FEDERALISM:

Is the division of power a constitutional principle or

practical politics?And what’s with the baking

metaphor?

Interests and Powers

What are the What are the interests of state interests of state governments?governments?

What powers What powers should states should states have?have?

What are the What are the interests of the interests of the federal federal government?government?

What powers What powers should the federal should the federal government government have?have?

Bakery Metaphors (yummm)

Dual Federalism

Until 1930sUntil 1930s Like a layer cakeLike a layer cake

Dual Federalism in parts:Dual Federalism in parts: Nat’l Gov has enumerated powers Nat’l Gov has enumerated powers

onlyonly Each government has own sphere Each government has own sphere

of sovereigntyof sovereignty More tension than cooperationMore tension than cooperation

Cooperative Federalism

After 1930sAfter 1930s Like a marble cakeLike a marble cake Rejects the idea of “spheres”Rejects the idea of “spheres” Government action is jointly takenGovernment action is jointly taken Nation and states routinely share Nation and states routinely share

powerpower Power is fragmented enough that it Power is fragmented enough that it

cannot be concentrated at any cannot be concentrated at any levellevel

So what’s the critical difference?

It’s all in how we interpret two It’s all in how we interpret two sections of the Constitution . . .sections of the Constitution . . .

Article I, Section 8 Article I, Section 8 enumeratesenumerates powers powers (and there is that pesky elastic (and there is that pesky elastic clause)clause)

Tenth Amendment reserves for the Tenth Amendment reserves for the states and the people powers not states and the people powers not assigned to the national governmentassigned to the national government

Dual Elastic clause is Elastic clause is

inflexible and Tenth inflexible and Tenth Amendment is Amendment is capacious (capable capacious (capable of containing a of containing a great deal)great deal)

Elastic Clause is just Elastic Clause is just that, elastic. It aslo that, elastic. It aslo confines the Tenth confines the Tenth Amendment to a Amendment to a self-evident truthself-evident truth

Cooperative

So what do Article I and the So what do Article I and the

Tenth Amendment actually tell us?Tenth Amendment actually tell us?

Of the following list, which are mainly state powers? Federal?

Both? Collect TaxesCollect Taxes Define Private Define Private

PropertyProperty Regulate MarriagesRegulate Marriages Regulate Regulate

CommerceCommerce Administer Health Administer Health

and Safety Rulesand Safety Rules Coin MoneyCoin Money Regulate LaborRegulate Labor

Raise an ArmyRaise an Army Enforce Criminal Enforce Criminal

CodesCodes Regulate Regulate

Professional Professional StandardsStandards

Declare WarDeclare War Administer Administer

Drivers’ Licenses Drivers’ Licenses

Expressed PowersArticle I, Section 8 of the

Constitution Regulate Interstate Commerce Regulate Interstate Commerce

(the commerce clause)(the commerce clause) Coin MoneyCoin Money Borrow MoneyBorrow Money Raise an ArmyRaise an Army Declare WarDeclare War Are there more?Are there more? Absolutely!Absolutely!

Implied PowersArticle I, Section 8, clause 18

The Elastic ClauseThe Elastic Clause Congress’ power to make all laws Congress’ power to make all laws

“necessary and proper” to carry “necessary and proper” to carry out expressed powersout expressed powers

The Tenth Amendment

The powers not delegated to the UnitedThe powers not delegated to the United

States by the Constitution, nor States by the Constitution, nor prohibited prohibited

by it to the States, are reserved to the by it to the States, are reserved to the

States respectively, or to the people.States respectively, or to the people.

Reserved Powers Derived from the Tenth Amendment

Define Private PropertyDefine Private Property Regulate MarriageRegulate Marriage Administer Health and Safety RulesAdminister Health and Safety Rules Enforce Criminal CodesEnforce Criminal Codes Regulate Professional StandardsRegulate Professional Standards Administer Drivers’ LicensesAdminister Drivers’ Licenses Are there more?Are there more? Absolutely!Absolutely!

Concurrent Powers Are Shared

Collecting taxesCollecting taxes

Regulate LaborRegulate Labor

Regulate CommerceRegulate Commerce

Federalism in Practice

What are the forces that change the What are the forces that change the face face

of federalism? (What has contributed to of federalism? (What has contributed to

the increase in Federal Power)the increase in Federal Power)

National Crises and DemandsNational Crises and Demands Judicial InterpretationsJudicial Interpretations Grants-in-AidGrants-in-Aid Professionalization of state Professionalization of state

governmentsgovernments

National Crises and Demands Civil WarCivil War Both World WarsBoth World Wars Great DepressionGreat Depression 9/119/11

All of these involved problems that All of these involved problems that were too extensive for states to were too extensive for states to handle alonehandle alone

National relief funds spent on states National relief funds spent on states are often attached to federal are often attached to federal stipulationsstipulations

Katrina and Federalism

Judicial Interpretation

McCulloch v. MarylandMcCulloch v. Maryland 18191819 Expanded the role of national governmentExpanded the role of national government Does Congress have the power to establish Does Congress have the power to establish

a national bank?a national bank? If so, could a state tax the bank?If so, could a state tax the bank? Yes, and No.Yes, and No. ““The power to tax is the power to destroy”The power to tax is the power to destroy” Cooperative federalism (direct relationship Cooperative federalism (direct relationship

between the people and national between the people and national government)government)

Shifts in Judicial Interpretation ever sinceShifts in Judicial Interpretation ever since

Judicial Interpretation

Gibbons v. OgdenGibbons v. Ogden, , Marbury v. Marbury v. MadisonMadison, and , and Korematsu v. USKorematsu v. US all all increased the power of the federal increased the power of the federal governmentgovernment

Grants-in-Aid

Financial incentives influence state Financial incentives influence state behavior (because the money behavior (because the money comes with “strings”)comes with “strings”)

Two forms:Two forms: CategoricalCategorical BlockBlock

Categorical Grants

For a specific purposeFor a specific purpose Little discretion by recipient Little discretion by recipient

governmentgovernment Formula: very specific rules such asFormula: very specific rules such as

Per capita incomePer capita income Number of school age childrenNumber of school age children

Project: competitive applicationsProject: competitive applications Health (HIV-AIDS programs)Health (HIV-AIDS programs) Natural Resources (Radon, asbestos, energy)Natural Resources (Radon, asbestos, energy)

Block Grants

Recipient governments have more Recipient governments have more discretion over fundsdiscretion over funds

Welfare Reform Act of 1996Welfare Reform Act of 1996 States were given power and money States were given power and money

to run their own welfare programto run their own welfare program States were given discretion to States were given discretion to

determine how to implement the goal determine how to implement the goal of getting people to workof getting people to work

Professionalization of State Governments

States have become more forceful States have become more forceful policy actorspolicy actors Education (NCLB) Education (NCLB)

http://www.ed.gov/nclb/overview/intro/execsumm.html

Health Care (S-CHIP) Health Care (S-CHIP) http://www.chicagotribune.com/news/nationworld/chi-kids-health-care_thufeb05,0,30310.story

Same sex marriage lawsSame sex marriage laws

Federal Government makes laws that Federal Government makes laws that foster such programsfoster such programs

States have obligations to one another

Full Faith and Credit ClauseFull Faith and Credit Clause Article IV, Section IArticle IV, Section I““Full Faith and Credit shall be given in each State to Full Faith and Credit shall be given in each State to

the the public Acts, Records, and judicial public Acts, Records, and judicial Proceedings Proceedings of every other State. And the of every other State. And the Congress may by general Laws prescribe the Congress may by general Laws prescribe the Manner in which such Acts, Records and Manner in which such Acts, Records and Proceedings shall be proved, and the Effect Proceedings shall be proved, and the Effect thereof.”thereof.”

Marriage, Divorce, Custody and AdoptionMarriage, Divorce, Custody and Adoption Defense of Marriage ActDefense of Marriage Act Loving v. VirginiaLoving v. Virginia

More obligations . . .

Comity ClauseComity Clause Article IV, Section 2: “The Citizens of Article IV, Section 2: “The Citizens of

each State shall be entitled to all each State shall be entitled to all Privileges and Immunities of Citizens Privileges and Immunities of Citizens in the several States.”in the several States.”

AZ can’t pass a law prohibiting NM AZ can’t pass a law prohibiting NM residents from traveling, owning residents from traveling, owning property, or working in AZproperty, or working in AZ

And more . . .

Interstate Commerce ClauseInterstate Commerce Clause Article I, Section 10Article I, Section 10 ““No state shall, without the consent No state shall, without the consent

of the Congress . . . enter into any of the Congress . . . enter into any Agreement or Compact with another Agreement or Compact with another other State . . . ” other State . . . ”

Water RightsWater Rights Has, more than any other clause, Has, more than any other clause,

increased the power of the federal increased the power of the federal governmentgovernment

Unfunded Mandates

Setting National Standards – but Setting National Standards – but not paying for themnot paying for them

New Federalism and Devolution

New FederalismNew Federalism Reagan, Nixon, and ClintonReagan, Nixon, and Clinton Return more discretion to the statesReturn more discretion to the states

DevolutionDevolution Giving the states more power over Giving the states more power over

policypolicy

Simulation

http://www.wwnorton.com/lowi8/chapters/ch03/simulation.asp