Chapter 3

Federalism

Three Systems of Government Unitary System – strong central government; local

governments only have powers given them by central government; power flows down from center to units; the most common form Examples: Great Britain, Sweden, Japan, Egypt, Israel, the Philippines

Confederal System – strong state governments; central government has only limited powers over the states; a league of independent states, each having essentially sovereign power; power flows up from the units to the center; uncommon Examples: US under Articles of Confederation (1776-1788), European

Union Federal System – power is divided between central

government and states; each has its own sphere of influence; power flows both ways from central government to units and vice versa; less common Examples: U.S., Australia, Brazil, Canada, Germany, India

Figure 3-1: Flow of Power in Three Systems of Government, 46

America’s Governmental Units

© 2004 Wadsworth Publishing / Thomson Learning™

Why Federalism? Practical Solution – compromise that helped ensure

ratification of the Constitution (Federalists vs. Anti-Federalists); helped resolve dispute between advocates of a strong central government and a weak central government, states’ rights advocates

Geography and population make it impractical to locate all political authority in one place; practical for large countries

Brings government closer to the people State governments train future national leaders State governments can be testing grounds for policy

initiatives Federalism allows for many political subcultures Provides regionally concentrated groups a degree of

autonomy

Why Not Federalism? Potential lack of coherence States can block national plans Inequalities across states in terms of

education, crime control, building safety, etc.

More broadly, federal units can become the basis for secessionist movements (esp. regionally concentrated ethnonationalist movements) Examples: the Confederacy in the U.S.; Kurds in Iraq;

Quebequois (French Candadians from Quebec) in Canada

National Government Powers Expressed powers are those enumerated in the

Constitution (Article I, Section 8), pp. 376-377 Examples: lay and collect taxes, borrow, regulate commerce,

coin money, set standards of weights and measures, declare war

Implied powers are those reasonably (inferred but not expressly stated) necessary to carry out the powers expressly delegated Based in Article I, Section 8, Clause 18: “Necessary and Proper

Clause,” a.k.a. “Elastic Clause,” 377 Inherent Powers are held by the national government by

virtue of it being a sovereign state recognized by the community of nations; grounded in international law Right to survival, defense, national interest, trade, make

treaties, territorial integrity, self-determination, freedom from external intervention, just war, acquire territory

State Government Powers

Reserved powers outlined in the Tenth Amendment, 385 “The powers not delegated to the U.S. by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Regulation of intrastate commerce; state militia; police power (crime, contracts, marriage/divorce; education, traffic, land use, etc.); levy taxes

Police power = authority to make laws for the protection of the health, morals, safety, and welfare of the people

Denied powers (Article I, Section 10, 378) = treaties and coinage; duties and imposts; war

Federal/State Government Powers

Concurrent powers = held jointly by national and state governments (tax, borrow money, make and enforce laws, establish courts, etc.)

Prohibited powers = national government prohibited from taxing exports; states prohibited from entering into treaties on its own with another country

Supremacy clause (Article VI, clause 2, 382) = Constitution and federal laws superior to all conflicting state and local laws; federal law takes precedence over all state law; Constitution, congressional laws, national treaties, and rules/regulations issued by the executive are “Supreme Law of the Land”; states cannot use reserved or concurrent powers to thwart national policies

Select Constitutional Powers

National Both StateEXPRESSED coin money conduct foreign relations regulate interstate commerce levy and collect taxes declare war raise and support the military establish post offices establish courts inferior to the Supreme Court admit new statesIMPLIEDElastic/Necessary and Proper (Article 1, Section 8, Clause 18)INHERENTGrounded in international law

CONCURRENT levy and collect taxes borrow money make and enforce laws establish courts provide for the general welfare charter banks and corporations

RESERVED regulate intrastate commerce conduct elections provide for public health, safety, and morals establish local governments ratify amendments to the federal constitution establish a state militia

Select Powers Denied by the Constitution

National Both State

tax articles exported from any state violate the Bill of Rights change state boundaries suspend the right of habeas corpus make ex post facto laws subject officeholders to a religious test

grant titles of nobility permit slavery deny citizens the right to vote because of race, color, or previous servitude deny citizens the right to vote because of gender

tax imports or exports coin money enter into treaties impair obligations of contracts abridge the privileges or immunities of citizens or deny due process and equal protection of the laws

Vertical Checks and Balances Separation of powers/checks and balances at national

level aimed at preventing national government from becoming too powerful

Federalism allows for “vertical” checks and balances between states and the national government

States’ checks = reserved powers; representation in Congress; vote for president; amendment process; administration of national programs

National government’s checks = expressed and implied powers; Supremacy clause; commerce clause; federal grants

Constitutional Clauses Concerning Interstate Relations

A.k.a. “horizontal federalism” Full Faith and Credit clause (Article IV,

381) = all states are required to respect one another’s laws

Privileges and Immunities Clause = a citizen of a state has all the rights as the citizen of another state where they happen to be

Extradition clause = a person accused of a crime who flees to another state must be returned if requested

Expanding the Powers of the National Government Landmark Supreme Court cases under Chief Justice

John Marshall increased the power of the national government relative to the states

McCulloch v. Maryland (1819) – enhanced the implied powers of the national government through an expansive interpretation of the necessary and proper clause (Article I, Section 8, Clause 18)

Gibbons v. Ogden (1824) – broad interpretation of the commerce clause (Article I, Section 8, Clause 3) expanded the regulatory powers of the federal government; regulation of interstate commerce an exclusive national power

Reassertion of States’ Rights and Civil War Civil War – ultimate dispute over power of national

and state governments; national government supremacy and rights of states

Nullification – idea that states could declare a national law null and void

Secession – withdrawal of a state from a union Civil War ends idea that a state can secede and leads

to an increase in the power of the national government

Prior to Civil War, many states considered themselves ultimate authority; after War, supremacy of national government recognized (at least by most)

War and Growth of National Government Defeat of the South ended idea that states could secede

from the Union Also resulted in expansion of the powers of the

national government (the opposite of what the South was fighting for) New governments employees hired to conduct the

war effort, and Reconstruction Billion dollar budget passed Temporary income tax imposed on citizens Civil liberties curtailed because of war effort National government provided pensions to veterans

and widows

Continuing Dispute over the Division of Power

Post-Civil War – two major phases in Federal-State government relations

Dual Federalism – national and state governments equal sovereign powers within their own spheres (e.g., states control intrastate commerce; federal government interstate commerce)

Cooperative Federalism (post-depression era) – states and national government cooperate to solve common problems

Federal Aid to States As transportation improved and trade expanded, national

government began to regulate national economy and construct infrastructure. One method of achieving this was federal grants with “strings”

Categorical grants-in-aid = federal grants targeted for specific programs/projects (Medicaid, highway construction, unemployment, housing, welfare); enables Congress to effect policy change in states

Block grants = federal grants provided for general functional areas (criminal justice, mental health); preferred by states because it gives them greater flexibility in spending

Federal mandates = rules/regulations handed down by the federal government (environmental protection, civil rights), often unfunded and expensive, that force states and municipalities to comply with certain rules

Shift towards Central Government spending

© 2004 Wadsworth Publishing / Thomson Learning™

Supreme Court and Federalism Plays a key role in determining the

line between state and federal powers Over the last decade, the

conservative Rehnquist court has lessened the federal government’s powers under the commerce clause

Increasingly emphasized state powers granted by the 10th and 11th Amendments

Federalism, Supreme Court, and Commerce Clause

United States v. Lopez – court rules Congress exceeded its authority under the commerce clause in passing the Gun-Free School Zone Act of 1990

United States v. Morrison – court rules Congress exceeded its authority under the commerce clause in passing the Violence Against Women Act of 1994

Federalism, Supreme Court and Eleventh Amendment

Decisions bolstered the authority of state governments: Alden v. Maine (1999) – state employees can’t

sue state for violating federal overtime pay law Kimel v. Florida Board of Regents (2000) – state

university employees can’t sue state for violating federal age discrimination law

Yet, in Nevada v. Holmes (2003) – the court ruled that state employers must abide by the federal Family Medical Leave Act, which seeks to outlaw gender bias

State Governments Today Provide highly visible functions (e.g., education,

health, police, fire, roads, welfare, etc.); funded by sales taxes and income taxes Local government services funded by property taxes

Mirrored on national government Most executives have line item veto power (unlike

President) Legislatures often criticized as unprofessional,

uneffective; limited resources; limited meeting times; low pay; responsible for drawing electoral district lines

Each maintains a court system Crises in state finances vitally important (as we know

all too well in CA)

Why Federalism is Important Today No uniform body of national laws (unlike under

Unitary governments) Differences in criminal sanctions and

sentencing from state to state; county to county

Differences in welfare and education spending Allows for diversity and inequalities Gives citizens the option to “vote with their

feet” and go to a state conducive to their interests

Discussion Questions Is there a proper balance between states’

rights and the powers of the federal government?

Would we be better off with increased federal powers?

Has federalism “worked” for the U.S.? Do you think unfunded federal mandates

are fair? What would happen if a state like California

tried to secede from the U.S. and form an independent country?

Hot Links to Selected Internet Resources:

Book’s Companion Site: http://politicalscience.wadsworth.com/schmidtbrief2004

Wadsworth’s Political Science Site: http://politicalscience.wadsworth.com

Emory University’s Federal Law Site: http://www.law.emory.edu/FEDERAL

Unity and Federalism: http://www.constitution.org/cs_feder.htm

Project Vote Smart: http://www.vote-smart.org/issues/FEDERALISM_STATES_RIGHTS