Evolution of the Federalism Debate
Because the Constitution was a compromise of
opposing viewpoints, disputes have repeatedly
occurred between those favoring a strong national
government and those favoring more power to the
states.

The Supreme Court has played an important role in
this struggle. Through the exercise of judicial review, it
can declare state or national laws unconstitutional.

Elections also impact the balance of power. Who wins
control of Congress can determine the kinds of federal
laws that are passed that have an impact on
federalism.

Federalist #10



Written by James Madison
Madison's argument here is that a well-constructed
union would break and control the violence of faction,
a "dangerous vice" in popular governments which
often leads to war and instability
As defined by Madison, a faction was a number of
citizens, whether a majority or minority, who were
united and activated "by some common impulse of
passion, or of interest, adverse to the rights of other
citizens, or to the permanent and aggregate interests
of the community."
Federalist #10





Two ways of dealing with factions...remove the
cause or control the effects
Two ways also of removing the cause of
factions...destroy liberty or ensure everyone
develops the same passions and interests
Since faction can't be removed, we're left with
controlling its effects
This constitution checks the power of faction by
balancing them against each other
Factious leaders may be successful in one
state but unable to spread across states
Dual Sovereignty


Contrary to Thomas Hobbes’s political theory,
the framers believed that creating two
sovereigns (national and state) could help
prevent tyranny of the majority and protect
individual liberty.
So strong was the notion of dual sovereignty in
the early years of the republic that some states
believed they could nullify national laws that
threatened state or individual liberties: the
doctrine of nullification.
Nullification




The Supreme Court rejected the notion of states
nullifying national laws in the 1819 case of McCulloch
v. Maryland.
But the nullification issue reappeared in the 1830s
over tariffs and later over slavery.
When President Lincoln opposed the spread of slavery
in the western territories, southern states asserted
they had a right to secede.
The outcome of the Civil War decided once and for all
that whatever individual sovereignty meant, it did not
mean that state legislatures could declare decisions of
the national government null and void.
The Commerce Clause
The meaning of the constitutional phrase giving Congress the power to
regulate commerce among the states has been hotly debated.

In the latter portion of the eighteenth century, the Supreme Court defined
commerce in such a way that Congress’s powers were limited. For example,
the Court exempted manufacturing from congressional regulation. It also
would not permit regulation of intrastate commerce that affected interstate
commerce.

In the 1930s, the Court reversed many of these earlier commerce decisions.
The result was that Congress’s power was greatly expanded. Some thought
there was nothing Congress could not regulate in the name of regulating
commerce

Recent decision of the Supreme Court indicated there are limits to this broad
authority. As an exercise of its power to regulate commerce, Congress passed a
federal law making it a crime to possess a gun within 1,000 feet of a public
school. The Court ruled that Congress lacked the authority, to pass the law in
the name of regulating commerce, declaring it unconstitutional.

Commerce Clause Continued
For the first century of our history, the primary use of the Clause was to
preclude the kind of discriminatory state legislation that had once been
permissible.

Interpretation of the sixteen words of the Commerce Clause has helped
define the balance of power between the federal government and the states and
the balance of power between the two elected branches of the Federal
government and the Judiciary. As such, it has a direct impact on the lives of
American citizens.

The Marshall Court – Gibbons v. Ogden: The Court's decision contains
language supporting one important line of Commerce Clause jurisprudence,
the idea that the electoral process of representative government represents the
primary limitation on the exercise of the Commerce Clause powers:

Commerce Clause, The New Deal,
and the Court-Packing Episode
In 1935 the Supreme Court of the United States invalidated
regulations of the poultry industry according to the nondelegation
doctrine and as an invalid use of Congress's power under the
commerce clause. This was a unanimous decision that rendered
the National Industrial Recovery Act, a main component of
President Roosevelt's New Deal, unconstitutional.


After winning re-election in 1936, Roosevelt proposed the Judicial
Procedural Reform Bill, wherein the President could appoint an
additional Justice for each sitting Justice over age 70. Given the
age of the current Justices, this allowed a Supreme Court size of
up to 15 Justices. Roosevelt claimed that this was intended to
lessen the load on the older Justices, rather than being an
attempt to achieve a majority that would cease to strike his New
Deal acts.
The “Necessary and Proper” Clause
The Necessary and Proper Clause is as follows: The
Congress shall have Power ... To make all Laws which shall
be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in
any Department or Officer thereof.

While Anti-Federalists expressed concern that the clause would
grant the federal government boundless power, Federalists argued
that the clause would only permit execution of power already
granted by the Constitution.

Chief Justice John Marshall expanded the powers of
Congress by broadly interpreting the words “necessary and
proper,” hence, the clause has been called the elastic
clause.

Spending Clause
The spending clause grants Congress the
power to collect taxes to “provide for the . . .
general welfare.”

The Supreme Court, at least since the 1930s,
has interpreted this clause in such a way that
Congress' authority is vast.

The Court has also upheld Congress' attaching
reasonable regulations to money it allocates to
state and local governments.

It is this authority that has resulted in the theory
and practice of cooperative federalism

Cooperative Federalism
Cooperative federalism (1930s-1970s) is a concept
of federalism in which national, state, and local
governments interact cooperatively and collectively to
solve common problems, rather than making policies
separately but more or less equally (such as the dual
federalism/dual sovereignty of the 19th century) or
clashing over a policy in a system dominated by the
national government.

Cooperative federalism is good for democratic
government because it allows for compromise and
negotiation among all levels of policy.

Categorical Grants - Democrats
Some politicians, particularly Democrats, view
intergovernmental grants as a way of advocating
a particular political philosophy.

Thus, they advocate a particular type of grant:
the categorical grant.

These grants are specific about how the money
given to state and local governments can be
spent.

The War on Poverty programs from the 1960s
are examples.

Block Grants - Republicans
Some concluded that when implementing these grants, for
various reasons, they would not be as effective as originally
thought.

Congress responded to the implementation theorists'
criticisms of intergovernmental grants by replacing many
categorical grants with block grants.

Block grants are characterized by broad objectives, a
minimum of federal restrictions, and a maximum discretion
for local officials, and are favorites of the Republican party
since the 1970's (Nixon and Reagan, in particular)

State Governments
The basic design of most state governments bears a strong
similarity to that of the national government.

All states have a multi-tiered court system, a bicameral
legislature (except Nebraska), and an independently elected
governor.

The size and range of state responsibilities have grown
dramatically in recent decades.

The amount that states and their local governments spend
on government services varies considerably.

The differences depend on the wealth of a state as well as
elections.


Wealthier states spend more on public services.
States having more Democrats in their legislature spend
more on social services.

Local Governments
Local governments maintain roads, take care of the parks, provide
police, fire, and sanitation services, run the schools, and do many other
things.

The recent devolution of responsibilities to state and local
governments means that they play an even more important role.

There are nearly 70,000 units of local government. In most states, the
basic unit of local government is the county. The number of municipal
governments has also increased in recent years.


Finally, there are nearly 30,000 special districts.
Most local governments are run by elected officials, though specialdistrict heads are often appointed. Turnout in local elections is low,
partially because local politics is generally less contentious, except in
big cities.

Local Gov't Continued
Americans have more trust in their local governments
than in the federal government.

One explanation is that voters can move to a better
locale if they are displeased.

Local governments also serve as laboratories of
democracy, and their wide variety gives people a
choice.

Local governments face several dilemmas. If a local
government tries to provide substantial services to the
needy, it runs the risk of attracting more poor people to
its community and driving away the better-off.

Local governments also find themselves competing
with one another to attract businesses.

The Contemporary Debate
In recent years, each party has tended to favor categorical grant
programs designed to advance preferred policies, and to oppose them
when they go against party wishes.

Under the George W. Bush Administration, the Republican Party
increasingly supported and passed grants that require states to spend the
grant money in ways determined by the federal government.

There has also been a move back to passage of unfunded mandates.
Congress has incentive to pass unfunded mandates—members get credit
for passing policy and are not required to spend taxpayer money on the
policy.

The arrival of a Democratic president in 2009 led Republican
governors to complain that Medicaid provisions in the 2010 health care
reform act amounted to unfunded mandates that would harm state
budgets in the long term.


Rise of the Tea Party