Federalism

1. Federalism • Video Clip – Devolution of Power and Welfare Reform • Welfare Reform Act of 1996 • Devolution: “The current effort to scale back the size and activities of the national government and to shift responsibility for a wide range of domestic programs from Washington to the states.”

2. Success of Temporary Assistance to Needy Families (TANF) • 1988 – Congress passed a law encouraging states to experiment with work requirements for welfare • Governor Tommy Thompson of Wisconsin imposed work requirements. Welfare rolls in WS declined by more than 90%. • 1996 Welfare Act – AFDC becomes TANF. • By 1999 welfare rolls had been cut nearly in half. • Why? Provision limiting welfare beneficiary to five years of benefits

3. Federalism – Constitutional Provisions • The Constitution carefully defined the powers of the national and state governments. • Article I, Section 8: Powers granted to the national government (Enumerated Powers) • Sixteenth Amendment (1913) authorized federal income tax. • Article I, Section 9: Powers denied to the national government • No prohibition of slavery before 1808 • No suspension of writ of habeas corpus except in cases of rebellion or invasion • No titles of nobility

4. Constitutional Provisions, cont. • Article I, Section 10: Powers denied to the state governments • No state shall enter into treaties. • No state shall coin money. • No state shall grant titles of nobility. • No state shall “deny to any person within its jurisdiction the equal protection of the law” (Fourteenth Amendment, 1868) • Tenth Amendment: “Powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the states.” - Schools - Establishing local governments • Intrastate commerce - Running elections • Providing fire and police protection

5. Expansion of National Governmental Powers: Shift From Dual Federalism to “Cooperative” Federalism • Dual federalism – national government is supreme in its sphere; state governments, in theirs (co-equals) • Cooperative federalism – national government is supreme over the states (shared responsibility) • The federal government has gained power relative to the states. • Four Key Events • McCulloch v. Maryland (1819) • The Definition of the Commerce Clause • The Civil War • Civil Rights Movement

6. McCulloch v. Maryland (1819) • Issue: Can the Federal government create a bank? (Federal Reserve System today – Board and twelve regional Federal Reserve Banks) • First Bank of the United States established in 1791 to control the economy’s money supply. • Congress proposed a Second Bank of the United States in 1816. • States opposed the “Monster Bank,” claiming that many of the managers were corrupt. States also claimed that the Constitution does not give Congress the power to establish a National Bank.

7. McCulloch v. Maryland (1819) • Maryland said the National Bank was unconstitutional and tried to tax the Baltimore branch. • James McCulloch refused to pay the tax and was fined $2,500. • Marshall set forth two principles: • 1. federal supremacy: The Constitution is “the supreme law of the land.” Called the supremacy clause (Article VI, Section 2). The powers of the Federal government are limited, but where the Federal government does have power, that power is supreme.

8. McCulloch v. Maryland (1819), 2nd Principle • 2. implied powers: Congress has the power to “make all laws necessary and proper for carrying into execution” the preceding powers (final paragraph, Article I, Section 8). • The necessary and proper clause is also called the elastic clause. It has been used to justify federal policies to regulate food and drugs, build interstate highways, protect consumers, clean up dirty air and water, etc.

9. John Marshall’s Decision • The Constitution grants enumerated and implied powers. • Congress has the power to incorporate a Bank. • Maryland may not tax the Bank of the U.S.

10. The Definition of the Commerce Clause • The Constitution gives Congress the power “to regulate commerce among the several states” (Article I, Section 8). • Narrow definition of interstate commerce – movement of goods between states • Beginning with Gibbons v. Ogden (1824), the Supreme Court has over time broadly interpreted the clause to mean that Congress has the power to regulate virtually any kind of commercial activity (e.g., radio signals, insurance transactions, the Internet). • Major expansion in national power occurred after 1936 – “a switch in time saved nine.”

11. Other Key Events in Establishing Principle of Federal Supremacy • Doctrine of nullification said that states can declare null and void Federal laws they deem in conflict with Constitution. • Question settled by the Civil War; states cannot nullify Federal law. • Civil Rights: Breakdown in segregation in the south came as a result of the expansion of national governmental powers. • Federal government ended segregation in schools, housing, public accommodations, voting, and jobs. • Conclusion: Nation-state conflict has been resolved in favor of the nation; some cite a breakdown of federalism.

12. Reviving Dual Federalism? • United States v. Lopez (1995): Supreme Court ruled that Congress had exceeded its commerce clause power by prohibiting guns in schools. • Pro-state sovereignty decisions have been decided by a 5-4 margin. • Devolution Movement: States as Laboratories of Democracy

13. States’ Obligations to Each Other: 3 Clauses • Privileges and Immunities (Article IV, Section 2, Clause 1): No State shall draw unreasonable distinctions between its own citizens and those from other States (for example, receiving police protection). Exceptions: licenses, tuition

14. States’ Obligations to Each Other, cont. • Extradition (Article IV, Section 2, Clause 2): the legal process whereby a fugitive from justice in one state is returned to that State Federal courts can order extradition.

15. States’ Obligations to Each Other, cont. 3. Full Faith and Credit (Article IV, Section 1) requires that states give “full faith and credit to the public acts, records, and judicial proceedings of every other state.” (States must honor each other’s laws, records, and court decisions.) • Gay-Marriage Controversy: Sparked by a ruling of the Massachusetts Supreme Court that it is unconstitutional to bar gay and lesbian couples from marriage.

16. Federal Marriage Amendment • “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

17. Lawrence v. Texas (2003) • 6-3 ruling, said individuals have a constitutional right to engage in homosexual acts • Reversed Bowers v. Hardwick (1986), which upheld sodomy laws • Established a precedent that threatens any law based on moral choices Garner and Lawrence were arrested in Houston in 1998.

18. Supreme Court Justice Scalia’s Dissenting Opinion to Lawrence v. Texas • Arguing against the overturning of the Bowers decision, Scalia wrote: “The court has largely signed on to the so-called homosexual agenda.” • “The court has taken sides in the culture war,” Scalia said, noting he has “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”

19. Justice Scalia, cont. • Justice Scalia added that he feared application of the full faith and credit clause to the majority’s decision would destroy "the structure . . . that has permitted a distinction to be made between heterosexual and homosexual unions.“ The ruling would create a legal loophole allowing same-sex marriages and obliging all other states to recognize them.

20. 1996 Defense of Marriage Act • Defined marriage in federal law as the union of a man and a woman; and declared that no state must accept another’s definition of marriage • 342-67 in the House; 85-14 in the Senate (Sen. Kerry was among the 14 who voted no.) • 38 states have passed similar laws • Recent surveys show that most American oppose gay marriage, often by 2-1 ratios. • The Defense of Marriage Act has not been tested in the courts and could be overturned. It remains to be seen whether Congress has the power to make exceptions to the Full Faith and Credit clause.

21. Conclusion • Let the states decide? • Will the Supreme Court require that same-sex marriages in one state be recognized in others • Is a constitutional amendment necessary? • To succeed, a constitutional amendment must be approved by two-thirds majorities in the House and Senate and be ratified by three-fourths of the state legislatures (38 states).