Federalism

The system that divides power between the national government and

state government

Strengths Strong national government to meet

national needs– Currency– Tax– Declare war etc.

Preserves state rights– Marriage– Gun laws– Death penalty– education

Local action in local concerns– Gambling– Illegal immigrants - Arizona

Keeps government close to the people– Local ordinances – State laws

National action in National concerns– Security– Engaging troops/war

Allows states to act as “laboratories” and rate policies that may become federal laws– Suffrage– Welfare– Education

Sometimes state laws become federal laws

– Gay marriage– Abortion

Weaknesses Expensive Inefficient

– Too much bureaucracy– Gridlock

Federal blackmail– $ given to states under certain circumstances

• No Child Left Behind• .08 drinking level• Drinking age

– Categorical Grants – Federal funds for specific purpose

Forcing a state to do something through legislation– Clean Water Act– NCLB– Affordable Care Act– Gun control???

Known as unfunded mandate– States receive no $ to meet the demands– Civil Rights Legislation

• Americans with Disabilities Act• Voting Rights Act

– Motor voter Law

Pre John Marshall

Increased Nationalism– Articles of Confederation inadequate– US federal system devised

Madison & Jefferson – States right to void federal legislation they

judge unconstitutional;

• sedition Act of 1798• Crime to criticize government of US

John Marshall Court

1801-1835 Nationalist Period Marshall court increased power of

Federal Government– Marbury v Madison (1803)– McCulloch v Maryland (1819)– Gibbon v Ogden (1824)

Served as Chief Justice for 35 years 1835-61 Duel Federalism & Nullification

– States ability to ignore federal law

Dual Federalism

Period of Dual Federalism [1789-1932]– Federal and state governments are co-equals,

each sovereign – layered cake federalism– Exercise power separately in areas of concern to

them– Narrow interpretation of Constitution

• National government should not exceed its constitutionally enumerated powers

• 10th Amendment: all other powers are reserved to the states– Separate and equal

Main Elements of Dual FederalismPrimacy of States Rights

Necessary and Proper clause (Elastic Clause)– Should be narrowly interpreted– National government rules by enumerated powers

onlyNational and States are sovereign in their own spheres – layer cake federalism

– Gov. powers are separateRelationship between nation and state is characterized by tension rather than cooperation.

Federal government has jurisdiction if clearly expressed in the Constitution– Money– Foreign affairs

States have greater role and powers– Public education– Race relations

Strong Emphasis on States RightsTaney Court 1835-1863

Dred Scott decision– Sued to be free under Missouri Compromise

• Slavery forbidden by the Missouri Compromise– Only citizens of the US could be a citizen of

a state/territory• Only citizens could file suit in court

– Declared Missouri Compromise unconstitutional• Declared Congress did not have the authority to bar slavery in the territories

What view of federalism is applied in this decision?

Civil War – Continuation of DualConflict not resolved

Federal Government & Constitution reign– National Government grew in size and power– Imposed its will on states with Civil War Amendments – 13th,

14th, 15th – Supreme Court supported states police powers

• Plessy v Ferguson (1898) – separate but equal• Civil Rights cases became state matters

– Supreme Court supported Federal power regarding economy – regulating commerce

• Interstate Commerce Act• Sherman Anti-Trust Act

Stronger National Government–The beginning of change–16th Amendment (1895)

• Authorized Congress to enact a national income tax

–17th Amendment (1913)• Made Senators directly elected by the people

• Removed their selection by state legislature

Jim Crow laws 1876-1954

According to the original Constitution, states could determine voting eligibility along with most civil rights– 10th amendment vs. Civil War Amendments

Southern states denied blacks their voting rights for many years– Federal Gov. did not enforce Civil War

Amendments Plessy v Ferguson 1898 “separate but equal”

doctrine supported by Supreme Court

Cooperative Federalism1933~1980’s

Federal Government intervenes or assists in some areas traditionally left to the states– Education– Healthcare– Civil rights

Began with the New Deal in the 1930’s– Sweeping national programs– Supreme Court eventually confirmed FDR’s

right to intervene Marble cake Federalism – no clear distinctions

Cooperative Federalism– Broad interpretation

• necessary & proper clause• 10th Amendment• Supremacy clause• Commerce Clause

Elements of Cooperative Federalism– National & state work together

• Routinely share power• Power not concentrated in any one area• Grants in aid: categorical, block, revenue

Brown v Board of Education 1954– Supreme Court mandated school integration

LBJ and the “Great Society 1964-68– programs to fight poverty– programs to fight civil rights violations

• Increased federal spending with strings attached Nixon and 1970’s

– Clean Air and Clean Water Acts - direct orders– Federal programs funded through “block grants

• States have some discretion over spending– Revenue Sharing – no strings 1987 ended

Conservatives favor? Liberals favor?

New Federalism: Devolving Power to the States

Devolution 1980’s – 2001 Reagan Revolution

– Took steps to shrink the size of the federal gov. – Lowered taxes– Favored programs administered by state

• Budget deficits rose – federal gov. unable to fund programs – unfunded mandates

– US v Lopez strengthened state rights• Gun control on school property does not fall under

federal authority Clinton: welfare responsibility of states

9/11 Era Greater federal control – increases size of gov

– Wars • Afghanistan, Iraq

– Law enforcement • Homeland Security, TSA• Security – Patriot Act

– Education • NCLB

– Deficits– Disaster Relief

• Katrina, tornados, Irene• FEMA

New New Federalism?? Which way is the trend headed? Is the Supreme Court deciding the

direction?– AZ SB 1070 – Affordable Health Care Act– Gay Marriage– Marijuana – recreational/medicinal– Gun control

What if necessary & proper clause was not included? Unitary Government?