“Federalism”

1. “Federalism” Objectives: How the federal government’s involvement in states’ affairs has grown? How have grants-in-aid affected the growth of federalism? What role do federal mandates play in federalism?

2. Three Systems of Government Unitary System – centralized government in which local governments exercise only those powers given to them by the central government Confederal System – consists of a league of independent states, each having essentially sovereign power Federal System – power is divided by a written constitution between a central government and regional governments

3. The Flow of Power in Three Systems of Government

4. So Why Adopt Federalism? • A Practical Solution – to the dispute between advocates of a strong central government and states’ rights advocates • Geography and population make it impractical to locate all political authority in one place • Brings government closer to the people • State governments train future national leaders • Prevention of Tyranny • State governments can be testing grounds for policy initiatives • Federalism allows for many political subcultures

5. The Federal Government has expressed powers specifically granted in the Constitution (tax, regulate commerce, declare war, etc.) The U.S. Constitution is the supreme law of the land (National Supremacy Clause) The 10th Amendment reserves powers to the states (ex: education, law enforcement, etc.) Federalism & the Constitution The Federal Government has implied powers from the necessary & proper clause or “elastic clause” (ex: create a national bank)

6. Constitutional Basis of Powers of the National Government • Expressed Powers – First 17 clauses of Article I, Section 8, examples include coining money, setting standards of weights and measures, declaring war • Implied Powers – the clause in Article I, Section 8, that grants Congress the power to do whatever is necessary to execute its specifically delegated power (necessary and proper clause) • Inherent Powers – powers derive from the fact that the United States is a sovereign power among nations

7. The Powers of State Government • Reserved Powers – derived from the 10th Amendment, states powers not assigned to the federal government are “reserved” for the states • Police Powers – power reserved to the state government to regulate the health, safety, and morals of its citizens – regulation/enforcement • Concurrent powers – states and federal government share power on issues such as granting business license (national policy usually wins when there is a conflict)

8. Examples of Federalism States pass their own laws regarding… • Gay Marriage, Abortion, Affirmative Action, Bilingual Education, Death Penalty, K-12 Education, Speed Limit, Drinking Age, Gambling, Marijuana, Assisted Suicide

9. Federalism in practice State Laws on the books today… • It is illegal for a driver to be blindfolded while operating a vehicle. • It is illegal to wear a fake mustache that causes laughter in church. A L A B A M A

10. Federalism in practice State Laws on the books today… • Animals are banned from mating publicly within 1,500 feet of a tavern, school, or place of worship. • It is a misdemeanor to shoot at any kind of game from a moving vehicle, unless the target is a whale. C A L I F O R N I A

11. Federalism in practice State Laws on the books today… • Women may be fined for falling asleep under a hair dryer, as can the salon owner. • A special law prohibits unmarried women from parachuting on Sunday or she shall risk arrest, fine, and/or jailing. • Men may not be seen publicly in any kind of strapless gown. F L O R I D A

12. Federalism in practice State Laws on the books today… • If an elephant is left tied to a parking meter, the parking fee has to be paid just as it would for a vehicle. • Having sexual relations with a porcupine is illegal. • It is illegal to sing in a public place while attired in a swimsuit. F L O R I D A

13. Federalism in practice State Laws on the books today… • Prohibits shooting rabbits from a motorboat. K A N S A S • It is illegal to rob a bank and then shoot at the bank teller with a water pistol. L O U I S I A N A

14. Federalism in practice State Laws on the books today… • It is illegal for a liquor store to sell cold soft drinks or milk. I N D I A N A • You may not swear in front of women and children. M I C H I G A N

15. Federalism in practice State Laws on the books today… • It is illegal for bar owners to sell beer unless they are simultaneously brewing a kettle of soup N E B R A S K A • It is illegal to lie down and fall asleep with your shoes on. N. D A K O T A

16. Federalism in practice State Laws on the books today… • It is against the law to throw a ball at someone's head for fun. • A license must be purchased before hanging clothes on a clothesline. • The penalty for jumping off a building is death. N E W Y O R K

17. Federalism in practice State Laws on the books today… • It is illegal to fish for whales on Sunday. • It is illegal to get a fish drunk. O H I O • A person is not eligible to become Governor if he/she has participated in a duel. P E N N S Y L V A N I A

18. Federalism in practice State Laws on the books today… • It is illegal to take more than three sips of beer at a time while standing. • It is illegal to drive without windshield wipers but a windshield is not required • It is illegal for one to shoot a buffalo from the second story of a hotel. • It is illegal to milk another person's cow. T E X A S

19. Federalism in practice State Laws on the books today… • Fake butter may not be served in state prison. • One may not camp in a wagon on any public highway • Livestock have the right of way on public roads. W I S C O N S I N

20. Federalism in practice State Laws on the books today… • Canned corn may not be used as bait for fishing. • It is illegal to whisper “dirty” things in your lover’s ear during sex. O R E G O N

21. Federalism in practice State Laws on the books today… • It is mandatory for a motorist with criminal intentions to stop at the city limits and telephone the chief of police as he is entering the town • All motor vehicles must be preceded by a man carrying a red flag (daytime) or a red lantern (nighttime) fifty feet in front of said vehicle • It is illegal to display a hypnotized or allegedly hypnotized person in a store window W A S H I N G T O N

22. The Growth of the National Government • McCulloch v. Maryland (1819)- established the implied powers of the national government and the idea of national supremacy • (from the necessary and proper clause) • (from the supremacy clause) • Gibbons v. Ogden (1824) – established that the power to regulate interstate commerce was an exclusive national power • (from the commerce clause)

23. Gonzalez v. Raich (2005) • Medicinal Marijuana • Controlled Substance Act (1970) – US government regulates the manufacture, importation, possession, and distribution of certain drugs • Medicinal marijuana was legalized in California, but illegal to U.S. government. Raich argued commerce clause should not take effect because 1) there was no business transactions and 2) there were no state border issues. • Supreme Court ruled 6-3 against Raich saying that the federal government could trump state laws that permitted medicinal marijuana.

24. The Shift Back to States’ Rights in the Jacksonian Era • Nullification – the idea that states could declare a national law null and void • Secession – the withdrawal of a state from a union • South Carolina first state to repeal its ratification of the U.S. Constitution (1860)

25. War and the Growth of the National Government • The defeat of the South ended the idea that states could secede from the Union. • The defeat of the South also resulted in an expansion of the powers of the national government (the opposite of what the South was fighting for) ·   New governments employees were hired to conduct the war effort, and Reconstruction ·   A billion dollar budget was passed ·   A temporary income tax was imposed on citizens ·   Civil liberties were curtailed because of the war effort and the national’s government’s role expanded to include providing pensions to veterans and widows

26. The Continuing Dispute over the Division of Power • Dual Federalism (Layer Cake) – the national and state governments as equal sovereign powers • Cooperative Federalism (Marble Cake) – the idea that states and the national government should cooperate to solve problems • Creative federalism - also known as “picket fence federalism,” predominated during the period of 1960 to 1980. This relationship was characterized by overloaded cooperation and crosscutting regulations. • New federalism - sometimes referred to as “on your own federalism,” is characterized by further “devolution” of power from national to state governments, deregulation, but also increased difficulty of states to fulfill their new mandates. This period began in 1981.

27. What does duel federalism have in common with a layer cake?

28. Dual Federalism (1789-1932) • Federal and state governments are co-equals, each sovereign • Narrow interpretation of the Constitution • Federal government only has jurisdiction if clear expressed in the Constitution (ex: coin money, foreign affairs) • State have greater role and powers (ex: public education, race relations)

29. What does cooperative federalism have in common with a marble cake?

30. Cooperative Federalism (1933-present) • National government clearly supreme over the states with wide interpretation of the “necessary and proper clause” (Article I, Sect. 8 of the Constitution, also known as the “elastic clause.”) • Federal government intervenes or assists in some areas traditionally left to the states (ex: education, health care, civil rights) • Began with the New Deal in the 1930s • Characterized by federal government funding programs and state government implementing them (New Deal).

31. The Decline of Dual Federalism • Great Depression resulted in FDR’s New Deal policies which established a large and far reaching federal government • FDR fought with the Supreme Court for years and won re-election in landslide in 1936 and threatened to “pack the court” • Result was a return to a strong federal government • World War I, Great Depression, and World War II served as primary catalysts to the rise of cooperative federalism.

32. Federal Preemption from 1900 to the Present Source: U.S. Advisory Commission on Intergovernmental Relations, plus author’s update.

33. Cooperative Federalism in action Grants-in-aid • Categorical grants: “Here’s some money, but you do exactly what I tell you to do with it.” • Block grants: “Here’s some money, spend it how you like as long as you it relates to what I want.” • General revenue sharing grants: “Here’s some money, do whatever you want with it.” • Unfunded mandates: “I don’t have the money, but you still have do exactly what I tell you to do.”

34. Federalism in action • No Child Left Behind Act • Problem: • Declining student performance • Solution: • Federal funding requires tough performance standards • Unintended consequences: • Localities forced to make huge investment to implement testing requirements. • Localities suing states, arguing that testing requirements represent an unfunded mandate. • States opting out of federal funds and performance standards.

35. Inequities in State Education Spending

36. The Number of Governments in the USA

37. Federalism, Good & Bad Good points: • More opportunities for participation. • Increases number of access points to government. • Regional interests have effective representation in both Congress and state governments. • Allows for innovation at state-level. • Overcomes weaknesses of the Articles of Confederation. • The states, operating as sovereign units, have closer ties to the electorate than the national government does. • Fifty different sets of rules allow policy experimentation and greater flexibility. • Experimentation allows a more efficient pursuit of national policy goals.

38. Federalism, Good & Bad Bad points: • Inequities across states. • Too many governments? (87,000) • Local interests can thwart national majority. • Multiple political actors can promote duplication and confusion. • Coordination becomes difficult because states operate as independent and sovereign units.