FEDERALISM: one of the 6 principles of the Constitution -popular sovereignty- separation of powers- checks and balances- limited government- judicial review

3 Systems of Government: 1. Unitary2. Confederal3. Federal

Framers create a federal republic (based on the other principles as well) as a balance of the two other systems.

If there are to be two distinct levels of government, how is power to be distributed? And limited?

- “Expressed Powers”Article I.8:1-17 27 powers to CongressArticle II powers to Presidency

Article III “The judicial power of the United States, shall be vested in one Supreme Court …” and several powers are given via the Amendments

- “Implied Powers” via Article I.8:18 = “necessary and proper” clause

- “Inherent Powers: by nature of being a government

** - “Reserved Powers” via 10th Amendment “police powers”

- “Concurrent Powers”

- “Prohibited Powers” Article I.9 and the Bill of Rights

MILESTONES IN ESTABLISHING NATIONAL SUPREMACY (Article VI: the Supremacy Clause)

A. “The Cardinal Question” The relationship between the national government and the states “is the cardinal question of our constitutional system.”

Woodrow Wilson

And furthermore, “… it cannot be settled by one generation because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.”

B. McCulloch v. Maryland (1819) John Marshall and Nationalism: establishing the legitimacy of the federal government

C. Nullification and the Civil War Kentucky and Virginia Resolutions John C. Calhoun and States’ Rights Theory

D. Gibbons v. Ogden (1824) Commerce Clause (I.8.3) subsequent courts mull over DUAL FEDEDERALISM and Laissez faire

E. National Labor Relations Board v. Jones-Laughlin Steel (1937) beginnings of co-operative federalism

F. Heart of Atlanta Hotel v. US (1964) civil rights and the commerce clause_____________________________________________________________ G. United States v. Lopez (1995) check on the (ab)use(?) of the Necessary and Proper clause

Two Types of Federalism until the 1930s: dual federalism

since the 1930s: cooperative federalism

NLRB v J&L Steel opens the door for federal government to begin to assert authority in most aspects of society – in the name of the public interest

• civil rights• consumer protection• environmental protection

All via the commerce clause … but at the price of state sovereignty?

FEDERAL GOVERNMENT

The STATES

CO-OPERATIVE FEDERALISM

LAYER CAKE

MARBLE CAKE

Basic structure of federalism has not changed, just the politics!!!historic-political eras: laissez faire of the Industrial Age = dual federalism “liberal mindset”: 1930s-1970s = co-operative fed’ism devolutionary times 1990 = New Federalism

Modern federalism is “ FISCAL FEDERALISM “ the use of federal funding to either cajole or compel state and local governments to comply to a national policy

Grant-in-Aid: keeps it constitutional

categorical grants block grants a. project grant funding competitive/services b. formula grant funding meet some criteria

revenue sharing no longer practiced; not politically viable

Mandates and conditions of aid

More ways to understand the history of FEDERALISM (fiscal)

Co-operative Federalism: New Deal programs of FDR: addressing economic recovery from the Great Depression of 1930s. Washington and the states working together.

Creative Federalism: Great Society of Lyndon B. Johnson in 1960s. Dominance of DC directing, mandating, and funding programs

Competitive Federalism: Introduction of more competition grants and block grants in the 1970s and 1980s. Called New Federalism by the Nixon and Reagan administrations. Devolutionary philosophy introduced. Shrink govt.

“Contract with America”: the supposed GOP Conservative Revolution led by Newt Gingrich in 1994. The defeat of “big government” anticipated ?!?

1. Term limits2. Balanced Budget3. Welfare reform: workfare

SLICK WILLY pulls out another win?

Pros and Cons of Federalism

1. ease of “mobilization”, 1. confusion for political activity if participating = lower “cost” 2. safeguards against the reach 2. powerful minority can block of influential interests’ (#10) the needs of a majority. 3. diversity and ingenuity 3. inequality and duplication 4. local policy can be more effective. 4. inability and/or lack of will on part of local government to respond to needs

Big question about the politics of federalism: what is more valuable – equity or legality?

remember the “strongest” need government least

Trend toward national supremacy on going from the beginning: Marshall cases…Yet since the growth of national government under “co-operative” federalism, there has been powerful resistance to - “rule from Washington, DC”

DEVOLUTION REVOLUTION: policy making power needs to “devolve” Nixon and Regan’s “New Federalism” back to the states. classic example for this : “welfare to work” - “workfare” programs established by states

• un funded mandates• higher and higher taxes• excessive regulations ( environmental and civil rights)

These complaints = standard promotion of the Republican Party, but it may have created the Frankenstein that is the Tea Party!