (stop, look, listen)

During 1996 (its first year of operation) only 11 of During 1996 (its first year of operation) only 11 of 69 unfunded mandates met the $50 million 69 unfunded mandates met the $50 million requirementrequirement

Supporters argue that the true impact of UMRA Supporters argue that the true impact of UMRA was to deter large unfunded mandates from being was to deter large unfunded mandates from being proposedproposed

New Federalism and the New Federalism and the Nation-State Tug-Of-WarNation-State Tug-Of-War

New FederalismNew Federalism Today, the nation-state relationship is best described as Today, the nation-state relationship is best described as

a tug-of-war between those seeking more uniform a tug-of-war between those seeking more uniform national standards and those seeking more room for national standards and those seeking more room for variability within the statesvariability within the states

Presidents Nixon and Reagan reversed the trend toward Presidents Nixon and Reagan reversed the trend toward national standards and return to “traditional” policy national standards and return to “traditional” policy making making ‘new federalism’‘new federalism’

Block Grants & Revenue Block Grants & Revenue SharingSharing

Block GrantsBlock Grants Grants that give state and local Grants that give state and local

governments more freedom and governments more freedom and discretion in deciding how to spend the discretion in deciding how to spend the moneymoney

Revenue SharingRevenue Sharing During times of budget surplus, the During times of budget surplus, the

federal government may give grants to federal government may give grants to states without any “strings” attachedstates without any “strings” attached

DevolutionDevolution Both of these attempts are examples of Both of these attempts are examples of

devolutiondevolution, a policy intended to remove a program , a policy intended to remove a program from one level of government by deregulating it or from one level of government by deregulating it or passing it down to a lower level of government.passing it down to a lower level of government.

President Clinton continued the devolution trend, President Clinton continued the devolution trend, replacing the Aid to Families with Dependent replacing the Aid to Families with Dependent Children (AFDC) with block grants to states Children (AFDC) with block grants to states through Temporary Assistance to Needy Families through Temporary Assistance to Needy Families (TANF)(TANF)

President Bush leans more towards President Bush leans more towards regulated regulated federalismfederalism, with programs such as No Child Left , with programs such as No Child Left Behind, which gives states “full freedom” to use Behind, which gives states “full freedom” to use the federal money, but provides stiff punishments the federal money, but provides stiff punishments for failure to meet standardsfor failure to meet standards

Devolution cont.Devolution cont.

U.S. v Lopez (1995)U.S. v Lopez (1995) Court held that Congress had exceeded Court held that Congress had exceeded

its commerce clause power by its commerce clause power by prohibiting guns in schoolsprohibiting guns in schools

Two of the federal government’s Two of the federal government’s biggest grant programs have biggest grant programs have become block grants (Medicaid and become block grants (Medicaid and welfare)welfare)

ReviewReview Federalism is the sharing of power between local Federalism is the sharing of power between local

and national governmentsand national governments Federalism (and the Separation of Powers) succeed Federalism (and the Separation of Powers) succeed

by limiting jurisdiction and by pitting political agents by limiting jurisdiction and by pitting political agents against one another as competitorsagainst one another as competitors

Defining the relationship between the national Defining the relationship between the national government and state governments has been – and government and state governments has been – and continues to be – a major issue in the nation’s historycontinues to be – a major issue in the nation’s history

The cornerstone of federal and state government The cornerstone of federal and state government relations today is the system of grants-in-aid, or relations today is the system of grants-in-aid, or funds distributed by Congress to state and local funds distributed by Congress to state and local governmentsgovernments

The federal government tells a state government The federal government tells a state government what its activities and policies must be in the form of what its activities and policies must be in the form of mandates and conditions of aidmandates and conditions of aid