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Chapter 4 |
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Indestructible Union, Indestructible States
The U.S. is a federalist system in which power is divided between the national government and the states and each derive their power from the people. Most of the nations of the world are unitary systems; in a unitary system power rests solely with the national government who can delegate to lower level governments. In a confederation, such as the U.S. under the Articles of Confederation, the national government derives its power from the states not the people. There are over 87,000 different governments at all levels in the U.S., but local governments have no guarantees of power under the Constitution. They exist thru the power given to them by the states. With three levels of government sharing power, intergovernmental relations are of prime importance.
Why Federalism? The Argument for a "Compound Republic"
The Founders feared a tyranny of the majority, and they used federalism as one means to ensure liberty, disperse power, and manage conflict within society. Thus federalism was used to achieve seven goals:
1. Protecting liberty: "Opposite and rival" state and national powers would protect freedom through governmental competition and mutual watchfulness.
2. Dispersing power: Multiple centers of power would make tyranny unlikely.
3. Increasing participation: With over 86,000 governments in the modern federal system, nearly one million people hold office and nearly everyone can participate in the affairs of government if they wish to.
4. Improving efficiency: By not centralizing all decisions in Washington, government was made more efficient.
5. Ensuring policy responsiveness: The competition of governments under federalism also encourages better efforts to provide citizens with the public policies they desire.
6. Encouraging policy innovation: By the same token, competition of governments leads to more innovation in public policy.
7. Managing conflict: Federalism reduces the conflict of different regions of the country, each with different political cultures and group composition.
Federalism has limitations and potential problems, however. It can block action on national issues, ignore national injustices, and allow local leaders to obstruct national policy. Finally, federalism prevents uniformity in policy and permits costs and benefits to be spread unevenly across the nation.
The Original Design of Federalism
The Founders included their view of federalism in the Constitution.
1. Enumerated or delegated powers: Article I, Section 8, gives Congress seventeen specific powers, such as the authority to declare war and to issue currency.
2. National supremacy: Article VI, the National Supremacy Clause, makes clear that the laws of the United States are the supreme law of the land.
3. Concurrent and reserved powers: Both the federal and state governments have the power to tax and to establish courts. The Tenth Amendment reserves to the states powers not delegated to the federal government, traditionally interpreted as including authority over property law, education, roads, and crime control, though each area also exhibits some degree of concurrency.
4. Powers denied to the states include the power to coin money and conduct foreign policy.
5. Powers denied to the nation and the states: The Bill of Rights, applied to the states by the Fourteenth Amendment, prevents either the national or the state governments from banning a free press, outlawing a religion, or denying other civil liberties and civil rights.
6. State role in the national government. The states each have two Senators. Congressional districts are drawn by the states. States must also ratify any constitutional amendments.
7. State Obligations to each other. States must recognize the actions and decisions taken by other states as stated in Article IV which gives "full faith and credit."
The Evolution of American Federalism
American federalism has developed over the course of the nation's history. The conflicts between the national and state governments has shaped this evolution through six major periods.
1. State-Centered Federalism, 1787-1868. Until the end of the Civil War the states were the most important level of power in the federal system.
2. Dual Federalism, 1868-1913. While the Civil War decided the supremacy of the national government, until 1913 the states and national government shared power. The national government focused upon the delegated powers of foreign affairs, national defense, tariffs, interstate commerce, coinage of money, weights and measures, post offices and admission of new states. The states dominated key domestic policies such as education, health, welfare and criminal justice.
3. Cooperative Federalism, 1913-1964. With the growing industrialized economy, the national government gradually expanded into areas traditionally dominated by states. The New Deal brought national government intervention at the local economic level and transformed national-state relations. The cooperation between the two levels created a merging of responsibilities.
4. Centralized Federalism, 1964-1980. With Lyndon Johnson's Great Society, the national government assumed control of most policy issues.
5. New Federalism, 1980-1985. With Richard Nixon, the national government sought to reverse the previous trend and return policy control to the state and local level through federal grants.
6. Representational Federalism, 1985-1995. In Garcia v. San Antonio Metropolitan Transit Authority (1985) the Supreme Court upheld Congress's right to order states to pay their employees a minimum wage. The Supreme Court held the states are protected not by reserved powers under the Tenth Amendment, but by their powers in the election of the president and representatives in Congress—hence "representational" federalism. This decision effectively removed barriers to congressional legislation on traditional state matters, on the rationale that states could defend their interests through representation in Congress.
Federalism Revived?
In U.S. v. Lopez (1995) the U.S. Supreme Court found the Gun Free School Zones Act was unconstitutional, exceeding federal powers under the Interstate Commerce Clause. This was the first major decision in six decades to affirm states' rights over federal powers. In Seminole Tribe vs. Florida (1996) the Court further held states were shielded from private lawsuits seeking to force compliance with federal laws enacted under the commerce power. And in Alden vs. Maine (1999), the Court shielded states against state court suits seeking to enforce federal mandates. The Supreme Court in these and other rulings has revived states' rights versions of federalism, but usually by narrow 5:4 majorities which bring the long-term staying power of this recent trend into question.
Money and Power Flow to Washington
Power goes with money and as more tax money has flowed to the national level so has the power. The national government is deeply involved in many areas once the exclusive purview of the state and local governments.
Grants-in-aid to the states, payment of funds by one level of government to be expended by another level for a specified purpose, provide the source of national government influence over the states and local government. Grants provide nearly one-quarter of revenue to the state and local governments and with over 500 grant programs specialists in grant writing are highly prized.
Categorical grants target a specific policy area, often with numerous federal strings attached. Block grants give states wide policy latitude in achieving objectives in a broad policy area, such as welfare, health, or crime control.
After 1995 federalism entered a new phase, devolution, where more responsibilities were passed down from the national government to the states. Welfare reform was the center of this new movement whereby:
1. block grants with lump-sum payments were given to the states to provide welfare payments
2. allows the states to determine eligibility and benefits
3. limits federally funded cash grants to two continuous years or five years in a lifetime
4. gave states the ability to deny payments for children born to women already receiving welfare and to parents under the age of eighteen who do not attend school or live with an adult.
This program ended a 60-year federal entitlement program for low-income mothers and children.
Most citizens want the national government to play a role in helping to solve key problems in their everyday lives such as domestic abuse or violence in schools. Plus, politicians do not work to reduce their own power.
Coercive Federalism: Preemptions and Mandates
Federal preemptions are situations where federal laws specifying any state laws on the subject are valid only to the extent they do not contradict federal law (for example, the Occupational Safety and Health Act of 1970).
Federal mandates are direct orders to the states and local governments to perform a particular activity or service or to comply with federal laws. For example, the Age Discrimination Act of 1986 banned mandatory retirement ages, including in state and local government jobs; the National Voter Registration Act of 1993 requires states to register voters at drivers' license, welfare, and unemployment offices; and the No Child Left Behind Act of 2004 requires states and their school districts to test public school pupils. The phrase "unfunded mandates" refers to the fact that federal mandates may impose heavy administrative costs on the states without providing corresponding funds. Homeland Security is first dealt with at the state and local level by the first-responders, however, local officials believe the national government should help fund a large part of this ever-growing expense.
Chapter Objectives
After mastering the concepts in this chapter, you will be able to
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