Federalism

PS104

September 29, 2010

Federalism

Exxon Valdez example.

Overlapping Federal and State laws.

Impact on the fishermen who were trying to sue in court.

Hurricane Katrina and BP oil spill.

Defining Federalism

A system of government with at least two levels of government, in which each level has some decision making autonomy and shares responsibility for governing the same territory.

Unitary, federal, and confederal

Historical Context

The Iroquois Confederacy – controversy over identifying the impact they had on the Founders.

state-centered federalism vs. nation-centered federalism

Early experience--nation-centered:

national bank, over the objections of Jefferson

the Sedition Act of 1798: made it a crime to criticize the government. Clearly unconstitutional.

Historical Context, cont.

State-centered view. Reaction against the Sedition Act: Jefferson and the doctrine of interposition. Sees the constitution as a "compact to which the states are party.” Precursor to the Civil War (John Calhoun and “nullification” was very similar). Being raised again now in battle over implementing health care reform.

Which side is right?

Hints toward the nationalist position. The preamble, "We the People of the United States," compared to Articles of Confederation that began, "We the undersigned delegates of the States."

Historical Context, cont.

“Necessary and proper” clause

The supremacy clause, Article VI: Constitution is the "supreme law of the land.”

State-centered view

10th Amendment, "The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

11th Amendment, states can’t be sued. The doctrine of “sovereign immunity.”

Types of Federalism

Dual--layer cake, 1789-1937

Cooperative--marble cake 1937-current.

Picket Fence Federalism, 1960s-current.

Coercive federalism, 1970s-current.

Helmet laws, drinking age, Clean Air and Clean Water Acts, Clinton and Bush’s education policies.

Limits on unfunded mandates imposed in 1995. If the law imposes costs of $50 million or more on the states, has to be explicitly recognized by Congress and approved. Lead pipes in Madison.

Figure -- Picket Fence Federalism

New Federalism

State government is "closer to the people," more responsive. Reagan's statement in his 1981 inaugural address, "All of us need to be reminded that the federal government did not create the states. The States created the federal government."

Clinton and welfare reform in 1997 (TANF – temporary assistance to needy families). Turn over more power to the states.

National aid to the states

Trends in support from the national government to the states. Peaked at around 30% in 1980 as a percentage of state+local spending; back to about that level again now.

2009 stimulus package: about $144 billion in aid to the states.

From the least strings attached to the most: Revenue sharing, block grants, and categorical grants.

Role of the Courts

John Marshall 1801-1835. National bias

McColloch v. Maryland (1819)

Gibbons v. Ogden (1824).

But also, Barron v. Baltimore (1833).

1835-1937--state bias.

Justice Taney; Dred Scott v. Sanford (1857)

Intra vs. Inter-state commerce.

Slaughterhouse Cases (1873)

variety of cases struck down regulation of business. Protect laissez faire capitalism.

Role of the Courts, cont.

Battle over the New Deal--the “First Constitutional Revolution”

Protecting Dual Federalism

The Court packing plan

The “switch in time that saved nine.”

Nation-centered 1937-1995 and mixed from 1995-today

Commerce clause

“gun free schools” Act. U.S. v Lopez (1995)

Violence Against Women Act U.S. v. Morrison (2000). “No authority to regulate private conduct.” Legislative record and economic consequences of behavior.

Role of the Courts, cont.

But struck down Mass. State anti-smoking law, saying that it couldn’t be tougher than U.S. law (Lorillard Tobacco v. Reilly, 2001). Also Gonzales v. Raich, 2005.

10^th Amend, minimum wage law (“core state functions”).

state sovereignty and the 11th Amendment

Seminole Tribe of Florida v. Florida (1996)

age discrimination (Kimel v. Florida Board of Regents, 2000).

American with Disabilities Act and the states (Board of Trustees v. Garrett, 2001).

Reduction of national power and enhancement of state and local power.

Pros and Cons of Federalism

Pros

innovation in policy (“laboratories of democracy”)

multiple points of access

important check on federal power

responsiveness

Cons

complexity (Exxon example).

competitive federalism: battle over jobs, sports teams.

Race to the bottom (welfare).

Uneven distribution of resources and wealth and need for services (see figure).

Future of Federalism

Shift toward the states?

Continued central role for the national government. Posner: bipartisan bias to centralize power in Washington.

Globalization

national defense

infrastructure

Distribution of power among parties (see figure). A shift to more Republican governors is consistent with a shift to state-centered federalism.

Figure -- Party Control of Governorships, 1952-2008