Chapter Three

Federalism

Introduction• Label the following as federal, state, or

shared powers:– Regulate foreign and interstate commerce

– Levy taxes

– Coin money

– Provide an army and navy

– Regulate interstate commerce

– Declare war

• Borrow money

• Spend for general welfare

• Administer elections

• Conduct foreign relations

• Protect the public health, welfare, and morals.

• Establish courts.

• Establish local governments

• Declare war

• Enact and enforce laws

Types of Government• Unitary System:

– A govt. that gives all powers to the national or central govt.• France, Great Britain, Sweden

• Federal System:– A govt. that divides the powers of govt. between state and

national govt.• United States, Canada, Australia

• Confederal System:– Loose union of independent states

Federalism

• Federalism:– Political system with local governmental

units, in addition to national one, that can make final decisions.

– Examples:• Canada, India, and Germany

Division of Powers• The Constitution divided government authority

by giving the national government certain powers, while reserving all other powers to the states or to the people.

• The constitution also allows some powers to be shared.

• This helps preserve federalism and the separation of powers.

National Powers• The constitution grants three types of powers to

the federal government.• These are known as delegated Powers.

– Delegated Powers:• Powers the constitution grants to the national government.

– Three types of powers:• Expressed• Implied• Inherent

Federal Powers• Expressed:

– Those directly stated in the constitution.

• Also known as enumerated powers.

• Inherent:

– Powers in which the government has historically possessed merely because it is a government.

• Examples: deport aliens, immigration policies, acquire territory, and more.

Powers• Implied

– Those not expressed, but the constitution implies them.

• Article 1Section 8: – “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.”

– Creates the idea behind the necessary and proper clause.

• Example: the power to draft people for war.

The States Powers• The constitution reserves certain powers for the states.• These powers are called reserved powers.

– Reserved Powers:• Powers belonging strictly to the states.• Anything not delegated to the national government falls back on the states. • Tenth Amendment

– “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

– Examples: public schools, local governments, license requirements.

The Supremacy Clause

• What happens when states overstep there bounds and pass laws that conflict with federal laws?

• Read Article VI Section II.– In back of book.

Supremacy Clause• States:

– “This Constitution, and the laws of the United States which shall be make is pursuance thereof, and all treaties made……under the authority of the United States, shall be the supreme law of the land; and the judge in ever state shall be bound thereby.”

– What does this mean:• No state law or state constitution may conflict with any form

of national law.

Concurrent Powers• The states and federal government do

share some powers.• These powers are considered Concurrent

Powers.– Concurrent Powers:

• Are those powers that both the federal and state governments have.

– Example the power to tax.

Denied Powers

• Denied Powers:– The constitution denies some powers to all

levels of government.• States: cannot make treatise

• Federal: cannot tax imports

Guarantees to the States• The constitution says that the federal

government can do three things for the states.• Three things the federal government must

guarantee to the states:– Republican form of government– Protection– Territorial Integrity

• Cant take land from one state to create another

State Rightists vs Nationalists• State Rightists:

– Favors state and local govt. dealing with problems.

– States created federal govt. and only gave them enumerated powers.

– Any power that is confused belongs to the states.

– States are closer to the people and better to provide for them.

Nationalist Views• Rejects the idea that the constitution is a

compact between states and federal government.• It was the people not the states that created the

federal government.• Necessary and proper clause.• Believe that the federal govt. stands for all

people not just people of a state.

State vs. Federal Powers• Arguments over time:

– Over Slavery– Social Welfare programs

• Today:– Push to scale back federal govt.– Not Happening (Obama)– Devolution:

• Giving national powers to the states• Way to do this:

– Block Grants: Money from national govt. for states to do with as they please as long as the follow broad guidelines.

Question

• Do you support devolution?

Morton Grodzins: The Federal System

• Main Argument:– Federalism involves shared powers and functions

among federal, state, and local governments, with all seeking to influence the others.

– Grodzins looks behind the formal notion of "separate levels" of government (a layer cake), to the informal arrangements by which all levels are simultaneously involved in the governmental process (a marble cake).

Grodzins' Reasoning:• Grodzins argues that this has always been the case. He thus

disagrees with the commonly held view that in the 19th century we had "dual federalism" (substantial separateness), and in the 20th we moved to "cooperative federalism" (substantial interconnections with national dominance).

• While acknowledging modern centralization, Grodzins points to current and still strong decentralizing forces in our system: especially the nature and characteristics of our parties and our party system, and resulting fragmentation in Congress

Federalism• National government largely does not govern

individuals directly but gets states to do so in keeping with national policy

• Negative views:– block progress and protect powerful local interests

• Laski: states "poisonous and parasitic“• Riker: perpetuation of racism

• Positive Views:– Elazar: strength, flexibility, and liberty

• Federalism makes good and bad effects possible– Different political groups with different political purposes

come to power in different places– Federalist No. 10: small political units dominated by

single political faction

• Increased political activity– Most obvious effect of federalism:

• facilitates mobilization of political activity

– Federalism lowers the cost of political organization at the local level.

The Founding of Federalism• A bold, new plan to protect personal liberty

– Hamiltons Federalist 28• Neither national nor state government would have authority over the other

because power derives from the people, who shift their support.

– New plan had no historical precedent.• No one knew what federalism was.• Tenth Amendment was added as an afterthought, to define the power of

states. (10th amendment has no real power)

• Elastic language in Article I: “Necessary and Proper”– Precise definitions of powers politically impossible because of

competing interests, such as commerce– Hence vague language--"necessary and proper“

• Hamilton's view: national supremacy because Constitution supreme law• Jefferson's view: states' rights with people ultimate sovereign

The Debate on the Meaning of Federalism• The Supreme Court speaks

– Hamiltonian position espoused by Marshall– McCulloch v.Maryland settled two questions.

• Could Congress charter a national bank? (yes, because "necessary and proper")

• Could states tax such a bank? (no, because national powers supreme)

• Later battles– Nullification:

• Void federal laws in conflict with constitution.– Congress passed laws against writing negative stuff about Federal Govt.

» Lead to Virginia Kentucky Resolutions.» John C. Calhoun over tariffs» The South and the Civil War

The Debate of Federalism• Dual federalism

– Both national and state governments supreme in their own spheres;

– Example:• Hence interstate versus intrastate commerce

– Early product-based distinction difficult– "Original package" also unsatisfactory

• State sovereignty– Mistake today to think that doctrine of dual federalism is entirely dead

– Supreme Court limited congressional use of commerce clause, thus protecting state

sovereignty under Tenth Amendment

The Debate on Federalism• Supreme Court has given new life to Eleventh

Amendment• Not all recent Supreme Court decisions support greater

state sovereignty.• New debate resurrects notion of state police powers• Many state constitutions open door to direct

democracy through initiative, referendum, and recall.• Existence of states guaranteed while local

governments exist at pleasure of states

Federal-state relations• Grants-in-aid

– Grants show how political realities modify legal authority.– Began before the Constitution with "land grant colleges,"

various cash grants to states– Dramatically increased in scope in the twentieth century– Were attractive for various reasons

• Federal budget surpluses (nineteenth century)• Federal income tax became a flexible tool• Federal control of money supply meant national government could

print more money• "Free" money for state officials

• Required broad congressional coalitions– Meeting national needs: 1960s shift in grants-in-aid– From what states demanded– To what federal officials found important as national

needs

• The intergovernmental lobby– Hundreds of state, local officials lobby in Washington– Purpose: to get more federal money with fewer strings

• Categorical grants versus revenue sharing

– Categorical grants for specific purposes; often require local matching funds

– Block grants devoted to general purposes with few restrictions

– Revenue sharing requires no matching funds and provides freedom in how to spend.

• Distributed by statistical formula• Ended in 1986

• Neither block grants nor revenue sharing achieved the goal of giving states more freedom in spending

– Block grants grow more slowly than categorical grants.

• Desire for federal control and distrust of state government

• No single interest group has a vital stake in multipurpose block grants, revenue sharing

• Categorical grants are matters of life or death for various agencies.

• E. Rivalry among the states– Increased competition a result of increased

dependency– Snowbelt (Frostbelt) versus Sunbelt states

• Difficulty telling where funds spent

• Difficulty connecting funds to growth rates

• Focus on formulas and their impact

• Census takes on monumental importance