Federalism

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Federalism
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What is federalism?
a system of government "in which sovereignty is
shared between two or more levels of government
so that on some matters the national government
is supreme and on others the states, regions, or
provincial governments are supreme
It is an issue of sovereignty (independent legal
authority) which must CONSTITUTIONALLY be divided
between a central governing authority and
constituent political units (subnational units
like states or provinces)
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The Geographic Division of Government Authority
sovereignty is wholly in hands of national gov't
and local govs are at its will subnationals are
not powerless, and certainly exist but dont have
ULTIMATE sov

• states are sovereign and national is allowed to
  do only what states permit

sov shared in some matters national govt is
supreme and in some states are here states are
supposed supreme in social, moral and family
issues, including criminal laws
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• Most federal states also have unitary lower
  levels of government. Thus while the United
  States itself is federal, most (if not all) U.S.
  states are themselves unitary, with counties and
  other municipalities having only the authority
  given (devolved) to them by the state
  constitution or legislature.

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FEDERALISM IS NOT SEPERATION OF POWERS
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There are three essential features that
characterize a federal system of governance
First, there must be a provision for more than
one level of government to act simultaneously on
the same territory and on the same citizens
The American federal system is composed of a
national government and the 50 states, both
recognized by the Constitution
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• Second, each government must have its own
  authority and sphere of power, though they may
  overlap.

informal term to describe a power sharing
arrangement between national and subnational
governments whereby the two levels of government
share powers
informal term to describe a power sharing
arrangement between national and subnational
governments where the powers of the two are
clearly delineated and do not overlap
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• Third, neither level of government (federal or
  state governments) can abolish the other

The Civil War was fought not only on the question
of slavery but also central to the conflict were
questions of states' sovereignty including the
power to nullify federal laws or dissolve the
Union
Article 4, Section three New States may be
admitted by the Congress into this Union but no
new State shall be formed or erected within the
Jurisdiction of any other State nor any State be
formed by the Junction of two or more States, or
Parts of States, without the Consent of the
Legislatures of the States concerned as well as
of the Congress.
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• Lets look at this sphere idea in more detail
  each government must have its own authority and
  sphere of power, though they may overlap.

When state and federal authority conflict,
federal law is supreme according to the
Constitution.
BUT if Congress is going to call trump it MUST
be exercising authority granted to it by the
Constitution
Article I, Sec. 8 of the Constitution delegates
certain enumerated powers to the national
government that includes the exclusive power to
mint currency, establish and maintain an army and
navy, declare war, regulate interstate commerce,
establish post offices, establish the seat of
national government, and enter into treaties.
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And it is true, the Necessary and Proper clause
has expanded those enumerated powers to include
implied powers as well aka which case class?
McCullough vs Maryland
Congress shall have the power . . . To make all
Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in
the Government of the United States, or in any
Department or Officer thereof
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But if Congress is not in its sphere then the
States trump because The Constitution reserves
powers not granted to the national government to
states, or the people
The 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 In
the US states are supposedly supreme
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in social, moral and family issues--including
criminal laws
Wash. to Set Medical Marijuana Limits By CURT
WOODWARD The Associated PressThursday, July 5,
2007 1229 PM SEATTLE -- This fall, sober
public servants will convene meetings across
Washington state to answer a pressing question
How much marijuana constitutes a two-month
supply. . . . Washington's medical marijuana law
was approved by nearly 60 percent of voters in
1998, following closely behind California in the
first wave of such measures nationwide
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Advantages to Federalism
Check on tyranny . . . How?

• because if it occurred in a few states, the fed.
  Gov could prevent its spread--furthers pluralism
• Limits gov't. National gov't only has those
  powers granted to it--all others belong to state
  thru 10th amendment

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Keeps Govt closer to the people More access
points part of pluralism more ways to
participate Accommodates diversity More
suitable for heterogeneous peoples
Twelve northern Nigerian states have introduced
Sharia since the year 2000
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More advantages allows states to act as
laboratories
Plus . . . It was Necessary for ratification of
the constitution
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Bush Splits With Congress and States on Emissions

April 4, 2007
A day after the Supreme Court ruled that the
federal government had the authority to regulate
heat-trapping gases, President Bush said he
thought that the measures he had taken so far
were sufficient. But the courts ruling was
being welcomed by Congress and the states, which
are already using the decision to speed their own
efforts to regulate the gases that contribute to
global climate change. As a result, Congress and
state legislatures are almost certain to be the
arenas for far-reaching and bruising lobbying
battles
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Disadvantages

• It is inefficient
• Incoherent
• More expensive
• Lowers voter turnout
• Special interests can thwart

Map showing 35 states ratifying E.R.A. (in blue).

19
. . .
Who gets what depends on where--e.g. of Ronald
Harmelin who learned about fed. the hard way--on
June 27, 1991 SU Ct upheld his life without
parole sentence imposed on him for possessing 650
grams (about 1 and 1/2 pounds) of cocaine.
Michigan was the only state at that time to
impose a mandatory life sentence for this amount
of cocaine--in Alabama for example would have
received 5 years--under federal sentencing
guidelines--10 years--sup court said too bad
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There is a race to the bottom
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More disadvantages

• Its confusing . . . Whos sphere is it
• As a result, more power goes to the courts cuz
  they are umpires

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Lets review
Bowers v Hardwick as an example--Georgia police
found a man in bed with another and he was
prosecuted under Georgia's anti-sodomy law. Sup
Court upheld his conviction saying that the
states could pass a law outlawing sodomy.
Headlines blare Supreme court ruled
homosexuality is illegal. WRONG--why?
Does this show federal or unitary systems?
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Evidence or Unitary or Federal?
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Evidence of Unitary or Federal?
Mixed response to toddler plans
Toddlers are encouraged to be healthy, competent
learners
A proposed "national curriculum" for babies and
toddlers in England has received a mixed
response. Under the Childcare Bill, childminders
would teach the curriculum to children "from
birth" - with some worrying that it might be too
prescriptive.
http//news.bbc.co.uk/2/hi/uk_news/education/44201
38.stm
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Lets look at the struggle b/w states and the
fedsstarting with the fedsit can be the boss by
using sticks or carrots
Mandates or "sticks" The supremacy clause means
they trumpso they can tell the states what to
do--
Of course it must be acting in its sphere of
enumerated powers found where? And even more
expansively, within its implied powers made
possible the what clause?
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EXAMPLE Most environmental legislation (States
are told Clean up the air . . period).
Clean Air Act
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Example Civil Rights Legislation
Remember if the feds are mandating something,
they must be acting within their sphere
Separate but equal drinking fountains are bad . .
. But that is not the question herethe question
is can Congress do anything about it?
Is it within their enumerated powers sphere?
They say yes it is within our authority to
regulate _________and pass the Civil rights act
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And the umpire upholds it
In Heart of Atlanta Motel v. United States
(1964), the Court ruled that Congress could
regulate a business that served mostly interstate
travelers in Katzenbach v. McClung (1964) the
Court ruled that the government could regulate
Ollie's Barbecue, which served mostly local
clientele but sold food that had previously moved
across state lines and in Daniel v. Paul
(1969), the Court ruled that the government could
regulate a recreational facility because three
out of the four items sold at its snack bar were
purchased from outside the state.
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Another Example Americans with Disabilities Act
Americans with Disabilities ActStates (and
businesses) may not discriminate in employment
and state and local governments must provide
equal access to service, employment , buildings
and transportation
Important note Mandates can be funded . . . Or
they can be partially funded . . . Or they can be
unfunded . . . But they are a stickthe states
must do it. The ADA was unfunded.
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No Child Left Behind was partially funded
Its a mandate
And Utah refuses to comply with any parts that
are unfunded
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Then there is the carrot approach . . .
Carrots or strings attached to grants as
"condition of aid" These proliferated in
1970's tells state govs. what they must do if
they want money can apply just to a
program---like if want highway money it must have
a highway beautification plan, or what that has
to do with drinking? or can cover all grants--if
state builds anything with federal money, it must
conduct an EIS. ("crosscutting)
CNN July, 1996 Louisiana's legislature was the
last to raise the minimum drinking age to 21 in
order to save 14 million to 18 million per year
in federal highway funds. In March, the state's
highest court ruled that the minimum age hike was
unconstitutional.
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This gets harder to do in eras of big deficits.
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Another way Congress can tell the states what to
do 14th Amendment, Section 5 14th
amendment section 1 says No State shall deprive
any person of life, liberty, or property, without
due process of law nor deny to any person within
its jurisdiction the equal protection of the
laws Section 5 goes on to state The Congress
shall have power to enforce, by appropriate
legislation, the provisions of this article On
that basis, the Court upheld a provision of the
Voting Rights Act that prevented states from
using English language literacy tests as
qualifications for voting. The Court decided that
the law was a valid exercise of Congress's
enforcement power under the Fourteenth Amendment,
because it was aimed at remedying state-sponsored
discrimination
After Patricia Garrett, Director of Nursing for
the University of Alabama, was diagnosed with
breast cancer, her treatment forced her to take a
substantial leave from work. Upon her return, her
supervisor informed her she would have to give up
her position. She claimed the ADA protected her,
and sued the state. In Univ. of Alabama v.
Garrett (2001) 5 to 4 decision Ct. held that
Congress did not have the constitutional
authority to open state government to lawsuits by
their employees for violation of the Americans
with Disabilities Act (protected by the 11th
amendment)
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But the discrimination by the states must be well
documented. . .
Facts of the Case In 1994, while enrolled at
Virginia Polytechnic Institute (Virginia Tech),
Christy Brzonkala alleged that Antonio Morrison
and James Crawford, both students and varsity
football players at Virginia Tech, raped her. In
1995, Brzonkala filed a complaint against
Morrison and Crawford under Virginia Tech's
Sexual Assault Policy. After a hearing, Morrison
was found guilty of sexual assault and sentenced
to immediate suspension for two semesters.
Crawford was not punished. .. . Ultimately,
Brzonkala dropped out of the university.
Brzonkala then sued Morrison, Crawford, and
Virginia Tech in Federal District Court, alleging
that Morrison's and Crawford's attack violated 42
USC section 13981, part of the Violence Against
Women Act of 1994 (VAWA), which provides a
federal civil remedy for the victims of
gender-motivated violence. Morrison and Crawford
moved to dismiss Brzonkala's suit on the ground
that section 13981's civil remedy was
unconstitutional. In dismissing the complaint,
the District Court found that that Congress
lacked authority to enact section 13981 under
either the Commerce Clause or the Fourteenth
Amendment, which Congress had explicitly
identified as the sources of federal authority
for it. Ultimately, the Court of Appeals affirmed.
36

• Question
• Does Congress have the authority to enact the
  Violence Against Women Act of 1994 under either
  the Commerce Clause or Fourteenth Amendment?

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• Conclusion
• No. In a 5-4 opinion delivered by Chief Justice
  William H. Rehnquist, the Court held that
  Congress lacked the authority to enact a statute
  under the Commerce Clause or the Fourteenth
  Amendment since the statute did not regulate an
  activity that substantially affected interstate
  commerce nor did it redress harm caused by the
  state. Chief Justice Rehnquist wrote for the
  Court that if the allegations here are true, no
  civilized system of justice could fail to provide
  Brzonkala a remedy for the conduct
  of...Morrison. But under our federal system that
  remedy must be provided by the Commonwealth of
  Virginia, and not by the United States."
  Dissenting, Justice Stephen G. Breyer argued that
  the majority opinion "illustrates the difficulty
  of finding a workable judicial Commerce Clause
  touchstone." Additionally, Justice David H.
  Souter, dissenting, noted that VAWA contained a
  "mountain of data assembled by Congress...showing
  the effects of violence against women on
  interstate commerce."

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Chair of the SJC, Arlen Specter was furious In a
Meet the Press interview about the Roberts
hearing he fumed Now, on to your central point.
The Supreme Court of the United States declared
part of the legislation unconstitutional to
protect women against violence because they said,
"they disagreed with Congress' method of
reasoning." Well, I've been in the Senate for 25
years. I was a DA before that. We have a lot of
very detailed factual hearings, and there's a
real point of concern on my part when they say
their method of reasoning is superior to ours.
And Arlen Specter is not the only guy to take
them on. Justice Scalia did in dissent. He said
that the Supreme Court has put in a "flabby
test," and is acting as the taskmaster of
Congress to see if Congress has done its
homework. And Justice Scalia says it's
ill-advised. And we have a very careful
separation of power, and I'm fully behind a court
having the last word. But I think that we've gone
outside of the balance of power when they take a
very extensive record, which we have created, and
say it's insufficient because of our method of
reasoning. And I intend to ask Judge Roberts what
he thinks about all that.
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How about this case?
Facts of the Case George Lane and Beverly Jones
were disabled and could not access upper floors
in Tennessee state courthouses. Lane, Jones, and
several others sued Tennessee in federal district
court, alleging that by denying them public
services based on their disabilities, Tennessee
was in violation of Title II of the Americans
with Disabilities Act (1990). According to Title
II, no person may be denied access to "services,
programs, or activities" on the basis of his
disability. The act allows alleged victims of
discrimination to sue states for
damages.Tennessee asked that the case be
dismissed, claiming that it was barred by the
11th Amendment's prohibition of suits against
states in federal courts (the sovereign immunity
doctrine). The state cited Alabama v. Garrett
(2001), in which the U.S. Supreme Court ruled
that Congress had acted unconstitutionally in
granting citizens the right to sue states for
disability discrimination (such as the denial of
employment) under the 14th Amendment's equal
protection clause. In that case the Supreme Court
reasoned that Congress did not have enough
evidence of disability discrimination by states
to justify the waiver of sovereign immunity.
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Question Did the Americans with Disabilities Act
violate the sovereign immunity doctrine of the
11th Amendment when, based on Congress's 14th
Amendment enforcement powers of the Due Process
clause, it allowed individuals to sue states for
denying them services based on their
disabilities?
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1 HOLDING Ruling narrowly, the court held that
states could be sued under the Americans With
Disabilities Act for failing to make their
courthouses accessible. The law requires
accessibility for a broad array of public
services and programs, but Justice Stevens's
opinion for a 5-to-4 majority confined itself to
the plight of wheelchair users in Tennessee who
were barred by architectural barriers from
entering county courthouses. Whether states can
claim immunity from suit in other applications of
the disability law remains to be seen in future
cases Limited as it was, this decision was
significant as a break from past decisions
rejecting Congressional efforts to overcome the
states' constitutional immunity from suit. The
majority said Congress was justified in this
context by a well-documented history of the
exclusion from state judicial proceedings of
people with disabilities. Chief Justice Rehnquist
dissented, along with Justices Scalia, Thomas and
Kennedy.
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If the states are winning, they rely upon
The _______ amendment aka the Sleeping Giant
Or the ______ amendment which has been
interpreted as saying that Congress can not
abrogate the states sovereign immunity
(doctrine that the sovereign or government cannot
commit a legal wrong and is immune from civil
suit or criminal prosecution)so Congress cant
create laws that allow citizens to sue the state

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So lets apply this to real federalism cases
Remember the Commerce clauseIs the activity
that is the subject of the law in anyway
connected to commerce? 10th amendmentIs
Congress exercising a power delegated to itif
notstates have reserved that power 11th
amendment(Has been interpreted to bar suits
brought in federal court brought against a state
by citizens of that state (ie the 11th
amendment provides the state with sovereign
immunity). 14th amendment section 5 gives
Congress the power to enact legislation to
enforce the 14th Amendments equal protection/due
process guarantees
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Oregon v. Mitchell (1970) Does Congress have the
Constituonal authority to reduce the voting age
to 18
Nevada v Hibbs Facts of the Case William Hibbs,
an employee of the Nevada Department of Human
Resources, sought leave to care for his wife (who
had beenin a serious car accident) under the
Family and Medical Leave Act of 1993 (FMLA). The
FMLA entitles an eligible employee to take up to
12 workweeks of unpaid leave annually for the
onset of a "serious health condition" in the
employee's spouse. The Department granted Hibbs's
request for the full 12 weeks of FMLA leave and,
after he had exhausted that leave, informed him
that he must report to work by a certain date.
When Hibbs failed to do so, he was fired.
Pursuant to FMLA provisions creating a private
right of action "against any employer" that
"interfered with, restrained, or denied the
exercise of" FMLA rights, Hibbs sued in Federal
District Court, seeking money damages for FMLA
violations. The District Court concluded that the
Eleventh Amendment barred the FMLA claim. The
Court of Appeals reversed. Question May an
individual sue a State for money damages in
federal court for violation of the Family and
Medical Leave Act of 1993?
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• Yes. In a 6-3 opinion delivered by Chief Justice
  William H. Rehnquist, the Court held that State
  employees may recover money damages in federal
  court in the event of the State's failure to
  comply with the FMLA's family-care provision. The
  Court reasoned that Congress both clearly stated
  its intention to abrogate the States' Eleventh
  Amendment immunity from suit in federal court
  under the FMLA and acted within its authority
  under section 5 of the Fourteenth Amendment by
  enacting prophylactic, rather than substantively
  redefining, legislation. "In sum, the States'
  record of unconstitutional participation in, and
  fostering of, gender-based discrimination in the
  administration of leave benefits is weighty
  enough to justify the enactment of prophylactic
  section 5 legislation," wrote Chief Justice
  Rehnquist. Justices Antonin Scalia and Anthony M.
  Kennedy, who was joined by Justices Clarence
  Thomas and Scalia, filed dissents.

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Goodman vs Georgia 2006 (first Roberts Court case
on Federalism) Mr. Goodman asserts that his
cell, where he is confined 23 or 24 hours a day,
is too small at 12 feet by 3 feet to allow him to
maneuver his wheelchair, that he lacks an
accessible toilet and shower and that guards
leave him sitting in his own waste rather than
assist him. Further, he says he lacks access to
recreational facilities and to the prison law
library. He claims that this violates the 8th
amendment and that the Americans with
Disabilities Act of 1990 abrogate state sovereign
immunity for suits by prisoners with disabilities
challenging discrimination by state prisons?
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Question Did Title II of the Americans with
Disabilities Act of 1990 validly abrogate state
sovereign immunity for suits by prisoners with
disabilities challenging discrimination by state
prisons? Was Title II a proper exercise of
Congress's power under Section 5 of the
Fourteenth Amendment, as applied to the
administration of prison systems? Conclusion Yes
and yes. In a unanimous decision authored by
Justice Antonin Scalia, the Court ruled that
Title II abrogates sovereign immunity in cases
where violations of the 8th Amendment are
alleged. The 14th Amendment incorporates the 8th
Amendment (that is, applies it to the states).
Congress can enforce the 14th Amendment against
the states "by creating private remedies against
the States for actual violations" of its
provisions, which can involve abrogating state
sovereign immunity. However, the Court did not
address the question of whether Title II validly
abrogates sovereign immunity when the 8th
Amendment is not involved.
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Solid Waste Agency of Northern Cook County v. US
Army Corps of Engineers does the federal
government have power to block construction of a
garbage dump because the planned site provides
important habitation of migratory birds
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Briefly . . . Federalism in the US the ebb and
flow
Early sources of Federal Power McCulloch
Supremacy clause and N P clause allow Congress
to establish a national bank, even if bank is
not enumerated, the power is implied Gibbons Vs
Ogden (1824) the court ruled for the first time
that the power to regulate commerce was more than
just the traffic of commerce, it included
navigation on rivers even when it means
regulating inside a state
until the late 30s' a steady growth of the
National Gov through Civil War (nullification is
dead) , reconstruction and Progressive era BUT in
the form of dual Federalism (ie in distinct
spheres of authority)
by late 40's National government trumped--marble
cake (shared spheres of authority) with National
gov holding most of power and then until the 70's
national government grows Why? Depression leads
to FDR and new deal and the switch in time that
saves 9 War (WWII and Cold War), Civil Rights,
environmental movement etc. all look to fed. gov
to solve problems and find it more sympathetic
than states
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In the 1980s and 1990s power starts to return
to the states The devolution Revolution Why?
Leadership Who was our president then
class? Govt IS the problem
Followed by whom? And he carries a copy of the
10th amendment in his pocket
1994 We get the Republican Revolution the first
time Republicans control both Houses since
1954and they pass the Contract with America
which promises to return power to the states
(more block grants, unfunded mandates limited
etcsee your book)
Deficit
End of Cold War public confidence in feds goes
down with scandals like Watergate, Savings and
Loans, budget procurement scandals (200 toilet
seats for the pentagon etc)
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Welfare Reform in the 1990s gives power to the
states in the from of block grants
53

And the Rehnquist Court
In 1995 for the first time since New Deal the
Court invalidated an exercise of Congress's
asserted authority to regulate interstate
commerce when it invalidated the 1990 Gun-Free
School Zones Act--- and in many terms since
the mid-1990s the Supreme Court struck down some
federal laws as exceeding its authority to tell
the states what to do
54
And in the "Noughties" . . . The struggle
between the two goes on
War on Terrorism . . . Gives power to which level
of government? Real ID law 2005 requires
states to use sources like birth certificates and
national immigration databases to verify that
people applying for or renewing driver's licenses
are American citizens or legal residents
55
Supreme court goes both ways
Printz
Vs
Raich
Morrison
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• Article I, Section 8 Powers of Congress
• The Congress shall have Power
• To lay and collect Taxes, Duties, Imposts and
  Excises,
• to pay the Debts and provide for the common
  Defence and general Welfare of the United States
  but all Duties, Imposts and Excises shall be
  uniform throughout the United States
• To borrow money on the credit of the United
  States
• To regulate Commerce with foreign Nations, and
  among the several States, and with the Indian
  Tribes
• To establish an uniform Rule of Naturalization,
  and uniform Laws on the subject of Bankruptcies
  throughout the United States
• To coin Money, regulate the Value thereof, and of
  foreign Coin, and fix the Standard of Weights and
  Measures
• To provide for the Punishment of counterfeiting
  the Securities and current Coin of the United
  States

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• To establish Post Offices and Post Roads
• To promote the Progress of Science and useful
  Arts, by securing for limited Times to Authors
  and Inventors the exclusive Right to their
  respective Writings and Discoveries
• To constitute Tribunals inferior to the supreme
  Court
• To define and punish Piracies and Felonies
  committed on the high Seas, and Offenses against
  the Law of Nations
• To declare War, grant Letters of Marque and
  Reprisal, and make Rules concerning Captures on
  Land and Water
• To raise and support Armies, but no Appropriation
  of Money to that Use shall be for a longer Term
  than two Years
• To provide and maintain a Navy
• To make Rules for the Government and Regulation
  of the land and naval Forces
• To provide for calling forth the Militia to
  execute the Laws of the Union, suppress
  Insurrections and repel Invasions

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• To provide for organizing, arming, and
  disciplining the Militia, and for governing such
  Part of them as may be employed in the Service of
  the United States, reserving to the States
  respectively, the Appointment of the Officers,
  and the Authority of training the Militia
  according to the discipline prescribed by
  Congress
• To exercise exclusive Legislation in all Cases
  whatsoever, over such District (not exceeding ten
  Miles square) as may, by Cession of particular
  States, and the acceptance of Congress, become
  the Seat of the Government of the United States,
  and to exercise like Authority over all Places
  purchased by the Consent of the Legislature of
  the State in which the Same shall be, for the
  Erection of Forts, Magazines, Arsenals,
  dock-Yards, and other needful Buildings And
• To make all Laws which shall be necessary and
  proper for carrying into Execution the foregoing
  Powers, and all other Powers vested by this
  Constitution in the Government of the United
  States, or in any Department or Officer thereof.

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Election issues Constitutional Reform
http//news.bbc.co.uk/1/hi/uk_politics/vote_2005/i
ssues/4372135.stm
A.      Tony Blair's "Devolution within the UK"
agenda 1.       Part of 1997 election campaign
was devolution of legislative powers to
regionally elected assemblies 2.       September,
1997 referendums in Scotland and Wales approve
(more popular in Scotland and give power to tax
and more primary authority to make law) May,
1999 Scotland and Wales elected MPs using system
of proportional representation--led to coalition
govt. in Scotland Following the establishment of
a Scottish Parliament and a Welsh Assembly,
powers to make legislation in certain areas have
been 'devolved'. However, power in many other
areas, such as defense and foreign affairs (known
as 'reserved' matters), still resides with the
House of Commons. The Scottish Parliament can
pass primary legislation in such areas as
agriculture and health. The Welsh Assembly's
powers only allow it to pass secondary
legislation in the form of statutory instruments
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(No Transcript)