1.7 Relationship Between the States and Federal Government “Some may feel that my decision is at odds with my philosophical viewpoint that state problems should involve state Solutions .,,.Ina case like this... | have no misgivings about a judicious use of Federal inducements to,,, Save precious lives,” —Ronald Reagan, on the National Minimum Drinking Age Act, 1984 Essential Question: How do the ne eds of society affect the allocation of power between national and state g jovernments? The framers of the U.S. Constitution had to balance the powers of Congress and the federal government at the national level with the powers held by the states. Where the power ultimately lies, however, has been a source of controversy since the U.S. Constitution was framed. The national legislature has stretched its powers in trying to address national needs, while states have tried to maintain their sovereignty. Federalism, the sharing of powers between the national government and state governments, has evolved, as has Congress's authority and modern function. This dev elopment has blurred the line between state and national jurisdictions, and modern leaders have tried to balance authority divided between the two tiers of government. Federalism In creating and empowering the new federal government, the framers debated where power should lie. The experience of having just defeated a tyrannical central government in Britain to secure liberty locally did not make centralizing Power in the new United States very attractive. The U.S. Constitution establishes a system of checks and balances among branches of government and allocates power between federal and state governments. This system is based on the rule of law and the balance between majority rule and minority rights, 57 1.7 RELATIONSHIP BETWEEN THE STATES AND FEDERAL GOVERNMENT‘sing Federalism isions Defining Fe i de for federalism can be found in various parts of the , he Bill of Rights. : isions Article VI, which includes the SUpren, tional law, treaties, and presidential action above ms clause, places natio! however, is limited by the enumerated list of Con, ; ‘te ennai cbse pune 8, while presidential authority is also limited}, Constitution, states cannot disregard them. : h Additional provisions define the relations among the States ang national supremacy. Article IV explains full faith and credit, Protections of privileges and immunities, and extradition. The article Tequires each state to give full faith and credit “to the public acts, records, and judicial proceedings of every other state.” In other words, states must regard and honor the laws in other states. The privileges and immunities clause declares “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” States have created laws to protect their own residents or to give them priority over nonresidents, but the Supreme Court has struck down many of them based on this clause. States can, however, charge different college tuition prices for in-state and out-of-state students, largely because in-state students and their families have paid into the states tax system that supports state colleges. The extradition clause obligates states to deliver captured fugitive criminals back to the state where they committed the original crime. Skeptics and Anti-Federalists desired an expressed guarantee in the Constitution to assure the Preservation of states’ rights, It came in the form of the Tenth Amendment, “The Powers not delegated to the United States...,” the amendment declares, “are reserved to the states.” ae Article |, Section 8 The foundation "iin Constitution and t Constitutional Pro Enumerated powers of Congre: ig the neces: S! gress, including th sary and Article|, Section9 Powers denied Congress; no requlstna anne ‘ongress; no regulatir ; stats tobe treated sneer aulatig slave trade before 1805 | | Article|, Section10 Powers deni iasiee ara aea ener a TE ee nied to the States, such as treaties; impairing | cl ae —— _ Anise _Fulfath and credit privileges and immunities; extradition Article VI Supremacy of the ni ——__— ea | the r government | |_Ninth amendment | Fights not ited reserved byt | Tenth Amendment Powers not d fee aeeeee ea f | (eas legated tothe federal government reserved By the | —— coExclusive Powers Powers that are delegated only to the federal government are called exclusive wers, National needs require consistency across state lines, such as having uniform weights and measures and a national currency. To establish this consistency, Article I enables Congress to legislate on military and diplomatic affairs and international and interstate commerce. It also allows Congress to define such crimes as counterfeiting, mail fraud, immigration violations, and piracy. However, the framers also put limits on Congress with Article I, Section 9. States already had prisons, state militias, and other services when the federal system was created. The framers left these concerns up to the states, along with the management ofelections, marriage laws, and the maintenance of deeds and records. States have police powers, or powers to create and enforce laws on health, safety, and morals. These concerns encompass much of state budgets today. States fund and operate hospitals and clinics, Law enforcement is predominantly composed of state personnel. States can set their own laws on speed limits, seat belts, and smoking in public places. Concurrent Powers The Tenth Amendment distinguishes the two governing spheres. The reserved powers are not specifically listed, and thus any powers not mentioned remain with the states. Some powers are held by authorities at both levels, state and federal. These are called concurrent powers. The states and the nation can both levy and collect taxes, define crimes, run court systems, and improve lands. Federalism: A Sharing of Powers Federal Operate schoo! )perate schools Declare War irrent Goncu Regulate health, safety, Regulate Interstate Levy taxes and morals couere Enforce laws Incorporate cities and Define Immigration companies and naturalization Overlap and Uncertainty Marriage has been at the heart of a number of power struggles between the federal and state governments. For example, the federal Defense of Marriage Act (1996) defined marriage as between one man and one woman. States generally honored marriage licenses from other States, but the legalization of same-sex marriages in some states early in the 21* century caused other states to expressly refuse recognition of these marriages. Opposing states rewrote their marriage laws and added amendments to their state constitutions to define marriage as between a man and a woman only. This 1.7 RELATIONSHIP BETWEEN THE STATES AND FEDERAL GOVERNMENT 59controversy put Article IV in direct conflict with the Tenth Ame, full faith and credit clause suggests that if Vermont sanctioned th Imen, two men, Missouri would have to honor it. Yet the reserved Powers, Marria. e Tenth Amendment grants Missouri’ right to define marriage With, Claus, ie of The Supreme Court, with the Fourteenth Amendment’s equal Tei tsbo,, ate also in play, settled this dispute in 2015 in Obergefell v, Hodger, ,. eon ag the right to same-sex marriage was guaranteed. (See Topic 1.8.) uling 8:4 he Federalism leaves schools, elections, and most law enforcem, t states. Why, then, do we have a national Department of Education, nt up ton, Elections Commission, and a Federal Bureau of Investigation? The the Fedent will be answered in Topic 1.8 as you read about how the new Buti Questo! walk the delicate line that divided state and federal Power, how a began rs Court has defined federalism, and how Congress became keenly i © Supreme issues of education, political campaigns, and crime. nteresteg in THINK AS A POLITICAL SCIENTIST: ARTICULATE A DEFENSIaLE oy LAI Federalism is the sharing of powers between federal and state gove Certain powers are delegated to each level of government and several] an net For example, Colorado and Washington legalized marijuana for recrentt use in 2012. Since then, more than 20 other states have challenged federa nal by legalizing marijuana in some form. At the federal level, marijuana isi ley Practice: Read the excerpt below and make a claim about how the concept of at federalism relates to the legalization of marijuana. As of July 2017, 28 states and the federal district have legalized medical Marijuana, but medical marijuana use is still illegal nationally under the Controlled Substances Act, and marijuana is listed under the Schedule 1 list of drugs, along with heroin and Lsp, The conflict between state laws that allow limited marijuana use and the federal law that bars it, in theory, falls somewhere in the domain of the Constitution's supremacy clause, which reads in part that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land.” Some states-rights supporters argue that the Tenth Amendment, which grants rights to the states and the people not reserved to the federal government, allows for states to choose their own marijuana laws and how the laws are enforced by | state and local law enforcement officers. ‘Source: constitutioncenter.org Federal Grant Program The overlap of federal and state authority in exclusive and concl probably nowhere more obvious than in federal grant programs. red itsel the constitutional definition of federalism, Congress has casera det addressing national issues with federal dollars. Congress collec of parti culat revenues and distributes these funds to the states to take care 60 UNITED STATES GOVERNMENT & POLITICS: AP’ EDITION ent powersis ncing nayonal concerns. This process has different names, such as revenue sharing Sel federalism. For decades, the federal government has used incentives ae ee , and at times require, states and localities to address safety, crime, vacation, and civil rights. Congress has largely done this by directing federal funds to states that qualify for aid and withholding funds when they do not. These grants-in-aid programs have developed over a 200-year history and picked up steadily to meet the needs of society during the Progressive Era, with Franklin Roosevelt's New Deal, and then under Lyndon Johnson's Great Society program of the 1960s. This financial aid helps states take care of basic state needs, Grants come in different forms with different requirements, and they sometimes stretch the limits of constitutionality. Political realities in Washington, DC, and at the local level, explain why these grants have gone through so many variations. Addressing National Issues Though state officials are well schooled in the reserved powers clause ofthe Tenth Amendment and want to protect those powers, they also find it challenging to turn away federal money to handle state concerns. States do not necessarily want to cede their authority, but at the same time, they want the federal funds that are dangled before them to meet state needs. The federal government has decided many times to pay the bill, as long as the states follow federal guidelines while taking care of the issue, Grants with particular congressional guidelines or requirements are known as categorical grants. Categorical grants with strings, or conditions of aid, became the norm. In addition to the political benefits congressional members experience, grant recipients at the state and local levels enjoy categorical grants. Special interest groups could lobby Congress for funding their causes. State agencies, such as those that support state health care or road construction, depend on federal aid and appreciate these grants. Community groups and nonprofit agencies thrive on these as well. Grants Through the Mid-1900s After Americans earned independence and attained the vast lands west of the Appalachian Mountains, high-ranking soldiers received land grants for their service in the Revolution. The federal government later granted large sums of money to states so they could maintain militias. In 1862, Congress passed the Morrill Land-Grant Act. It allowed Congress to parcel out large tracts of land to encourage states to build colleges. Congress started using grants heavily in 1916 to fund road construction as the automobile became central to American society and as roads became central to economic improvement. The federal income tax caused the national treasury to grow exponentially. With these extra financial resources, Congress addressed concerns that were traditionally out of its jurisdiction. Additionally, larger numbers of people who had gained the right to vote pressed for more government reform and action. Women and other groups began voting and engaging in civic endeavors that resulted in the national government addressing more of society’s concerns. 1.7 RELATIONSHIP BETWEEN THE STATES AND FEDERAL GOVERNMENT 61The economic crisis that followed, the Great Depressig ke federal government to grow more, largely by implementing met : Traditionally, states, localities, and private charita : Organization, * relief for the poor. By 1935, most states had enacted aWs to aid imp ma mothers and the aged. State funds did not always cover this efforts x ci Franklin D. Roosevelt and Congress were pressured to addre. SS the har dn “In Two Words, Yes And No” Source: Herblock Describe the characten objects, and actions in this catoon. How does hs help contey the mesa Perspective about edeyia the cartoonist tryi i" ‘What is the impli the cartoonist’ p. argument? is 78 10 convey cation of eTSPectve op Societal Concerns of the 1960s and 1970s The fight for civil rights and school desegregation, the desire for clean air and clean water, and the concern for crime gained national interest. Once again, federal dollars spoke loudly to local officials. The 1964 Civil Rights Act, for example, withheld federal dollars from schools that did not fully desegregate their students, Under President Johnson, the federal government increased the number of grants to address poverty and health care. Congress also began to redefine the grants process 10 give more decision-making power to local authorities, Some states felt gran!s had too many strings attached, In 1966, Congress introduced block oa Block grants, which refers to federal money given to states for broadly defi cf reasons, differ from categorical grants in that they offer larger sums of mom to the states without the strings of the categorical grants, and President Richard Nixon, a believer in clear boundaries between Lae federal jurisdictions, wanted to return greater authority to local Bet using a mix of block grants, revenue sharing, and welfare reform. In i de proposed to meld one-third of all federal Programs into six loose!y 62 UNITED STATES GOVERNMENT & POLITICS: AP" EDITION amegagrants, an initiative called “special revenue sharing” He didn't achieve this goal, but in 1972, general revenue sharing provided more than $6.1 billion annually in “no strings” grants to virtually all general-purpose governments. Congress passed two major block grants: the Comprehensive Employment and Training Act of 1973 (CETA) and the Community Development Block Grant program (CDBG) in 1974. By 1976, Congress had created three more large block grants. Fiscal conservatives, who also favored local control, liked Nixon's plan of mixing state and federal authority. As soon as Nixon tried to steer federal money to states in larger, less restrictive ways, members of Congress realized the authority and benefits they would lose. Block grants took away Congress's role of oversight and, politically, denied individual representatives and senators the ability to claim credit. Congress was losing control, and individual members felt some responsibility to provide federal dollars to their districts in a more specific way. In response, Congress passed only five block grants between 1966 to 1980. Categorical grants with strings, or conditions of aid, became the norm again. Grants in the 1980s and Beyond The federal government offered states one notable categorical grant in the early 1980s as a way to both satisfy the upkeep of highways and to ease the national drunk driving problem. Congress offered large sums of money to states on the condition that states increase their drinking age to 21. Studies showed that raising the legal drinking age would likely decrease the number of fatalities on the highways. Most states complied with the National Minimum Drinking Age Act of 1984 to secure these precious dollars. South Dakota, however, challenged the act. In South Dakota v. Dole, the Supreme Court ruled that Congress did have the power to set conditions on the drinking age for states to receive federal dollars for highway repair and construction. Congressional restrictions on grants to the states are constitutional if they meet certain requirements. They must be for the general welfare of the public and cannot be ambiguous. Conditions must be related to the federal interest in particular national projects or programs, and they must not run afoul of other constitutional provisions. That is, Congress cannot use a conditional grant to induce states to engage in unconstitutional activities. South Dakota lost, and Congress continued creating and controlling strings. Mandates With strings, states receive federal monies in exchange for following guidelines. Federal mandates, on the other hand, require states to comply with a federal directive, sometimes with the reward of funds and sometimes—in unfunded mandates—without. The legislative, executive, or judicial branches can issue mandates in various forms. Mandates often address civil rights, environmental concerns, and other societal needs. Federal statutes require state environmental agencies to meet national clean air and water Tequirements. Significant intergovernmental regulations in the late 1980s and early 1990s include the Clean Air Act Amendments, the Americans with Disabilities Act, the Civil Rights Restoration Act, the Family and Medical Leave Act, and the National Voter Registration Act (also known as the motor-voter law). 1.7 RELATIONSHIP BETWEEN THE STATES AND FEDERAL GOVERNMENT — 63Source: execu the President of = Mi States Of the Unite President Geo, . ge Bush signs the Ayre with Disabiliti can, 1990. NS Act in" The Clean Air Act, originally passed in 1970, set Tequirements | timetables for dealing with urban smog, acid rain, and toxic Pollutants | The Americans with Disabilities Act required public sector buildings i transportation systems be accessible for disabled individuals. Cities and States had to make their buildings wheelchair accessible and install wheelchair lifts The mandate imposed, according to the Congressional Budget Office’s best estimates, as much as $1 billion in additional costs on states and localities, The Clean Air Act Amendments imposed $250 million to $300 million annually and the cost of the motor-voter law would reach $100 million Over five years, The federal courts have also issued mandates to ensure that state or local governing bodies act in certain ways. Judges have decreed that Cities redefine their hiring practices to prevent discrimination. They have placed firm restrictions on federal housing projects. In the early 1970s, federal judges mandated that public schools arrange appropriate black-to-white enrollment ratios, essentially mandating busing for racial balance. Devolution Ronald Reagan's philosophy of New Federalism is characterized by the return of power to states, or devolution. Reagan returned to the practice of giving block grants to states, allowing them more discretion in spending. Throughout his presidency, Reagan worked for consolidation of categorical grants into block grants, having limited success. In the 1990s, Republicans continued to push Reagan's devolution policies. With bipartisan support and President Bill Clinton’s signature, they managed to pass the Unfunded Mandates Reform Act and the Personal Responsibility and Work Opportunity Reconciliation Act. The first act denied Congress e ability to issue unfunded mandates, laws that were taking up some 30 De of state budgets. The second act restructured the welfare system to return Ae authority and distribution of welfare dollars—Medicaid, for example—t? nt states. As Clinton declared in a 1996 address, “The era of big governme 1s Over. 64 UNITED STATES GOVERNMENT & POLITICS: AP* EDITION1.8 Constitutional Interpretatig Ng of Federalism ee rach fhe condition of American 4 ing of its third century, ti : iSin sn eer a ae characterized as ambiguous but Promising’ Sn —Daniel Elazar, Opening the Third Century of rican Federalism: Issues and Prospects 1999 Essential Question: How has a balance of power bet State governments been interpret ‘Ween Nationa, ang ted over time? The different needs of the 13 colonies guided the framers’ decisio, Sin creat the system of federalism that is at the heart of the Constitution, The Tole th intended for state governments was at the forefront of involvement in ily j . This struggle for Power has led to National and state governments having varied amounts of control ag the needs Of the d. , during which unambiguously centralizing” Constitutional D ‘The foundation for fed Constitution and the Bi efinition of Federalism eralism ig ¢ mbedded in various Parts of the original ll of Rights, Federal Power Article I defines the basic Setup and operation of and is the longest article—about h; alf of the entire Constitution—revealing the framers’ Concern for Tepresentat; the legislative bran ive lawmaking and their reverence ich. Sections 8,9, and 10 detail the Powers and a of Congress and the Powers of the States. The framers identified a limite oW of enumerated Powers, Section 8, which include the powers to tax, ae money, raise an army, create a postal System, address Piracy on the seas, Congress. It has ten sections UNITED states GOVERNMENT & POLITICS: AP* EDITION eethe immigration and naturalization process, and a few others, The commerce clause empowers the Congress to “regulate commerce with other nations, and among the several states. The final clause in Section 8 is the necessary and proper clause, or elastic clause. This provision states, “The Congress shall have power... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. Since this power goes beyond the explicitly enumerated owers, the elastic clause is said to grant implicit powers. After a fierce debate, the framers included this to assure the Congress some flexibility in legislating. Section 9 lists what Congress cannot do. For example, the federal legislature cannot tax exported goods. Congress cannot take away the right of habeas corpus (the right to be formally charged after an arrest), cannot pass bills of attainder (legislative acts declaring one guilty of a crime), and cannot create ex post facto laws (making an act illegal after one has committed it). Nor can Congress grant any title of nobility. Section 10 lists powers the states are denied. States cannot, for example, enter into treaties with other countries, coin money, or tax exports. The States The terms of the Tenth Amendment (1791) distinguish the two governing spheres. The delegated powers (or expressed powers) are those the Constitution delegates to the federal government, listed in Article I, Section 8, and the job descriptions for the president and the courts in Articles II and III, respectively. The reserved powers are not specifically listed, and thus any powers not mentioned remain with the states. Some concurrent powers are held by authorities at both levels, state and federal. The Fourteenth Amendment (1868) was created after the Civil War with the intention to protect freed slaves. It promises U.S. citizenship to anyone born or naturalized in the United States. The Fourteenth Amendment requires states to guarantee privileges and immunities to its own citizens as well as those from other states. The amendment’s equal protection clause prohibits state governments from denying persons within their jurisdiction equal protection of the laws. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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. Fourteenth Amendment, U.S. Constitution 1.8 CONSTITUTIONAL INTERPRETATIONS OF FEDERALISM 67Shapes Federalism United States power to make Ja, all asked at a oe Tatifying (0 «, ted that tl a Richmond in 17: Ps Sine au Can” Feder [ene in Richmont ce - - void” any law g0108 ie Marshall ac ef tution Tian would ovresident John Adams appointe 4 arshall as chief justi Ie outgoing P urt, Taking the seat as Jefferson became president, M © of th Supreme Court Js in the Federalist states’ rights dehetal — ate a. Wd leading riva Jefferson served od Sey In 1819, the Supreme Court made ait ae al e n entered the chy. M aryland, addressing the balance of Power I T ety, een, “Has the & ie subject? delega 8, Then he quic natio: decision in the states and McCullo the federal government. Pe wosenow SUPREME COURT CASES: MCCULLOCH V. Maayan, ~ | 819) nstitutional Question Before the Court: Does the federal government have implied powers and supremacy under the necessary and proper (elastic) clause and the supremacy clause? Decision: Yes, for McCulloch, 6:0 Facts: The powers and supremacy of the federal government were the focus of a Supreme Court case when the U.S. bank controversy arose again. The state of Maryland, among others, questioned the legality of a congressionally created bank in Baltimore, where James McCulloch was the chief cashier, The Constitution does not explicitly mention that Congress has the power “to create a bank.’ So Maryland, recognizing the state's authority over everything within its borders, passed a law requiring | all banks in Maryland not incorporated by the state Source: thinkstock | to pay a $15,000 tax. The purpose of this law was to i force the U.S. bank out of the state and to overcome ee eee the federal government's power. When McCulloch refused to pay the tax, the state brought the case to court. On appeal, the case of McCulloch v. Maryland (1819) landed in John Marshall's Supreme Court. The dispute centered on two central questions. One, can Congress create a bank? And two, can a state levy a tax on federal institutions? The Cot Reasoning: Article |, Section 8, was key to answering the first question. It contains n° | expressed power for Congress to create a bank, Maryland and strict constructionists | had argued. But it did contain the phrases “coin money,” “borrow money,’ “collect | bene determine “laws on bankruptcies,” and “punish counterfeiting.” Banking biad $ | therefore very much the federal government's business, and supporters argued tw? Constitutional under the necessary and proper clause. John Marshall's Court agre unanimously. Marshall himself wrote the opinion. 68 UNITED STATES GOVERNMENT & POLITICS: AP* EDITIONUnanimous Opinion: We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended, But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. .. The word “necessary” is considered as controlling the (elastic clause], and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory [worthless]. To answer the second question—can a state tax a federal institution—the Court declared, “The power to tax involves the power to destroy’ It broadened what Congress could do, denoting its implied powers in the Constitution (those not specifically listed in the Constitution but deriving from the elastic clause), and it declared that constitutional federal law will override state law. The sovereignty of a State extends to everything which exists by its own authority oris introduced by its permission, but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States, to a Government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. Since McCulloch v. Maryland: The federal government has used its powers implied in the necessary and proper clause to play a role in other matters, such as education, health, welfare, disaster relief, and economic planning. In Gibbons v. Ogden (1824), a dispute between New York and the federal government over navigation rights on the Hudson River, the Court looked to Article |, Section 8, Clause 3—the commerce clause—to certify Congress's authority over most commercial activity as well. That interpretation of the commerce clause, as well as the interpretation of the necessary and proper clause and other enumerated and implied powers in McCulloch v. Maryland, became the centerpiece of the debate over the balance of power between the national and state governments. Political Science Disciplinary Practices: Analyze and Interpret Supreme Court Decisions Apply: Write an essay in which you identify the two constitutional questions addressed in McCulloch v, Maryland and explain the reasoning for the answer to each question. Cite specific passages from the opinion and/or the Constitution to back up your explanation. Finally, explain how the opinion relates to political processes and behavior. For example, what impact did it have on the development of the growing nation? sn nn nn ee nem 1.8 CONSTITUTIONAL INTERPRETATIONS OF FEDERALISM 69A Exclusiveness Since the natj, aor ee i ae regarding commerce at the ao Bove, did not engage in too ao legis sa of dual federalism, in whic eG See a its Shere—having the authority given it the nag ns ond the states are equally supreme in their own sphere. Article ] entitleg ticle to legislate on commerce “among the states’ oe it did not forbid the sta en regulating commerce within their borders. Chie! Justice Marshall did a tes tre states still had some rights to commerce, rejecting an exclusive Rational alify th over internal, intrastate commercial activity. This became known a autho, exclusiveness—a doctrine asserting that Congress may Tegulate 7 Select! the commodity requires a national uniform rule. For years, this e because commerce and trade were mainly local, with fewer 800ds cro. lines than they do today. Congress’s relative inaction in regulating co mms State the Industrial Revolution during the mid-1700s to the mid-18005 all erce un federalism to prevail. As the nation’s business, manufacturing, transportn dug communication capabilities advanced, Congress became more and more ation, ang in legislating business matters. Organized labor, reformers, and re Nteresteg ea ; 7 1. PYORressive | focused the national agenda on regulating railroads, factories, and b: Caders breaking up monopolies. On some occasions, the federal government ¢ the states’ domain on the strength of the commerce clause—the Most fy, contested congressional power—and on some occasions lost. ently d 0, n TOSsed in National Concerns, State Obligations State and federal governments generally followed dual federalism into th 20" century. However, this practice gave way in response to changing si needs as Congress's increased use of the commerce clau: legislate on a variety of state concerns. The Progressive movement (1890-1920) brought much federal legislation that created a power play over commerce authority. In the early 1900s, democracy became stronger through a variety of government reforms. The Sixteenth Amendment, for example, created the federal income tax and expanded Congress's reach of regulation. As the nation grew and citizens became more mobile, the natior’s problems, much like its goods, began to travel across state borders. The police powers originally left up to the states now became national in scope, and Congress created the Federal Bureau of Investigation (FBI). Reformers Pressured Congress to act on issues when states refused or could not act Since the Constitution nowhere gave Congress the direct power to legislate to improve safety, health, and morals, it began to rely on its regulatory power one commerce to reach national goals of decreasing crime, making the aoe safer, and ensuring equality among citizens. The commerce clause sere“ the primary vehicle for such legislation. For example, the Mann Act 0 sest0 forbade the transportation of women across state lines for immoral pure eral crack down on prostitution. The Automobile Theft Act of 1915 made wong offense to knowingly drive a stolen car across state lines. Since then e early ‘Ocietal ‘Se empowered it to 70 UNITED STATES GOVERNMENT & POLITICS: AP* EDITION fhas made racketeering, drug dealing, and bank robbery federal crimes (though they remain illegal at the state level as well). The federal executive can enforce these laws even if the criminal activity is entirely contained in one state. The Supreme Court Stretches the Commerce Clause ‘The Supreme Court, however, disappointed reformers and issued a few setbacks. In the late 1800s and early 1900s, a conservative Court declared that corporations as well as individuals were protected by the Constitution, and it questioned many health and safety regulations through the era. For example, when Congress passed a law prohibiting a company from hiring and forcing children to work in factories, the Supreme Court blocked it. In Hammer v. Dagenhart (1918), the Court ruled that the evils of child labor were entirely in the sphere of manufacturing, not commerce, and child labor was thus outside congressional authority. This ruling established a line between manufacturing as the creation of goods and commerce as the exchange of goods. By the 1920s, however, the Court relied on Justice Oliver Wendell Holmes’s words, which said the shipment of cattle from one state to another for slaughter and sale constituted “a typical, constantly recurring course” and thus made both production and commerce subject to national authority. Numerous pieces of New Deal legislation caused a power play between the Supreme Court and Congress regarding the commerce clause. The Fair Labor Standards Act of 1938 barred commerce across state lines for firms failing to pay employees at least $0.25 per hour. The Court upheld the act and overturned the Hammer decision. ‘Source: Lewis Wickes Hine, Library of Congress ‘The Court’ decision in Hammer v Dagenhart (1918) put children who worked in manufacturing, sometimes against their will, beyond the jurisdiction of the federal government. That decision ‘was later overturned. THINK AS A POLITICAL SCIENTIST: DESCRIBE THE REASONING OF A REQUIRED SUPREME COURT CASE | In 1941, in United States v. Darby, the Supreme Court upheld the Fair Labor | Standards Act of 1938 and with that decision also overturned Hammer v, | Dagenhart. “We conclude,’ wrote Mr. Justice Stone in the unanimous opinion, | “that the prohibition of the shipment interstate of goods produced under the 1.8 CONSTITUTIONAL INTERPRETATIONS OF FEDERALISM 71~~ i itions is within the constitus: forbidden substandard labor conditions is wit ¢ itution, of cee One case to which the decision refers is McCulloch a i, : (pages 68-69). ti lary) ty "ry Practice: Read another excerpt from the decision in United States y, Darby 1m, the questions that follow, an “There remains the question whether such restriction on the Production of for commerce is a permissible exercise of the commerce Power” Rag. Of gg, ruling in McCulloch v, Maryland, Stone explains, "The Power of Con, | arene ie | interstate commerce is not Confined to the regulation of commer, cee! | states, ttextends to those activities intrastate hich so affect intersta ae or the exercise of the power of Congress over it as to make FeQulation f roy €ppropriate means to the attainment of a legitim: of ate end, the exercise ai "en Power of Congress to Tegulate interstate commerce” 2 Mantey | 1. Describe the Teasoning in McCulloch v, Maryland to which the Opini 2. Explain a similarity or difference in how the ON refer two decisions, interpret merce Clause, ‘the Com. United States v, Lopez (1995) case, to legislate under the guise of regi the Court does ulating commerce, S€e in the Not always allow Congress ea ST MUST-KNOW SUPREME COURT CASES: UNITED STATES V. Lopez (1995) The Constitutional Question Before the Court: Does Con: under the commerc e Clause to outlaw guns near schools? Decision: No, for Lopez, 5:4 gress have the authority Before United States v, Lopez: Gibbons v, Ogden (1824) the federal government to control commerce, Facts: Congress Passed the Gun ) broadened the authority of “Free School Zones Act in 1990 in hopes of : Preventing gun violence at or near schools. In 1992, senior Alfonso Lopez carried a.38 caliber handgun and bullets into a San Antonio high school. On an anonymous Se school authorities Confronted him, obtained the gun, and reported the Si federal police, Lopez was indicted, tried, and sentenced in federal court for viol 72 UNITED STATES GOVERNMENT & POLITICS: AP* EDITIONsoning: The Court sided with Lopez, refusin F panera clause. “It is difficult to perceive any teste anna ied the / Justice William Rehnquist wrote, "It We were to accept the Govern Power; Chief we are hard pressed to posit any activity by an individual that puta 's arguments, power to regulate! Congress had stretched its Commerce power t a bee i without have regulations on guns and where firearms can legally be carried. ae lost states where the Supreme Court said this authority should stay, usherin i le states are federalism that recognized the importance of state Sovereignty and ely ee) of Chief Justice William Rehnquist, joined by justices wrote the majority opinion arguing that a gun neai O'Connor, Scalia, Kennedy, and Thomas, impact on interstate commerce and is therefore r school Property does not have an Not covered by the commerce clause, Majority Oj The possession of a gun ina local schoo! isi an economic activity that might, through tepetition elsevhere,substantalh act any sort of interstate commerce, Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and : there is no requirement that his possession of the firearm have any concrete tie to interstate commerce, There were also two concurring and three dissenting opinions, Concurring Opinions: Justice Anthony Kennedy, O'Connor, focused on the nature of. commerce, to tip the balance of power, and the state's cont Thomas's concurring opinion argued that rece Constitution in their interpretation of the com: substantially affects interstate commerce, every aspect of human existence. joined by Justice Sandra Day the obligation of the government not trol over education. Justice Clarence nt cases have drifted too far from the merce clause and that if something Congress could pass laws that regulated Dissenting Opinions: Justice John Paul Stevens's dissent argued that the possession of guns is the result of commercial activity and is therefore under the authority of the commerce clause. Justice David Souter's dissent argued that the majority opinion is a throwback to earlier times and goes against precedent. Justice Breyer's dissent, with which Justice Stevens, Justice Souter, and Justice Ruth Bader Ginsburg joined, argued in part that given the effect of education upon interstate commerce, gun-related violence in and around schools is a commercial as well as human problem, since a decline in the quality of education has an adverse effect on commerce. Since United States v. Lopez: Congress revised the federal Gun-Free School Zones Act in 1994 so that it would tie more clearly to interstate commerce. That law withholds federal funding for schools that do not adopt a zero-tolerance law for guns in school zones. Political Science Disciplinary Practices: Analyze and Interpret Supreme Court Decisions The full opinion of the divided court in the case of United States v. Lopez is available online. Refer to it as you work in small groups (or as your teacher directs) to Understand the reasoning behind the various opinions. | Different groups should study the reasoning behind the majority opinion, the concurring opinions, and the dissenting Opinions and report a summary back to the class. 1.8 CONSTITUTIONAL INTERPRETATIONS OF FEDERALISM 73ling, you may find the reading ] : ur portion of the ru nighe dees Chay | Apply: When Se eee to yourself with any a ei ntify ke pean, Take it slowly ani ling and use them as evidence to explain your intenessagthy | in your portion of the snding with your group until each member % Clear on th ttion, standin pce thecdsuae ct a way to present your summary to the class and share a ideas. in carrying that plan out. , tation, discuss ways in which the con, h group has made its present atio : _ Spiers and dissenting opinions are similar and different. Are there any Point, me which they all agree? i tation of the commerce Clause in tl Hi ase: How does the interpret e Aisa petite apparel States v. Lopez compare to the interpretation of the commen tty ee in Gibbons v. Ogden? age The commerce clause continued to be challenged. Congre. Violence Against Women Act in 1994 under the commerce that domestic violence had a significant cost for taxpayers in off care, criminal justice expenses, and other costs. In 2000, in Tuling on the . ath United States v. Morrison, the Supreme Court stated the commerce clause ® inappropriately used to legislate against domestic violence and struck ae _ Parts of the Violence Against Women Act. Chief Justice William Rehn, Stated, in the 5:4 majority opinion, that crimes of do: ic vi were. st economic in nature. He further explained that the Fourteenth Aim Not + Sars endm, didn’t give Congress the authority to pass the law as a civil rights Temedy, which is under the jurisdiction of the states. ass, clause on ac the the form REFLECT ON THE ESSENTIAL QUESTION - Essential Question: How has a balance of power between national and State gov. ernments been interpreted over time? On Separate paper, complete a chart like the one below, "Examples of interpretation Limiting Examples of Interpretatio Federal Power State Power KEY TERMS AND NAMES commerce clause dual federalism elastic clause enumerated Powers McCulloch v. Maryland (1819) necessary and proper clause selective exclusiveness Tenth Amendment (1791) Fourteenth Amendment (1868) United States v. Lopez (1995) implied Powers 74 UNITED STATES GOVERNMENT & POLITICS: AP" EDITION1.9 Federalism in Action "Pollution doesn't respect state boundaries, and it is difficult if not impossible to solve these problems on a state-by-state basis,” —S. William Becker, National Association of Clean Air Agencies, New York Times, 1989 Essential Question: How does the distribution of powers among three federal branches and between national and state governments impact policymaking? Aix pollution affects citizens across states, However, and set up governing agencies to monitor their air and streams. Congress, the national executive branch, and the federal courts have also had a role in shaping environmental policy and regulating industry. This distribution of power among the three national branches and between the federal and state governments allows for multiple access points for stakeholders and institutions to address environmental policy through federalism. states have passed laws The Sharing of Powers You may have heard people complain about how slow the national government is to get anything done. In fact, the sharing of powers between and among the three branches and the state governments does constrain national policymaking and slow it down, an outcome many framers of the new Constitution sought in order to protect the nation from popular but possibly rash policies. Environmental Policymaking Environmental policy provides a useful case in point for seeing how different stakeholders compete. Multiple actors and institutions interact to produce and implement possible policies. Executive Branch and Background on Environmental Policy The executive branch provided the initial impetus for environmental policy. President Teddy Roosevelt (1901-1909) is known as “the conservationist President” because of his appreciation of and devotion to the natural beauty and resources of the United States. During his presidency, 230 million acres of land were set aside as public lands. One reason Roosevelt was able to achieve so much environmental protection was that he believed the president was “the steward of the people” who could claim broad powers to advance the good of 1.9 FEDERALISM INACTION 75Congress was needed to establish natio ‘asten the protection of public lands by “ecutive authority to establish national monuments. The G now a national park, was originally established as a national Teddy Roosevelt. National parks and forest preserves became m, American landscape. ; : ss and Environmental Legis! lation It was not unt and oyu Gat the environmental movement took off among the pine 196 Congress itself began to strongly regulate industry to assist this en ang Congress imposed environmental standar s, the business community ot Ag regulations. Over the ensuing decades, environmental Policy in the PPos,, 4 States became a competition between environmental activists i free-market thinkers. The National Environmental Policy Act (1970) requires an: Ov. agency, state or federal, to file an environmental impact statement ie Ment federal government every time the agency plans a policy that mi, ght rith the environment, dams, roads, or existing construction. The 1970 amen, dma the the Air Pollution Control Act, commonly known as the Clean Air Act ents to, improved air quality and decreased contaminants. The act ultimately ve for the Department of Transportation to reduce automobile emissions! Clean Water Act of 1972 regulates the discharges of pollutants into the aa of the United States and monitors quality standards for surface waters ‘ters Endangered Species Act established a program that empowers the Nati The Fish and Wildlife Service to protect endangered species. Onal After the catastrophic Love Canal toxic waste disaster in western Ne York in the mid-1970s, the federal government forced industry to Pay for the insurance necessary to manage their dangerous by-products. In that disaster a company had dumped toxic chemicals in the area that later became 4 residential development. Heavy rains washed some of the chemicals out of the ground into residential basements and yards. Adults and children developed serious liver, kidney, and other health problems. The company responsible for this major environmental catastrophe had already gone out of business. In response, Congress created the Superfund. Essentially, industry pays into the Superfund as insurance so taxpayers do not have to pay the bill for waste cleanup. Under the law, the guilty polluter pays for the cleanup, but when the guilty party is unknown or bankrupt, the collective fund will cover these costs, not the taxpayer. Clashes Between Branches Over Environmental Policy Since 1970, the Environmental Protection Agency and the federal government have require states to set air quality standards, to reduce the damage done by automobiles, to measure city smog, and to set environmental guidelines. The EPA oversees the Superfund and toxic waste cleanup. ther In 2012, the EPA established limits on how much mercury and ting hazardous chemicals coal- and oil-fueled power plants could emit, asser that although limiting these emissions would cost the plants nearly the American people. Nal Roosevelt was able to h Pa, exergs Ta Monume’ ainstay, wt in and, Conseryart Ve 76 UNITED STATES GOVERNMENT & POLITICS: AP” EDITION ——billion, the cost should not be a factor since the risk of health justified the regulation, Exercising a countervail supreme Court overturned that Tegul Bac ing force, however, the ation in 2015, argui ; unreasonably neglected to consider the cost burd te a EPA hd : len customers and exerting a check and balance to the BPA Sirs piacws end Disagreements Over Climate Change The burnin, the resulting greenhouse gases have heightened attent an increase in average global temperatures, Melting polar i flooding in certain areas, animal habitat destruction on a damaged come layer have caused the scientific community, including the Intergovernmental Panel on Climate Change, to conclude th he emissions to human 1ing of fossil fuels and ion to global warming, 2 ime did not achieve the two-thirds support Necessary for ratification, so the United States did not sign the treaty. During President Obamas tenure, the Senate remained conservative- leaning, constraining the power of the government to join another. international climate agreement, the 2015 Paris Agreement, President Obama sought to go around this constraint by making acceptance of membership in the agreement a matter of executive order, without the approval of the Senate. In 2017, President Trump used the same bypass method to withdraw from the Paris Agreement, though some argued that the United States was never officially a member of the Paris Agreement since the Senate did not have a Voice in deciding. State Initiatives In response to Trump’ decision, a number of states decided to adhere to the guidelines in the Paris Agreement anyway, demonstrating yet another check and balance in the federal system. In 2017, for example, California passed legislation to exten d its program to reduce carbon emissions, known as cap and trade, from its original expiration date of 2020 to 2030. Using powers granted to states by the Tenth Amendment, California law states companies must buy permits to release greenhouse gas emissions, Political Participation and Policymaking Multiple access points for input into policy decisions are available at all levels of governments. A number of policy accomplishments owe their success to the active engagement and. Participation of citizens. (See Topic 4.8.) Legalizing Marijuana The movement to legalize marijuana is a good example of how policy reflects the attitudes of citizens who choose to participate at a given time and the balancing act between individual liberty and social order. A gradual but consistent change in public opinion over the past 20 years, especially by ae voters, has Caused a fairly consistent state-by-state path of legalizing medical marijuana. 1.9 FEDERALISM IN ACTION 77 ae| - Order Over Liberty Marijuana, or cannabis, entered they, . large amounts with Mexican immigrants who came across the ‘ teg Sty Mexican Revolution of 1910. As the substance moved further ft dep ai States, exercising their police powers, began outlawing Matijuang the ca 4 Congressional Policy The federal government first acteq hy policy, the Uniform State Narcotics Act, which strongly urge Wi marijuana and other drugs illegal. Meanwhile, a Propaganda States t 4 reached a peak with the release of the film Reefer Madness brow, Pip i the drug and alleged that cannabis caused users to become q, era "atten h the House of Representatives held hearings on the issue; ony ot In ist Medical Association spoke against criminalizing Marijuana decay le Ate no evidence it was anything more than a mild intoxicant, After o, a thee of floor debate, the House passed the 1937 Marijuana Tax Act a Taha regulate the substance. By the end of the 1930s, most states and a fog criminalized marijuana. Drug enforcement, other an int Onere trafficking, was largely handled by state and local police, state r e wm ii The 1960s counterculture brought further attention to drug use and abug By 1970, the Controlled Substances Act, a comprehensive federal rug poly that was part of President Richard Nixon's war on drugs, was the fist fede) law with any teeth to enforce and heavily punish marijuana dealers and uses ‘The law categorized heroin, cocaine, and other illegal substances in terms potential harm and placed marijuana in the same category with no medic! benefits. At the time, the Gallup organization found that only about 12 percet of respondents thought it should be legal. Citizen Influence Balancing Liberty and Order Through the 197s 1980s, attitudes toward pot slowly shifted. Advocates for legalizing alg formed the special interest group National Organization for the nan Marijuana Laws (NORML) in 1970. Other advocacy groups formed ye Additional research and public education through advocacy growing acceptance of marijuana use. Some states began to ie a (keeping the drug illegal, but reducing punishments, in some It 78 UNITED STATES GOVERNMENT & POLITICS: AP" EDITIONto a small fine for a small amount), as the trajectory toward acceptance and legalization grew. Some in the medical community recognized its palliative roperties for patients with glaucoma, depression, and other conditions and helped strengthen a movement to legalize the plant for medical purposes. California became the first state to legalize medicinal marijuana through a statewide vote, Proposition 215, in 1996—participatory democracy at work. Over the next two decades, additional states legalized marijuana by ballot measures. AS citizens legalized, more state legislatures have taken up similar bills and approved them. In October 2013, one year after full legalization in Colorado and Washington state, Gallup reported for the first time that a majority of Americans supported legalizing pot. Not every state that has sought to legalize pot has succeeded. Ohio placed an initiative on the ballot in 2015 that failed to pass by a vote of 65 to 35 percent. Analysts believe that the measures attempt to legalize both medical and recreational pot at the same time may have brought its failure, since changes in government policy are usually incremental baby steps toward what might in time become sweeping policy change. ST THINK AS A POLITICAL SCIENTIST: SUPPORT AN ARGUMENT USING RELEVANT EVIDENCE Anargument, or claim, isa statement that can be supported by facts or evidence. ‘The more relevant evidence that can be presented, the stronger the argument is considered. Practice: In a paragraph, support the following argument using evidence and examples from Topic 1.9. Argument: The policymaking process built into the Constitution—drawing on checks and balances among the executive, legislative, and judicial branches of the federal government and the sharing of powers with the states—ensures that many stakeholders and institutions can influence public policy. Presidential and Judicial Policymaking The 1970 Controlled Substances ‘Act remains federal law. What happens, then, when a state legalizes marijuana while the drug remains illegal at the national level? The answer depends on whom you ask, which level and branch of government are being asked, and the political mood of the nation and states. As the legalization movement was under way, but before it had crossed a tipping point, federal authorities in Republican President George W. Bush's administration begana crackdown on marijuana, growing operations and medical marijuana dispensaries in California. Legalization advocates and patients sued the federal government, arguing that states had the authority under the Tenth rs doctrine to determine the status of the drug’s Amendment and the police powe: legality. However, on appeal, in Gonzales v. Raich (2005), the Supreme Court ruled that the Constitution’s commerce clause entitles Congress to determine what may be bought and sold. Thus, federal marijuana crimes were upheld. 1.9 FEDERALISM IN ACTION 79i] stands, the Justice Depa at sti : ypama and Attorney General Bri pt a ‘ i s president. @; i President Laan years as iu ci sta ‘ h. Throug! \ alized recreationa Marijuana, I ey y 1KY— o Obama administration's "eViseq {ny y neral announced ee doing so, he did not FeWrite «Ph NS. s ee riuana uae Justice Department would 1, rt ue a, leclare oe selling or using the drug in States wn Se ity ons : ls i seh marijuana legal. Ultimately, federal ete hy @. democratica y nonexistent. y aul ae a and Independents supported legal iy h Until recent] "However, as Gallup reports, most Republican, oy "he than Republicans. The policy debate on legalization and how fe eal ge legalizing marijua ‘ed in the 2016 primary and general élections ie be enforced surfac mnses from candidates in both parties, After Des Pres, " with a variety | as General Jeff Sessions—an anti-dry, fe He in took office and and medical marijuana proponents Watched clo, tn ener dministration, the Department of pt ing the Trump a Tse a ee Jeff Sessions declared that local US, y sel inted prosecutors who bring federal residentially appointed p th districts across the country—shall be the local det peri policy is handled. In fact, the Justice Depai BI deal with a variety of federal crimes ona daily ba: rosecute and which crimes are higher on their priori fea administration to administration may be cont some, but it is an inevitable element of administratj ‘Thoagh thet atic Neots f ron o differen! roc Iphoratarics of der pitorney reacurces to crac 01 cri th ; TIME Cases coun TMiners of] OW f iy rtment attory, a sis and decide Wheth the ity list. This inconsig fusin, and desta i ve discretion, Bl Shared Policymaking in Education Topic 1.5 covered the interactions of the federal and State Sovernments ig determining education Policy. The chart below s interactions, ummarizes some Of the peach Ne | |_Government Action Description of Action Deciding Body | Brown v. Board of The Supreme Court tuled that Federal Supreme | Education (1954) (See Segregation in public education was Court Topic 3.11) Unconstitutional, | | Elementary and Federal funding was Offered to states if | Us, Congress in Secondary Education they met requirements in sections, or Cooperation with Act (1965) titles, ofthe act, State governments _ NoChild Left Behind | States were held more accountable | U.S. Congress | (2002) for student achievement (standardized | testing) under federal supervision. ri af Every Student The act kept student achievement US. ee Succeeds Act (2015) | standards but returned accountability | state gove } largely back to the states, = 80 Unive stares Coc.