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UGA / Science / POLS 1101 / which amendment provides the most explicit endorsement of federalism f

which amendment provides the most explicit endorsement of federalism f

which amendment provides the most explicit endorsement of federalism f


School: University of Georgia
Department: Science
Course: American Government
Professor: Haynes
Term: Summer 2015
Cost: 25
Name: Federalism
Description: 2/8 Lecture Notes
Uploaded: 02/10/2017
8 Pages 190 Views 0 Unlocks

• Sometimes those promoting a policy finds that is their interest to shift their focus from the states to the national government – why?

• How does policy become nationalized?

• Yet, despite its plain language, the Tenth Amendment has failed to play a major role in fending off national authority – why?

Federalism American Federalism • Despite the Framers’ efforts to keep the national government out of states’ business,  was it inevitable that so many policies We also discuss several other topics like amt 595 class notes
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once left to the states are now handled by the  federal government? • Federalism o : A hybrid arrangement o Mixes elements of a confederation (lower level has real power) and a unitary  government (national level monopolizes constitutional authority) o In a federal system, the constitution usually divides authority between two or  more distinct levels of government; in the US, division is between the national  (federal) government and the states • Before adopting a federal system in the Constitution, the nation had experienced both  of these alternatives o Monarchy/ parliament – unitary o Articles of Confederation – confederation  • Worldwide, unitary governments are far more common o Typically, the central government establishes national policies and raises and  distributes funds to the local units to carry them out o Lower-level units’ function primarily as the administrative apparatus of the  national government  Qualifications of Federal Systems • A government must have constitutional relations across levels, interactions that satisfy  three general conditions: o The same people and territory are included in both levels of government o The nation’s constitution protects units at each level of government from  encroachment by the other units o Each unit is in a position to exert some leverage over the other  • The second condition, independence, sets the stage for the third condition, mutual  influence o Independence was the missing ingredient that made the national government  impotent under the Articles of Confederation o Note: local governments are not a separate level of government  ▪ They are established by the state and do not exercise independent,  constitutional authority – state law establishes their responsibilities and  the extent of their discretion over policies Types of Federalism • Dual Federalism o Leaves the states and the national government presiding over mutually exclusive  “spheres of sovereignty”o It is the simplest possible arrangement o The nation, however, has never divided authority so neatly o Layer Cake • Shared Federalism o “cooperative federalism” o recognizes that the national and state governments jointly supply services to the  citizenry Federalism Evolving • From the early days of quite limited responsibility for the national government,  nationalization has shifted authority to the national side and away from state  governments o Today the national government has a hand in almost all policies that “concern  the lives” of the citizenry o Dual federalism no longer describes that nature of federal-state relations o Federalism is highly dynamic: nationalization of public policy is not based on a  grand design by the Framers – rather the product of problem solving and  constituency service – the interplay of political interests over time • Often the scope and complexity of modern problems mandate a joint, cooperative  strategy across states and levels of government o Ex. Pollution does not honor state boundaries, nor does unemployment,  inflation, crime, etc. ▪ Hurricane Katrina ▪ BP Oil Spill in Gulf of Mexico ▪ Complex dilemmas o And political logic: incentives for federal officials, members of Congress, etc. to  expand federal government’s reach (desire to increase in power; national vs  state constituency) • But the question of whether or not the federal government actually assumed  responsibility for a specific policy remained (and still is) a political decision o South Dakota v. Dale (1987) ▪ South Dakota allowed 19 year olds to purchase beer containing up to  3.2% alcohol ▪ In 1984, Congress passed the National Minimum Drinking Age Act,  withholding highway funds from states that did not adopt a minimum  legal age of 21 ▪ SD challenged the law and lost 7-2 – ruling argues that this is a valid  exercise of federal authority under the “necessary and proper clause” Transformation of the Senate • The greatest victory of states’ righters during the Constitutional Convention was the  creation of a Senate whose members were to be selected by the state legislatures  (senators beholden to the state legislators)o In 1913, public pressure forced Congress and state legislatures to ratify the 17th Amendment – ring from complaints that individuals were buying senate seats  with bribes to legislators ▪ Consequence: diminishment of one of the pros of federalism by removing  senators’ ties to the state legislature The Tenth Amendment • “The powers not delegated to the US by the Constitution nor prohibited by it to the  States are reserved to the States respectively, or the people” • The 10th Amendment offers the most explicit endorsement of federalism to be found in  the Constitution  • Yet, despite its plain language, the Tenth Amendment has failed to play a major role in  fending off national authority – why? o The powerful combination of the supremacy and the elastic clauses have kept  the 10th amendment from fending off federal/national authority – ex. Constitution variously endorses national power and states’ rights giving  politicians easy openings to interpret the Constitution according to their own  political objectives  The Supremacy Clause • “This Constitution and the Laws of the US 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” • The provision of the Constitution with the most profound implication for modern  American federalism is the so-called supremacy clause in Article VI, Clause 2 o This clause does not give the federal government free license o Original intent was to have the national government prevail over states when  both were acting in a constitutionally correct manner  The Powers of Congress • Article I, Section 8 lists powers of Congress (enumerated power) o These powers are important to federalism because they create jurisdictional  boundaries between the states and the national government o Some powers are broadly stated and thus helped open state policy to national  intervention o Ex. the commerce clause o The Elastic Clause (necessary and proper clause) also eventually undermined the  restrictive purpose of the enumerated powers Interpreting the Constitution • Supreme Court resolving disputes and setting precedents – judiciary often as aggressive  as Congress in expanding the national authority over the states: o McCulloch v. Maryland (1819)▪ : Protected the national government from actions of the state ▪ In 1816, a new national bank gets re-chartered – it’s not popular ▪ Maryland is one of the states that is particularly cheesed with this new  bank – they levy at 2% tax on it ▪ James McCulloch – a bank agent – refuses to pay the tax ▪ The case goes to the Supreme Court… The two primary questions: • Can congress charter a bank? o Yes. Under the necessary and proper clause, this is a  Constitutional exercise of federal power • Can a state tax a federal entity? o No. The 10th amendment reserves to the states only  powers not delegated to the federal government and the  constitution already gives the federal government the  power to tax – further, as the “power to tax involves the  power to destroy” the federal government is exempt from  state taxes under the Supremacy Clause ▪ A unanimous supreme court rules for the federal government on both  questions – in the majority opinion, Chief Justice John Marshall rules that o Gibbons v. Ogden (1824) ▪ : Only congress possesses authority to regulate commerce ▪ New York State legislature gives Ogden a steamboat monopoly – a New  Jersey steamboat operator, Gibbons, enters NY waters hoping to steal  some of Ogden’s business ▪ Ogden is upset – pressures NY to ban Gibbons – Gibbons hires Daniel  Webster and this goes to the Supreme Court ▪ Two primary questions: • Does the Constitution permit the federal government to regulate  navigation?  o Yes. Congress can regulate navigation – Commerce is more  than just buying and selling, and while the power to  regulate commerce within a state belongs to the state,  commerce among the states does not stop at the border • Is the New York monopoly Constitutional under the 10th amendment or does this violate the commerce clause? o No, the NY monopoly is unconstitutional because the  Supremacy Clause gives the federal government’s laws  precedent her despite the 10th amendment – however, the  monopoly would have been fine if the federal government  did not choose to regulate  o Gitlow v. New York (1925) ▪ States could not abridge the free speech rights of their residents o Near v. Minnesota (1931) ▪ Applied the First Amendment’s protections of a free press to the states o Palko v. Connecticut (1937)▪ States could not violate rights without which “neither liberty nor justice  could exist” o Griswold v. Connecticut (1965) ▪ Court held that a state prohibition on the use of contraceptive violated  the inherent right to privacy of its residents o Roe v. Wade (1973) ▪ Rules that states could not impose strict limits on abortions as had  existed in the Texas law that was scrutinized in Roe v. Wade The Logic of Nationalization • How does policy become nationalized? • Nationalized did not just happen o Reflects political decisions; competition of interests o Civil War at its heart was a conflict involving federalism • Generally, two scenarios:  o Realities of collective action (problem solving) o Purely political considerations (ex. opportunities for political advantage) • State jurisdiction over public goods that fall within its border offers real advantages:  efficiency and responsiveness o But once the public good encompasses the larger community, the logic for local  control disappears o Ex. Railroads ▪ Throughout the first half of the 19th century, American remained a nation  of segmented communities that did not require much coordination of  commercial endeavors ▪ But changes over time – ex. growth, urbanization, industrialization,  changes desire and perception of public goods, aka can’t be provided by  the local/state level  • The kinds of collective action dilemmas that prompt states to ask Washing ton for help often fall into one of three categories: o Coordination problems ▪ A nation composed of fifty states is bound to face coordination problems ▪ Ex. Driver’s license laws • Lobby to standardization for interstate truckers – what led to this  federal intervention • 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 ▪ Ex. Regulation of electricity industry • Earlier state level policy made sense, but today power flows  through an extensive continental grid • Fragmented state regulation; need for intervention?o Reneging and shirking ▪ States must always honor their commitments to their sister states ▪ The constitution and national laws solve many of these dilemmas by  authorizing the federal government to take direct action raising resources  and administering policy ▪ Ex. polluted air/water – without enforcement states continue to pollute – classic tragedy of the commons o Cutthroat competition ▪ At various times, cutthroat competition has prompted state official to  lobby Washington to prevent bidding wars • Ex. minimum wage standards, environmental regulation ▪ Competition can also emerge as states bid against each other for  economic reasons – getting companies to relocate to their state by  providing tax breaks or special services • States spend as much as 40 billion dollars annually to lure and  retain large employers to their states ▪ Race to the bottom • Cutting back on social services in order not to become a “welfare  magnet” ▪ Competition between states and performance comparisons • Texas low education scores; No Child Left Behind The Paths to Nationalization • The logic of collective action has assumed several forms: o Americans have at times decided collectively to adopt policies of such magnitude  and scope that they outstripped the resources of states  o States have solicited federal intervention when they could not solve their  problems by working together individually o Political considerations inspired national majorities to insist on federal  involvement in what were formally state and local matters, ex. civil rights Political Logic of Nationalization • Sometimes those promoting a policy finds that is their interest to shift their focus from  the states to the national government – why? o Difficult to lobby/persuade fifty separate states o More efficient method – a single federal law can change policy in all fifty states  at once o National government may be more receptive • Environmental protection is a nice example – local residents bear the brunt of the cost – lumber industry, coal burning industry • Sometimes the reverse political process occurs as groups that lose at the national level  see smaller victories in those states where they enjoy their majority supporto Ex. social conservatives on the issues of abortion rights and school prayer, stem cell research in CA, marijuana legalization, gun laws, etc. Preemptive Legislation • Preemption: federal laws that assert the national government’s prerogative to control public policy in a field o Relatively little preemption prior to the New Deal – afterwards, much more o Owes its existence to the Supremacy Clause • On balance, federal government has not usurped states’ jurisdictions so much as it has  joined with the states in formulating policy o Result: shared federalism  • How does the federal government induce cooperation from the constitutionally  independent states? o Carrots and sticks  ▪ The Carrot: Federal Grants • During the last fifty years, federal grants-in-aid become an  important part of intergovernmental relations – few grants prior  to New Deal • These grants are more than simply inducements to states to carry  out programs; they also allow the national government to define these state programs • Block grant: get sum of money; if not all spend, remains in federal  treasury – states have little incentive to curb costs • Matching grant: matching sum in relations to state spending on a  program; blank check; moral hazard • Medicaid expansion by state lawmakers during flush economy,  versus their unwillingness to cut during poor economic times (lot  of pain for little gain) ▪ The Stick: Unfunded Mandates • Since the 1960’s, the federal government has relied increasingly  on rules to pursue policy objectives • States are required to administer policies they might object to,  and they may even  be asked to pay for the administration of the  policies • National government employs four basic methods o Cross-cutting requirements ▪ Statues that apply certain rules and guidelines to a  broad array of federally subsidized state programs ▪ Ex. failure of any state to follow federal guidelines  that prohibit discrimination can result in the  prosecution of state officials as well as loss of  grants▪ Ex. All state programs that include major  construction and changes in land use must file  environmental statements with the federal  government  o Crossover sanctions ▪ Stipulations that to remain eligible for full federal  funding for one program a state must adhere to  the guidelines of an unrelated program • Congress’s stipulation that federal highway  funds be ties to state adoption of a  minimum drinking age of 21 • Bill restricting sale of soft drinks on school  grounds tied to school aid funds o Direct orders ▪ Requirements that can be enforced by legal and  civil penalties ▪ Ex. The Clean Water Act bans oceans dumping of  sewage sludge o Partial preemption ▪ Certain federal laws allow the states to administer  joint federal-state programs so long as they  conform to federal guidelines  ▪ If an agency fails to follow the instructions of the  federal agencies, the state might lose control of the  program ▪ Ex. state air pollution policies – public law and the  EPA set minimally acceptable standards, but  enforcement of these standards rests mostly with  state agencies Federalism: A Byproduct of Nation Policy • Federal-state relations are dynamic o Dramatically transformed during the 20th century • Nationalization of public policy is not based on a grand design planned by the Framers – Product of the interplay of political interests o Politicians sought solutions to problems and responded to the interests of their  constituents

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