Federalism. Shifts in Federal Power. How Federalism Works. ADA Text Version

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1 Federalism Shifts in Federal Power ADA Text Version How Federalism Works Federalism is not a static institution but rather a dynamic process. While the national government is sometimes able to impose its will on the state, federalism is more often a result of negotiation, experimentation, and give-and-take. It is important to recall that Congress is made up of representatives and senators who are elected from individual states, feel great loyalty to those states, and are ultimately held accountable by electorates in those states. The federal government uses both carrots and sticks to wield influence over the states. When the federal government enjoys clear constitutional authority to act, it sometimes uses mandates, legal directives telling the states what they must do to comply with federal legislation.

2 Examples of mandates include environmental standards with which states must comply upon pain of financial penalties, and the Americans with Disabilities Act (1991), which requires, among other things, that buildings be made readily accessible to the handicapped. In both of these situations, compliance costs the states considerable sums of money. Unfunded mandates, which require states to comply with federal regulations but do not provide federal money to pay for the costs of compliance, are unpopular among state governments for obvious reasons. If mandates are the stick of federal policy, grants are the carrots of fiscal federalism. Grants are sums of federal money given by Congress to state or local governments. Grants come in two general categories: categorical or block. Categorical grants are appropriated by Congress for very specific reasons and typically impose very detailed requirements on the recipient as a precondition of receiving the funds. Block grants are sums of money given to the states for a particular purpose (e.g., health care, education) but lack the detailed requirements of categorical grants. Republicans and state governments are more likely to favor block grants than Democrats. State action in a particular policy area sometimes conflicts with federal regulation. As a general rule, the supremacy clause prevents or limits a state from acting when its actions would conflict with or

3 undermine federal law. This is the doctrine of preemption. Thus states cannot legislate lower standards for air or water quality where the federal government has imposed higher standards. States cannot attempt to regulate air traffic control as the federal government has already used its commerce power to monopolize regulation of this function. Besides, who wants separate states regulating air traffic anyway? The resulting danger to the safety of air passengers would be intolerable. But preemption is not a rigid principle. In cases where it does not thwart federal intent, state governments can regulate to impose higher standards than those required by the national government. For example, California has been permitted to assign itself higher environmental standards than those required by the US Environmental Protection Agency. Dual Federalism Even though several early Supreme Court decisions, such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), established a foundation for a powerful national government, state governments and the federal government were considered co-equals with distinctly different areas of authority and competence. This type of federalism is known as dual federalism. While the federal government handled issues of war and peace, diplomacy, and the provision of a transportation infrastructure, states generally regulated economic affairs and other matters. In early days of the nation, a prevailing interpretation of the Tenth Amendment held that states exercised authority over police powers (safety, health, welfare, and morals) without much federal intrusion. Some political scientists refer to this

4 period of federalism as the era of layer cake federalism, with the roles of the federal government and state governments neatly divided. The Civil War ( ) significantly expanded the power of the federal government, but without any immediate impact on the philosophy of dual federalism. The late 19th and early 20th century's era of urbanization, industrialization, and corporate concentration placed increasing demands on the federal government to regulate a more tightly integrated national economy. However, the courts remained vigilant, if inconsistent, in guarding against the overextension of federal power. For example, the US Supreme Court struck down a law of Congress outlawing child labor as going beyond the federal government's power to regulate interstate commerce. The New Deal and Cooperative Federalism The Great Depression of the 1930s, the presidency of Franklin D. Roosevelt, and World War II ( ) permanently and drastically altered the balance of power between the states and the national government. Economic collapse and the resulting mass unemployment seemed beyond the capacity of the states to handle. This created a political environment requiring extensive federal intervention. Federal regulation of economic issues such as the price of farm products, the right of workers to organize in unions, and the imposition of a national minimum wage became the new normal. By providing categorical grants to the states, the federal government used its spending power to launch an ambitious program of public works that

5 included construction of buildings, roads, dams, and electrification of rural areas. The basis of the modern American welfare state was laid in new government social programs such as Social Security and the imposition of maximum hours of employment for most workers. Collectively, these programs are referred to as The New Deal and mark an epic turning point in US history. It was in this time period that the layer cake was smashed. The federal government encroached on the powers formerly reserved to the states. Although the federal courts initially resisted this extraordinary exercise of power, they gradually relented, allowing a much more flexible and expansive judicial interpretation to the national government's powers under the interstate commerce clause. In Wickard v. Filburn (1942), the Supreme Court upheld congressional legislation restricting the amount of wheat an individual farmer could grow on his own land. As a result, Congress could now exercise its power over any activity, even local, if it had a substantial effect on interstate commerce. Layer cake federalism gave way to marble cake federalism, also called cooperative federalism. This new era of federalism was characterized by joint federal regulation of areas traditionally considered within the states' domain and large grants of federal money to the states. The Great Society and Expanded Federal Power President Lyndon B. Johnson's presidency in the 1960s greatly

6 expanded the federal role in the United States economy and social life. The policies constituting his Great Society, which included a rhetorical and substantive commitment to waging "war on poverty," committed federal funds and regulation to education (Head Start), anti-poverty programs (Aid to Families with Dependent Children and public housing), and urban renewal. The federal government also began a massive commitment to providing health care for the poor and elderly through Medicare and Medicaid. The use of categorical grants to federally fund not just state, but also local, governments and organizations increased. The federal government also increased its use of unfunded mandates to compel state and local action. Unfunded mandates, such as the Americans with Disabilities Act (ADA), remain a primary source of friction between state and local governments. The Rise of New Federalism Since the 1980s, there has been much interest over the rise of New Federalism. Under the Reagan presidency in the 1980s, and a Republicancontrolled Congress during the 1990s, the theme of devolution, or transfer of responsibility for policies and programs from the federal to state governments, became prominent. There was also a shift from categorical grants to block grants in federal aid to the states. Block grants gave states greater control over how to spend federal aid than categorical grants allowed. For this reason Republicans have typically supported block

7 grants to a much greater extent than Democrats, who tend to favor the oversight and direction given to the federal government by categorical grants. A classic example of devolution is the Welfare Reform Act of In the judicial system, several key decisions of the Rehnquist and Roberts courts limited the accumulation of federal power that had occurred since the 1940s. In US v. Lopez (1995), the Supreme Court struck down congressional legislation making it a federal criminal offense to carry a handgun within 1000 feet of a school. Similarly in US v. Morrison (2000), the Court invalidated a law that allowed rape victims to seek a federal civil remedy, even in the absence of formal criminal charges. In both cases, the Court ruled that Congress exceeded its authority under the commerce clause. However, it is difficult to over-generalize from these decisions. Subsequent decisions on the appropriate use of commerce clause authority by Congress have been mixed. While the US Supreme Court upheld a state law in 2006 legalizing physician-assisted suicide, it also issued several decisions upholding the federal government's imposition of the ADA on state governments and accepted greater national restriction of abortion procedures. How Do You Rule? Federalism and the Judiciary The Supreme Court has played a significant role in determining the balance of power between the federal and state governments. In this activity, you'll rule on court cases that impacted the relationship between the national and state governments. LAUNCH ACTIVITY

8 Power Jeopardy Having just fought the war against British tyranny, the Founding Fathers were vehemently opposed to a national government that could mushroom into an all-encompassing, overreaching central government far removed from its citizenry. To prevent this, the Founders established a constitutional arrangement whereby power was divided between the national government and the states. This arrangement is known as federalism. Test your knowledge about federalism by playing "Power Jeopardy." LAUNCH ACTIVITY Virtual Roundtable Federalism is a system that has changed during the nation's history and today might be unrecognizable to many of the Framers, as more power is concentrated in the hands of the national government. Do you think the balance of power has shifted too much toward the federal government? OPEN VIDEO ROUND TABLE Lesson Overview The Federal System Constitutional Sources of Federal Power Shifts in Federal Power Federalism: Pros and Cons Issues in Federalism

9 Additional Resources Books American Lion: Andrew Jackson in the White House, by Jon Meachum. Meachum's biography focuses on both the hugely influential president and his political philosophy. "Jacksonian Democracy" changed the political landscape of the country by emphasizing executive power, elected judges, manifest destiny, states' rights, and laissez-faire economic policy. States' Rights and the Union, by Forrest McDonald. Before "states' rights" was associated with civil rights and desegregation, it was connected with almost every important political battle of America's first hundred years. By studying the battle over the Bank of United States, internal improvements, the Louisiana Purchase, and tariffs, McDonald demonstrates how federalism is part of the national character. Note Taking Evernote is an app for creating, organizing and saving class notes. Learn more about Evernote and how it could support your studies at evernote.com.

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