Federalism

1. Federalism POSC 121Braunwarth

2. Federalism • What is Federalism? • Power is constitutionally divided between a central government and regional governments (states) • Most democracies are Unitarian: central government has complete power over constituent units

3. Why Federalism? • Hamilton: • Prevent Tyranny of government by dividing power between nation and state • More opportunities for citizen participation • Allows states to experiment with their own laws

4. Why Federalism? • Also, only choice framers had • States were not going to give up all of their power to a central government • States were very different and had different economies • Is and was a big country • Needed different governments

5. Evolution of Federalism • Original Idea: • States would do most of what needed to be done • National government would have certain “enumerated” or “express” powers • Look at Article I, Section 8 of Constitution • States were the most important entity into the 20th century (10th amendment)

6. Make a Three Column Chart • What decisions do you believe your parents or guardians should make for you? • What decisions should you be able to make yourself? • What decisions should be made cooperatively?

7. Analyze your responses • Did every student in the class have the same perspective about who should make certain decisions? • Have you and your parents or guardians ever had a conflict over who gets to make certain decisions? • Why is it important that some decisions are made exclusively by parents or guardians?

8. Should the States or the Federal Government or both: • declare and engage in war • conduct elections • print and coin money • govern marriage laws • maintain an army, navy, and air force • regulate interstate and foreign commerce • regulate intrastate commerce • punish lawbreakers • levy and collect taxes • protect the rights of citizens • set traffic standards • admit new states • provide for public safety • borrow money • establish and maintain schools • negotiate treaties with foreign countries • protect public health • determine the qualifications of voters • set up a post office • set rules for immigration • maintain the state militia (aka the National Guard)

9. Federalism: National, State, and Concurrent Powers

10. How Federalism has Changed • Originally: Dual Federalism • Each level has its own specified powers • Analogous to a “Layer Cake” • Now: Cooperative Federalism • Shared powers, not separate • More like a “Marble Cake” • Need a proper balance between Centripetal and Centrifugal Power (the Goldilock’s Dilemma)

11. Evolution of Federalism • In 20th Century the scope of national government expanded dramatically • Why? • National effort required for the World Wars, the Great Depression, etc. • How has the world changed since 1787? • Technological, Industrial, and Economic Growth required organization and oversight on a national level

12. How did the National Government Grow? • Different roles clearly spelled out in Constitution • 10th amendment reserves most power to the states • The Civil War was essentially fought over the relative power of State and Federal governments • Note the federal power in 13th, 14th, 15th amendments • This remains a contentious topic

13. How does your Government Grow? • If we were willing to fight a Civil War over the balance of power between the state and federal governments and the Constitution clearly spells out those powers, HOW has the central government taken on so much power? • Primarily $ and Constitutional Interpretation • New Federalism: State and Local governments receive a lot of federal funding • This money comes with strings • “He who pays the piper calls the tune” • This is why the drinking age is 21 nationwide

14. Federal Grants to State and Local Governments

15. How does your Government Grow? • Constitution is vague: both “express” and “implied” powers • Interpreted to allow the federal government “implied” powers • Article I, Section 8 • “Necessary and Proper” (Elastic) clause • “Commerce” clause (can you think of any commerce that is carried out solely within one state?) • Article VI, Section 1 “Supremacy” clause

16. Commerce Clause • Why would we want the Federal government to regulate commerce? • 50 different rules would be inefficient for business • Individual rational actions can lead to a collective irrational outcome; examples? • Are we even rational to begin with? • Descartes argued reason would lead to enlightenment but the world is very complex • Regulations can reduce uncertainty and complexity • i.e. Preemptions prohibit states from regulating certain activities like the ADA

17. Smokestack Chasing • We live in a mobile society • States are competing for jobs • In order to attract business, how much emphasis do they place on business regulation, worker protections, environmental regulations, etc.? • If want certain levels of these things, must do at the federal level • Otherwise problems can “Spill Over” from one state to another • This is why conservatives support state’s rights

18. Regulations and the Tragedy of the Commons • How can regulations be good for business? • What’s the Tragedy of the Commons? • Prevent individual firms from exploiting a common resource that all firms need • Short-term corporate interests may not be in the best long-term interest of the firm or the collective business interests

19. McCulloch v. Maryland • What were John Marshall’s Concerns about Federalism? • What experiences shaped these concerns? • Does Congress have the power to establish a national bank? • Look at the “Necessary and Proper” clause (Article 1, Section 8) • Does a state tax on a nationally chartered bank unconstitutionally interfere with federal powers? • Look at the Supremacy Clause (Article VI, Clause 2)

20. Recent Changes • The erosion of state authority has turned around in recent years • The Rehnquist Court has made a number of decisions giving the states broad “sovereign immunity” from federal laws • Limits the ability of individuals to sue state entities for overtime pay, patent infringement, or discriminatory practices • In general, Supreme Court decisions have been inconsistent