Chapter 3 - Summary American Politics Today PDF

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Professor William Bianco...

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Federalism: States or the federal government - who’s got the power ● ● ●

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2010 Affordable Care Act (Obamacare) viewed by the states as an unconstitutional overreach of federal power A few states have actively tried to obstruct implementation of the law by forbidding state employees to do anything to help that is not specifically required by law Now that Republicans have unified control of national government, they will likely try to repeal and replace Obamacare, which will probably include returning more power to the states What are the responsibilities of the states and what is the domain of the national government? What happens when levels of government disagree on a policy? Can the national government simply force the states to do something? Is this how federalism works? What is federalism and why does it matter? ○ Federalism is a form of government that divides sovereign power across at least two political units ○ Dividing sovereign power simply means that each unit of government has some degree of authority and autonomy ○ Federalism is about intergovernmental relations ○ The level of government that dictates policy can make a real difference ○ Much of US history has been rooted in the struggle to define American federalism Levels of government and their degrees of autonomy ○ Each level of government has some degree of autonomy from other levels - that is, each level can carry out some policies without interference from the others ○ In the US, this means that the national and state governments have distinct powers and responsibilities ■ Ie. national government - national defense and foreign policy; state and local government - police power, promoting public safety ○ In other areas, such as transportation, the different levels of government have concurrent powers - that is, they share responsibilities ○ The national government has also taken on additional responsibilities through implied powers that are inferred from the powers explicitly granted in the Constitution ○ Local governments - cities, towns, school districts and counties - are not autonomous units of government; they are creatures of state government ○ State governments create local governments and control the types of activities they can engage in by specifying in the state charter either what local governments can do or only what they cannot do A comparative perspective ○ The key factor is the autonomy of the political subunits ○ The UK, for example, is made up of England, Scotland, Wales and Northern Ireland ○ However, Parliament retained the right to unilaterally dissolve the Scottish government; therefore, the subunit (Scotland) is not autonomous

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UK government is a unitary government (most common in the modern world) ■ Israel, Italy, France, Japan, Sweden ○ Confederal government: states have most of the power and often can veto the actions of the central government ■ First type of government in the US under Articles of Confederation ■ Because so many problems are associated with having such a weak national government, few modern examples exist ■ CIS (Commonwealth of Independent States) which formed after the breakup of the Soviet Union, had some success in coordinating the economic activity and security needs of 12 independent states ○ Although true confederations are rare, intergovernmental organizations have proliferated in recent decades ■ UN, IMF, NATO ■ EU is an intergovernmental organization that began as a loose confederation but it is becoming more federalist in its decision making process and structure] Balancing national and state power in the Constitution ○ Although the Founders wanted a national government that was stronger than it had been under the Articles of Confederation, they also wanted to preserve states’ autonomy ○ Goals are reflected in the Constitution, which provides ample evidence for advocates of both state-centered and nation-centered federalism ○ Constitution “We the People of the United States” vs. Articles of Confederation “We the undersigned delegates of the States” A strong national government ○ Founders wanted a strong national government to provide national security and a healthy and efficient economy and so they included various powers in the Constitution that supported the nation-centered perspective ○ Congress’s power to regulate interstate commerce promoted economic efficiency and centralized an important economic power at the national level and many restrictions on state power had similar effects ○ The necessary and proper clause (Article I, Section 8) was another broad grant of power to the national government: it gave Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution for foregoing powers” ○ The national supremacy clause (Article VI) says that the Constitution and all laws and treaties that are made under the Constitution shall be the “supreme Law of the Land” - clearest statement of the nation-centered focus of the Constitution ■ If any state law conflicts with national law, the national perspective wins ○ Laws passed by states to limit implementation of the ACA had no effect after the Supreme Court upheld the central parts of the national law; only way to change the law would be at the national level State powers and limits on national power ○ Despite the Founders’ nation centered bias, many parts of the Constitution also

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address state powers and limits on national power ■ Article II: gives the states the power to choose electors for electoral college ■ Article V: grants the states a central role in the process of amending the Constitution (⅗ of states must ratify any constitutional amendments) ○ Limitations on Congress’s authority to regulate interstate commerce ie. Congress cannot favor one state over another in regulating commerce or impose a tax on any good that is shipped from one state to another ○ Default position of Founders was to keep most power at state level ■ Thus, the federal powers that were exceptions to this rule had to be clearly specified ■ Tenth Amendment: “The powers not delegated...by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” ○ Chisholm v. Georgia (1793) ruled that citizens of one state could sue the government of another state ■ States struck back by adopting the Eleventh Amendment (passed after the Bill of Rights), which was another important affirmation of state sovereignty - made such lawsuits unconstitutional Clauses that favor both perspectives ○ Article IV of Constitution has elements that favor both state-centered and nationcentered perspectives ○ Full faith and credit clause: states must respect one another’s laws, granting citizens the full faith and credit of their home state’s laws if they go to another state ie. a NY driver’s license will be honored across every state ○ Privileges and immunities clause: citizens of each state are entitled to all privileges and immunities of citizens in other states, which means that states must treat visitors from other states the same as their own residents oie. States may not deny welfare benefits or police protection to new residents/visitors ○ But states are allowed to make some distinctions, for example, do not have to permit nonresidents to vote in state elections and public colleges may charge out-of-state residents higher tuition than in-state residents ○ Therefore, the privileges and immunities clauses cuts both ways on the question of balance of power: it allows the states to determine and uphold these laws autonomously, but it also emphasizes that national citizenship is more important than state citizenship The evolving concept of federalism ○ In the first century of our nation’s history, the national government played a relatively limited role and the boundaries between the levels of gov were distinct ○ As the national government took on more power in the 20th century, intergovernmental relations became more cooperative and the boundaries less distinct The early years ○ As the US gained its footing, clashes between the advocates of state-centered

and nation-centered federalism turned into a partisan struggle Federalists - the party of George Washington, John Adams and Alexander Hamilton - controlled the new government and favored strong national power ○ Their opponents, the Democratic-Republicans, led by Thomas Jefferson and James Madison, favored state power ○ Establishing National Supremacy ■ McCulloch v. Maryland (1819) - Court ruled in favor of the national government on both counts; In deciding whether Congress could create the bank, the Court held that even though the word bank does not appear in the Constitution, Congress’s power to create one is implied through its relevant enumerated powers - such as the power to coin money, levy taxes and borrow money ■ The Court also ruled that Maryland did not have the right to tax the bank because of the Constitution’s national supremacy clause. Both the concept of implied powers and the validation of national supremacy were critical for establishing the centrality of the national government ■ Gibbons v. Ogden (1824) - Court ruled that Congress has broad power to regulate interstate commerce and struck down a New York law that had granted a monopoly to a private company operating steamboats on the Hudson River between NY and NJ ○ Emergence of States’ Rights ■ Many states, especially in the South, pushed for broader states’ rights on issues such as civil liberties, tariffs and slavery ■ John Calhoun, a South Carolina senatore, used the term nullification to refer to a state’s right to ignore a law passed by Congress if the state believed the law was unconstitutional Dual federalism ○ The Supreme Court’s narrow interpretation of the Fourteenth Amendment and the commerce clause greatly limited the power of the national government ○ Dual federalism - the national and state governments were viewed as distinct, with little overlap in their activities or the services they provided ○ Thirteenth Amendment: banned slavery ○ Fourteenth Amendment: prohibited states from denying citizens due process or equal protection of laws (most important in terms of federalism because it was the constitutional basis for many of the civil rights laws passed by Congress during Reconstruction; states do not violate basic rights) ○ Fifteenth Amendment: gave newly freed male slaves the right to vote ○ The Marshall Court versus the Taney Court ■ John Marshall was a federalist who opposed states’ rights, whereas Taney was a supporter of states’ rights ■ Fifth Amendment: prohibition of taking property without due process ■ Court ruled that the Fifth Amendment applied only to the US Congress and not to state and local governments, which is a core principle of dual federalism ○

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The Supreme Court and Limited National Government ■ In 1873, the Court reinforced the notion of dual federalism, ruling that the Fourteenth Amendment did not change the balance of power between the national and state governments despite its clear language aimed at state action ■ Supreme Court limited the reach of the national government concerned Congress’s authority to regulate the economy through its commerce clause powers Court defined clear boundaries between interstate and intrastate commerce, ruling that Congress would not regulate any economic activity that occurred within a state (intrastate) ■ The Supreme Court allowed some national legislation that was connected to interstate commerce, such as limiting monopolies through the Sherman Antitrust Act (1890) Cooperative federalism ○ From the early years of the 20th century through the 1930s, a new era of American federalism emerged ○ The first step was taking the election of US senators away from state legislatures and providing for their direct election in the Seventeenth Amendment ○ This change was prompted by the Progressives’ desire to shift power away from corrupt state legislatures ○ The national government became much more involved in activities that were formerly reserved for the states, such as education, transportation, civil rights, agriculture, social welfare and management-labor relations ○ As commerce became more national, the distinction between interstate and intrastate commerce, and between manufacture and transportation, became increasingly difficult to sustain ○ National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937) -> Supreme Court largely discarded distinctions and gave Congress far more latitude in shaping economic and social policy for the nation ○ Shifting National-State Relations ■ Type of federalism that emerged in the Progressive Era of the early 20th century and blossomed in the late 30s called cooperative federalism or marble cake federalism as opposed to the layer cake model of dual federalism ■ Boundaries of state and national responsibilities are less well defined than they are under dual federalism ■ With the increasing industrialization and urbanization of the late 1930s and 1940s, more complex problems arose that could not be solved at one level of government ■ Great Depression made it painfully clear that states did not have the resources necessary to address major economic crises ■ Cooperative federalism does not capture the complexity of modern federalism

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Marble cake metaphor falls short in one important way: the lines of authority and patterns of cooperation are not as messy as implied by the gooey flow of chocolate through white cake ○ 1960s picket fence federalism ■ Better description of cooperative federalism in action ■ Each picket of the fence represents a different policy area and the horizontal boards that hold the pickets together represent the different levels of government ■ Much more orderly than the marble cake provides and it illustrates important implications about how policy is made across levels of government ■ Activity within the cooperative federal system occurs within pickets of the fence - that is, within policy areas ■ Policy makers within a given policy area will have more in common with others in that area (even if they are at different levels of government) than they do with people who work in different areas (even if they are at the same level of government) ■ Cooperative federalism is likely to emerge within policy areas rather than across them; This may create problems for the chief executives who are trying to run the show (mayors, governors, president), as rivalries develop among policy areas competing for funds ■ Also, contact within policy areas is not always cooperative - inefficient side of picket fence federalism in action but overall this version of federalism provides great opportunities for coordination and the development of expertise within policy areas Federalism today ○ Our current system is predominantly characterized by cooperative federalism, but it has retained strong elements of national supremacy, dual federalism and states’ rights Cooperative federalism lives on: fiscal federalism ○ Cooperative relationship between the national and state governments is rooted in the system of transfer payments, or grants from the national government to lower levels of government: Fiscal federalism ○ Depending on how the money is transferred, the national government can either help local and state governments achieve their own goals or use its fiscal power to impose its will ○ Grants in Aid ■ Most aid to states come in one of two forms - categorical or block grants ■ Categorical grants are for specific purposes - they have strings attached ■ Block grants are financial aid to states for use within a specific policy area but within that area the states have discretion on how to spend the money ■ Advocates of cooperative federalism promoted block grants as the best way for the levels of government to work together to solve problems:

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national gov identified problem areas and then provided money to the states to help solve them ○ New Federalism ■ Idea of giving states more control over programs, was started during Richard Nixon’s presidency and then revived by Ronald Reagan in the 1980s ■ Change reflected the belief that because state and local politicians were closer to the people they would know better how to spend the money ■ Next phase of New Federalism came when Republicans won control of Congress in 1994 - creating block grant to states by TANF ■ Unfunded Mandate Reform Act of 1995: made it more difficult for Congress to impose unfunded mandates on the states; required a separate vote on mandates that imposed costs of more than $50 million and it required a CBO estimate of exactly how much such mandates would cost the states ● Although this law could not prevent unfunded mandates, Republicans hoped that bringing more attention to the practice would create political pressure against such policies The rise of coercive federalism ○ Three important characteristics of American politics in the past 60 years have reinforced the role of the national government: (1) reliance on the national government in times of crisis and war; (2) the rights revolution of the 1950s and 1960s, as well as the Great Society programs of the 1960s and (3) the rise of coercive federalism ○ The Rights Revolution and Great Society Programs ■ Rights revolution created by the Supreme Court as well as LBJ’s Great Society programs, contributed to increased national control over state policies ■ 1965 Elementary and Secondary Education Act gave federal government heightened control over public education by attaching certain conditions to federal grant money ○ Other Shifts toward National Supremacy ■ Coercive federalism: involves the use of federal regulations, mandates or conditions to force or entice the states to change their policies to match national goals or policies established by Congress (ie. requiring a state to set the legal drinking age to 21 before granting it federal highway funds) ■ Federal preemptions: impose national priorities on the states; derived from the Constitution’s national supremacy clause; include unfunded mandates, making the state and local governments pick up the tab for policies that the national government wants them to implement The states fight back ○ Competitive federalism ■ Competition among states to provide the best policies to attract businesses, create jobs and maintain a healthy social fabric

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Check on tyranny because people will “vote with their feet” if they do not like a given state’s policies ■ However, it can also create a “race to the bottom” as states compete in a negative way such as eliminating more environmental or occupational regulations than would be desirable ■ Likewise, a priority to keep taxes low may lead to cuts in benefits to those who can least afford it such as welfare or Medicaid recipients Fighting for states’ rights: role of modern Supreme Court ○ Today, Court is once again reshaping federalism but this time the move is decidedly in the direction of state power ○ Fourteenth Amendment ■ Intended to give the national government broad control over the potentially discriminatory laws of southern states after the Civil War ■ No state shall make or enforce any law depriving any person of “life, liberty or property, without due process of law” or denying any person the “equal protection of the laws” ■ Remedial legislation - national legislation that fixes discriminatory state law ○ Supreme Court has expanded the reach of the Eleventh Amendment through the concept of states’ sovereign immunity ■ States are immune from a much broader range of lawsuits in state and federal court ○ The Commerce Clause ■ Although it was a stretch to claim that carrying a gun in school was related to interstate commerce, Congress might have been able to demonstrate the point by showing that most guns are made in one state and sold in another (thus commercially crossing state lines), that crime affects the economy and commerce, and that the quality of education, which is also crucial to the economy, is harmed if stu...