Transcript Chapter 3 2305 Federalism fall 2016x

Chapter 3
Federalism
What is Federalism
Federalism: the division of power across the
local, state and national governments
Recent conflicts:
• States legalize Marijuana
• Federal government prevent states from
legalizing doctor assisted suicide
• Can federal government ban guns around
public schools?
What is Federalism?
Politics of federalism:
States’ rights, historically, a conservative viewpoint:
• opposition to integration in the South in the
1950s and 1960s;
• opposition to Affordable Care Act
Recently: progressive viewpoint:
• States pass tougher environmental laws
• States took lead in same-sex marriage, legalizing
marijuana
Levels of government and their
degrees of autonomy
In federalist system, each level of government has degree
of autonomy from other levels of government
(autonomy: quality of being self-governing)
• National government responsible for foreign policy,
national defense;
• State and local governments have police powers:
power to enforce laws and provide for the health,
safety, morality and well-being of their residents.
• Local governments (counties, cities, towns) not
autonomous units of government: are created by
state governments which control what local
governments can or cannot do.
Comparative perspective
Unitary system – national, centralized government
holds ultimate authority. Most common form of
government (80%) in the world.
https://en.wikipedia.org/wiki/Unitary_state
Confederal government – states hold power over a
limited national government. (United States under
Articles of Confederation; Confederate States of
America (1861-1865)
https://en.wikipedia.org/wiki/Confederation
Nations with federal form:
http://en.wikipedia.org/wiki/List_of_countries_by_system_of_g
overnment#Federal
Federalism in the Constitution
• Constitutional basis for our federal system is
defined by the Tenth Amendment and the
National Supremacy Clause.
• Tenth Amendment: “the powers not
delegated to the United States by the
Constitution, nor prohibited by it to the
states, are reserved to the states, or to the
people.”
Federalism in the Constitution
National Supremacy Clause (Article VI): The
Constitution and all laws and treaties made by
the national government shall be the “supreme
Law of the land.”
National Supremacy Clause mandates that if any
state law or state constitution conflicts with
national law, national law takes priority
Balancing national and state power: a
strong national government
U.S. Constitution reflects framers desire for a strong
national government. Congress given power to:
• support armies, declare war; regulate interstate
commerce (enumerated powers, Article I, Sec. 8)
• Necessary and Proper Clause (Article I, Sec. 8)
gives Congress power to “make all laws which
shall be necessary and proper” for carrying out
its enumerated powers listed in Article 1, Sec. 8.
Constitution gives President power to oversee
conduct of war, make treaties with foreign nations
Balancing national and state power: a
strong national government
• States are prohibited from entering into
treaties or alliances, imposing duties, coining
money
• prohibitions assure states cannot interfere
with operation of interstate commerce or
national defense
State powers and limits on national
power
The Constitution assures the states of certain
rights:
• Article II give states power to choose electors
for the electoral college
• Article V grants states central role in
amending the Constitution
State powers and limits on national
power
• Tenth Amendment: powers not delegated to
the United States by the Constitution, nor
prohibited by it to them are reserved to the
states, respectively, or to the people. Known
as reserved powers of the states.
• Eleventh Amendment establishes principle of
state sovereignty – citizens of one state
cannot sue another state.
Clauses that favor both national and
state power perspectives
Portions of the Constitution acknowledge both
power of national government and power of the
states:
Article IV: Full Faith and Credit Clause and
Privileges and Immunities Clause
• Full Faith and Credit Clause: each state’s laws,
contracts must be honored by other states
• Privileges and Immunities Clause: states must
treat non-state residents within their borders as
they would treat their own residents. Your valid
Texas drivers license is valid in California.
Federalism conflict: full faith and credit
clause and same-sex marriage
When some states began legalizing same-sex
marriage, controversy arose as to whether all
states would need to recognize same-sex
marriages legalized in other states under the
Full Faith and Credit clause of the Constitution.
In 1996 Congress passed the Defense of
Marriage Act (DOMA) in response to the
growing number of states that were legalizing
gay marriage.
The text of DOMA
Section 1. Short title
This Act may be cited as the "Defense of Marriage Act".
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any
other State, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such
other State, territory, possession, or tribe, or a right or claim arising from such
relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word 'marriage' means only a legal union
between one man and one woman as husband and wife, and the word
'spouse' refers only to a person of the opposite sex who is a husband or a
wife.
full faith and credit clause and samesex marriage, continued
In a decision announced in June of 2013, Windsor V.
United States (2012) – U.S. Supreme Court ruled
that section 3 of DOMA was unconstitutional as it
denied equal protection under the law to same sex
couples in federal matters such as the laws of the
Internal Revenue Service (IRS).
Section 2 of DOMA was not part of the Windsor
case and remained the law of the land until June,
2015 when U.S. Supreme Court announced decision
in Obergefell v. Hodges legalizing same sex marriage
in United States.
Privileges and Immunities Clause
• Examples: States may not deny welfare benefits to new
residents or deny police protection to out-of-state visitors.
• However, states are allowed to make some distinctions
between residents and non-residents; examples:
• States don’t have to permit non-residents to vote in state
elections.
• States may charge higher tuition for out-of-state residents
to public college, universities.
• Overall, the Privileges and Immunities clause emphasizes
that national citizenship is more important than state
citizenship.
Evolving Concept of Federalism:
establishing national supremacy
• McCulloch v. Maryland (1819) established principle of
national supremacy. The facts of the case:
• Federalists-controlled Congress chartered a national
bank in 1791 and a second national bank in 1816.
• The state of Maryland, controlled by the opposing
Democratic-Republican party, attempted to tax the
national bank out of business.
• Head cashier of the bank (McCulloch) refused to pay
the tax and sued in Federal Court.
Evolving Concept of Federalism:
establishing national supremacy
• McCulloch v. Maryland (1819) U.S. Supreme Court
ruled that Congress has authority to establish a
national bank under its implied powers of the
necessary and proper clause of Article I, Sec. 8.
• Congress is granted authority in its enumerated powers
of Article I, Sec 8 to coin money, levy taxes and borrow
money, so it is “necessary and proper” for Congress to
have the authority to establish a national bank.
• Maryland did not have the power to tax the bank
because “the power to tax is the power to destroy”
and so taxing the bank violated the National
Supremacy Clause of Article VI.
Pressing for states rights
• States’ rights: the idea that states are entitled
to a certain amount of self-government, free
of federal intervention.
• States rights became a central issue leading
up to the Civil War.
• John Calhoun, U.S. Senator from South
Carolina, used the term nullification, urging
South Carolina to ignore a federal tariff law.
Pressing for states rights
• The states’ rights perspective and the
principle of nullification – that states had the
right to nullify a federal law and ultimately
secede from the union – led up the
establishment of the Confederate States of
America and the Civil War.
Dual Federalism
Along with states’ rights and nullification, a concept
known as dual federalism, defined the relationship
between the national government and the states
for the first 150 years in the nation’s history
Dual Federalism completed the legal arguments
that led eventually to the Civil War.
• Dual federalism – form of federalism favored by
U.S. Supreme Court Chief Justice Roger Taney;
national and state governments are seen as
distinct entities providing separate services.
• Limits the power of the federal government.
Dual Federalism: Dred Scott and the
Civil War
State-centered views of the Taney Court produced the
decision of the Court in Dred Scott v. Sandford (1857)
• Dred Scott--slave who lived for many years in free
Wisconsin Territory, but was living in Missouri, a slave
state, when his master died.
• Scott petitioned for freedom under the Missouri
Compromise which said that slavery was illegal in any
free state.
• Only case of a slave suing a master to reach the
Supreme Court. http://www.scotusblog.com/2014/05/heroes-wholost-the-fight-lea-vandervelde-on-dred-scott/
Dual Federalism: Dred Scott and the
Civil War
• Dred Scott v. Sandford (1857) Taney Court held
that slaves were not people but private property
and the Missouri Compromise violated the Fifth
Amendment because it deprived slave owners of
property without due process of law.
• In the Dred Scott decision, the Court also ruled
that Congress did not have the authority to limit
slavery in the territories
• Decision was among events leading to Civil War
four years later
Post-Civil War Amendments
• Views of the Union on states’ rights were written
into the Constitution with the adoption of the
Thirteenth, Fourteenth and Fifteenth
Amendments:
• Thirteenth Amendment (1865): banned slavery
• Fourteenth Amendment (1868): gave the right of
citizenship to former slaves; prohibited states
from denying citizens due process or equal
protection of the laws.
• Fifteenth Amendment (1870): gave newly freed
males slaves the right to vote.
The Supreme Court and Limited
National Government
• 1873 Supreme Court ruled that the
Fourteenth Amendment protections of due
process and equal protection applied only to
individuals’ rights as citizens of the United
States, not to their state citizenship.
• Thus, the freedoms guaranteed by the Bill of
Rights only applied to protection from laws
passed by Congress, not state laws.
The Supreme Court and Limited
National Government
1883 Supreme Court overturned 1875 Civil Rights Act that
guaranteed equal treatment in public accommodations
Court argued that the Fourteenth Amendment did not
give Congress power to regulate private conduct,* but
only the conduct of state governments.
• Opened the door for southern states to begin
implementing state and local laws that led to
complete segregation of blacks and whites – the Jim
Crow laws.
• Summary of Jim Crow laws:
http://www.ferris.edu/jimcrow/what.htm
National power and the commerce
clause
Supreme court also used its interpretation of the
Constitution’s “Commerce clause” to limit the power of
the federal government.
• Commerce clause powers: The power of Congress to
regulate the economy granted in Article 1, Sec. 8, of
the Constitution. (“to regulate commerce…among the
several states…)
• Court defined clear boundaries between interstate
(between states) and intrastate (within a state)
commerce ruling that Congress could not regulate any
economic activities that occurred within a state.
National power and the commerce
clause
Court used similar grounds to overturn laws made
by Congress to regulate child labor
In several cases in the late 19th and early 20th
century, the Supreme Court endorsed laissez-faire
capitalism (“to leave alone”) aimed at protecting
business from government regulation.
• Court ruled unconstitutional New York law
limiting bakers to a 60 hour workweek
• Real winner in these cases was big business, not
the states
Cooperative Federalism
Progressive Era and the New Deal ushered in a new
period “cooperative federalism”
FDR’s New Deal programs and policies greatly
expanded the reach and power of the Federal
Government
• National government became more involved in
regulating activities formerly reserved for the
states such as education, transportation, civil
rights, agriculture, social-welfare and labormanagement relations.
Cooperative Federalism
Cooperative federalism: a form of federalism in
which national and state governments work
together to provide services efficiently.
• Emerged in the late 1930s representing a less
concrete boundary between national and state
responsibilities.
• Example: officials working in local school districts,
the State Department of Education and the U.S.
Department of Education share policy-making
and policy-implementation responsibilities
Cooperative federalism lives on:
fiscal federalism
Fiscal federalism: a form of federalism in which
federal funds are allocated to the lower levels
of government through transfer payments or
grants.
• Fiscal federalism allows the federal
government to either help state and local
governments to achieve their goals
• or use its fiscal power to impose its will on
the states and local governments
Fiscal federalism: grants in aid
• Most federal grants to states and localities
come in two forms:
• Categorical grants: federal aid to a state or
local government that is provided for a
specific purpose such as a mass transit
program or a school lunch program.
• Block grants: federal aid provided to a state
government to be spent in a certain policy
area but in a way chosen by the state.
Fiscal federalism: New Federalism
Priority of Ronald Reagan’s administration (1980s):
“The states created the federal government.”
New Federalism was the centerpiece of Reagan’s
plan to return power to the states
• Reagan’s New Federalism consolidated 77
categorical grants into nine block grants that
gave state and local politicians more control
over how money was spent
• change came with a 25% cut in federal funding
to the states
New Federalism: next phase
• Republicans took control of Congress in 1994.
• President Bill Clinton, moderate Democrat
elected in 1992 with campaign promise to “end
welfare as we know it.”
• Personal Responsibility and Work Opportunity
Act of 1996 replaced AFDC commonly known as
“welfare” which had been nationally
administered with
• Temporary Aid To Needy Families (TANF) funded
with a block grant to the states.
New Federalism: next phase
• Another Act of Congress passed during Clinton
administration also reduced power of national
government over the states:
• Unfunded Mandate Reform Act of 1995 made
it more difficult for Congress to require states
to implement certain policies without
providing funding for implementation.
New Federalism: next phase
• Unfunded Mandate: Federal laws that
require the states to do certain things, but do
not provide state governments with funding
to implement these policies.
• Examples: Clean Air Act; Americans with
Disabilities Act; Medicaid; No Child Left
Behind.
Rise of Coercive Federalism
past 40 years, three factors have reinforced the
role of a strong national government:
1. The reliance on national government in times of
crisis and war: most recently the 9/11 attacks and
the response to the 2008 financial meltdown.
2. The Civil Rights era and Great Society programs
under LBJ that upheld the national goal of equality
and civil rights protections for all Americans*
3. The rise of coercive federalism
Other shifts toward national
supremacy: coercive federalism
• Coercive federalism: A form of federalism in which
the federal government pressures the states to
change policies by using regulations, mandates and
conditions that may include the withdrawal of federal
funds. (coercive: related to the use of force)
• In recent years, categorical grants aimed at broad
national goals have reinforced national supremacy.
• EX: Federal government required states to raise their
legal drinking age to 21 in order to receive federal
highway funds.
Other shifts toward national
supremacy: coercive federalism
• The National Minimum Drinking Age Act of
1984: all states required to legislate the age of 21
years as a minimum age for purchasing and
publicly possessing alcoholic beverages.
• Under the Federal Aid Highway Act, a state with
a minimum age below 21 would be subjected to
10% decrease in its annual federal highway
apportionment.
• Clean Water Act, Americans with Disabilities Act
and “Motor Voter Act” are other examples of
coercive federalism.
National power and the Affordable
Care Act
• Many Republican state governments saw the ACA as
an unwarranted expansion of federal power.
• 26 states headed by Republican governors joined to
challenge the constitutionality of the Affordable Care
Act.
• Republicans charged that the individual mandate
portion of the Act (the requirement of the ACA that
individuals who choose not to purchase insurance will
be fined) exceeded the Constitutional powers of
Congress and the federal government, and that the
federal government could not force the states to
expand their Medicaid programs.
National Power and the Affordable
Care Act
• The U.S. Supreme Court ruled that the individual
mandate was legal under Congress taxing power
listed in Article 1, sec. 8 of the Constitution
(enumerated powers).
• However, the Supreme Court also ruled that Medicaid
expansion portion of the Act was overly coercive:
federal government could not completely withdraw
Medicaid funds from those state which refused to
participate in Medicaid Expansion under the ACA.
• Court’s decision means that there are limits to
coercive federalism.
The States Fight Back
• Historically, it has been the national
government that imposed regulations on the
states that assured racial equality, clean air
and water, fair legal processes, safer highways
and equal voting access.
• States have taken the lead in areas of
environmental protection, health care policy,
gay marriage.
The States Fight Back: Competitive
Federalism
Advocates of state-centered federalism argue that
the 50 states provide a mix of policies that produce
competitive federalism: a form of federalism in
which states compete to attract business and jobs
through the policies they adopt.
• Critics say competitive federalism may create a
“race to the bottom” -- where states eliminate
more occupational and environmental
regulations than would be desirable.
Fighting for states rights: the modern
Supreme Court
The Tenth Amendment – the powers not
delegated to the national government are
reserved to the states or to the people.
• 1985 Supreme Court ruled that Congress
could impose a minimum wage law on state
governments – a traditional area of state
power.
• Decision reinforced the supremacy of the
federal government
Fighting for states rights: the modern
Supreme Court
United States v. Bond 2011, Supreme Court ruled that
individuals, as well as states, have the right to challenge the
Constitutionality of a federal law under the Tenth
Amendment.
Decision came down on side of the states and the people,
eroding national power.
• Not in your book, but just so you know: United States v.
Bond (2011) involved a Pennsylvania woman, Carol Bond,
who was videotaped by postal inspectors stealing mail and
putting poison into the muffler of her husband’s lover’s car.
Bond was indicted under the Chemical Weapons
Convention and Implementation Act of 1998. She
challenged her conviction under this Act.
States’ rights and the Commerce
Clause
Under enumerated powers of the federal
government in Article 1, sec. 8, Congress has the
authority to regulate interstate commerce.
This power is known as the commerce clause
Significant case in which Supreme Court limited
the power of federal government involved a
challenge to the federal Gun-Free School Zones
Act of 1990: U.S. v. Lopez (1999)
States’ rights and the Commerce
Clause
Federal government claimed that commerce
clause gave federal government authority to
regulate guns at local level, traditionally a state
power.
• Supreme Court ruled the federal Gun-Free
School Zones Act was unconstitutional:
• Congress had exceeded its powers to
regulate interstate commerce when it
attempted to ban guns in public schools
U.S. v. Lopez (1999)
• Alfonso Lopez, Jr. was a 12th grade student at Edison
High School in San Antonio, Texas. On March 10, 1992
he carried a concealed .38 caliber revolver, along with
five cartridges, into the school. The gun was not
loaded; Lopez claimed that he was to deliver the
weapon to another person, a service for which he
would receive $40. He was confronted by school
authorities — the school had received anonymous tips
that Lopez was carrying the weapon — and admitted
to having the weapon. The next day, he was charged
with violation of the federal Gun-Free School Zones Act
of 1990. (source: Wikipedia).
Federalism today
Historically, federalism conflicts break down on
ideological lines:
Liberals favor strong national power
• Fight discrimination
• Protect the environment
• Provide national health care
• Assist the poor
Federalism today
Conservatives favor states rights view:
• Limited federal involvement at state level
• States decide own mix of welfare, regulatory
policies
Strong Role for States: Four
Advantages
1. Laboratories for Democracy:
• Creative problem solving
• Policy diversity and innovation
• Complement to federal efforts: state successes
can become federal policy
• Key areas: welfare reform; health care;
environmental policy
Strong Role for States: Four
Advantages
2. State and local government closer to the
people
• Encourages participation in political process
• Local office-holder know what constituents
want: taxes v. services
• Broad range of opportunities for involvement
in political process
Strong Role for States: Four
Advantages
3. More paths to address problems
• Court system: state vs. federal court
• Draw on strengths of each level of
government – cooperative federalism
Strong Role for States: Four
Advantages
4. Check on national tyranny
• Competitive federalism: broad range of social
policies, taxation levels; regulation, public
services
• People can “vote with their feet”
Disadvantages of too much state
power
1. Unequal distribution of resources across
states
• Poor states cannot provide without federal
funding: greatest need; lowest incomes;
• Disparities in education
• Infrastructure; pollution problems cross state
boundaries
Strong Role for States: Four
Advantages
2. Unequal protection for civil rights
• History shows states not equally willing to
protect civil liberties and civil rights
• Age, disability, sexual orientation require
national protection against discrimination
Strong Role for States: Four
Advantages
3. Competitive federalism: “race to the bottom”
• States compete to attract business by keeping
taxes, social spending low
• Environment and worker safety suffer
• Unfair burden on states that have more generous
policies toward the poor
Overall: no clear winner in determining balance of
federal versus state power.