Federalism


 * Federalism**

Power Points:



In the previous sections we became familiar with the U.S. and Texas Constitutions. In this section we look the changing relationship between the national and state governments. The Constitution establishes certain powers for the national government, and places some limits on it as well. One of the more important limitations was the Tenth Amendment, which established the concepts of delegated and reserved powers. But the Constitution also contains some loose language which has allowed for expansions of national power. As prevailing definitions of the Constitution change (notably the meaning of the term "commerce"), the relationship between the two levels changes also. Over the course of American history the size of the national government has increased substantively. We will try to understand the factors leading to the increase and the controversies associated with it. States play a special role -- if not a primary role -- in the American system. So do local government. It important to distinguish these two levels of government and the unique role each has played over American history. Disputes regarding the relative powers of the national and state governments are ongoing. Think of the recent stimulus package, and questions about border security. An understanding of the background issues associated with these disputes should help make sense of these conflicts.


 * Study Guide Questions**.

- What is the definition of federalism? How is distinct from unitary and confederated systems? - According to Madison in Federalist #45, what are the differences between national and state powers? - What types of powers are delegated to the national government in Section 8 of Article 1 in the the U.S. Constitution? - Which clauses are called "elastic clauses?" Why? - What specific limitations are placed on the national and state governments in the Constitution? - What are the reserved powers? What are police powers? - What impact has the 14th amendment had on the expansion of national power? - What are the three stages of federalism? - What impact did NLRB v Jones have on the relationship between national and state powers? - What court cases have led to a retraction of the power of the national government? - What is state sovereign immunity?


 * Useful Blog Tags**:

- [|Federalism]. - [|State Sovereign Immunity].


 * What is Federalism?**

The United States and Texas, as well as municipal governments, coexist in a federal system. At its simplest, the term [|federalism] refers to the relationship between the national government and the fifty state governments. The national government is delegated certain powers within the Constitution, most everything else is reserved to the states. Things get more complicated when you add the thousands of local governments, counties, special districts and councils of government across the country. States have the authority to establish these levels of government and delegate certain functions to them.

To keep things simple then, there are three levels of government (national, state and local), each with a jurisdiction defined (somewhat) by the Constitution. The relative authority of each is based on the idea that each is best able to do certain things better than the other. The national government generally focuses on big picture issues such as national security, providing a solid currency and financial system, and creating the infrastructure the allows goods and services to go from producers to consumers. Police powers are reserved to the states, meaning they have the ability to regulate the health, safety, morals and welfare of their citizens, or to delegate these powers to municipal governments or counties. Local governments tend to focus principally on "housekeeping" issues such as sewage, roads, utilities, flood control, permitting, etc. But there are areas where the jurisdiction of each intersects. In a highly connected world where borders are increasingly meaningless, conflicts over which level of government ought to do what are more and more common.

- [|Federalism in the United States]. - [|History of Federalism]. - US Constitution.net: [|Federalism].


 * Unitary, Federal and Confederal Systems.**

Federal systems fit between unitary systems and confederal systems.

Dictionary.com defines unitary government as "a system of government in which the executive, legislative, and judicial powers are vested in a central authority." [|Unitary] systems are those where governing power is concentrated in a single unit. Hamilton's Plan was in essence a unitary system, as well as the Virginia Plan. Though this can create a degree of efficiency in the governing body since there is no conflict over who is in charge, it can also create problems since different regions within a nation or state may be better able to govern within that area since they have greater expertise of and legitimacy within that area. The various regions can also more effectively collect information necessary to adequately design public policy.

Confederal systems are the exact opposite of unitary systems. Dictionary.com defines a confederacy as "an alliance between persons, parties, states, etc., for some purpose." Since this is the system designed under the Articles of Confederation, we have discussed its pros and cons already. A confederacy is highly connected to its population (at least a majority within it) but very unmanageable. An alliance does not create the authority necessary to impose collective decisions on all its members.

The federal system, ideally, is the best of both worlds. It allows for policies to be established in the several states unique to those states, but still part of a national framework that allows for cohesiveness. Once policies are established they can be imposed on the states, so there is no risk that policies will not be implemented, or implemented unevenly.

Keep in mind though that the American federal system where the general population is equally connected to both the states and national government, is a product of historical circumstance, not theory. Though both Hamilton and Madison had theoretical conceptions of what relationship between the national and state governments was ideal, the end product was the result of a compromise. One hundred and fifty years as independent, autonomous colonies created strong identity between the colonists and their respective colonies. This is a very difficult thing to eradicate.


 * The Constitutional Order**

Here are some useful terms: - Delegated Powers, also known as the [|Enumerated Powers]. - [|Implied Powers]. - [|Inherent Powers]. - [|Reserved Powers]. - [|Concurrent Powers]. - [|Police Powers]. - The Elastic Clauses: [|Commerce]. - The Elastic Clauses: [|Necessary and Proper].

Put simply, the delegated, or enumerated powers, are those that are granted to the national government in the Constitution (specifically Article One, Section Eight, plus the Preamble and some sections of Article Two), the implied powers are those that are suggested that the national government ought to have based on the elastic clauses (the commerce clause and the necessary and proper clause), while all others are reserved to the states. As a consequence, it has been held that the national government needs a justification for whatever power it exercises. In [|Federalist 45], Madison states that the

//The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.//

//The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.//

Whether delegated or implied, all powers claimed by the national government have to be based on constitutional language. As far as the Constitution is concerned, the states can do whatever they want as long as it is not forbidden to do so in Article One, Section Ten.

As we have discussed before, the push for a national government came from those interested in reestablishing the commercial and military powers lost when the nation broke with Britain. Almost all of the clearly enumerated powers listed in Article Eight deal with commerce and security to some degree. There are also two clauses in Section Eight that have allowed for the expansion of national power, the Commerce and Necessary and Proper clauses. This is where controversy begins because some argue that these clauses were meant to actively allow for adjustment of national power based on the nature of the times. For example, as technology increases and it becomes easier to cross state borders, it makes sense for the national government to begin to engage in law enforcement because the states can no longer do so. Though it could be stated that law enforcement falls within the reserved powers of the state, criminal activity also affects commerce, so the national government can intervene without violating the Constitution. The loose interpretation of commerce leads to a larger national government. There is little doubt the these two clauses have facilitated a tremendous increase in national power.

The very fact that the term elastic is used to describe these clauses suggests that there is flexibility in the actual relationship between the national and state governments. The course of American history contains ebbs and flows in the powers of each, though most of the change has been favorable to national power. The Supreme Court is central to determining the size of the national government because they are responsible for hearing cases involving the constitutionality of increases in national power. So if we want to understand changes in the relationship between the two levels of government, we have to look at it through distinct eras which involve key court cases.

- [|Article One, Sections Eight, Nine and Ten of the U.S. Constitution]. - [|The Text of Article One]. - [|The Reach of Congressional Power].


 * The Tenth Amendment**

We have yet to cover the Bill of Rights, but when we do we will note that it was the product of a deal. The Anti-Federalists agreed to ratify the Constitution if a specific list of restrictions on the national government would be agreed to. That is in essence to what the Bill of Rights is, a list of things that the national government cannot do. The Tenth Amendment establishes the concept of reserved powers:

//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.//

This is taken to reinforce the point made elsewhere in the Constitution that the national government's powers are limited to those delegated to it. Of course this means that as the Supreme Court expands or contracts it understandings of those powers, the size of the national government expands and contracts with it. Ultimately the relative powers of the national and state government comes down to how the Supreme Court interprets terms like "commerce" and "bankruptcy."

- Findlaw: [|Annotations to the Tenth Amendment]. - Wikipedia: [|The Tenth Amendment].


 * The Changing Relationship Between the National and State Governments**

Every textbook has its own approach to the evolving relationship between the national and state governments. Some are more detailed than others. The Lowi text divides the process simply into three eras. The first, Dual Federalism, lasted from the early years of the nation until 1937, the year that the Supreme Court's decision to broaden its interpretation of the commerce clause essentially accepted the expanded power of the federal government driven by the New Deal. Cooperative Federalism describes the integrated relationship that developed in the 1930s and essentially still exists to this day, despite attempts to terminate it. The national government began using various means to require and/or encourage states to comply with national goals and objectives. A backlash to this effort, New Federalism, began in the 1960s and reached its apex with Reagan's presidency. But while taxes and regulations were cut during this time, there really hasn't been a substantive erosion of national power.

The links below provide more specific information about each of these eras.

//Dual Federalism - A Strict Division Between National and State Governments (1789-1937)//

As originally conceived, the national and state levels occupied separate spheres and had little to do with one another. When there was a conflict between the two, the National Supremacy Clause was invoked to establish that national power trumped state power. Those two points are the consequence of some important early Supreme Court cases. The power of the nation government was established in [|McCullough v. Maryland] ([|click here for the decision] and [|here for a description of the case]), a case pitting the relative taxing powers of the national government against that of the states. The 1824 case, [|Gibbons v. Ogden] ([|click here for the decision], [|click here for a description of the case]), involved a dispute between the state of New York and the national government over which level had the power to regulate navigation, especially navigation between New York and New Jersey. [|Barron v. Baltimore] probably most effectively conveys the distinct nature of the two because it delineates a clear barrier between the relationship between citizens and the national government and citizens of the state government ([|click here for the decision], [|here for a description of the case]). The Bill of Rights only limits actions of the national government and does not apply to the states.

Other cases reinforce the separation between the two levels, but two separate forces were brewing which set the stage for changes that would take hold in the 1930s. One was the ratification of the 14th Amendment, the other was the growth of the Progressive Movement.

//Cooperative Federalism - A cooperative relationship between the national and state governments (1937 - ?)//

1937's decision in [|NLRB v. Jones] generally marks the transition from dual to cooperative federalism which makes the transition seem abrupt, but the increase in national power was actually gradual and can be traced to back to the [|Dred Scott decision]. The decision essentially ruled that Americans of African descent, whether free or slaves, were not citizens and had no standing before the courts and could not sue. They were not citizens because they were not members of the political community due to the nature of their forcible immigration. It also argued that the national government had [|violated constitutional limitations on its power]because it could not limit the ability of people to take property (slaves) into the territories. This is an important point because it led to (aside from the Civil War) the [|14th Amendment] which established that individuals born in the US automatically became citizens and were entitled to the privileges and immunities listed in the Constitution and established by law. These could not be infringed upon by the states. Neither could states deny equal protection of the laws to persons in its jurisdiction.

Both mandates provide opportunities for the national government to begin to assert power over the states. In the first place, the Bill of Rights could be applied to the states. Since the citizens of the nation had rights established by the national government that could not be infringed upon by the states, the national government was in a position to force the states to comply with its rules. The same logic applies to the equal protection clause. States could no longer create a privileged class. Again, enforcement would come from the national government. Both took time, and its a subject we cover in the lectures on civil liberties and civil rights, but marked a dramatic shift in the nature of the constitutional order. The U.S. Constitution now created a minimum level of rights and standards of treatment before the law that had to be recognized by the states. This was one principle factor which facilitated an increase in national power beginning in the late 19th Century, but did not come to fruition for many decades.

The second was the rise of the [|Progressive Movement] ([|click here for a description of progressivism]), which was especially active in the late 19th century until the 1920s, but their impact continued to be felt through the New Deal, the Great Society and beyond (today's discussion of universal health care takes us back to that era. The movement pushed a variety of reforms aimed at eliminating corruption, increasing the democratic responsiveness of government, and most importantly increasing the power of government to deal with the consequences of the industrial revolution. While the revolution increased the productive capability of the nation, it also increased the power of industrial corporations and created a new set of social and economic problems.

One set of reforms pushed by progressives included the power of government to break apart monopolies and regulate markets in order to protect consumers. The first of these was the [|Sherman Anti-Trust Act], which was soon followed by a variety of laws regulating other aspects of the economy. These would ultimately include the creation of entities like the [|Securities and Exchange Commission]. A second type of change had to do with the general welfare of the population, especially those that lived in the slums and tenements in the rapidly expanding cities. This concern for the general welfare also extended to various issues associated with labor, including child labor, the eight hour work day and the weekend. Perhaps most importantly it concerned the ability of workers to engage in collective bargaining.

The latter point is especially important because it helps mark the transition between the era of dual federalism and cooperative federalism. The court case National Labor Relations Board v. Jones and Laughlin Steel Corp, concerned the constitutionality of the Wagner Act, which created a process by which workers in a company could form a labor union which then had to be recognized by the company. This last point was what was challenged to the Supreme Court and the answer hinged on how the court would interpret the term commerce. Its expanded definition, which included the idea that labor was part of the commercial process, not only gave the national government the power to regulate labor, it marked the transition to cooperative federalism. This not only facilitated the furthering of the New Deal, but also the further expansions of national power that occurred during later presidential administrations, especially Lyndon Johnson's.

Related Reads:

-- [|A Brief History of Central Banking in the United States]. -- [|Manifest Destiny]. -- [|Theodore Roosevelt's Broad Powers]. -- [|The New Deal]. -- [|The Great Society]. -- Wickard v. Filburn -- [|The Progressive Movement and the Transformation of American Politics].

//New Federalism - A return to Dual Federalism?//

For various reasons, supporters of states rights began to resist encroachments of national power. There was a healthy opposition to the New Deal itself while it was being passed, but opposition heated up in the 1950s following the Supreme Court decision in Brown v Board of Education. A variety of other Supreme Court cases also raised animosity. On top of that, Johnson's support of the Civil Rights Act and the other measures which expanded national policies led to a backlash that was felt, first, in Richard Nixon's election in 1968 and reinforced in Reagan's 1980 election and the Republican Party's takeover of Congress in 1994.

A theme of the party during this era was that the national government had grown too large and that it had to be shrunk. A variety of strategies were used to attempt to make this happen. National functions were sent back down to the states, governmental functions were privatized, governmental regulations were cut in order to return to a laissez-faire capitalist system, tax rates were lowered in an effort to "starve the beast," and legal strategies were developed undermining the constitutional basis of federal power. One such strategy was the development of the doctrine of [|state sovereign immunity]. Sovereign entities cannot be sued by private individuals unless they allow themselves to be sued. This was applied to federal laws that allowed private individuals to file suit against the states in federal court.

More recently, in opposition to expansions of the national government under the Obama Administration, the Texas Legislature passed resolutions attempting to [|reinforce the Tenth Amendment].

-- [|Deregulation]. -- [|Devolution]. -- [|starve the beast]. -- [|U.S. v. Lopez]. -- Wikipedia: [|Gonzalez v. Raich]. -- Oyez Project: [|Gonzalez v. Raich]. -- [|state sovereign immunity].


 * The Role of the States in American History**

- Wikipedia: [|State Constitutions].


 * The Role of Cities in American History**

- Wikipedia: [|Local Government in the United States]. - [|Judge Dillon's Rule].


 * Jacksonian Democracy and the Settlement of Texas**

Jacksonian Democracy refers both to the argument that non-property owners have the necessary skills to participate in government as well as the period of time when that expansion in fact occurred, a period beginning in the mid 1820s which culminated in the election of Andrew Jackson. Jackson was the first person elected from a western state, and one who was not tied into the quasi-aristocratic classes that wrote the Constitution. Jackson, and the Jacksonian movement in general, can be properly considered to be descendants of the Anti-Federalists who complained about the restrictions placed on popular participation within the Constitution. Many of these individuals headed westward after lands opened up and established state governments composed of institutions that were directly elected by the general population to short terms of office. Both factors were intended to ensure that the people -- in actually the majority -- were able to control the actions of government.

Texas went through several constitutions prior to the current version, which was written primarily by farmers in 1876 while memories of reconstruction were still fresh in the framers' minds. The resulting document reflected fear of governmental authority. Each institution was designed to be weak. The legislature meets 140 days every other year and is staffed with people who are not only paid low wages but have little money for staff members. The legislature lacks the time and resources to actually legislate. The executive is plural, meaning that the heads of several departments, including the governor, is elected separately. There is no necessary reason to think that the members work in unison. Finally, members of the judiciary are elected, which means that they are not truly independent. They are accountable to the general public, which may be democratic, but not necessarily lead to just decisions. That said, this arrangement seems to work just fine for many in the state who seek to restrain the activities of government.


 * Texas' Resistance to Expansive Federal Power**.

As with many states, especially those in the South, Texas has balked at efforts to expand national power. Not all such expansions have met with resistance. Federal military projects, for example, have been supported, as have other items which have helped enhance business opportunity in the state. Other efforts, dating back to the New Deal, have not.

- Wikipedia: [|The Annexation of Texas]. - [|Anglo American Colonization in Texas]. - Wikipedia: [|Jacksonian Democracy]. - Text: [|The Texas Constitution]. - Wikipedia: [|The Texas Constitution]. - Wikipedia: [|Politics of Texas]. - Secession and Texas v. White


 * Assignments**
 * For Spring 2009**

Internet Students: Answer the following three questions in at least 150 words each.

1. Describe the manner in which power is divided into the national, state and local levels. What specific functions are argued to properly belong to each? 2. Read up on the New Deal and the Great Society. How did each transform the role of the national government? Critically evaluate whether this process was appropriate or not. 3. The current financial crisis seem to be also leading to an increase in national power. Analyze the recent legislation focused on the financial crisis and describe how this transformation is happening.


 * Quiz Questions for Online Students**
 * Summer 2009**

1. Look through current news sources and find an example of stories involving conflicts over (1) a delegated power, (2) an implied power, (3) a reserved power, and (4) a concurrent power. 2. In [|Texas v. White], the Supreme Court ruled in 1869 that Texas had not in fact seceded from the Union. In doing so, the decision makes some interesting points about what a state is, and what relationship it has with the national government. Read the decision and summarize the argument, also summarize the dissent. 3. The expansion of national power began in the Progressive Era, and hit its stride in the New Deal. Detail what factors drove this expansion and what factors later attempted to roll back this expansion. 4. What is Jacksonian Democracy and how might the structure of the Texas Constitution be a reflection of it?

150 words each, at least. Email your answers to me by midnight July 12.


 * Quiz Questions for Online Students**
 * Fall 2009**

Answer each of these in at least 150 words.

1. Define "federalism" and explain how it varies (and whether it is better or worse that) unitary or confederal systems. Review the sites I link you to below which outline the history of federalism and review the major shifts between national and state relationships that have occurred in American history. 2. Define the terms enumerated, implied, and reserved powers. Using current news sources provide examples of each of these, and describe whatever controversies might exist regarding them. Does each level of government perform the same duties as they were originally intended? 3. Below you will see links to information about Gonzalez v. Raich, one of the more interesting recent cases regarding the conflict between national and state power. Outline the case and the court decision. Speculate on what the decision says about the current state of the relationship between the national and state governments. 4. Recent actions by both the Bush and Obama Administrations have fueled the states rights movement. In the former, it was the investigative actions (wiretapping etc...) following 9/11, and in the latter it was the bailouts of business corporations and proposed expansions of health care. Using your web searching skills, identify the arguments made against both and who is making them. Outline the arguments for and against the expansion of federal power in the military and the economy.


 * Quiz Questions for Online Students**
 * Spring 2010**

Answer each of these in at least 150 words.

1. Define the terms enumerated, implied, and reserved powers (look below for links with this information). Using current news sources provide examples of each of these, and describe whatever controversies might exist regarding them. Does each level of government perform the same duties as they were originally intended? 2. I want you to understand the manner in which national power increased in the late 19th and early to mid 20th centuries. Explain what factors drove the Progressive Movement, and how the New Deal and Great Society implemented the Progressive Agenda. What constitutional issues were raised by this expansion? How are these disputes still debated today? Be sure to become familiar with controversies over the commerce clause and state sovereign immunity. 3. Below you will see links to information about Gonzalez v. Raich, one of the more interesting recent cases regarding the conflict between national and state power. Outline the case and the court decision. Speculate on what the decision says about the current state of the relationship between the national and state governments. 4. Is there in fact a right to secede? Opposition to reform proposals at the national level have led some to call for secession, but questions exist about its constitutionality. Read up on the subject -- [|these posts should help out] -- and address this topic.

Look at the syllabus for the due date.