Federalism Today

Federalism Today

Federalism today has its roots extending back to the 1860s.

Learning Objectives

Reconstruct the key moments in the development of the modern federal apparatus

Key Takeaways

Key Points

  • The fourteenth amendment in 1865 had been interpreted by some to mean that the federal government has more power over the states.
  • While the federal government implemented the Mann Act of 1907, the 1920s was a time of deregulation, something shared by modern federalists today.
  • Roosevelt’s new deal changed the face of federalism again by extending much power to the federal government over the states.

Key Terms

  • regulatory: Of or pertaining to regulation.

The modern federal apparatus owes its origins to changes that occurred during the period between 1861 and 1933. While banks had long been incorporated and regulated by the states, the National Bank Acts of 1863 and 1864 saw Congress establish a network of national banks that had their reserve requirements set by officials in Washington. During World War I, a system of federal banks devoted to aiding farmers was established, and a network of federal banks designed to promote home ownership came into existence in the last year of Herbert Hoover’s administration. Congress used its power over interstate commerce to regulate the rates of interstate (and eventually intrastate) railroads and even regulate their stock issues and labor relations, going so far as to enact a law regulating pay rates for railroad workers on the eve of World War I. During the 1920s, Congress enacted laws bestowing collective bargaining rights on employees of interstate railroads and some observers dared to predict it would eventually bestow collective bargaining rights on workers in all industries. Congress also used the commerce power to enact morals legislation, such as the Mann Act of 1907 barring the transfer of women across state lines for immoral purposes, even as the commerce power remained limited to interstate transportation—it did not extend to what were viewed as intrastate activities such as manufacturing and mining.

As early as 1913, there was talk of regulating stock exchanges, and the Capital Issues Committee formed to control access to credit during World War I recommended federal regulation of all stock issues and exchanges shortly before it ceased operating in 1921. With the Morrill Land-Grant Acts Congress used land sale revenues to make grants to the states for colleges during the Civil War on the theory that land sale revenues could be devoted to subjects beyond those listed in Article I Section 8 of the Constitution. On several occasions during the 1880s, one house of Congress or the other passed bills providing land sale revenues to the states for the purpose of aiding primary schools. During the first years of twentieth century, the endeavors funded with federal grants multiplied, and Congress began using general revenues to fund them—thus utilizing the general welfare clasues’s broad spending power, even though it had been discredited for almost a century (Hamilton’s view that a broad spending power could be derived from the clause had been all but abandoned by 1840).

During Herbert Hoover’s administration, grants went to the states for the purpose of funding poor relief. The Supreme Court began applying the Bill of Rights to the states during the 1920s even though the Fourteenth Amendment had not been represented as subjecting the states to its provisions during the debates that preceded ratification of it. The 1920s also saw Washington expand its role in domestic law enforcement. Disaster relief for areas affected by floods or crop failures dated from 1874, and these appropriations began to multiply during the administration of Woodrow Wilson (1913-1921). By 1933, the precedents necessary for the federal government to exercise broad regulatory power over all economic activity and spend for any purpose it saw fit were almost all in place. Virtually all that remained was for the will to be mustered in Congress and for the Supreme Court to acquiesce.

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Page One of the 14th Amendment: The Supreme Court began applying the Bill of Rights to the states during the 1920s even though the Fourteenth Amendment had not been represented as subjecting the states to its provisions during the debates that preceded ratification of it.

New Federalism and State Control

New Federalism is a philosophy that focuses on states’ rights.

Learning Objectives

Discuss how the Supreme Court’s understanding of the Commerce Clause shaped the New Federalism

Key Takeaways

Key Points

  • New Federalism transfers power from the federal government to the states.
  • Several Supreme Court cases establish precedent that set the stage for New federalism.
  • New federalism evolved from the Federalist party in the 18th century.

Key Terms

  • federalism: A political concept in which a group of members are bound together by covenant with a governing representative head.

New Federalism is a political philosophy of devolution, or the transfer of certain powers from the United States federal government back to the states. Unlike the eighteenth-century political philosophy of Federalism, the primary objective of New Federalism is some restoration of autonomy and power that the states lost as a consequence of President Franklin Roosevelt’s New Deal. It relies upon a Federalist tradition dating back to the founding of the country, as well as the Tenth Amendment.

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Louis Brandeis: Brandeis’ opinion in New Ice Co. set the stage for new federalism.

As a policy theme, New Federalism typically involves the federal government providing block grants to the states to resolve a social issue. The federal government then monitors outcomes but provides broad discretion to the states for how the programs are implemented. Advocates of this approach sometimes cite a quotation from a dissent by Louis Brandeis in New State Ice Co. v. Liebmann: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

From 1937 to 1995, the United States Supreme Court did not void a single Act of Congress for exceeding Congress’s power under the Commerce Clause of the United States Constitution. They held that anything that could conceivably have even a slight impact on commerce was subject to federal regulation. It was thus seen as a (narrow) victory for federalism when the Rehnquist Court reined in federal regulatory power in United States v. Lopez (1995) and United States v. Morrison (2000).

The Supreme Court wavered, however, in Gonzales v. Raich (2005), holding that the federal government could outlaw the use of marijuana for medical purposes under the Commerce Claue even if the marijuana was never bought or sold, and never crossed state lines. How broad a view of state autonomy the Court will take in future decisions remains unclear.

The Supreme Court wavered, however, in Gonzales v. Raich (2005), holding that the federal government could outlaw the use of marijuana for medical purposes under the Commerce Clause even if the marijuana was never bought or sold, and never crossed state lines. How broad a view of state autonomy the Court will take in future decisions remains unclear.

The Devolution Revolution

The devolution revolution was a movement started by Reagan in the 1980s that involves the gradual return of power to the states.

Learning Objectives

Describe the set of practices that together comprised the “devolution revolution” associated with the New Federalism

Key Takeaways

Key Points

  • The devolution revolution focused on the ideals of New Federalism that fought for states ‘ rights.
  • Before the devolution revolution, Roosevelt’s New Deal federalism was standard.
  • States’ rights was initially controversial because it had been originally associated with Jim Crow laws and the anti-Civil Rights movement.

Key Terms

  • federalism: A government structure in which power is divided between one central national government and various regional governments.

The term “devolution revolution” came from the Reagan ideology and is associated with New Federalism. New Federalism, which is characterized by a gradual return of power to the states, was initiated by President Ronald Reagan (1981–1989) with his “devolution revolution” in the early 1980s, and lasted until 2001. The primary objective of New Federalism, unlike that of the eighteenth-century political philosophy of Federalism, is the restoration to the states of some of the autonomy and power that they lost to the federal government as a consequence of President Franklin Roosevelt’s New Deal. Previously, the federal government had granted money to the states categorically, limiting the states to use this funding for specific programs. Reagan’s administration, however, introduced a practice of giving block grants, freeing state governments to spend the money at their own discretion.

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Ronald Reagan: The devolution revolution was an ideology supported by Ronald Reagan.

New Federalism is sometimes called “states’ rights,” which is a theory in U.S. politics that refers to political powers reserved for the U.S. state governments rather than the federal government. Its proponents usually eschew the idea of states’ rights because of its associations with Jim Crow laws and segregation. Unlike the states’ rights movement of the mid-20th century which centered around the civil rights movement, the modern federalist movement is concerned far more with expansive interpretations of the Commerce Clause, as in the areas of medical marijuana (Gonzalez v. Raich), partial birth abortion (Gonzalez v. Carhart), gun possession (United States v. Lopez), federal police powers (United States v. Morrison, which struck down portions of the Violence Against Women Act), or agriculture (Wickard v. Filburn). President Bill Clinton (1993–2001) embraced this philosophy, and President George W. Bush (2001–2009) appeared to support it at the time of his inauguration.

Judicial Federalism

Judicial federalism is a theory that the judicial branch has a place in the check and balance system in U.S. federalism.

Learning Objectives

Analyze the complex role of the state and federal judiciary in the federal system

Key Takeaways

Key Points

  • The Judiciary Act of 1789 extended the federal court system to include federal jurisdictions within states and for the Supreme Court to hear state appeals.
  • Marbury v. Madison established Judicial review which was the process of checking the constitutionality of a law.
  • While the full powers of the judiciary were not completely expressed in the Constitution, precedent and future laws helped expand its role within the federal government.

Key Terms

  • judicial activism: rulings suspected of being based on personal or political considerations rather than on existing law
  • Judicial Review: Judicial review refers to the power of a court to review the constitutionality of a statute or treaty or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.
  • judicial restraint: a theory that encourages judges to limit the exercise of their own power

Judicial federalism relies on the fact that the judiciary has a place in the check and balance system within the federal government. Much of judicial federalism is dependent on judicial review as well as other acts defining the judiciary’s role in the U.S. government.

The first Congress passed the Judiciary Act of 1789, which established the lower federal courts and specified the details of federal court jurisdiction. Section 25 of the Judiciary Act provided for the Supreme Court to hear appeals from state courts when the state court decided that a federal statute was invalid or when the state court upheld a state statute against a claim that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to review state court decisions involving the constitutionality of both federal and state statutes. The Judiciary Act thereby incorporated the concept of judicial review.

Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.

The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the structure, provisions, and history of the Constitution.

The Supreme Court’s landmark decision on the issue of judicial review was Marbury v. Madison (1803), in which the Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury, written by Chief Justice John Marshall, was the first Supreme Court case to strike down an act of Congress as being unconstitutional. Since that time, the federal courts have exercised the power of judicial review. Judicial review is now a well settled doctrine. As of 2010, the United States Supreme Court had held some 163 Acts of the U.S. Congress unconstitutional.

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Marbury v. Madison Placard: Marbury vs. Madison changed the role of the judicial branch in the federal system.

Although the Supreme Court continues to review the constitutionality of statutes, Congress and the states retain some power to influence what cases come before the Court. For example, the Constitution at Article 3, Section 2, gives Congress power to make exceptions to the Supreme Court’s appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is defined by Congress. Therefore, Congress may have power to make some legislative or executive actions non-reviewable. This is known as jurisdiction stripping.

The Shifting Boundary between Federal and State Authority

Modern tensions between the state and federal governments began in the 1960s.

Learning Objectives

Assess the significance of various events for determining the boundary between federal and state authority

Key Takeaways

Key Points

  • Proposition 14 in California brought up tensions between the federal government and the state government.
  • Many modern issues such as abortion and physician-assisted suicide uncover these shifting boundaries.
  • Over the years, the federal government has threatened to withhold funding if the states did not compromise, though the boundaries still remain murky.

Key Terms

  • Fourteenth Amendment: Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction.
  • Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.

In 1964, the issue of fair housing in California involved the boundary between state laws and federalism. California Proposition 14 overturned the Rumsford Fair Housing Act and allowed discrimination in any type of home sale. Martin Luther King Jr. and others saw this as a backlash against civil rights. Actor Ronald Reagan gained popularity by supporting Proposition 14, and was later elected governor of California. The U.S. Supreme Court ‘s Reitman v. Mulkay decision overturned Proposition 14 in 1967 in favor of the Equal Protection Clause of the Fourteenth Amendment. Conservative historians Thomas E. Woods, Jr. and Kevin R. C. Gutzman argue that when politicians come to power they exercise all the power they can get, in the process trampling states’ rights. Gutzman argues that the Kentucky and Virginia resolutions of 1798 by Jefferson and Madison were not only responses to immediate threats but were legitimate responses based on the long-standing principles of states’ rights and strict adherence to the Constitution.

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Separate but Equal–Again?: Discrimination as supported by Proposition 14 concerned civil rights leaders that it would bring America back to the separate but equal days.

Another concern is the fact that on more than one occasion, the federal government has threatened to withhold highway funds from states that did not pass certain articles of legislation. Any state that lost highway funding for any extended period would face financial impoverishment, infrastructure collapse, or both. Although the first such action (the enactment of a national speed limit) was directly related to highways and done in the face of a fuel shortage, most subsequent actions have had little or nothing to do with highways and have not been done in the face of any compelling national crisis. An example of this would be the federally mandated drinking age of 21. Critics of such actions feel that when the federal government does this they upset the traditional balance between the states and the federal government.

More recently, the issue of states’ rights has come to a head when the Base Realignment Closure Commission (BRAC) recommended that Congress and the Department of Defense implement sweeping changes to the National Guard by consolidating some Guard installations and closing others. These recommendations in 2005 drew strong criticism from many states, and several states sued the federal government on the basis that Congress and the Pentagon would be violating states’ rights should they force the realignment and closure of Guard bases without the prior approval of the governors from the affected states. After Pennsylvania won a federal lawsuit to block the deactivation of the 111th Fighter Wing of the Pennsylvania Air National Guard, defense and Congressional leaders chose to try to settle the remaining BRAC lawsuits out of court, reaching compromises with the plaintiff states.

Current states’ rights issues include the death penalty, assisted suicide, gay marriage, and the medicinal use of marijuana. The latter is in violation of federal law. In Gonzales v. Raich, the Supreme Court ruled in favor of the federal government, permitting the Drug Enforcement Administration (DEA) to arrest medical marijuana patients and caregivers. In Gonzales v. Oregon, the Supreme Court ruled that the practice of physician-assisted suicide in Oregon is legal. Nonetheless, states are obligated, under all circumstances, to respect, defend and abide by the requirements of the Constitution, especially the due process of law. These constitutional requirements, in short, must be extended to all citizens at all times.