Federalism and Texas

By Loren Miller

A Unitary System

Where the national government has ultimate authority.

-France, Japan and Great Britain

Sovereignty

National Government

Regional Governments

A Unitary System

Most nations have a unitary government

All 50 states have a unitary system

Power

Texas

City of Plano

A Unitary System

Advantages:- Smaller government- Uniformity of policies- Greater uniformity and stability

Disadvantages:- Slow in meeting local problems- Bureaucracy- No balance of power

A Confederation

Where the regional governments have ultimate authority.

- The United Nations, Articles of Confederation (1781), European Union

Sovereignty

Regional Governments

National Government

A Confederation

Advantages:- Keeps power at the local level- Minimizes growth of central

government- Allows member states to retain

their identity

Disadvantages:- No independent taxing authority- Lack of unity

A Federal System

Where the national government and the regional governments share authority; a division of powers.

-Germany, Canada, United States

Sovereignty

National Government Regional Governments

A Federal System

Advantages:- National unity but local governments

handle local concerns- Greater ability for citizen participation- Local officials have to be responsive

to the people who elect them- Central government can devote more

time to national and international problems

A Federal System

Disadvantages:- Duplication of services- Disputes over national power and

states rights- Citizens in different parts of the

country may be treated differently (legal penalties may be different, welfare benefits may be different, civil rights laws may be enforced differently)

Should Whether You Live Depend on Where You Live?

Should Whether You Serve Time Depend on Where You Live?

The Argument for Federalism

It would correct two major defects in the Articles of Confederation:

- The national government did not have the power to raise money

- The government could not maintain an army to prevent encroachment by European powers

- The government could not maintain a navy to protect American merchant ships

The Argument for Federalism

- The national government did not have the power to regulate commerce among the states

- The national government could not promote the general economy

- The national government could not prevent trade wars between the states

The Anti-Federalist Argument

Fear that a strong central government would swallow up the states

A distant national government would be unresponsive to local interests

- Montesquieu

Countering the Anti-Federalists

The Federalist Papers written by Madison, Hamilton and Jay (Publius).

- a series of 85 articles or essays published in New York newspapers to promote the ratification of the

Constitution- federal judges often use the Federalist

Papers as a contemporary account of the intention of the framers of the Constitution

http://thomas.loc.gov/home/histdox/fedpapers.html

Types of Powers

Enumerated Powers: Article I of the Constitution grants to Congress seventeen expressed powers; these powers belong to the national government

Regulate Interstate CommerceDeclare WarRaise an Army and a NavyCoin MoneyBorrow MoneyEstablish Post OfficesLay and Collect Taxes

Types of Powers

Supremacy Clause: Article VI of the Constitution provides that “the laws of the United States . . . Shall be the supreme law of the land.”

This is an admission that the lawful exercise of national authority would at times conflict with the laws of the states.

Types of Powers

Implied Powers: Article I, Section 8 is known as the “necessary and proper” clause (elastic clause). This gives

Congress the power to “make all laws which shall be necessary and proper for carrying out enumerated powers.”

To raise an army and a navy = the ability to institute a draft

To raise an army and a navy = Uniform Code of Military Justice

To tax and spend = Create a National Bank

Interstate Commerce = Kidnapping a person across state lines

Interstate Commerce = Regulate employment conditions

Types of Powers

Reserved Powers: The Anti-Federalists were concerned that the “supremacy clause” and the “necessary and proper

clause” would provide for an overly powerful national government and they demanded a constitutional amendment to protect states’ rights and interests.

The Tenth Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States.”

Administer ElectionsRegulate Intrastate CommerceEstablish Local GovernmentsPublic Safety (Police and Fire)

Police Powers: health, morals, safety and welfare

Types of Powers

Concurrent Powers: Powers that are conferred upon the national government but are also exercised by the states.

Taxation

Maintain Courts

Borrow Money

Charter Banks

States’ Obligations to Each Other

Full Faith and Credit: states must give full faith and credit to the public acts, records, and civil judicial proceedings of every other state

-- without this someone could avoid obligations on a loan by moving to another state

-- if a state recognizes same sex marriages, can another state not?

Extradition: if a person breaks a state law and flees to another state, the Constitution requires them to be returned for trial

-- there is no way to enforce this requirement

States’ Obligations to Each Other

Privileges and Immunities: each state is required that citizens of each state receive the same privileges and immunities as citizens of their own state

-- if a Texan visits New Mexico, they would pay the same sales tax as a New Mexico citizen

There are many exceptions:-- a state university may charge more for out of state

residents than for in-state residents

The Supreme Court has never clarified just what privileges and immunities a state must make available to all Americans.

Historical Perspective

Federalism is a contentious and dynamic system which has created conflict between the national government and the states.

Eras of Federalism:

Building the Union (1789-1865)

Dual Federalism (1865-1937)

Contemporary Federalism (Since 1937)

Building the Union

Battles between the national government and the states began early in the history of the United States. Most of these battles were fought in the courts and most favored the national government. One notable exception was Dred Scott v. Sanford (1857).

The Civil War was fought over the struggle between the national government and the states. The Union represented the power of the national government while the Confederacy represented state sovereignty.

Building the Union

McCulloch v. Maryland (1819):-- the Second Bank of the United States was created and

fears of the national government’s control of the economy and control by elites fueled the

concern of farmers and state legislatures.-- the State of Maryland passed a law which taxed the

Baltimore branch of the national bank.-- Maryland argued that the Constitution did not allow

Congress to create a national bank.-- the Supreme Court ruled that as long as the power is

not denied in the Constitution and is within the spirit of the Constitution, it is constitutional.

-- the national government has certain implied powers that go beyond its enumerated powers.

Building the Union

Dartmouth College v. Woodward (1819):-- in 1769 King George III granted a charter to Dartmouth

College.-- in 1816 the legislature of New Hampshire attempted to

alter Dartmouth’s charter to convert it from a private college to a public institution.

-- the Supreme Court ruled that the charter was a contract between the King and the trustees which the legislature could not interfere.

-- this strengthens the contract clause in the Constitution and limits the power of the states to alter contracts.

Building the Union

Gibbons v. Ogden (1824):-- Ogden had a New York license to operate a steamboat

within New York waters-- Gibbons had a license issued by the Congress to

operate a steamboat service from New Jersey to New York City.

-- Ogden filed a complaint to restrain Gibbons from operating in New York waters.

-- the Court ruled that commerce among the several states is more than the trade of commodities—it is intercourse which includes navigation.

-- “interstate commerce” is broadly defined to expand the powers of the national government.

Dual Federalism

Dual Federalism was based on the idea that there was a precise separation between national and state authority and between government and the economy.

-- interstate commerce, defense and the postal system belonged exclusively to the national government.

-- public health, schools and intrastate commerce belonged exclusively to the states.

National Government

State Governments

No Interaction Between Layers

Layer Cake Federalism

Layer Cake Federalism

Dual Federalism

Collector v. Day (1870)-- the U.S. Government imposed a tax on the

income of a state judge-- the judge claimed that the federal government had exceeded its power-- the federal government claimed that they were supreme in the area of taxation

The Supreme Court ruled (8-1) that the “federal government in its appropriate sphere is supreme, but the states within the limits of their powers not granted, or, in the language of the Tenth Amendment, ‘reserved,’ are as independent of the general government as that government within its sphere is independent of the states.”

Dual Federalism

The Industrial Revolution gave rise to large business firms (monopolies) which were using their economic power to dominate markets and exploit workers.

Which level of government, national or state, would regulate business?

Dual Federalism

Hammer v. Dagenhart (1918):-- Congress prohibits the interstate shipment of

goods produced by child labor. There was great public support for this as factory owners were exploiting children working them for long hours for low pay.

-- the Supreme Court invalidates the law ruling that the Tenth Amendment gave the states, not the national government, the power to regulate factory practices.

The Supreme Court set a high wall between government and the economy (laissez-faire economics).

Role of the Courts

While the white South had lost the Civil War, they were not about to share power with the newly freed slaves.

Would the national government be allowed to intervene in state affairs to ensure the fair treatment of African Americans?

Role of the Court

Plessey v. Ferguson (1896):-- Louisiana requires separate railroad cars for

blacks and whites.-- Plessey is required to sit in a railroad car

reserved for blacks and he claims that this violates the equal protection clause of the Fourteenth Amendment.

The Supreme Court rules that the states will be supreme in racial policy.

Role of the Court

Brown v. Board of Education (1954):-- the 14th Amendment’s equal protection clause is used to eliminate “separate but equal” in the field of education.

Ruiz v. Estelle (1972):-- the 8th Amendment’s “cruel and unusual

punishment” clause is used to eliminate prison overcrowding.

Roe v. Wade (1973): a woman’s right to privacy over turns state laws which ban abortions only to

save the life of the mother.

Cooperative Federalism

The national government now operates in many areas that were once almost exclusively the domain of states and localities. The national government does not dominate in these policy areas, but it does play a significant role.


The New Deal (Franklin D. Roosevelt)-- Federal Deposit Insurance Corporation-- Civilian Conservation Corp-- Public Works Administration-- Security and Exchange Commission

Most of the New Deal programs dealt with economic issues.


Wickard v. Filburn (1942)

-- Roscoe Filburn was a small farmer in Ohio who violated a national law, the Agricultural Adjustment Act of 1938, by growing n additional 239 bushels of wheat beyond the allowable limit. For this violation, he was subject to a fine of $117.11.

-- Filburn challenged the penalty by arguing that the federal law was unconstitutional because it was based on Congress’s power to regulate interstate commerce. Filburn claimed that interstate commerce was not involved in his case because he was producing the wheat within his own state for his own use, not for interstate distribution.

--The Court, however, held that interstate commerce was involved: if Filburn had not grown the wheat himself, he would have had to

purchase it, most likely through interstate commerce


The Great Society (Lyndon Johnson)

-- he believed that the national government should be used to assist the economically disadvantaged.

-- the Constitution does not grant Congress the power to regulate “social welfare.” However, Congress may tax and spend for that purpose.

-- created federal assistance grants in health care, public housing, nutrition, education, and urban development.

-- coercive in that there were many restrictions placed on states and localities as a condition for accepting federal money.


National authority has increased because of interdependency.

Modern systems of transportation, commerce and communication transcend local and state boundaries. Some are national and international in scope.

Interdependency has encouraged national, state and local policymakers to work together to solve policy problems.


Cooperative federalism is based on shared responsibilities.-- Medicaid is jointly funded by the national and

state governments

Marble Cake Federalism

National Government

State Governments

Multiple Interactions

Marble Cake Federalism

Going Back

U.S. v. Lopez (1995)

-- The Court struck down as unconstitutional the Gun Free School Zones Act of 1990 that made it a federal crime for a person to possess a firearm in a school zone.

-- The law, passed under Congress’s authority to regulate interstate commerce, was challenged when a 12th grade student in San

Antonio found to be carrying a handgun at school was convicted under the statute.

-- The Court found that Congress’s power to regulate interstate commerce was not limitless. It must involve an economic activity that substantially affected interstate commerce and mere possession of a firearm in a school zone was not such activity.

Fiscal (Coercive) Federalism

Fiscal federalism refers to the expenditure of federal funds on programs run in part through state and local governments.

The national government’s revenue-raising advantage has made money a basis for relations between the national government and the states and localities.

The federal government provides some or all of the money through grants-in-aid (cash payments). Roughly twenty-five percent of state and local expenditures comes from the national government.


Cash grants have increased Washington’s policy influence. While state and local governments can reject grants-in-aid, if they accept the money then they must spend it in the way specified by Congress.

Because most grants require states to contribute matching funds, the federal programs determine how states will allocate some of their own tax dollars.

While state and local officials often complain that federal grants contain too many restrictions, most of them are eager to have the money as it permits them to offer services they otherwise could not afford.

With Federal Money Come Federal Restrictions

Federal Grants-in-Aid in Billions


Categorical Grants: can only be used for a designated activity.-- school lunch programs-- Medicaid-- Food Stamp program-- Head Start

Restrictions:-- a nondiscrimination provision is common-- an environmental impact statement -- e.g., if a state doesn’t raise its drinking age to

twenty-one they will lose federal highway funds


There are two types of categorical grants:-- Project Grants (the more common) are awarded

on the basis of competitive applications (merit based).-- cancer research-- National Science Foundation

-- Formula Grants are awarded based on a formula (population; per capita income, etc.) and are automatically given to recipients.-- child nutrition programs-- Medicaid-- public housing-- community development programs

Fiscal ($) Federalism

Complaints about the cumbersome paper work and the many strings attached to categorical grants has led to the adoption of block grants.

These are given more or less automatically to states or communities, which then have discretion within broad areas in deciding how to spend the money.

-- law enforcement-- social services

-- prevent child abuse-- increasing the availability of child care-- community based care for the elderly

2010

Federal Funds as Percentage ofState Revenue -- Texas

Federal Mandates

A legal requirement placed on a state or local government by the national government requiring certain policy actions.

-- Americans with Disabilities Act (ADA)-- eliminates barriers preventing persons with disabilities from full participation in American society

-- Clean Air Act-- a federal law that regulates air emissions-- Texas and the federal government are at odds over air quality regulations

-- No Child Left Behind (NCLB) -- a federal law that requires state governments and school districts to institute skills testing in reading and mathematics

Federalism and Direct Democracy

Initiative – a specific number or percentage of the voters, through the use of a petition, may have a proposed state constitutional amendment or a state law placed on the ballot for the adoption or rejection by the electorate.

Referendum – a device in which the electorate must approve decisions made by the legislature before they become law or a part of the state constitution.

Recall – allow voters to remove an elected official before his or her term expires.

Public Opinion

Public opinion has had a decisive influence on the ebb and flow of federal power. As American attitudes toward the national government and the states changed, the balance of power between the two also shifted.

-- During the Great Depression, when it was clear that the states would be

unable to help, Americans turned to Washington for relief. While this was a radical departure from the past, a 1936 Gallup poll indicated that 61% supported the New Deal programs.

Public Opinion

-- Lyndon Johnson’s Great Society was also driven by public demand. People wanted better services from government. When the states were slow to respond, Americans pressured federal officials to act. Medicare and Medicaid programs are examples of Congress’ response. A 1965 Gallup poll indicated that 2/3s of Americans approved even though health care had traditionally been the responsibility of the states.

Public Opinion

-- In the 1990s, Americans dissatisfaction with federal programs was high and that the national government had become too large and intrusive. This led to the 1994 Republican takeover of Congress.

-- In similar fashion, Americans backed the economic stimulus bill that the Democrats enacted in 2009. Seventy percent of Americans believed that the stimulus bill was “critically important” or “important” to the nation’s economic recovery.

Public Opinion

-- Just one year later (2010) as the federal deficit continued to mount, polls indicated that a majority of Americans believed the government in Washington was spending too freely. Campaigning on the theme of a smaller national government, Republican candidates ran strongly in the 2010 midterm elections and Republican presidential candidates in 2012 echoed this theme.

Problems

One central problem of giving too much responsibility to the states is the huge variation in the distribution of resources.

Without federal funding, poor states cannot provide an adequate level of benefits because they have greater needs.

Poverty Rates by States, 2010% Below Poverty Line

Per Capita Income by States, 2010In Thousands

Documents

Federalism and Texas