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Federalism
How the circle and the squares get along
Terms you need to know
after this presentation…
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Federalism
Federalist #51
Delegated powers
Reserved powers
Concurrent powers
Prohibited powers
Elastic clause
McCulloch v. Maryland
(1819)
• Commerce clause
• Gibbons v. Ogden
(1824)
• Dual Federalism
• Cooperative Federalism
• Grants-in-aid
• Categorical grant
• Block grant
• Mandate
• Devolution
• Pros and cons of
federalism
Disaster Relief
• Who’s job was it to
clean up New Orleans
and the rest of the
coast after Katrina?
No Child Left Behind
• Should the national gov’t step in to
regulate school performance?
What is Federalism?
• Federalism – Two or more governments
exercise power and authority over the
same people in the same territory
• OR… the relationship between the federal
government (circle) and the state
governments (squares)
Federalist #51
• Defends the Constitution
• Explains why a strong gov’t is necessary
– “If men were angels, no government would be
necessary. If angels were to govern men, neither
external nor internal controls on government would be
necessary.”
• Defends separation of powers between
state and national gov’t
Powers
- Delegated Powers (enumerated powers) –
powers given to Fed gov’t by Constitution
- Reserved Powers – state power alone
- Concurrent Powers – shared
- Prohibited Powers – denied from both
- Ex. Neither gov’t can tax exports
Elastic Clause
• Aka – “Necessary and Proper Clause”
• Art. I, Sec. 8, Cl. 18 - "The Congress shall have Power To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the
Government of the United States, or in any Department
or Officer thereof."
• Impossible to predict all powers Congress will
need to function, sometimes we might have to
allow Congress extra powers to fulfill their
delegated powers
McCulloch v. Maryland
(1819)
Background
• Bank of the US operated in Maryland
• Maryland did not want BoUS to operate in
state, competition unwanted, unfair
• Maryland taxed the bank to put it out of
business
• McCulloch, BoUS employee, refused to
pay the state tax
McCulloch v. Maryland
(1819)
• Is a Bank of the US Constitutional?
YES. The national gov’t has certain implied
powers that go beyond delegated powers.
US needs a national bank for borrowing,
lending, holding minted money, etc. All of
which are delegated powers.
McCulloch v. Maryland
(1819)
Can a state tax the federal gov’t?
-NO. The federal gov’t is supreme. Since
the BoUS is constitutional, only the feds
may tax it.
-John Marshall reaffirmed Supremacy
Clause and Elastic Clause
-National (Federal) Gov gets STRONGER
Commerce clause
• Art. I, Sec. 8, Cl. 3 – ‘The Congress shall have
power - To regulate commerce with foreign
nations, and among the several states, and with
the Indian tribes.”
• Congress has used the elastic clause to stretch
this power
• What is commerce? “Buying and selling of
goods and services.”
• Congress given the power to regulate commerce
between foreign countries and US as well as
state to state… they control business law.
Gibbons v. Ogden
(1824)
• 1824 – aka “The Steamboat Case”
• Ogden received a state licensed monopoly
to run a ferry across the Hudson River
• Gibbons also saw the potential of the
traffic between NJ and NY and obtained a
federal license.
• Ogden sued saying he had the valid state
license, even though Gibbons had US
license
Gibbons v. Ogden
(1824)
Result – Gibbons wins
• Expanded national power in all areas of
commerce law because nation overruled
state in interstate trade issues
• Fed Gov’t gets STRONGER
• All trade today is primarily controlled by
national law
Commerce Clause
• Who cares? Why is it important?
• Gibbons v. Ogden ruling makes a loop
hole giving Congress power to take control
over any issue involving the movement of
people, or things
• Fed gov’t power increased
United States v. Lopez
(1995)
• Commerce clause quiz!!!
• 1995 – “Gun Free School Zone” law
banned possession of a firearm within
1000 feet of a school, 12 year old Lopez
carried a gun on to the property
• Declared law unconstitutional – “nothing to
do with commerce” – carrying a weapon
through a school zone is too much of a
stretch for “commerce”
• LIMITED National government power
Gonzalez v. Raich
(2005)
• Commerce clause quiz!!! Medicinal Marijuana
• Controlled Substance Act (1970) – US gov
regulates the manufacture, importation,
possession, and distribution of certain drugs
• Medicinal marijuana was legalized in California,
but illegal to US government. Raich argued
commerce clause should not take effect
because 1) there was no business transactions
and 2) there were no state border issues.
• Supreme Court ruled 6-3 against Raich saying
that the federal government could trump state
laws that permitted medicinal marijuana
2 Federalisms?
• OLD SCHOOL – Dual Federalism
– Federal and state governments remain
dominant in their separate spheres of
influence
– Gibbons v. Ogden proved life is not that
simple
• NEW SCHOOL – Cooperative Federalism
– State and Federal governments work together
to solve complex problems
2 Federalisms
TWO METAPHORS…
• Dual Federalism – Layer Cake
Federal
State
• Cooperative Federalism – Marble Cake
Fiscal Federalism
• Fiscal means $
• Q – How do you get the states to do things
they normally wouldn’t do?
• A – Money
• Q – What is the answer to any question
ever asked?
• A – Money
Grants-in-Aid
• Money paid from one level of government to
another to be spent for a specific purpose
• Categorical Grants - target specific
purposes and “strings attached.” (States
receive funds if state raised age to 21 and
lowered BAC to .08)
• Block Grants – given for broad, general
purposes and allow more discretion on how
the money is spent (ex. Welfare reform)
Mandates
• A requirement that a state undertake an
activity or provide a service
• Most apply to Civil Rights and the
Environment
• Often times the states or local gov’ts have
to pay the bill of the mandate set by
Congress
Mandates
• 1986 – Asbestos Emergency Response Act,
Handicapped Children’s Protection Act
• 1988 – Drug-free Workplace Acts, Ocean
Dumping Ban Act
• 1990 – Clean Air Act
• EX – Columbus, OH spends 23% of the city
budget trying to meet environmental mandates
(including testing for pesticides used on rice and
pineapple)
• EX – Public schools have to use Internet filtering
or schools lose e-rate subsidies
Change in Spending
• Shift towards Federal Gov’t Spending
Federal
State
Local
(City)
1929 17% 23% 60%
1939 47% 23% 30%
1960 64% 17% 19%
1997 66% 19% 15%
Devolution
• Devolution is the return of power to the
state gov
• Idea is fueled by distrust of the federal gov
and the desire to save money by reducing
the size of the “bloated federal
government”
Devolution Example
• Personal Responsibility and Work Opportunity
Reconciliation Act of 1996
• Eliminated welfare and transferred the money to
states as block grants
• States received wide latitude on how to administer “workfare”
but with the knowledge that Congress was counting on antipoverty spending”
• Strings attached: head of family must work or lose benefit;
lifetime benefits limited to 5 years; unmarried mother < 18
only receive $ if stay in school and live with adult; immigrants
ineligible for 5 years
Federalism is good
Living under 2 governments is great…
• Built on compromise, promotes unity
• Gov’t duties can be split up
• Brings gov’t closer to people
• Allows for state gov’t to address issues in
unique regions of the country
• Allows states to experiment with policy
before enacting it at the federal level – Ex.
Vermont’s free health care for children
Federalism is bad
Living under 2 governments is bad…
• States can impede progress of Nation
• States are unequal
• States have different policy
• Easier for states to be dominated by
interest groups