Chapter 4: Federalism
Honors Government, September 8, 2016
Who should make the call?
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Definition of “marriage”
Interstate speed limits
Educational curricula
Minimum wage
Minimum drinking age
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The answer is worked out in our system
of federalism.
• Federalism is simply the division of powers
among the national and state gov’ts.
• Why do you think we have this
complicated system?
Remember that whole federalist vs. antifederalist thing?
Well, federalism was a way to keep both sides happy
(or at least not too unhappy).
• Federalists wanted a strong central gov’t.
• Anti-federalists wanted strong state gov’ts.
Confusion alert!
• We speak of “federalists” and “federalism” but these are
two completely separate ideas.
• Federalists are people. They wanted a strong central gov’t,
not shared powers.
• They used the term to make themselves more popular —
an early act of political spin.
• Federalism is an idea. It’s a way to share power between
different levels of gov’t.
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A little background from the perspective of a
federalist—John Marshall
(Start at 1:06)
We also have federalism
because…
…it makes sense.
• Local problems get solved locally.
• Ex: Education, policing, enforcing contracts,
etc.
• Book has lots of great examples (euthanasia,
pumping gas, registering to vote, etc.)
• National problems get solved at the national level.
• Defense, immigration, fiscal and monetary
policy, etc.
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Why federalism (cont.)
Federalism is, as conceived by Madison, a
“government in which sovereignty was a
matter of ongoing negotiations between the
state an federal governments on a case-bycase basis. * * * [It] was intended less to
resolve arguments than to make argument
itself the solution.”
Ellis, The Quartet, at 114.
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What does the Constitution say about
federalism?
• The text uses the word “federalism” exactly zero
times.
• Instead, the Constitution creates a federalist
system by explicitly granting (or in some cases,
prohibiting) certain powers to the central
government and the states.
An overview of that system of
shared powers
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Where does the national gov’t get its
powers?
Expressed in the Constitution:
• Article I, section 8 contains 18 clauses that set out
explicit powers.
Implied in the Constitution:
• Article I, section 8: the necessary and proper (or
“elastic”) clause.
Inherent
• Those powers that any sovereign state has.
• Examples: right to acquire land, enter into contracts,
protect the borders, etc.
Are there any limits on the national gov’t’s
power?
Sure. Let’s start with the framework of the
Constitution itself.
– Remember: it creates a system of enumerated
federal powers and reserved state powers.
– The theory: If the Constitution doesn’t give the
national gov’t a power to do “x”, then the
national gov’t can’t do x.
– Think of these as “negative” limits.
And there are “affirmative” limits
on the power.
• These are “affirmative” in the sense that the
Constitution affirmatively states the limit.
• We’ve talked about several, such as:
• No bills of attainder
• No ex post facto laws
• No suspension of the writ of habeas corpus
• No religious litmus test
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And then there’s the biggie of “affirmative”
restrictions: the Bill of Rights.
• Amendments 1 through 8 tell Congress
about some things it can’t do, like restrict
free speech, establish a national religion,
etc.
• Are these “thou shalt nots” absolute?
Nope. Always exceptions, but that’s for
another chapter.
The 10th Amendment is a catch-all.
It says:
“The powers not delegated to the
United States by the Constitution, nor
prohibited by it to the States, are
reserved to the States respectively, or
to the people.”
Note the tension with the “necessary
and proper” clause of Article I.
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Who wins in a tie?
The federal gov’t, as long as it is acting
within its authority. Federal law “preempts”
conflicting state law.
The “Supremacy Clause” (Art. VI) states:
This Constitution, and the laws of the United
States which shall be made, under the Authority
of the United States, shall be the supreme Law
of the Land….
Preemption (cont.)
• States v national powers came to a head
in McCulloch v. Maryland (another
Marshall decision)
• Facts:
– Fed’l gov’t created a nat’l bank w/ a branch
in Baltimore.
– MD taxed that branch. Bank refused to
pay; state sued bank’s cashier (McCulloch).
• Arguments:
– MD: Constitution silent about Congress’
ability to create nat’l bank.
– Fed’l gov’t: Constitution not meant to stifle
powers; Congress may use all means
“necessary and proper” to fulfill
responsibilities.
McCulloch v. Maryland
McCulloch v. Maryland (cont.)
USSC established two important things in McCulloch:
1. National gov’t, when acting within its Constitutional
powers, is supreme.
“[I]f any one proposition could command the universal assent of
mankind, we might expect it would be this – that the government of
the Union, though limited in its powers, is supreme within its sphere
of action…. [T]he states have no powers … to impede, burden, or in
any manner control, the operations of the constitutional laws enacted
by the Congress.”
2. National gov’t has powers beyond those explicitly
stated in the Constitution – thanks to the “necessary
and proper” clause in Article I, Section 8.
All you need to know about conflicts
between state and fed’l law:
Another confusion alert!
• Remember that N&P clause that McCulloch
fleshed out? Don’t think of it as an
independent grant of power.
• It is “derivative.” It derives its power from
other enumerated powers in the Constitution.
• But once Congress can find some
enumerated power (and it’s often the
Commerce Clause), Congress will couple it
with the N&P clause to act very aggressively.
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“Tell us about MORE Supreme Court
cases, teacher!” the class begged.
“Okay! I will!” he replied. “Gather round
for the story of Gibbons v. Ogden!”
• This is sometimes called the “steamboat
case”).
• It’s yet another Marshall case.
Gibbons v. Ogden (cont.)
Court defined “interstate commerce” VERY broadly:
“What is this power [to regulate commerce]? It is the power to
regulate, that is, to prescribe the rule by which commerce is to be
governed. This power, like all others vested in Congress, is complete
in itself, may be exercised to its utmost extent, and acknowledges
no limitations other than are prescribed in the Constitution.”
Commerce Clause cases
through the ages
The Supremes have blown hot and cold.
• In the late 1800s on up to the 1930s, the Court was very
pro-business and struck down lots of statutes passed
under the Commerce Clause.
• Starting with West Coast Hotel v. Parrish (1937), the Court
was more deferential to Congress.
• Court still deferential but some decisions — see, e.g.,
Lopez, Morrison, the Obamacare decision — have placed
limits on how far Congress can take the Commerce Clause.
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A word about interstate relations
There are several provisions in the
Constitution that affect how states can deal
with each other.
• We’ve already looked at the “full faith and
credit clause.”
• Another biggie: the “privileges and
immunities clause.”
• And then there’s extradition.
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We’ve seen a shift to “cooperative
federalism”
• Cooperative fed’lism involves the state and fed’l
governments–
– sharing costs;
– sharing administration;
– but usually applying federal guidelines.
• It’s like Don Corleone in The Godfather — the federal gov’t
makes the states an offer they can’t refuse.
The gov’t has long been in the
b’ness of granting goodies
• Lots of states have received grants of land.
• Here are some “land grant” colleges you may have heard of:
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Auburn
Alabama A&M
Tuskegee
LSU
U of Georgia
Mississippi State
U of Tennessee
U of Arkansas
U of Florida
U of Kentucky
U of Missouri
Texas A&M
MIT
lots of etc.
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Types of grants-in-aid used in
cooperative federalism
• Categorical grants
– To be used for specific purpose
– Often require state matching funds
– Lots of administrative hoops
• Block grants
– Funds for general purpose with states having much discretion
– Far fewer strings attached
• Project grants
– Given for very purpose, like researching a specific possible cure for
cancer
– Awarded based on merit
Comprehension checkup
• You’re governor. Is a
block grant or
categorical grant better
from your perspective?
• You’re a Senator. Block
grant or categorical
grant?
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T3-3
Little Grant has certainly grown up.
Unfunded mandates
• The fed’l gov’t is good at issuing commands
without providing funding. That’s called an
“unfunded mandate.” Ex: ADA, NCLB.
• These effectively dictate the budgets for the
states, to which governors say, “BOOOOO!”
What does federalism mean for
democracy?
Some potentially good things
– More opportunities to participate
– Lose at one level? Try at another.
– Ability to experiment with different approaches.
– States are “laboratories of change.”*
*And change ain’t all they’re growing.
Federalism and democracy
(cont.)
Some things potentially not so good
– Potentially uneven public services; race to the
bottom by the states
– Possible competition in laxity w/r/t environmental
protection, worker safety, etc.
– Localities thwarting fed’l directives
– E.g., refusing to comply with anti-discrimination
laws
– Complex; with 90,000 gov’ts, who is responsible for
what?
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Summing up
• Federalism is another way that the Framers
implemented Madison’s idea of factions
competing – here, state vs. federal gov’ts.
• Nat’l gov’t one of limited powers; states get the
rest (some concurrent – e.g., taxes, courts).
• Today we have “cooperative federalism” (sort
of).
Federalism in action: natural disasters
http://www.c-spanclassroom.org/Video/58/
Michael+Brown+testifies+before
+Congress.aspx