3Federalism and the

Separation of Powers

What is Federalism

• To understand federalism, we must first understand how a unitary system works.– UK– France

• Unitary systems differ in many ways from federal systems and amongst themsevles.

Unitary systems

• Elections– vote for parties not candidates.– Party that wins the majority of seats in the

legislature forms the government.– The leader of this party is the Prime Minister.– Single party government is the norm with single

member districts.

Unitary systems (cont)

• Proportional representation (PR) systems:– Parties get number of seats in legislature

proportional to vote totals.• There are usually minimum requirements (thresholds)

• Often result in coalition governments as no single party wins a majority of the seats.– Italy, Germany.– Sometimes even minority governments form.

Unitary systems (cont)

• How does this effect policy formation?– Answer largely depends on electoral system.

• Single-party government:– A sort of benevolent dictatorship.– Very few veto players—effective governance.

• Multi-party government:– More voices/more interests/tougher CA problem.– Better quality outcomes/more representative.

Unitary systems (cont)

• How do governments fail?– They lose elections.

• Elections can be called at the leisure of the gov’t, but must be called every few years.

– The lose the support of parliament• Called a vote of no confidence.• Not common under single-party govt.

Federalism

• Federalism: – The division of powers and functions between

different levels of government.– In the U.S.—the state and federal levels.– Works to limit the power of both by granting sovereignty to each level.

• Under the Articles, the states had total sovereignty.• Led many to resist ceding power to national gov’t.

Who decides what?

• Expressed Powers:– Powers specifically granted to the federal

government in the Constitution.

• Implied Powers: – Derived from necessary and proper clause.

• Reserved Powers:– Derived from 10th amendment.– Powers not granted to the federal are reserved to

the states.

What are states’ powers

• Police power:– The power reserved to the state govt to regulate

the health, safety, and morals of its citizens.• Gun laws.• Abortion laws.• Drinking laws.

• Concurrent power:– Powers possessed by both state and national

• Levy taxes

Promoting Unity between states

• Full faith and credit clause:– Requires each state to honor the public acts and

judicial decisions of other states.– Some legal battles in the near future…

• Privileges and Immunities– States can’t discriminate against other states’

residents.– Extradition issues.

Two types of federalism:

• Dual Federalism– The pre-1930s U.S. system.

– Two-layered (national and state).

– States and local did most of the governing.

– Federal gov’t exercised limited power.

THE FEDERAL SYSTEM: SPECIALIZATION OF

GOVERNMENTAL FUNCTIONS IN THE

TRADITIONAL SYSTEM, 1789–1937

Two distinct levels, but…

• Article 1, section 8:– “Necessary and proper”

• Also called the Elastic Clause

– Commerce Clause• Congress can “regulate commerce with foreign nations,

and among the Several States, and with the Indian Tribes”

• Has been used to defend National superiority/encroachment on States

McCulloch v Maryland (1819)

• Can Congress charter a bank?

• It does and it’s unpopular

• Maryland levies a 2% tax.

• James McCulloch (bank agent) refuses to pay.

McCulloch v Maryland

• It goes to Supreme Court.

• Two main questions:

– Can Congress charter a bank.

– Can a State tax Federal entity?

Answers…

• (1) Yes. Under the necessary and proper clause, this is a Constitutional exercise of federal power.

• (2) No. The 10th Amendment reserves to the states only powers not delegated to the federal government the power to tax. Also, the Supremacy clause kicks in here.

Gibbons v Ogden

• NY state legislature gives Ogden steamboat monopoly.

• NJ steamboat operator, Gibbons, tries to steal some of the business.

• Ogden is upset—pressures NY to act.

• Gibbons hires Webster and goes to SC.

Gibbons v Ogden (1824)

• The 2 big questions:• Does the Constitution

permit the federal govt to regulate navigation?

• Is the NY monopoly Constitutional under the 10th amendment or does this violate the Commerce Clause?

Gibbons v Ogden-the answers

• Yes. Commerce is more than just buying and selling while the power to regulate commerce within a state belongs to the state, commerce among not stop at the border.

• No. The NY monopoly is unconstitutional because the Supremacy Clause gives the federal govt’s laws precedent here despite the 10th Amendment. (but only because the fed gov’t chose to regulate).

Nationalization

• Bottom line: Power is shifting from the states to the federal gov’t.

• The 10th Amendment usually loses at the Supreme Court level.

• It’s kind of like the Ohio State of Amendments.

FDR and the New Deal• In the 1930’s President

Roosevelt expanded the power and scope of the federal gov’t to unprecedented levels.

• Gave rise to fierce battles in the court.– At first, FDR lost.– By the late 1930s, the

court had changed its tune and began to support expansion of the federal gov’t.

New Deal

• Roosevelt’s New Deal was a comprehensive set of economic regulations and relief programs (massive in size and scope) intended to fight the Great Depression.

• To justify its unprecedented intervention in the economy, FDR invoked the commerce clause.

LBJ and the Great Society• Elected in 1964, Lyndon Johnson

and his Democratic Congress launched a War on Poverty – part of a Great Society agenda.

• Passed more than 100 new categorical grant programs. Spent over $5 billion 1964-65.

• Grants supplemented state programs/national goals.

• Traditional state and local responsibilities became federal ones.

The other type of federalism

• Cooperative Federalism:– Post New-Deal system in which grants-in-aid have

been used strategically to ‘encourage’ states and localities (without commanding them) to pursue nationally defined goals. Also known as intergovernmental cooperation.

– Also known as…

Also known as…

Bribery

Cooperative Federalism

• Grants-in-aid– Carrots, or ‘bribes’ whereby Congress gives money

to states with conditions that the money be spent for a specific purpose.

• No Child Left Behind

• Have become much more common over time.

THE HISTORICAL TREND OF FEDERAL GRANTS-IN-AID

From Cooperative to Regulated

• Federal gov’t has expanded from economic to social policies.– Intervention on behalf of individual rights and

liberties.

• Federal gov’t provides grants-in-aid but set conditions.– Setting national standards.

• American with Disabilities Act

From carrots to sticks

• Unfunded mandates– National standards imposed on state/local

governments by the federal gov’t without funding.• National elections.• Indigent legal representation.• Lots of programs/standards.

– Unfunded Mandates Reform Act (1995)• Requires fed to pay for programs over $50 million.

New Federalism

• Battles continue between states and federal gov’t.

– Nixon and Reagan pushed to give more power back to the states.

– Rallying cry for many Republicans starting in the 1980s and continuing today.

New Federalism: Block Grants

• Another alternative to categorical grants: block grants.

• Like categorical grants, funds are appropriated to achieve a particular policy goal with specific administrative procedures.

• Policy targets are only generally stated.

• Fewer strings are attached.

American Government, 12th EditionCopyright © 2012 W.W. Norton & Company

FOUR VIEWS OF FEDERALISM

Separation of Powers

• “There can be no liberty where the legislative and executive powers are united in the same person…”

• Checks and Balances– Mechanisms through which each branch of gov’t

is able to participate in and influence the activities of the other branches.

CHECKS AND BALANCES

Legislative Supremecy

• Congress is the most important branch.• Given that Congress would likely dominate

other branches– Madison recognized concerns in Federalist 51– Congress split into two houses.

• Further separation of powers limits ability of Congress to dominate.

• Divided gov’t further constrains power.

Executive-Legislative relations

• Post-Watergate– Congress put lots of limits on the President.

• Reagan era– Reagan played nice with Congress and won back some

powers• But a spot of bother over illegally funding an illegal war.

• Clinton got impeached.• W “the Decider” fought over exec privilege.

– Confidential communications not to be shared with Congress• Obama and the current Congress—at each other’s throats.

Supreme Court and SOP

• Judicial Review– Idea that the courts can decide on the

Constitutionality of acts of other branches.– Periods where the court has been more/less

active, but judicial review is relatively uncommon.

• Generally more pro-President.– Some exceptions (Nixon and Clinton, for example)

A NEW FEDERAL SYSTEM? THE

CASE RECORD, 1995–2006

• More judicial activism lately.

• Less deference to Congress.

• A push back to states’ rights.