POLS 1101E Chapt 3: Federalism

Commerce Clause

Congress has power to regulate commerce with foreign nations, among states, and with Indian tribes. Article 4 Section 4: Enforcement of Republican Government: US shall guarantee to every state a republican form of government, and protect each of them from invasion and domestic violence.

Elastic Clause

Framers added the ELASTIC CLAUSE: Allows Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. -broad clause, gives broad power to national government. Caused federal involvement in many state responsibilities, like social and racial and economic issues, guns near schools and national government mining more and more jurisdiction over interstate commerce.

Federalism

Nation and states divide power. A mix of confederation and unitary government!

Supremacy Clause

National government has supremacy, but certain federal activities are restricted. Over the next 200 years, though, sphere of legitimate national action expanded, allowing it to come in and become supreme in other areas. -Some issues are still battled today (like who is supreme when it comes to owning and using land).

2015: Obama:

Obama clean power plan - planned to reduce CO2 emissions by taking away coal burning plants. Promised to save lives and money. -29 states, and companies and groups fought him, and plan got put on hold by Supreme Court until it could be reviewed by a lower court. A new judge got appointed and put in that court by Trump, who wants to destroy plan, so doesn't look good. States' rights was an issue here. Push and pull between federal and state government. To Obama, national goal was necessary. Without national plan, some green states would reduce Carbon emissions while coal-reliant states free ride and reap rewards. National plan gave each state a reduction goal (32% in 15 years) and made sure no one could free ride. Plan imposed huge conformity costs on coal states, so they formed a states rights coalition (ex. coal states like west VA and Kentucky). Led by Patrick Morrisey. Coal miner jobs would be lost. 18 blue states that already relied on green power sided with Obama. People who want a strong national government argue that majority votes in states can often threaten civil rights of minorities. States' rights people have stood behind ideas like prohibition movement (ending alcohol sales), slavery, and segregation. Federal vs state laws are still debated today (ex. health care, pot use, etc). Unitary System: ex. UK, France, Japan. Authority is centralized, with state and local government authority delegated from a central government. A single government holds the power to govern the nation. Voters give power to Central Government, which gives power to State and Local governments Federation: ex. Canada, US under constitution Authority divided between central and state/local governments. Voters give power to central government and state/local governments to share/divide. Confederation: ex. US under articles. Authority held by individual states, and delegated to central government, by consensus agreement. Voters give power to state/local governments, which give some power to a central government. Ultimate arbiter (authority to settle dispute) in federalism: Supreme Court. Courts decide whether national or state policy prevails. -ex. 2016 they struck a blow to Obama's environment policy. Federalism: nation and states divide power. A mix of confederation and unitary government! Nation first had a unitary government (Britain was the central government that ceded some powers to the states), and then a confederation. Now, federation. CONCURRENT POWERS: powers that nation and state governments share now. Unitary government is the most common type, worldwide. -National government retains authority to rescind any authority it gives to states. In Federalism: 3 defining features: -Same people and territory are included in both levels of government. -Independence: nation's constitution protects units (departments, agencies, etc) at each level of government from encroachment by the other levels. -Each unit is in a position to exert some leverage over the others. Independence is important, because before the country was independent, nation couldn't exert any authority over the states. Local governments (ex. counties) are not a separate level. Not mentioned in constitution. Established by the states. -Local governing bodies can pass laws, generate revenue, etc. But, they're not independent, constitutional authority. State officials can and often do exercise power to intervene in local affairs. -can wield authority over local issues. Counties and other local governments are mere creatures of the state. Relations between state and national government: FEDERAL (shared/divided powers). Relations between state and local government: UNITARY (state government gives and takes away local government's powers as it pleases). 2 different kinds of relations between national and state government in federalism: Dual and Shared. DUAL FEDERALISM: system of government where federal and state governments each have mutually exclusive spheres of action. -National government handles a few important things (ex. foreign policy and national defense), and state government handles many smaller things. SHARED/COOPERATIVE FEDERALISM: national and state government share in providing citizens with a set of goods. -our nation's practices more resemble shared federalism. -in early years of nationhood, states exercised national authority on important matters (ex. commerce). Shared powers between national and state government today: tax, borrow money, charter banks and corporations, take property (eminent domain), enforce laws, and administer a judiciary. Soon after the Civil War, NATIONALIZATION (shifting to national government responsibilities traditionally held by the states). National government holds almost all policies that concern the citizenry!! (state governments hold less major policies). -ex. New Deal policies of 1930s, Great Society programs 1960s - providing welfare funding. Nixon and Reagan pushed for "New Federalism," giving some power back to the states. Clinton tried to increase state control through the Devolution Revolution So, usually, FEDERAL OFFICES decide how authority over intersecting state and federal authority should be divided. Founders did not anticipate this, but modern policy challenges and a political consensus that federal government should solve more problems made this necessary. -Environmental problems like pollution, or things like unemployment, crime, inflation DO NOT honor state boundaries. Neither does the internet. This complexity has driven nationalization. President is often rewarded when he nationalized power. Constitution opened the door to nationalization, by granting federal government the power to determine (within certain bounds) the extent of its authority over the states. Madison showed that national government wouldn't become overly powerful. 2 claims: -Structure of government (mostly referring to Senate) -Rules reserving rights to states But neither has been a barrier to national action In 19th century, senate selected by state legislatures, so it could defend states rights. Senators would vote however the state legislatures told them to. 17th Amendment mandated direct popular election of senators. Public consensus had formed against the indirect election, because of bribery and corruption. -Removed senators' ties to state legislatures -Now, senate exists as federal authority, and many chamber members have started their presidential campaigns from senate. All states that came after the first 13 were ushered in by acts of congress. Congress can create new states but not destroy an established state without its consent. 2/3 of states may petition congress to convene in a special constitutional convention to propose amendments. So, each level of government keeps the other in check. In dividing responsibilities of nation and states, Framers worked within a structure of dual federalism. Specified boundaries. SUPREMACY CLAUSE: National government has supremacy, but certain federal activities are restricted. Over the next 200 years, though, sphere of legitimate national action expanded, allowing it to come in and become supreme in other areas. -Some issues are still battled today (like who is supreme when it comes to owning and using land). Commerce Clause: Congress has power to regulate commerce with foreign nations, among states, and with Indian tribes. Article 4 Section 4: Enforcement of Republican Government: US shall guarantee to every state a republican form of government, and protect each of them from invasion and domestic violence. ENUMERATED POWERS: explicit powers given to congress by constitution in Article I Section 8. ex. Powers of taxation, coinage of money, regulation of commerce, and provision for national defense. -Specific things that states had been bad at under the Articles. -ex. even Antifederalists knew a national postal system was best. Framers added the ELASTIC CLAUSE: Allows Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. -broad clause, gives broad power to national government. Caused federal involvement in many state responsibilities, like social and racial and economic issues, guns near schools and national government mining more and more jurisdiction over interstate commerce. TENTH AMENDMENT: offers most explicit endorsement of federalism in the constitution: powers not delegated to federal government or prohibited from states are reserved to the states, or to the people. -It has failed to fend off federal authority. Vague wording of constitution allows politicians to interpret how they want So, Framers envisioned a Supreme Court that would referee between federal and state. One early supreme court ruling stands out - protects nation over states. 1816, Congress created a national bank that roved unpopular with state level politicians who controlled and preferred state chartered banks. Maryland levied a heavy tax on all non-state-chartered banks. James McCulloh, an agent for national bank in Baltimore, refused to pay the tax, and the 2 sides went to court. Decision in McCulloh v Maryland in 1816 brought together Supremacy and Elastic Clause. Chief Justice John Marshall said because national bank helped congress perform enumerated powers, elastic clause gave national government the implicit authority to create the bank. Marshall also said that supremacy clause exempts federal government from state taxes. In Gibbons v Ogden, Marshall ruled that neither New York or New Jersey could give a steam company monopoly over the Hudson River Shipping. Only congress has authority to regulate interstate commerce. After this, supremacy clause gave national government authority to preempt states in most policies involving interstate commerce. Via commerce clause, many state tasks would slip into federal control (ex. public safety, advertising laws, waste disposal). Federal system gives governors great flexibility. Governors can compromise and take moderate positions. This can make it hard for them to apply for presidential offices, because in primaries, you must please your party's strong preferences. So, meeting your own state's voters in political center can pay off when you're governor, but hurt your presidential prospects. -ex. it happened to Mitt Romney, and to Chris Christie. Civil War remains country's most tragic conflict involving Federalism. Through first half of 19th century, S remained a nation of segmented communities whose commercial intercourse required minimal coordination across states. With modernization came demand for goods beyond the resources of the states, so they turned to Washington, which passed Interstate Commerce Act. Examples of nationalization due to lack of state resources: Roosevelt's New Deal and Lyndon Johnson's War on Poverty. One major step toward nationalization was the creation of Highway system by Eisenhower. Federal government took charge. States have called for federal intervention when they couldn't work together individually. -Constitution prohibits interstate agreements without federal government consent. -Voluntary cooperation between states holds potential for reneging. National majorities have insisted on federal involvement! Companies prefer to lobby for national regulations so they don't have to deal with 50 different state policies. Civil War and Civil Rights (a century later) also examples of when federal government asserted authority over state governments. Roosevelt New Deal and Johnson Great Society programs represented 2 shifts toward nationalization. Watershed programs followed election of large national majorities to Congress from president's party, to create collective goods. NEW DEAL was a set of economic regulations and relief programs to fight Great Depression. -Roosevelt used federal policy in 2 forms: regulating and financing state action. Federal spending went up, state and local spending went down during depression. -Since then, no one has proposed dismantling framework of New Deal. 1960s President Lyndon Johnson launched War on Poverty as part of Great Society agenda. -programs launched to be carried out by states but funded by federal government. -Largest one was Medicaid. -Like New Deal, these grants subsidized (financially supported) state programs that implemented national goals. -With these programs, states had to follow guidelines set by federal government. ex. Schools had to follow "No Child left behind" and "Common Core- " national set of education standards for what students should know at the end of each grade. New Deal included federal Works Progress Administration, which promoted Jobs for girls and women. All types of collective action problems have required states to run to federal government for help. The states often have coordination problems. -ex. Each state has different drivers license laws. Federal government centralized traffic violation records and standardized drivers licenses for interstate truck drivers. The states still have SOME power of whether to agree to turn power over to Washington. -ex. Still debates about whether to nationalize electricity transmission. Obama wanted to offer medicaid (funded by federal government, run by states) to the working poor. 2012 National Federation of Independent Business v Sebelius. Court ruled that congress couldn't force states to expand medicaid by threatening their existing medicaid funding. -State leaders were granted new policy discretion. Could, at no state budget cost, provide health care with federal dollars, or could refuse. -31 states expanded Medicaid, 19 refused so far, because many red state governors had been elected based on hating Obamacare. -To conservative governors (especially Tea Party ones), taking federal money is not free, because it is taxpayer dollars. Movements to reduce pollution and conserve natural resources have inspired federalism as a solution. Tragedy of the Commons: no one wants to stop polluting because they think that stopping will not by itself clean up the atmosphere. Coordinated national policies are necessary, but they can sometimes arise through state pressure. -ex. Climate change. A car's CO2 emissions in one state affects the GLOBAL atmosphere. Represents an EXTERNALITY: private activity generates public goods/bads. Group of states pushed the nation toward national action. Governor Schwarzenegger led California and a few other states to pass a landmark climate change bill. National government initially opposed these state laws, but when Obama came, EPA embraced California, making them the national standard. California may have worried other states would SHIRK (avoid doing their part), but national policy addressing the negative externality solved this collective action problem. Under the Articles, states were free to conduct their own international trade policy Allowed foreign governments to exploit competition between the states. So states and producers suffered in prisoner's dilemma. Each state engaged in CUTTHROAT COMPETITION: competition among states involving adapting policies that each state would prefer to avoid. ex. States underbidding each other on tax breaks (lowering state taxes) to attract businesses relocating their facilities. At constitutional convention, nationalists and states rights people agreed that national government should be in charge of foreign affairs and trade. Cutthroat competition has prompted state officials to lobby Washington to prevent bidding wars. Cutthroat Competition also happens when states relax environmental policies to attract businesses. National government stepped in, though, by making EPA. States should be grateful for the EPA, for preventing the cutthroat competition. Some companies will elect several possible states to put facilities and sit back and watch them fight each other with tax breaks. RACE TO THE BOTTOM: states race/compete to provide a minimum level of services (like providing money to welfare recipients) or regulation (like tax incentives for corporations). -Might harm society's most vulnerable. -There is debate over whether this is actually happening. Some (like corporations) LOVE state competition. Some think it's efficient. Many state innovations have spread across the country this way. It is uncertain whether the innovations that have been copied are good or bad. Promoters of a policy will sometimes try to shift it from state to national government, because they expect more sympathy in Washington or find it easier than lobbying 50 state governments. -ex. Issues on guns, waste disposal, special education. -ex. Mothers Against Drunk Driving (MADD) brought issue to Washington, who told states to increase drinking age or lose some of its federal highway funds. Supreme Court sided with national government. Texas Governor Rick Perry lured businesses from other states to Texas. He did this to create jobs in Texas, and then the state makes the money back, and so on. Other conservatives like Bill Peacock have questioned him, saying the program is actually loss, but it is human nature to want to bring businesses in. other states followed him, trying to attract businesses. Even though all states might be better off if none of them offered tax breaks to businesses, once one state does it, others feel pressured to follow. Even businesses wanting to remain free of ANY government regulation may prefer to deal with one federal agency rather than having to fend off regulation attempts from 50 state. -ex. Airlines. Most compelling reason to prefer national over state policy is that the national arena is the only place it can prevail when policy is opposed in the community where it needs to be enforced!! -ex. National policy on civil rights, when the south didn't want it. After gaining majority in the House and Senate 2004, Republicans moved most class-action lawsuits from state to federal jurisdictions. -Some state courts favored plaintiffs (person bringing a case against another person in a court of law - the one doing the suing), angering Republican business groups at the mercy of Democratic lawyers. Protection of environment can be costly, and local residents pay the costs. The rest of the country bears little of these costs. So, conflicts over environment pit local resource users who bear the costs of environmental regulation against organized environmental constituencies that do not. Madison knew that national majorities will at times impose costs on local constituencies. Federalism presents opportunities for 2 kinds of majorities (state and national) to pursue interests in competition with each other. There has been a shift toward national policy, but the shift has been modest. Litigation over federalism today usually concerns efforts by the federal government to regulate the activities of state and local governments, and their employees. Garcia v San Antonio Metropolitan Transit Authority - 1985 - Supreme Court approved the application of FEDERAL wage and hour laws. -said that 10th amendment was too general -Supreme Court really favors the national government. -Said congress is looking out for their best interests. But, congress members aren't really agents of the states, anymore. Recently, Supreme Court has gotten better at preserving some state independence. -ex. US vs Lopez: 1995: decided in favor of a student carrying a handgun on campus. -Later, Supreme Court has also argued that congress has exceeded its commerce clause authority by intruding into state control of law enforcement (not related to commerce). -Still, recently, Supreme Court sided with federal government that they can enforce federal anti drug laws, despite pro-Marijuana laws in some states. PREEMPTION LEGISLATION: laws passed by congress that override/preempt state policies. Power of preemption derives from Supremacy Clause (Article VI). -Congress enacted money laws that substituted federal policy for state policy. -If preemption was all that changed federal-state relations, federal policy would have grown at the expense of states, and we would have Dual Federalism. But, preemption accounts for only a SMALL part of the impact of nationalism, so we have shared federalism. State governments have GROWN, BECAUSE OF FEDERALISM States employ more people than ever Much federal domestic policy continues to be implemented through the states "Carrot and Stick" - 2 ways the national government has developed - carrot consists of financial inducements in the form of grants to the states. Stick is the regulation and mandates. Since the 1980s, chronic federal budget deficits led politicians to rely on the stick, passing costs on to the states. Postwar growth of government occurred at a local level (not as much for federal or state levels). CARROT: -Only in the last half century have federal GRANTS-IN AID (funds given by congress to state or local governments for a specific purpose) become a feature of intergovernmental relations. -These programs give the national government opportunities to define these state programs. -The federal "Race to the Top" grants have generated controversy, by pushing states to adopt a national set of "common core" standards in education. -Structure of a grant can impact how much control the federal government exercises. BLOCK GRANT: Broad. Specified the general area (like education or health services) where funds may be spent, but leaves it to the state to determine specific allocations (amount and distribution of money, and where it goes). -gives state an exact amount of money. If the state wants to do more in the policy area, it can, but the state government must pay costs of the program expansion by itself. they can also spend less money than the block grant provides, but savings will stay in the federal treasury. So, states don't want to underspend or overspend. MATCHING GRANT: Federal government provides matching funds (usually one to two dollars) for every dollar the state spends in some area. -The "blank checks" often lead to major program expansions. -Creates a "moral hazard:" situation where people or groups behave differently and take more risks when they do not have to pay all the costs of their actions. Medicaid is funded through matching grants. -Medicaid cuts are bad deals for the states, because to save a little of their own money, they have to leave a lot of federal money on the table. -This explains why Medicaid has grown and expanded. When states do not have to pay full costs, they take advantage of blank checks, and spend more federal money. (For Matching Grants, states want to expand and overspend! Spend that federal money!) Why would federal government give Matching Grants? -They help capture positive externality created when states care for welfare and health care of their residents. -Benefits spill across state lines (healthier people everywhere). -Matching grants can treat each state differently, but allow the federal government to equalize living conditions across the states. -Poorer states receive larger matching grants/federal matches. States' rights governors fought federal controlled Common Core education. Before that, it was GOVERNORS who had initiated it (National Governors Association). Then, Obama came and dangled grants in front of the states, so they'd reach standards. -Democrats thought the system relied too much on testing. -Republicans thought it was a violation of state sovereignty (the concept that states are in complete and exclusive control of all the people and property within their territory) -Legislators across the country introduced many bills top stop Common Core. When Democrats were in the House and Senate, they wanted to expand Medicaid through Matching Grants - encourages even conservative states to spend a lot on social services. When Republicans took control 1994, they wanted to remove the moral hazard to decrease federal and state spending. Congress put a BLOCK GRANT for needy families welfare Government grows more quickly under Matching Grants than Block Grants In federalism, each combatant is more concerned with a policy goal than in shaping relationship between national and state government. STICK: UNFUNDED MANDATES (commands about how the states need to carry out the federal policy, and the states have to listen and spend their own money to do what is necessary to carry out the policy): Until 1960s, the only federal regulations on states were those governing and accounting grants Now, state government is forced to administer policies, and federal government may not compensate states for the cost of administration. -ex. mandate that states must mostly pay for special education. CROSSCUTTING REQUIREMENT: STATUTES (WRITTEN LAW) applying rules to a BROAD array of federally subsidized state programs. -Since the 1960s, used to enforce civil rights laws. -Failure to follow federal guidelines causes loss of grants. -Environment: all state programs with construction must file environmental impact statements with federal government. CROSSOVER SANCTIONS - STIPULATIONS (SPECIFIED REQUIREMENT) that a state must adhere by guidelines of an UNRELATED PROGRAM, to receive federal funding. -National politicians frequently use these to influence state policies beyond their jurisdiction. DIRECT ORDERS: requirements that can be enforced by legal and civil penalties. PARTIAL PREEMPTION: federal laws allowing states to administer joint federal-state programs as long as they conform to federal guidelines. -If a state fails, might lose funding and lose control of the program. -ex. State air pollution policies: public law and EPA set standards. Enforcement rests in state agencies. Since the 1970s, we have had more coercive forms of regulation - DIRECT ORDERS AND PARTIAL PREEMPTION HAVE BEEN FAVORED. Necessary because national government and state governments disagree strongly on CIVIL RIGHTS AND THE ENVIRONMENT. Unfunded Mandates: -Increase government spending. -Deprive state representatives of decision-making authority. -Force states to pay, while federal government isn't held accountable, and responds to demands for services. -Unfunded Mandates Reform Act supposed to require new federal laws to pay for programs, but this didn't stop mandates. Federal-state relations changed drastically in the 20th century. Nationalization of public policy didn't arise from some grand design. Modern federalism has little to do with responses to collective action dilemmas, and much to do with the INTERPLAY OF POLITICAL INTERESTS. Concept of federalism will always be debated. Shifting responsibility for funding programs to states also shifts the burden of paying for them to less affluent Americans. Federal tax dollars are raised from income and payroll taxes, with the highest earners paying the highest rate. Many states rely on large sales and property taxes, hitting the poor hard (especially Texas and Florida). State taxes represent unfair advantage for the rich.

Appellate Courts

Part of judicial system responsible for hearing and reviewing appeals from legal cases that have already been heard in a lower court

Who determines how intersecting authority is divided between nation and states?

So, usually, FEDERAL OFFICES decide how authority over intersecting state and federal authority should be divided. Founders did not anticipate this, but modern policy challenges and a political consensus that federal government should solve more problems made this necessary. -Environmental problems like pollution, or things like unemployment, crime, inflation DO NOT honor state boundaries. Neither does the internet. This complexity has driven nationalization. President is often rewarded when he nationalized power. Constitution opened the door to nationalization, by granting federal government the power to determine (within certain bounds) the extent of its authority over the states.

Cutthroat Competition

Under the Articles, states were free to conduct their own international trade policy Allowed foreign governments to exploit competition between the states. So states and producers suffered in prisoner's dilemma. Each state engaged in CUTTHROAT COMPETITION: competition among states involving adapting policies that each state would prefer to avoid. ex. States underbidding each other on tax breaks (lowering state taxes) to attract businesses relocating their facilities. At constitutional convention, nationalists and states rights people agreed that national government should be in charge of foreign affairs and trade. Cutthroat competition has prompted state officials to lobby Washington to prevent bidding wars. Cutthroat Competition also happens when states relax environmental policies to attract businesses. National government stepped in, though, by making EPA. States should be grateful for the EPA, for preventing the cutthroat competition. Some companies will elect several possible states to put facilities and sit back and watch them fight each other with tax breaks.

Which type of government is most common worldwide?

Unitary government is the most common type, worldwide. -National government retains authority to rescind any authority it gives to states.

Enumerated Powers

explicit powers given to congress by constitution in Article I Section 8. ex. Powers of taxation, coinage of money, regulation of commerce, and provision for national defense. -Specific things that states had been bad at under the Articles. -ex. even Antifederalists knew a national postal system was best.

Preemption Legislation

laws passed by congress that override/preempt state policies. Power of preemption derives from Supremacy Clause (Article VI). -Congress enacted money laws that substituted federal policy for state policy. -If preemption was all that changed federal-state relations, federal policy would have grown at the expense of states, and we would have Dual Federalism. But, preemption accounts for only a SMALL part of the impact of nationalism, so we have shared federalism.

Shared/Cooperative Federalism

national and state government share in providing citizens with a set of goods. -our nation's practices more resemble shared federalism. -in early years of nationhood, states exercised national authority on important matters (ex. commerce).

Tenth Amendment

offers most explicit endorsement of federalism in the constitution: powers not delegated to federal government or prohibited from states are reserved to the states, or to the people. -It has failed to fend off federal authority.

Race to the bottom

states race/compete to provide a minimum level of services (like providing money to welfare recipients) or regulation (like tax incentives for corporations). -Might harm society's most vulnerable. -There is debate over whether this is actually happening. Some (like corporations) LOVE state competition. Some think it's efficient. Many state innovations have spread across the country this way. It is uncertain whether the innovations that have been copied are good or bad.

Dual Federalism

system of government where federal and state governments each have mutually exclusive spheres of action. -National government handles a few important things (ex. foreign policy and national defense), and state government handles many smaller things.

Lecture Notes

· Federalism: hybrid agreement. Mixes elements of confederation and unitary government · Unitary System: central government establishes national policies and raises and distributes funds to the local units to carry them out. Lower level units function as the administrative apparatus of national government. · Confederations have weak central governments and strong component state/unit governments · We had unitary government under monarchy of King George · Then we had confederation · American Federalism contains elements of both: -Dual/Layer Cake Federalism: clear delineation of authority and programs between each level of government -Shared/Cooperative/Marble Cake Federalism: mixing of authority and programs among national and state governments, with the local governments acting to carry out directives of the state. -WE WENT FROM DUAL FEDERALISM TO SHARED FEDERALISM · Dual Federalism: leaves the states and the national government presiding over mutually exclusive spheres of sovereignty · Things like foreign policy and national defense left to national government · Some things that happen on a local level are left to state governments: Elections, Education · Under traditional system, national government was quite small and narrowly specialized · Most of its functions were aimed to assisting commerce · State legislatures did most of the fundamental governing at this time · Today, national government has a hand in almost all policies that concern the lives of the citizenry · Nationalization has shifted the "indefinite" authority Madison assigned to state governments to the national side. -In 10th amendment, Madison reserved powers to the states. But, as we grew as a country, and problems became complex, states started to call for national intervention when they disagreed. -Dual federalism no longer describes the nature of national-state relations today · More accurate concept is called Shared/Federalism: national and state governments jointly supply services to the citizenry -ex. Policing/drug enforcement: state and federal work together particularly if crime crosses state lines. -Often, national government will provide funding, and states will carry it out -Often, the scope and complexity of modern problems mandate a joint, cooperative strategy across states and levels of government -Drug trafficking -Spread of epidemics -Food contamination · We used to have Dual Federalism, with very specific powers given to national government, and most powers held by states · The kinds of collective action problems that prompt states to ask Washington for help often fall into one of these categories: -Coordination problems -Free riding/Reneging (breaking a promise) and Shirking (not carrying your part of the effort) -Cutthroat Competition · Coordination Problems -Difficult to coordinate 50 different states -ex. Drivers' license laws. Standardization for interstate truckers. Creation of bureau within DOT to centralize records of traffic violations. -Easier to create centralized record keeping than to require each state to update its records with those of every other state · Reneging and Shirking -One realm in which classic free riding remains commonplace is protection of a region's natural resources. (ex. Rivers go across boundaries. Oceans don't have ownership. Etc). -ex. In 1950s and 1960s, no state on the eastern seaboard wanted to lose its cod industry, but without a means to assure compliance, none controlled its harvest. The fishery collapsed. -Intervention by Commerce Department and New England Fishery Management Council stepped in -In west and south, water is a serious issue. Who will force compliance? -Pollution in the oceans (Gyres). We do not have centralized institutions to provide enforcement and punishments. -Clean air - no boarders. Need for a national solution: clean air act. Beyond that, you need a difficult international solution. · Cutthroat Competition: At various times, the dilemma of cutthroat competition has prompted state officials to lobby Washington to prevent bidding wars. -ex. Labor standards. Before, there weren't any labor standards (workers' rights and protection) at the national level. So, businesses would leave the states that created labor standard to protect workers. -ex. Environmental regulation-lax. -Tax breaks as incentives for businesses to locate in the state. Washington sometimes comes in and creates some kind of standard. Usually it is minimal, and won't pass unless states think it is a good idea. · Sometimes, those promoting a policy find that it is in their best interest to shift their focus from the states to the national government -National government may be more receptive -Difficult to lobby/persuade 50 separate states -More efficient - a single federal law can change policy in all 50 states at once -But, if you have an issue where you know you'll have some resistance (ex. marijuana, gay marriage), it is unlikely that the federal government will pass a law, but you may have a state that is receptive. You can go state by state. If it succeeds in one state, the other states will want to adopt the policy too. (States are like laboratories). Unitary governments dominate worldwide What does the constitution say about federalism? After constitutional convention, Madison felt that they had given a lot to the states rights delegates. He was concerned that the Senate was not directly elected. Senate selected by state legislatures. States used Senate to defend state perogatives 1913 public pressure forced congress and state legislatures to ratify 17th amendment amidst complaints that individuals were buying senate seats with bribes to state legislators 17th amendment allows senate seats to be chosen by direct election Other Constitutional Provisions Governing Federalism: The fundamental impact of federalism on the way we are governed comes not from any particular provision of the constitution, but from THE FRAMEWORK ITSELF By allowing state governments to do most of the fundamental governing (particularly when we had dual federalism), the constitution saved the national government from many policy decisions that might have proven too divisive (causing disagreement) for a large and young country. So, it is good that we did not give too much power to the national government too early on. Federalism changed incrementally until the 1930s Major spike after Civil War Supremacy clause in Article VI (has the most profound implication for modern federalism): The Constitution, and the laws of the United States which shall be made in pursuance thereof (that is, in keeping with the principles of the Constitution) shall be the supreme law of the land. -When there is conflict between national and state government, national law is supreme So, national law is supreme. BUT, National government doesn't really alter its laws unless there is a good bit of consensus among the states. (Senators and Representatives do come from states, after all, and they look out for their constituents). Supremacy Clause does not give federal government free license. -Framed to avoid impasses over jurisdiction, rather than to cede to the national government broad, preemptive authority over the states Article I Section 8 lists powers of congress: Enumerated Powers. These powers are important to federalism because they create jurisdictional boundaries between national and state governments -ex. National government gets to deal with interstate commerce. State government gets to deal with intrastate commerce. (Side comment: there is pretty much no true intrastate commerce, these days). Some enumerated powers are stated very broadly, opening up state policy to national intervention. Also, there was the elastic clause/Necessary and Proper Clause. Congress can do whatever is necessary and proper to carry out the enumerated powers. So, the restrictive purpose of the enumerated powers were undermined. National government began to expand based on interpretation of the constitution. 10th amendment pleased Antifederalists. Many members of the first Congress wanted protections for the states as well as for individual citizens, but that did not occur. (The Bill of Rights is for citizens, NOT for states). Tenth Amendment offers the most explicit endorsement of pro-state, dual federalism to be found in the constitution. -Yet despite its plain language, the 10th amendment has failed to play a major role in fending off national authority Federalism: a byproduct of national policy -Federal-state relations are dynamic and have been dramatically transformed during the 20th century -The fundamental impact of federalism on the way we are governed comes not from any particular provision of the constitution, but from THE FRAMEWORK ITSELF -General Lesson: Nationalization of public policy is not based on a grand design planned by the Framers, but is rather the product of problem solving and constituency service (often constituency service for the states and their populations) - the interplay of political interests over time Usually, federal government only comes in when there is some kind of conflict between national and state law (such as a state abusing its citizens) FEDERALISM: Independence sets the stage for mutual influence Independence was the missing ingredient that made the national government impotent/helpless under the Articles. Local governments are not a separate level. State law establishes local government's responsibilities and the extent of their discretion over policies. Dual Federalism: simplest possible agreement. We used to have Federalism more like this, but really, our nation has never divided authority so neatly. Our country moved from Mostly Dual to Mostly Shared Federalism -Because country is large and problems are complex, and many problems do not honor state lines, so a cooperative strategy is needed Greatest victory of states rights delegates was the way the Senate was selected by state legislatures (until 17thamendment) -by removing the senators' ties to state legislatures, one of the props of federalism was diminished 10th amendment: most explicit endorsement of federalism in the constitution -failed to fend off national authority Supremacy Clause: most profound effect for modern American Federalism When both the national and state governments are acting in a constitutionally correct manner, and their laws contradict each other, national law is supreme The Elastic Clause undermined the restrictive purpose of the Enumerated Powers Commerce Clause is an example of an enumerated power that is BROADLY stated, opening up state policy to national intervention Judiciary is often as aggressive as Congress when it comes to expanding national authority over the states Gibbons v Ogden: only congress can regulate commerce Gitlow v New York: states could not abridge the free speech rigths of their residents Near v Minnesota: Applied 1st amendment's protection of a free press to the states Palko v Connecticut: States could not violate rights without which "neither liberty nor justice could exist" Griswold v Connecticut: state prohibition on the use of contraceptives violated the right to privacy of its residents Roe v Wade: states could not impose strict limits on abortion s had existed in Texas law, which was scrutinized Generally, 2 scenarios for nationalization of policy: -Realities of collective action (problem solving) -Purely political considerations (ex. opportunities for political advantage) Throughout first half of 19th century, America remained a nation of segmented communities that did not require much coordination or collective endeavors States have called on federal intervention when they did not have enough resources, or when states could not work together individually Collective action problems that prompt states to call for national intervention fall into 3 categories: -Coordination problems -Free Riding: Reneging and Shirking -Cutthroat Competition Race to the Bottom: Cutting back on social services in order to not become a "welfare magnet" Sometimes it is easier to promote a policy at the national level. But, sometimes (when the issue is controversial and the national government in nonreceptive) it is easier at the state level. Ex. Anti-abortion. Ex. stem-cell research in California Preemption: Federal laws that assert the national government's prerogative to control public policy in a field. -Relatively little preemption prior to the New Deal. Afterwards, much more. -Owes its existence to the supremacy clause. During last 50 years, federal grants-in-aid (carrot) became an important part of intergovernmental relations. Few grants prior to the New Deal. Block grant: if all of the money is not spent, remains in federal treasury. States have little incentive to curb costs. The Stick: Unfunded Mandates: National government employs 4 basic methods: -Cross-Cutting requirements -ex. Failure of any state to follow federal guidelines that prohibit discrimination can result in the prosecution of state officials and the loss of grants. -ex. Environmental policy. All state programs that include major construction and changes in land must use file environmental statements with the federal government. -Crossover sanctions -ex. Congress's stipulation that federal highway funds be tied to state adoption of a minimum drinking age of 21 -ex. Bill restricting sale of soft drinks on school grounds tied to school aid funds -Direct orders -ex. Clean Water Act. Bans ocean dumping of sewage sludge. -Partial preemption Public law and the EPA set minimally acceptable standards, but enforcement of these standards rests mostly with state agencies.