Bianco Federalism PPT

Editor's Notes

• #3: Should the government require all Americans to have health insurance? While individual Americans disagreed about this question, the states and the federal government also disagreed about whether Congress could force the states to implement the Affordable Care Act. The passage of the Affordable Care Act (ACA) in 2010 reignited the issue of federalism and the proper relationship between states and the federal government. Opponents of the law argued that Congress overstepped its constitutional bounds in three ways: first, by issuing an individual mandate that everyone must have health insurance; second, by coercively expanding Medicaid; and third, by mandating that employers provide health care, which impinged on state sovereignty. Supporters of the law argued that it was permissible under the Necessary and Proper Clause and the Commerce Cause. In a narrow 5-4 ruling, the Supreme Court upheld the law as Constitutional (though under Congress’s power to tax and not the Commerce Clause) but agreed with critics that the Medicaid expansion was unconstitutional. The proper balance between America’s levels of government remains a question of debate.
• #4: In 1984, Congress decided to withhold federal highway funds from states that refused to raise the drinking age to twenty-one. Battles over the balance between federal and state power are inherent in our federalist system. In 1981, 29 states and the District of Columbia allowed either 18-year-olds or 19-year-olds to drink some kinds of alcohol. (In some states, a person was allowed to drink 3.2 beers before they could drink stronger beverages.) But by 1996, all 50 states and DC had set the drinking age at 21. How did a policy that originally differed by state become a single national policy? And why did the “winning” policy move in the direction that it did? The answers have to do with federalism.
• #5: The group Mothers Against Drunk Driving has urged Congress to pass tougher drunk-driving laws. This put Republicans in a bind: while they usually supported “states’ rights” to make their own decisions, they also wanted to crack down on drunk driving. Before 1986, young adults who lived in states with a drinking age of 21 drove to nearby states with lower age limits, leading to what came to be known as “blood borders.” As these intoxicated teens drove home, thousands were killed in accidents. Persuaded by effective grassroots lobbying, Congress decided it would withhold 5 percent of highway funds in 1986 and 10 percent for each additional year after that. States with lower drinking ages resisted the change and took their case to the Supreme Court. The Supreme Court ruled that Congress didn’t have the right to create a national drinking age, they did have the right to “encourage” states to raise their drinking age by withholding federal highway funds from non-compliant states. By 1996, all 50 states had 21 as a drinking age. But the limit for intoxicated driving ranged from Blood Alcohol Content (BAC) of 0.05 to 0.1. In 1998, Congress acted again: This time, after more lobbying, they passed a law to withhold funds from any state that didn’t set 0.08 BAC as the standard for Driving While Intoxicated. Today, all states have the .08 BAC standard. While Congress cannot pass national legislation concerning drinking, they can pressure states to change their laws by withholding federal highway funding.
• #6: So we see how federalism works in contexts, let’s begin by remembering the basics of federalism: In the United States, both federal and state governments have the power to carry out policies that may not be preferred by the other. State governments are not responsible for national defense or foreign policy, while the federal government is not responsible for whether you are allowed to smoke in a bar or restaurant. With respect to divided power, we only refer to federal and state governments. Local governments are not autonomous units of government and are, as such, placed under the auspices of state governments. Recall that the division of powers across levels of government were central to the peaceful conflict over the Constitutional Convention as well as America’s bloodiest violent conflict, the Civil War. But how do these issues affect you today? Ways in which federal power might affect today’s college student Land-grant University Work-study job Federally-guaranteed student loan Pell grant Controversial Questions about Congressional Power Should Congress be able to prevent employer discrimination based on age or disability? Should Congress be able to compel gun bans around public schools? Can Congress set nationwide penalties for violence against women? Underlying question Should governance in the United States be more nation-centered or state-centered?
• #7: Federalism helps democracies deal with ethnic and national differences within their populations. For example, Canada’s federal system provides French Canadians with autonomy in Quebec province. Unitary systems are about four times more common than federal systems. Why? First, federal systems are much more complicated and often involve disagreements over the division of power between central and regional governments. Second, some economists argue that decentralization undermines prudent financial management, leading to slower growth and higher budget deficits. (However, the evidence for this is disputed.) One potential drawback of federalism (relative to unitary systems) is that it promotes regional and ethnic separation. On the other hand, federalism helps democracies deal with ethnic and national differences within their populations. For example, Canada’s federal system provides French Canadians with autonomy in Quebec province.
• #8: Preamble to Constitution – The Constitution opens with “We the People of the United States”. Compare that to the Articles of Confederation which opened with “We the undersigned delegates of the states” and you can see a first sign that the Founders intended for a less state-centric government under the Constitution. Necessary and Proper Clause - Article I, Section 8 of the Constitution, the elastic or necessary and proper clause, gives Congress the authority to “make all Laws which shall be necessary and proper for carrying into Execution of the foregoing Powers.” While enumerating Congress’s powers, the elastic clause also leaves the door open for Congress to “expand the scope of conflict” as Congress can point to this clause whenever it passes legislation that might not directly relate to the powers enumerated to the Congress. Supremacy Clause – The part of Article VI of the Constitution that states that the Constitution is the “Supreme Law of the Land” and “the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding.” Enumerated Powers – Those powers given specifically to Congress, such as: Admit new states to the union Declare war Coin money Create and maintain armed forces Regulate commerce with American states and with foreign countries Privileges and Immunities Clause – Part of Article IV of the Constitution requiring that states must treat non-state residents within their borders as they would treat their own residents. This was to promote commerce and travel between the states. Examples of P&I: States can’t deny police protection to visitors to a state. When isn’t this true? Colleges can charge “out of state tuition” to those not from the college’s state. Only citizens of a state can vote in that state’s elections. Or, to receive a check from the Alaska Permanent Fund—which pays people just for being a resident of Alaska—you must be a resident who has lived in the state for the entire preceding calendar year.
• #9: Tenth Amendment – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Eleventh Amendment – Prevents citizens of one state from suing the government of another state. Passed in reaction to Chisholm v. Georgia (1793). Full faith and credit clause – Part of Article IV of the Constitution requiring that each state’s laws be honored by other states. For example, a legal marriage in one state must be recognized across state lines. (Note: Due to the “Defense of Marriage Act,” passed in 1996, this does not apply to homosexual marriages.
• #10: After the Supreme Court struck down the 1875 Civil Rights Act, southern states were free to impose Jim Crow laws. These state and local laws led to complete racial segregation, even for public drinking fountains. Over the course of American history, we see broad shifts in the interpretation of federalism, the division of powers between state and federal government. At first the cases of McCullouch v. Maryland (1819) and Gibbons v. Ogden (1824) were powerful victories for the powers of Congress to govern nationally (by creating a bank and regulating commerce, respectively). There were decisions under the legendary chief justice John Marshall (served 1801-1835), who single-handedly created judicial review in Marbury v. Madison (1803). The early period also saw several attempts by states to reassert their rights, including Virginia’s Doctrine of Interposition which said that states could choose to ignore laws they thought unconstitutional. This fed into the broader states’ rights movement which crested with the Civil War.
• #11: Franklin Delano Roosevelt’s New Deal shifted more power than ever to the national government. Through major new programs to address the Great Depression, the federal government expanded its reach, and spent more to pay for these programs.
• #12: Three characteristics of American politics have led to reinforcement of a strong national government: Turning to the national government during crises and war The civil rights and economic rights struggles of the Great Society Coercive Federalism, also known as Federal regulations and mandates that require states to change their policies Look at the picture of the antiterrorism training drill in Hillsborough County, Florida and ask yourself this: In a world of increased international travel, international trade, and international terrorism, is local or even state government really relevant? One might think that small, humble, decentralized, quaint and quirky local governments can do little to handle large-scale problems in a globalized world. Public opinion polls, however, indicate that Americans tend to trust state and local government more than the national government. (Levels of trust are roughly unchanged from before 11.)
• #13: In the past twenty years states have become more active in fighting back against coercive federalism. This includes progressive issues like fighting pollution and stem cell research and conservative issues such as gun control and immigration. Competitive Federalism – competition among the states to provide the best policies to attract businesses Competitive federalism can be a good thing as it allows people to “vote with their feet” but critics have also said that it can lead to a “race to the bottom”, whereby states compete in unhealthy ways that lead to social ills.
• #14: Should same-sex marriages performed in one state be recognized in another state where such marriages are banned? Here, demonstrators protest against Proposition 8, which was intended to ban gay marriage in California. Partially due to conservative justices on the Supreme Court and partially due to liberal activists at the state level, states’ rights is an increasingly influential argument. (Politics makes strange bedfellows. Who would imagine, for example, that Conservative Justice Clarence Thomas would side with medical marijuana patient Angel Raich, albeit in a losing cause?) From the 1930s until the 1990s, the Tenth Amendment was essentially dormant. However since the 1990s, a new life has been breathed into the States’ Rights argument. Two of the important cases involved the (in)ability of Congress to regulate guns. In Printz v. United States, the Supreme Court, citing the Tenth Amendment, ruled that the federal government could not force local governments to perform background checks on local buyers. (The decision became irrelevant with the completion of the federal background check database, but the constitutional precedent remains!) In another landmark victory for advocates of states’ rights, the court struck down the “Gun-Free School Zones Act of 1990” because the Court interpreted the commerce clause to say that Congress could only regulate activity related to interstate commerce, not every activity in every state. (The case involved Alfonso Lopez, a senior at Edison High School in San Antonio, Texas, who was arrested for carrying a concealed .38-caliber handgun.) The decision reversed 55 years of commerce clause jurisprudence.
• #15: The Lopez decision struck down the 1990 Gun-Free School Zones Act, ruling that Congress did not have the power to forbid people to carry guns near schools. After the shooting of twelve students and one teacher at Columbine High School in Jefferson County, Colorado, on April 20, 1999, there were renewed calls nationwide for strengthening gun control laws.
• #16: Federal drug enforcement agents raid a medical marijuana club. While conservative activists have used states’ rights arguments to strengthen the Second Amendment right to keep and bear arms, marijuana activists are trying to protect the right to consume cannabis also by using states’ rights arguments. While 14 states have passed medical marijuana statutes that legalize cannabis as a remedy for sick patients, this conflicted sharply with the federal Controlled Substances Act, which categorizes marijuana as a “Schedule I” drug—highly dangerous with no medicinal value—and prohibits it. A case came before the Supreme Court in Raich v. Gonzales (2005). National power liberals and social conservatives on the court voted against California’s “Compassionate Use Act” for medical marijuana. Social liberals and states’ rights conservatives lost in court but medicinal marijuana is still widely prescribed in California. In the 2012 elections several states, including Colorado and Washington legalized marijuana for recreational use. It is unclear how this might function given the conflict with national laws on marijuana usage.
• #17: Aside from the interpretation of the Tenth Amendment and the Commerce clause that grass-roots advocates are using to defend laws protecting gun owners and pot smokers, there are other strategies being used to shift federalism towards states’ rights. In several cases, the Supreme Court has ruled that states could not be sued, even if they violated anti-discrimination laws, because of the Eleventh Amendment. The Fourteenth Amendment was supposed to let the federal government address potentially discriminatory state laws. However, in recent cases, the Supreme Court also created a new (higher) standard required to justify “remedial legislation.” Remedial legislation consists of national laws that address discriminatory state laws.
• #18: FIGURE 3.2 TYPES OF SPENDING PER CAPITA BY STATE SOURCE: State and Local Government Finance Data Query System, www.taxpolicycenter.org/slf-dqs/pages.cfm (accessed 8/16/12). Taxes vary dramatically by state. What are some of the advantages and disadvantages of living in a low-tax state or in a high-tax state? Which type would you rather live in? Four advantages of a strong role for states: States can be laboratories for democracy. State and local governments are closer to the people and can be more responsive to local demands. States provide more access to the political system. States provide a check on national power
• #19: FIGURE 3.3A POVERTY RATES BY STATE, 2010 SOURCE: U.S. Census Bureau, 2008 American Community Survey, available at www.census.gov/acs/www/index.html.
• #20: FIGURE 3.3B PER CAPITA INCOME BY STATE, 2010 SOURCE: U.S. Dept. of Commerce, Bureau of Economic Analysis, State Annual Personal Income, March 25, 2010, www.bea.gov/regional/spi/default.cfm?selTable-summary. Federalist systems that give too much power to the states have at least three problems: Unequal distribution of resources across states Unequal protection for civil rights Competitive federalism leading to a “race to the bottom”
• #21: LAYER CAKE FEDERALISM No interactions between the levels of government. MARBLE CAKE FEDERALISM Interactions between the levels of government are common. PICKET FENCE FEDERALISM Horizontal boards represent levels of government that connect the different policy areas (pickets). COERCIVE FEDERALISM National government uses regulations, mandates, and conditions to pressure states to fall into line with national policy goals. Pop Quiz! 1. Which of the following best describes the system in the United States in the 1800s?a only voters from that party vote. a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above 2. Requiring all states to comply with the Motor Voter Act is an example of which version of federalism? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above
• #22: Pop Quiz! 1. Which of the following best describes the system in the United States in the 1800s? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above 2. Requiring all states to comply with the Motor Voter Act is an example of which version of federalism? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above
• #23: Pop Quiz! 1. Which of the following best describes the system in the United States in the 1800s? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above 2. Requiring all states to comply with the Motor Voter Act is an example of which version of federalism? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above
• #24: Pop Quiz! 1. Which of the following best describes the system in the United States in the 1800s? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above 2. Requiring all states to comply with the Motor Voter Act is an example of which version of federalism? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above
• #25: Pop Quiz! 1. Which of the following best describes the system in the United States in the 1800s? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above 2. Requiring all states to comply with the Motor Voter Act is an example of which version of federalism? a layer cake federalism b marble cake federalism c picket fence federalism d coercive federalism e none of the above
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• #34: In the early 1800s, the Supreme Court confirmed the national government’s right to regulate commerce between the states. The state of New York granted a monopoly to a ferry company serving ports in New York and New Jersey, but this was found to interfere with interstate commerce and was therefore subject to federal intervention.
• #35: FIGURE 3.1 Federal and State/Local Government Spending (Including Grants), 1946-2011 Source: 2012 Statistical Abstract of the United States, Table 4.31, and the Bureau of Economic Analysis, Table 3.2 and Table 3.3 (accessed 8/16/12).
• #36: The manager of a truck stop in Jamestown, North Dakota, smiles after a state ban on indoor smoking went into effect. Political science research suggests policies may diffuse among states and cities through a variety of mechanisms.
• #37: The relationship between the national government and the states also involves cooperation. After a series of devastating tornadoes hit the Midwest and the South in 2011, President Obama and federal agencies worked with the states to provide emergency relief funds and services. Here, President Obama visits Joplin, Missouri, with Governor Jay Nixon.
• #38: In the debate over health care reform and the Affordable Care Act, supporters of nationalized health care argued the federal government could do a better job than the patchwork of state policies to ensure that all Americans receive sufficient care.
• #39: One of the strengths of federalism is that it allows regional diversity to flourish. Green Bay Packers fans proudly wear their cheesehead hats at Lambeau Field, showing that what passes for normal behavior in one part of the country would be viewed differently in other areas.
• #40: FIGURE 3.1 FEDERAL AND STATE/LOCAL GOVERNMENT SPENDING (INCLUDING GRANTS), 1946–2011 Source: 2012 Statistical Abstract of the United States, Table 4.31, and the Bureau of Economic Analysis, Table 3.2 and Table 3.3 (accessed 8/16/12).
• #41: THE AMERICANS WITH DISABILITIES Act of 1990 requires that public accommodations and commercial facilities be handicapped accessible, but recent Supreme Court rulings have held that the law does not apply to most state and local government buildings. Disabled activists are shown in front of the White House lobbying for stronger legislation.
• #42: WITH THE NO CHILD LEFT BEHIND Act, the George W. Bush administration increased the national government’s power over education. States are required to test students and meet goals determined by the federal government in order to receive federal funding.
• #43: 3.1 NUTS & bolts NATIONAL AND STATE RESPONSIBILITIES Source: GPO Access: Guide to the U.S. Government, http://bensguide.gpo.gov/3-5/government/federalism.html (accessed 12/5/11).
• #44: 3.2 NUTS & bolts THE EVOLUTION OF FEDERALISM
• #45: TABLE 3.1 EARLY LANDMARK SUPREME COURT DECISIONS ON FEDERALISM
• #46: TABLE 3.2 RECENT IMPORTANT SUPREME COURT DECISIONS ON FEDERALISM