Federalism summary

A.P. Civics Notes: Chapter 3
“Federalism”

Governmental Structure

The single most persistent source of conflict in U.S. politics since the adoption of the Constitution has been the relations between the national and state governments.
Today, an effort is underway to reduce national gov’t powers, giving more strength to the states; this effort is known as devolution.

Some proposals give states block grants in which states get money that they can spend in any way they want—as long as it is within broad guidelines set by Congress.

Federalism is the political system in which local units of government and a national government make final decisions with respect to at least some governmental activities and whose existence is specially protected; both local and national forms of government have their own sovereign powers and some powers that overlap, thus making the two share authority.

The United States, Canada, Australia, India, Germany, and Switzerland have federal systems.
France, Great Britain, Italy, and Sweden have unitary systems in which the national government can abolish local governments at will and have the final say in all important gov’t matters.
Federalism works in practice due to the people; the USSR technically had a “federalist” gov’t, but in reality, the Kremlin controlled the “states.”

It takes the commitment of the people to support a slightly independent local gov’t and the same desire from the Congressmen to allow local governments to exist.

The national government, while owning sweeping powers, actually exercises most of those powers through state, county, and city governments.

To some, federalism means allowing states to block actions, prevent progress, upset national plans, protect powerful local interests, and cater to the self-interest of hack politicians; to others, it means developing mechanisms vital to governmental strength, political flexibility, and individual liberty.

Federalism allows people to pass laws according to local interest, and even though some may pass bad laws, others may pass laws to counteract the previous “bad” laws.
EXAMPLE: In England and France, local groups would have no success in trying to ban the landing of Concorde jets in local airports, but in the U.S., such groups have actually won.

According to James Madison, since there are so many diverse interests, only a large government (like the U.S.) can adequately have the maximum number of sides to be heard, as opposed to small nations, where not as many interests could be known and argued.
Federalism is more likely to get the average Joe interested in politics because there is a more likely chance that what Joe does will have an effect on politics and on his life.

This is due to the numerous elected representatives in all levels of gov’t.

The Founding

To the founding fathers, federalism seemed the perfect way to protect personal liberty, since concentrating all power into one hand (even one popularly elected hand) might prove to be tyrannical; while working under a confederation, or an alliance of states where the state governments are more powerful than the national governments, could totally prevent progress.
The Founders envisioned federalism as a system in which both national and state governments would have certain powers, but neither would have supreme authority over the other.

In Federalist No. 46, Madison argued that state and national governments were simply different agents and trustees of the people, who held the ultimate power.
In Federalist No. 28, Alexander Hamilton explained that, in federalism, people would shift their support between national and state governments to keep the two in balance.

Actually, this was a brand-new plan in which no one really knew how it would work; little discussion of it actually took place, and few people even used the word “federalism” to mean what we mean today.

In fact, it wasn’t until the 10th Amendment that states actually received power; in that amendment, all power not given to the national gov’t are given to the states.
On the other hand, it seems that the national government has usually retained these “other powers” anyway, despite what is said, due to support from the courts.
The language used to describe national/state government relationships was vague, and it was later left up to the courts to interpret it.

Knowing that they could not possibly list every single power that Congress could have, the Founding Fathers added the elastic clause: “Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

Coming out of the Constitutional Convention in Philadelphia, different views of federalism were carried: (1) Alexander Hamilton believed that the national government was the superior and leading force in political affairs, since the people created it and its laws were the “supreme law of the land;” (2) Thomas Jefferson believed that “the people” were the ultimate sovereigns, and since the states was a result of agreement among the states, the states were supreme over the national gov’t.

Hamilton believed that the Constitution could be loosely interpreted while Jefferson believed in a strict interpretation of the Constitution (later used in argument for the Bank of the United States, which was “necessary and proper,” as said by Hamilton, who supported it, but “not addressed in the Constitution and therefore illegal,” as said by Jefferson, who was against it).
James Madison first supported national supremacy but later switched to states’ rights.

The Debate on the Meaning of Federalism

The Civil War was fought over the issue of national supremacy vs. states’ rights, but its conclusion only settled the fact that the national government’s sovereignty came from the people, that the national gov’t was supreme, and that states couldn’t secede, but left other issues open.
In the U.S.’s early years, the Supreme Court was led by Alexander Hamilton’s firm supporter: Chief Justice John Marshall.

In a series of rulings, he upheld the supremacy of the national gov’t.
In McCulloch v. Maryland, James McCulloch, a Baltimore cashier of the Bank of the United States, refused to pay the taxes that the state of Maryland levied on money and was jailed.

Marshall ruled that Maryland had no right to tax the notes of national currency, and thus, McCulloch had the right not to pay a tax that wasn’t supposed to be levied.
That ruling also firmly strengthened the “necessary and proper” (elastic) clause.

Later, the Supreme Court ruled that since state governments couldn’t tax federal bonds, the national gov’t couldn’t tax the interest people earned from state and municipal bonds… but in 1988, it changed its mind and gave Congress the power to do so; so far, Congress has chosen not to do so.
In response to the Alien and Sedition Acts, James Madison and Thomas Jefferson wrote the Virginia and Kentucky Resolutions, stating that states had the right to “nullify” laws that, in the state’s opinion, violated the Constitution, thus presenting the concept of nullification.

John C. Calhoun later revived this doctrine, and the ensuing battle later led to the explosion of the Civil War.

The doctrine of Dual Federalism emerged after the Civil War; it stated that though the national gov’t was supreme in its sphere, state governments were supreme in theirs as well, and that these two spheres should be kept separate.

This applied to commerce: Congress could regulate interstate commerce, but states regulated intrastate commerce.
The courts were left to specify the difference between inter- and intrastate commerce, but for a while, it simply classified differences according to product…then came the question of when commerce turned from interstate to intrastate.
Eventually, the courts decided to let Congress regulate practically everything that flowed within the stream of interstate commerce; anything that was related to interstate commerce, such as window washers working on a building housing an insurance company that dealt insurance to people inside and outside of the state, was regulated by Congress.
Currently, the differences are complex and hard to explain, but the concept of dual federalism is far from being extinct.

Federal-State Relations

The national gov’t is supreme, but Congressmen selected from the states must pass its laws.
The best illustration of how political realities may affect legal authority can be found in federal grants-in-aid, where the national gov’t granted land or money to various people or places for helpful use.

At first, cash grants weren’t plentiful, as they were usually devoted to helping state militias or such, but in the 20th century, these exploded, and today, housing aid fro low-income families, Medicaid, highway construction, services to the unemployed, and welfare programs for single mothers and for the disabled take up a huge chunk of grants-in-aid.
While states wanted money, Congress couldn’t simply give cash to them without reason or Constitutional authorization; the solution was for Congress to give money to state (pay the bills) and for states to do what they needed to do (run the exercises).
Reasons for states’ turning to Washington for $$$: (1) There was a lot of it (in the 1800s, there were lots of surpluses); (2) The federal government had an income tax that could generate revenue; (3) The federal gov’t could print more cash whenever it needed it and only had to borrow from itself; (4) Politics—federal money seemed to be “free” money for states.
On the other hand, if Washington sends money to one state or congressional district, it will have to send money to all others as well, since it “wouldn’t be fair” for just one state to get the cash while others have nothing.

In the 1960s and beyond, though, the national gov’t began giving money not according to states’ needs, but to what it thought would be best for national needs.

Unfortunately, some states and cities became dependent on national financial aid.
To fix this, intergovernmental lobbies have been set up to seek national aid for cities & states.

For a while, cities and states did get more money but by the 1980s, federal grants had stopped growing.

To get more money, lobbyists wanted federal aid moved from categorical grants, or one with a specific purpose, to revenue sharing, where a set amount of money could be distributed to anything (funds didn’t have to match in subject) or to block grants.

Block grants were basically categorical grants jumbled together to form one large, broad grant to which cities could easily adapt their funds to support; only five were enacted—among them was one devoted to cities, another to law enforcement, and a third to the unemployed.
In theory, block grants and revenue sharing were supposed to give states total freedom to do what they wanted with money, but in reality, the money did not become as readily available as states hoped and the federal gov’t actually increased restrictions on this “unrestricted” money.

The Slowdown in “Free” Money

Categorical grants gave the federal gov’t, not the states, control over the money, and this was good for Washington, since federal officials tended to distrust state governments.
Revenue sharing spread money out so much that to individual receivers, the cash wasn’t “a matter of life and death,” whereas in categorical grants, it often was “a matter of life and death” because of the concentration of cash.

Revenue sharing money went to all divisions, regardless of need, and thus was wasteful.

The more important federal money becomes to the states, the more likely they are to fight over it, and the question of whether the federal gov’t helps certain areas of the country by distributing more cash to those areas arises.

It is very hard for Washington to figure out how to distribute money, since money given to a defense contractor headquartered in California might go to New York if that contractor pays subcontractors from that area.
Recently, “distribution formulas” have arisen to decide this, thus giving huge importance to the results of the census, which is taken every 10 years.
Distribution formulas are okay, since there are computers take can predict all effects, but even occasionally, such formulas may end up strangely doling out money where it’s not needed.

Federal Aid and Federal Control

Some people fear that the federal gov’t is controlling the states by controlling the money that goes to them, thus, in effect, nullifying the 10th Amendment.
The fed gov’t can control state activities by using traditional controls (telling a state gov’t what it must do to get grant money) and attaching conditions of aid or by using mandates—telling the states what they must do period.
Mandates can concern civil rights (no discrimination on sex, race, or disability) and environmental protection (anti-pollution laws).

Some mandates are clearly advantageous and easily to enforce (like no dumping sewage into the ocean) while others are not so clear and hard to administer (like the Americans with Disabilities Act of 1990, where the disabilities have to be specified).
Mandates, along with certain taxes, can be used by the fed gov’t to impose costs on states.
Citizens can also control the behavior of local governments, thanks to the Supreme Court, by suing them over just about anything that they are “entitled to” under federal law.

Conditions of aid are purely optional (don’t want restrictions, don’t take money), but since much of the state budgets depend on federal grants, these conditions are often taken anyway, w/ or w/o gusto.

These conditions can be specific (i.e. only applying to highways and beautification) or general.
Example Problem: The 1973 Rehabilitation Act forbid discrimination of disabled people in any program receiving federal financial aid; loosely read, this could mean that otherwise capable disabled persons had to be hired for jobs, but broadly read, it could mean that buses and subways had to give access for disabled people onto their vehicles.
Basically, this “free money” was no longer free.

Bargains struck to get benefits while passing costs onto the other side used to benefit local officials, since the Congressmen were elected by the local people, but ever since the 1960s, American politics has shifted to favor Washington’s needs over local needs.

President Richard Nixon tried to reverse this by creating block grants and revenue sharing.
President Ronald Reagan tried to stop this by combining 33 categorical grants into six large block grants, but Congress attached restrictions to many of the new grants.
Thus, the cutbacks in money during the 1980s led to many states experimenting with new ways of delivering services.

A Devolution Revolution?

The Reagan administration nudged the political pendulum in favor of states’ getting lots of leeway, but the 104th Congress, dominated by Republicans for the first time in 40 years, worked VERY hard to shove in further in that direction.
There are three type of block grants: operational grants are for purposes like running state child care programs; capital grants are for purposes like building local wastewater treatment plants; entitlement grants are for purposes like transferring income to families and individuals.

All of the block grants that existed before the 104th Congress convened were operation or capital only, and thus, the 104th Congress enacted a large number of entitlement grants.

Welfare (Aid to Families with Dependent Children) and Medicaid were not created as block grants, though they account for half of all federal grant-in-aid spending.
However, the 104th Congress tried to turn these two in block grant programs.
Welfare did turn into a block program, but Medicaid did not.

Devolution seems to be driven by three things:

People distrust the federal gov’t and feel that governments closer to the people can serve the people better than distant federal governments.
In order for the fed gov’t to decrease spending on, say, Medicaid, state governors must receive certain powers in exchange for going along with certain caps in grants-in-aid.
Most citizens also feel that devolution is a good thing, at least in principle.

Congress and Federalism

The devolution movement may gain steam or fizzle out, but in the end, the U.S. will NOT remain a wholly centralized nation.
Still, Congressmen sometimes pass laws that impede upon progress because of their different backgrounds and because of how they expect their constituents would act on certain subjects.

Organizations that once linked members of Congress to local groups have eroded.
Party groups are becoming more and more varied, and a city or state may not have a single authority that can represent it.
The best deciders of policies are no longer the politicians, but the occupation-holders like the teachers and doctors of a city.
People also differ on how they feel local and federal governments benefit them (depending on financial state, gender, race, and/or religion).

On the other hand, it is this diversity that keeps federalism alive and prevents the United States from falling into a unitary system.

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CHAPTER 3
Federalism
OBJECTIVES
The central purpose of the chapter is to introduce the student to some of the complexities of federal government in the United States—where both the national and state governments have powers independent of one another. After reading and reviewing the material in this chapter, the student should be able to do each of the following:
1. Identify important policy areas affected by federalism.
2. Explain the difference between federal and centralized systems of government, and give examples of each.
3. Show how competing political interests at the Constitutional Convention led to the adoption of a federal system that was not clearly defined.
4. Outline the ways in which national and state powers have been interpreted by the courts.
5. State the reasons why federal grants-in-aid to the states have been politically popular, and cite what have proven to be their pitfalls. Distinguish categorical grants and block grants.
6. Distinguish mandates and conditions of aid with respect to federal grant programs to states and localities. Discuss whether or to what extent federal grants to the states have created uniform national policies comparable with those of centralized governments.
7. Evaluate the effect of devolution on relationships between the national and state governments. Assess its implications for citizens as taxpayers and as clients of government programs.
OVERVIEW
How one evaluates federalism depends in large part on the value one attaches to the competing criteria of equality and participation. Federalism means that citizens living in different parts of the country will be treated differently. This applies not only to spending programs (such as welfare), but also to legal systems (where civil rights may be differentially protected or criminal sentencing may vary). Yet federalism also means that citizens have more opportunities to participate in decision making. It allows people to influence what is taught in the schools and to decide where highways and other government projects will be built. Indeed, differences in public policy—that is, unequal treatment—are largely the result of wider participation in decision making. It is difficult, perhaps even impossible, to have more of one of these values without having less of the other.
States participate actively both in determining national policy and in administering national programs. Moreover, they reserve to themselves or to localities within them important powers over such public services as schooling and law enforcement and such important public decisions as land use. In a unitary system, these powers are exercised by the national government.
From the 1930s to the present, United States politics and public policy became decidedly more nationalized, with the federal government, and especially the federal courts, imposing increasingly uniform standards on the states. These usually took the form of mandates and conditions of aid. Begun in the 1960s and 1970s, efforts to reverse this trend by shifting to revenue sharing and block grants were only partially successful. In the mid-1990s, the Supreme Court began to review the doctrine of state sovereignty, and the effort to devolve power from Washington to the states gained momentum. Yet the overall impact of these efforts appears to be minimal. Federal spending on social programs, adjusted for inflation, is at its highest levels since World War II, and Congressional control over spending programs has prompted more regulation of state and local governments.
CHAPTER OUTLINE WITH KEYED-IN RESOURCES
I. Why federalism matters
A. Shared power between national and state governments allows both to influence public policy.
B. Federalism influences important policy areas, including taxation, education, transportation, crime and punishment, and civil liberties.
C. Political conflicts between national and state governments persist over time.
1. Intergovernmental disputes over slavery were intensified by lack of unity among the states.
2. Debate over the regulation of business and social welfare programs centered on whether the federal government had the right to intervene in these affairs.
II. The Founding
A. A bold, new plan to protect personal liberty
1. Founders believed that neither national nor state government would have authority over the other, because power comes from the people, who shift their support to keep the two in balance.
2. New plan had no historical precedent
3. Tenth Amendment was added as an afterthought to clarify the limits of the national government’s power.
4. Tenth Amendment has had limited applicability, but has recently been used by the Supreme Court to give new life to state sovereignty.
B. Elastic language in Article I: Necessary and Proper Clause
1. Precise definitions of powers are politically impossible due to competing interests, for example, commerce.
2. Hamilton’s view: national supremacy, because the Constitution was the supreme law of the land
3. Jefferson’s view: states’ rights with the people as ultimate sovereign; the national government was likely to be the principal threat to individuals’ liberties.
III. The debate on the meaning of federalism (THEME A: WHO GOVERNS WHAT; FEDERALISM AND CONSTITUTIONAL LAW)
A. The Supreme Court speaks
1. Hamiltonian position espoused by Chief Justice John Marshall
2. McCulloch v. Maryland (1819) settled two questions
a) Could Congress charter a national bank? Yes, because of the “necessary and proper” (elastic) clause, even though this power is not explicitly in the Constitution
b) Could states tax such a federal bank? No, because national powers were supreme and therefore immune to state challenge
3. Later battles related to federal taxes on state and local bond interest.
B. “Nullification”: states had the right to declare null and void a federal law that they believed violated the Constitution
1. Authors: James Madison (Virginia Resolutions), Thomas Jefferson (Tennessee Resolutions), and John C. Calhoun
2. Question settled by the Civil War: the federal union is indissoluble, and states cannot nullify federal law; position later confirmed by the Supreme Court
C. Dual federalism: both national and state governments are supreme in their own spheres, which should be kept separate.
1. Example: interstate versus intrastate commerce
a) Early, product-based distinctions were unsatisfactory
b) Still, the Supreme Court does seek some distinction between what is national and what is local, although it is not entirely consistent in its support of state sovereignty
2. Doctrine of dual federalism still is argued, however―and sometimes successfully
D. State sovereignty
1. Supreme Court has strengthened states’ rights in several recent cases
a) United States v. Lopez (1995), guns in schools
b) United States v. Morrison (2000), overturned Violence Against Women Act of 1994, stating that attacks against women do not substantially affect interstate commerce
c) Printz v. United States (1997), background checks on gun purchasers
2. Supreme Court has also strengthened the Eleventh Amendment, protecting states from suits by residents of other states or citizens of foreign nations
a) Alden v. Maine (1999), compliance with federal fair-labor laws
b) Federal Maritime Commission v. South Carolina Ports Authority (2002), states did not agree to become mere appendages of national government
3. But not all decisions have supported state sovereignty
4. State can do what is not prohibited by the Constitution or preempted by federal policy, even if it is consistent with its own constitution
a) Police power—generally recognized; refers to those laws and regulations, not otherwise unconstitutional, that promote health, safety, and morals.
5. Protections for the states in the Constitution
a) No state can be divided without its consent.
b) Two senators for every state
c) Every state assured of a republican form of government.
d) Powers not granted to Congress are reserved to the states.
6. Cities, towns, and counties have no such protections.
a) They exist at the pleasure of the state government, so there is no struggle over sovereignty (Dillon’s Rule)
b) See the Politically Speaking box: The Terms of Local Governance
7. Current conflicts are mostly over federal grants or federal mandates, which require states to meet certain standards before they can receive federal funds.
IV. Governmental structure
A. Introduction
1. Federalism: a political system with local government units, as well as a national government, that can make final decisions regarding some governmental activities and whose existence is protected
a) Local governments are able to make decisions on at least some matters without regard to the preferences of the national government.
b) Examples of federal governments: United States, Canada, India, Germany, Switzerland, Australia
2. Unitary government:
a) All local governments are subservient to the national government.
b) Local governments can be altered or abolished by the national government.
c) Local governments have no final authority over any significant federal government activities.
d) Examples of unitary governments: France, Britain, Italy, Sweden
3. Special protection of sub national governments in federal system due to:
a) Constitution of country
b) Habits, preferences, and dispositions of citizens
c) Distribution of political power in society
4. National government largely does not govern individuals directly, but compels states to do so in keeping with national policy.
B. Federalism: Good or Bad?
1. Negative views: federalism blocks progress and protects powerful local interests
a) Laski: the states are “parasitic and poisonous”
b) Riker: federalism facilitated the perpetuation of racism
2. Positive view―Elazar: federalism contributes to governmental strength and political flexibility and fosters individual liberty
3. Federalism has good and bad effects
a) Different political groups with different political purposes come to power in different places.
b) Federalist No. 10: small political units are more likely to be dominated by single political faction―which allows all relevant interests to be heard, somewhere
C. Increased political activity
1. Most obvious effect of federalism: it facilitates political mobilization.
2. Federalism decentralizes authority, lowering the cost of political organization at the local level.
D. What the states can do
1. Play a key role in social welfare, public education, law enforcement, criminal justice, health and hospitals, and roads and highways; also in managing water supplies
2. State constitutions are more detailed and sometimes confer more rights than the federal one in the above matters.
3. State constitutions open one or more of three doors to direct democracy:
a) State constitutions allow for some form of legislation by initiative.
b) About half the states permit the referendum.
c) Twenty states permit the recall, whereby voters can remove an elective official from office.
4. Existence of states is guaranteed by the federal Constitution.
V. Federal-state relations (THEME B: WHO GOVERNS NOW; THE CONTEMPORARY POLITICS OF FEDERALISM)
A. What Washington legally may do is not the same as what politics may require.
B. Grants-in-aid
1. Grants show how political realities modify legal authority.
2. Land grants began before Constitution; cash grants to states began in 1808.
3. Grants dramatically increased in scope in twentieth century.
4. Prevailing constitutional interpretation until late 1930s was that the federal government could not spend money for purposes not authorized by the Constitution—grants were a way around this.
5. Grants were attractive to state officials for various reasons.
a) Federal budget surpluses (nineteenth and early twentieth centuries)
b) Federal income tax increased revenues
c) Federal control of money supply
d) Appeared as “free” money for state officials, who did not have to be responsible for federal taxation.
6. Required broad congressional coalitions with wide dispersion of funds, because every state had an incentive to seek grant money (example: post-9/11 “fair-share” security funding formulas)
C. Meeting national needs
1. 1960s shift in grants-in-aid
a) From what states demanded . . .
b) . . . To what federal officials considered important as national needs
(1) Federal grants to state and local governments increased.
(2) Purpose of federal funds changed.
D. The intergovernmental lobby
1. Hundreds of state and local officials lobby in Washington
2. The Big 7:
a) U.S. Conference of Mayors
b) National Governors Association
c) National Association of Counties
d) National League of Cities
e) Council of State Governments
f) International City/County Management Association
g) National Conference of State Legislatures
3. Purpose: to get more federal money with fewer strings
4. Since 1980, their success has been more checkered.
E. Categorical grants
1. Categorical grants are made for specific purposes defined by federal law; they often require local matching funds.
2. Block grants (sometimes called special revenue sharing or broad-based aid) were devoted to general purposes with few restrictions—states preferred block to categorical grants.
3. Neither block grants nor revenue sharing achieved the goal of giving the states more freedom in spending.
a) Did not grow as fast as categorical grants
b) Number of strings increased, even on these programs
4. Block grants grew more slowly than categorical grants because of the differences between the political coalitions that supported each.
a) Federal officials, liberal interest groups, organized labor tend to distrust state government; categorical grants give the national government more power.
b) Categorical grants are matters of life or death for various state agencies.
c) Supervising committees in Congress favored growth of categorical grants.
F. Rivalry among the states
1. Intense debate regarding whether the federal government is helping some regions at the expense of others
2. Snowbelt (Frostbelt) versus Sunbelt states: debate focuses on allocation formulas written into federal laws.
3. Difficulty determining where funds are actually spent and their effect, though
4. With numerous grants distributed on the basis of population, the census takes on monumental importance.
VI. Federal aid and federal control
A. Federal controls on state governmental activities
1. Conditions of aid: tell state governments what they must do if they wish to receive grant money; traditional control
2. Mandates: tell state governments what they must do
B. Mandates
1. Mandates: federal rules that states or localities must obey; generally have little or nothing to do with federal aid
a) Civil rights
b) Environmental protection
2. May or may not be funded
a) Mandates more likely in policy areas that receive less federal funding
b) Waivers exempt some parties from federal mandates.
3. Mandates may also make it difficult for state/local governments to raise revenues, borrow funds, and privatize public functions; some may expose them to financial liability.
4. Controversial mandates may result from court decisions (for example, state prisons, school desegregation plans).
C. Conditions of aid
1. Attached to grants
2. Conditions range from specific (apply to particular programs) to general (cover all or most grants).
3. Divergent views of states and federal government on costs and benefits of these conditions; each side attempts to bargain to pass on most of the cost to the other sides
VII. A devolution revolution
A. President Reagan asked Congress to consolidate numerous categorical grants into large block grants.
B. The 1994 election of Republican majorities in House and Senate led to devolution initiatives that sought to reduce the number of federal regulations and shift responsibility for programs to the states.
C. Result of devolution initiatives
1. AFDC converted to block-grant program (TANF) in 1996
2. Medicaid not converted to block grant
3. Federal spending increased—did not decrease; 2006 inflation-adjusted per household spending levels highest since World War II
4. More, not fewer, rules and regulations overall
5. Little change in congressional preemption of state laws
VIII. Congress and federalism—politics remains local
1. Congress members represent conflicting constituencies—won’t always agree with governors and mayors
2. Parties once linked legislators to local groups—their erosion increases political competition

WEB RESOURCES
U.S. Conference of Mayors: www.usmayors.org
National Governors Association: www.nga.org
National Association of Counties: www.naco.org
National League of Cities: www.nlc.org
Council of State Governments: www.csg.org
International City/County Management Association: www.lcma.org
National Conference of State Legislatures: www.ncsl.org
Governing.com: The Resource for States and Localities: www.governing.com
IMPORTANT TERMS
block grant Money from the national government that states can spend within broad guidelines determined by Washington
categorical grant Federal grant for a specific purpose, such as building an airport
conditions of aid Terms set by the national government that states must meet if they are to receive certain federal funds
dual federalism Doctrine holding that the national government is supreme in its sphere, the states are supreme in theirs, and the two spheres should be kept separate
express preemption A federal law or regulation containing language explicitly displacing or superseding any contrary state or local laws
federalism A political system in which there are local (territorial, regional, state, or municipal) units of government, as well as a national government; powers are shared between the local units and the national government
grant-in-aid Money given by the national government to the states
initiative Process that permits voters to put legislative measures directly on the ballot
mandate Terms set by the national government that states must meet whether or not they accept federal grants
“necessary and proper” clause Section of the Constitution allowing Congress to pass all laws “necessary and proper” to its duties and that has permitted Congress to exercise powers not specifically given to it (enumerated) by the Constitution
nullification The doctrine that a state can declare null and void a federal law that, in the state’s opinion, violates the Constitution
police power State power to enact laws promoting health, safety, and morals
recall Procedure whereby voters can remove an elected official from office
referendum Procedure enabling voters to reject a measure passed by the legislature
waiver A decision by an administrative agency granting some other part permission to violate a law or rule that would otherwise apply to it
THEME A: WHO GOVERNS WHAT; FEDERALISM AND THE CONSTITUTION
Instructor Resources
John C. Calhoun. A Disquisition on Government. Columbia: University of South Carolina Press, 2003.
Frederick D. Drake and Lynn R. Nelson, eds. States’ Rights and American Federalism: A Documentary History. Westport, CT: Greenwood Publishing Group, 1999.
Melvyn R. Durchslag. State Sovereign Immunity: A Reference to the United States Constitution. Westport, CT: Praeger, 2002.
Kermit L. Hall. A Nation of States: Federalism at the Bar of the Supreme Court. New York: Garland, 2000.
John P. Kaminski and Richard Leffler. Federalists and Antifederalists: The Debate over the Ratification of the Constitution. Madison: Madison House Publishers, 1989.
Forrest McDonald. States’ Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence: University Press of Kansas, 2000.
Michael E. Solimine and James L. Walker. Respecting State Courts: The Inevitability of Judicial Federalism. Westport, CT: Greenwood Publishing Group, 2000.
Carl E. Van Horn. The State of the States. 4th ed. Washington, D.C.: CQ Press, 2006.
Summary
The Founders disagreed over the exact division of powers in a federal system. Hamilton argued for national supremacy, Jefferson for states’ rights. The Tenth Amendment spelled out what all the Founders assumed from the outset: that the federal government would have only those powers given to it by the Constitution. On the other hand, the elastic language of Article I—the “necessary and proper” clause—provided a basis for arguing that the federal government had much broader powers. The “rules” about who governs what were not clear from the start.
The Supreme Court became the arbiter of this dispute. Chief Justice John Marshall supported the Hamiltonian position, and in McCulloch v. Maryland (1819) the Court held not only that the Congress had the right to set up a bank, but also that such an enterprise was immune to state taxation. After the Civil War, conflict focused on the commerce clause and the power of the federal government to regulate commerce. At first the Court distinguished between interstate commerce, which the federal government could regulate, and intrastate commerce, which it could not. Practical difficulties in differentiating one from the other led the Court, by the 1940s, to hold that the federal government could regulate virtually any economic transaction it wanted to regulate.
The Supreme Court’s struggles with defining the scope of federal power were influenced largely by economic theory. Under the laissez-faire beliefs that dominated nineteenth-century United States politics, the government was to remain neutral toward the economy and not become involved in its management. The Court infused this concept into its decisions on federalism by striking down most government efforts to intervene in the economy. The Great Depression of 1929 compelled the federal government under President Franklin Roosevelt’s New Deal to take steps to alleviate the people’s misery, but the justices consistently voided most such legislation as exceeding federal authority. On reelection in 1936, an exasperated President Roosevelt sought to increase the membership on the Supreme Court by “packing” it with justices who favored his perspective on federalism. Although the court-packing plan failed, one justice altered his view and began to uphold an expanded federal role in the economy. This has been described as the “switch in time that saved nine.” Recently, however, the Supreme Court has placed some limitations on the ability of the federal government to legislate requirements for the states. In both United States v. Lopez (1995) and Printz v. United States (1997), the Supreme Court ruled that the Congress has overextended the commerce clause in its regulations on gun ownership. In addition to these rulings on the Tenth Amendment, the Court has also upheld state sovereignty through the Eleventh Amendment, protecting states against suits by residents of other states and citizens of other countries. These cases are a significant development in the Court’s thinking about state sovereignty. However, their significance should not be overstated: though the states are protected by the Constitution, Congress can still legislate extensively and broadly on domestic policy.
Discussion Questions
1. Under the federalist system, states have great flexibility in their management of crime, education, business, and property. What are the advantages of having each state be responsible for these key policy areas? What are the disadvantages?
2. Does the states’ growing dependence on Washington have any bearing on lawmakers’ relationship with the people? Are people today more or less likely to hold state officials responsible for social problems?
3. Certain areas in Nevada permit prostitution; nine states have legalized the use of marijuana for medical purposes; Massachusetts and Iowa have legalized same-sex marriage. Could the federal government legally intervene to forbid such practices in these states? Explain why or why not.
4. It would be possible to write a constitution that specified national, state, and even local spheres of governing much more clearly than the U.S. Constitution does. What might such a document look like? What would be its advantages? What would be its disadvantages?
THEME B: WHO GOVERNS NOW; THE CONTEMPORARY POLITICS OF FEDERALISM
Instructor Resources
Timothy J. Conlan. From New Federalism to Devolution: Twenty-five Years of Intergovernmental Reform. Washington, D.C.: Brookings Institution, 1998.
Larry N. Gerston. American Federalism: A Concise Introduction. Armonk, NY: M.E. Sharpe, 2007.
Robert F. Nagel. “Judicial Power and the Restoration of Federalism.” Annals of the American Academy of Political and Social Science (March 2001): 52–65.
Laurence J. O’Toole, Jr., ed. American Intergovernmental Relations. Washington, D.C.: CQ Press, 2007.
Paul L. Posner, Barry Rabe, and John Tierney, eds. The Politics of Unfunded Mandates: Whither Federalism? Washington, D.C.: Georgetown University Press, 1999.
United States Congress, House Committee on Government Reform. Is Uncle Sam Still Passing the Buck? The Burden of Unfunded Mandates on State, County, and City Governments. Washington, D.C.: U.S. Government Printing Office, 2005.
David Bradstreet Walker. The Rebirth of Federalism: Slouching Toward Washington. 2nd ed. Chappaqua, NY: Chatham House Publishers, 2000.
Summary
The political dynamics of federalism have changed over the years. In the 20th century, the balance between state and federal power clearly tipped in favor of the national government. As early as the 1960s, Senator Everett Dirksen of Illinois warned that soon “the only people interested in state boundaries will be Rand-McNally.” This concern exaggerated the extent to which the federal government can invade local prerogatives. The reason is that the constitutional structure forces members of Congress to remain focused on local issues—if only to achieve reelection.
The shift to national control began in the late 19th century, but it was not until the growth of grant-in-aid programs during the 1960s that the symmetry of authority—the key to federalism—became relatively one-sided. As state and local governmental budgets became increasingly dependent on federal resources, the intergovernmental lobby, whereby local officials set up offices in Washington to compete for federal money, developed. The rivalry among states intensified when Congress began to loosen the strings of categorical grants and replace them with block grants based on distributional formulas.
The absence of federal strings and the greater leeway in spending federal funds did not produce a corresponding increase in the freedom of local officials. First, creeping categorization occurred as the federal government began to disapprove of the way the states utilized block grants. Its response was to impose more restrictions on block grants. Second, categorical grants spawned state agencies and interest groups that relied on such grants for their survival. Because these groups frequently were successful in convincing congressional committees to preserve a particular grant from being merged into a larger block grant program, the result was to limit the overall number of block grants. And third, the ideological dimension of federalism became more prominent. Liberals, Democrats, and minority groups preferred to continue the practice of prescribing national standards as an antidote to the prejudices of local officials. Conservatives, Republicans, and business leaders preferred to transfer decision making to the local level to avoid the inflexibility of national regulations. Thus in the 1980s and early 1990s, stalemate developed as a Democratic Congress pushed in one direction while Republican administrations pushed in the other.
By the mid 1990s, the pendulum began to swing back toward greater state authority. Two trends prompted this change. First, many states became frustrated by federal meddling in local affairs. In 1993, for example, the state of Hawaii refused to fly the American flag for an entire weekend as a sign of protest, and an active movement on behalf of secession emerged. Second, the increased level of professionalism in local governments encouraged states to experiment with new programs of their own. Congressional support for policy innovation resulted in lawmakers’ giving states greater authority over the federal welfare program. This divestiture of federal control led President Clinton to declare in 1996 that the era of big government was over. But his statement appears to have been premature. Recent federal expansions in Medicare coverage and the enactment of the No Child Left Behind funding program, complete with new state mandates, suggest that lawmakers today are more inclined to keep Washington in control of these programs.
Discussion Questions
1. Does the system of grants-in-aid upset the balance of federalism? Do grant programs enable Congress to do what it pleases by bribing states into compliance? Or do these programs merely increase the likelihood of national policy uniformity? What would be the consequence if a state refused federal grant money?
2. To what extent have interest groups produced grants-in-aid, and to what extent have grants-in-aid produced interest groups? Who constitutes the intergovernmental lobby?
3. Why did the Republican-led devolution revolution fail to produce more widespread results?
4. Does the federal government’s response to hurricanes Katrina and Rita support or refute the argument that oversight of social programs ought to rest with state officials?
5. Should states be able to adapt federal programs to suit their own needs? Or should everyone follow the same standards? How might differing standards trigger questions of fairness and equity?

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Federalism summary

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Federalism summary

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