Federalism Part II

Supporting Question 2- What do experts say about the balance of power between the state and federal government?
  • Source A: Various authors, seven short articles by political experts debating the role of state and federal government, “Room for Debate,” New York Times, July 16, 2013
States Matter: American Federal Republic
Lara M. Brown, a political analyst, is the author of Jockeying for the American Presidency.
Updated August 8, 2013, 11: 43 AM
James Madison, a strong federal government advocate in 1787, couldn’t have been any clearer in articulating the significant powers delegated to the states under the new Constitution. In Federalist 45, he wrote:           
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce….The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
For a number of good reasons (from extending civil liberties to establishing civil rights to ensuring food safety and basic work conditions), the federal government’s powers have grown substantially over the past 225 years. It’s also fair to say that the federal government is unlikely to ever seriously relinquish these expanded powers to the states. Whether we live in Washington State or the state of George Washington’s home (Virginia), we all live nationally.
Still, we forget the nature of our government when we make all politics national. No one—not even the inhabitants of the District of Columbia or the military personnel stationed overseas—lives exclusively as a national resident.
People live in states. People work in states. People vote in states. People own property in states. People get married and raise families in states. In sum, the vast majority of the laws under which each of us abide are state laws, not federal laws. Unsurprisingly then, as James Madison explained in Federalist 46, “the first and most natural attachment of the people will be to the governments of their respective States.”
So while many liberals aren’t pleased with the new abortion law passed in Texas, it’s also true that many conservatives are displeased with Colorado’s new gun-control laws. But again, as James Madison reminds, “Truth, no less than decency, requires that the even in every case should be supposed to depend on the sentiments and sanction of their common constituents.”
Both according to our Constitution and in common practice, state politics are more present in and more important to the daily lives of Americans.
"States Matter: America is a Federal Republic," by Lara M. Brown. Copyright © 2013 Lara M. Brown. Dr. Brown is Associate Professor & Director, Political Management Program, Graduate School of Political Management, George Washington University. Used with permission.
Federal Government Is More Powerful Than State Government
John B. Judis is a senior editor of the New Republic and the author of the forthcoming Genesis: Truman, American Jews, and the Origins of the Arab-Israeli Conflict.
July 16, 2013
 Any dispute about which is more powerful—the federal government or the states—was settled in 1789 when the Constitution granted the federal government the right to collect taxes, regulate interstate commerce, raise an army and adjudicate legal disputes between states. It’s not called the “Supreme Court” for nothing.
States, or alliances of states, have attempted to nullify federal power, but the federal government has eventually prevailed, although in the case of Southern slavery, it took a four-year war for the federal government to do so. Beyond that, states have served as pockets of resistance or innovation, attempting to weaken federal laws, or to advance new legislation that the federal government is not yet ready to consider.
On the left, states during the Progressive Era introduced economic legislation that the New Deal later adopted for the nation. That led Louis Brandeis to dub them “laboratories of democracy.” Recently, states have pioneered universal health insurance and climate change regulation. On the right, Republican governors are currently attempting to reduce the scope of the Affordable Care Act and to impose restrictions on abortion that undermine the Supreme Court’s ruling in Roe v. Wade.
The question about these efforts, like those from the left during the Progressive Era efforts, is whether they can be expanded nationally. That will depend on whether the opponents of the Affordable Care Act, Roe v. Wade, or older New Deal reforms can elect a president and a majority in Congress that shares their point of view. Otherwise, like the state attempts to defy Brown v. Board of Education, these efforts will become the subject of still another “lost cause.”
“Federal Government is More Powerful than State Government,” John B. Judis, senior editor, The New Republic. Used with permission.
States Get Things Done, Affecting National Policy
Heather K. Gerken is the J. Skelly Wright professor of law at Yale Law School.
Updated October 30, 2014, 10:59 AM
When people debate whether state politics or national politics are more important, they typically fall into camps. The nationalists argue that we are one people, and that national politics are all that should matter. The federalist camp argues that state officials are closer to the people and that state governance gives us the ability to live in a place where the laws match our own preferences (be it Texas or Portlandia).
The federalist camp has the advantage right now of advocating for the one form of politics that is actually active. Political polarization has paralyzed the national government, but it has catalyzed state policy making.
But one segment of government is not more important than the other. National politics fuels state politics, and state politics helps ensure that national politics function properly. The question isn’t which matters more? the question is when and how each matters in the first place.
Those offering starry-eyed odes to the value of local participation underestimate how closely state politics are tied to national politics. As the important work of David Schleicher and others has shown, elections for state offices are as much referendums on the national politics as they are about anything else. Most people don’t pay much attention to state politics. When they vote for a state legislator, they are voting based on something they know about: national politics. That’s why we see a remarkably close connection between votes in most state races and votes in national ones. The close ties between state and federal parties can lead to all kinds of problems by keeping poor-performing state and local officials from getting voted out of office. But oddly enough, the connection can mitigate what ails national politics.
National politics are locked up. Our legislative process has too many obstacles when politics are highly polarized. As a result, issues that matter quite a bit to the American people—gay rights, abortion, immigration, guns—don’t get any traction in Congress.
Ambitious members of both parties may not be able to get anything passed in Washington, but they can in the states. That means state officials can challenge national policy—or protest its absence—by passing laws at home. By making policy rather than merely debating it, groups on both sides of the aisle can seize the national agenda and shift the burden of inertia in Congress. Usually all opponents of a policy need to do is kill the bill. When a state passes the policy, however, that strategy doesn’t work anymore. Opponents and proponents, then, suddenly agree on one thing—Congress should do something—and they will unite in pushing Congress to act. When national politics are the problem, then, state politics can be the solution.
“States Get Things Done, Affecting National Policy,” Heather K. Gerken, Yale Law School. Used with permission.
States Need More Control Over the Federal Government
Scott Gaylord is an associate professor of law at Elon University School of Law.
Updated July 17, 2013, 8:54 AM
As the old saying goes, all politics are local. State and federal governments affect our daily lives in numerous ways. Yet, in our federal system, there is supposed to be a balance between federal and state power. As James Madison envisioned it in Federalist No. 51, “the power surrendered by the people” would be “divided between two distinct governments,” creating a balance of power that would enable the “different governments [to] control each other.”
Under the United States Constitution, the federal government has broad authority in specific enumerated areas, but its power is not unlimited. State government plays a critical role in all those areas that are not left exclusively to the federal government. As a result, state politics are extraordinarily important because states are charged with protecting the welfare, safety and health of their citizens (which is one reason why roughly 95 percent of criminal court cases are handled in state courts).
At least since the New Deal, however, the balance of power has shifted decisively in favor of federal politics. The expansion of administrative agencies and other federal programs have encroached on state sovereignty, often with little or no resistance from the states themselves.
But the winds of change are blowing in states across the country. Governors and state attorneys general have begun to challenge what they view as the federal government’s overstepping its constitutionally prescribed role. In 2010, more than 20 states filed suit against the federal government claiming that the Patient Protection and Affordable Care Act exceeded Congress’s power. In addition, state attorneys general have successfully challenged various actions by the Environmental Protection Agency and other federal agencies, using state politics to protect the vertical separation of powers.
Moreover, recent Supreme Court decisions provide a glimmer of hope to those championing state sovereignty. In National Federation of Independent Business (N.F.I.B.) v. Sebelius, a majority of the court determined that the individual mandate under the health care act exceeded Congress’s commerce clause power. In Shelby County v. Holder, the court held that Congress unconstitutionally infringed on state sovereignty by using an outdated formula under the Voting Rights Act to decide which states had to get federal approval before changing their voting laws. In United States v. Windsor, the court emphasized that the Defense of Marriage Act was unconstitutional in part because the regulation of domestic relations has always been left to the exclusive province of the states.
Yet even in these cases, federal supremacy lurks in the background, ready to limit the reach of state political power. According to the court, Congress had ample taxing power to enact the individual mandate? Congress can propose a new formula under Section Four of the Voting Rights Act? and state control over domestic relations remains subject to the federal Constitution.
As evidenced by the court’s 5–4 decisions in N.F.I.B., Shelby County and Windsor, the Supreme Court has been the last arbiter of the balance between state and federal power, and that balance is dictated by the narrowest of margins. Consequently, federal politics, including the next Supreme Court appointment, may determine the scope of state sovereignty for years to come.
“States Need More Control over the Federal Government,” Scott Gaylord, Elon University School of Law. Used with permission.
Washington Must Redress State Injustice
Michael C. Dawson is the John D. MacArthur professor of political science and the director of the Center for the Study of Race, Politics and Culture at the University of Chicago. He is the author of Not In Our Lifetimes: The Future of Black Politics.
Updated October 22, 2014, 1:56 PM
Since the nation’s founding, “states rights” has been the rallying cry and mechanism of authority for those who wished to systematically disenfranchise and exploit large segments of their population. That this continues to be the case is profoundly demonstrated by politics of North Carolina and other states.
States are still the most active political arenas for trying to maintain an ever weakening, but still potent, system of white control, as is shown by the wave of new legislation limiting voting rights that state legislatures are pushing through in the wake of the Supreme Court voting decisions.
State legislation has injured communities of color, whether it is North Carolina’s repeal of the Racial Justice Act, which was designed to combat racial discrimination in death penalty cases, Arizona’s draconian restrictions on immigrant rights or Florida’s Stand-Your-Ground travesty.
Racial minorities are not the only groups under attack by politicians in North Carolina, Texas and elsewhere. In North Carolina, unemployed workers and public school students have been subjected to draconian cuts that expand extreme inequality and put the economic future of those states at risk. In Texas and other states, legislatures have drastically rolled back the reproductive rights of women. The volume and inhumanity of the attacks in North Carolina have led to a series of protests involving the N.A.A.C.P. and others. These “Moral Monday” protests have led to the arrest of more than 700 citizens who took to the streets, as people did a generation ago, to focus a bright light on political processes that are fundamentally unjust.
We need to remember, however, whether we examine the history of Reconstruction after the Civil War, or the victories of the civil rights movement a generation ago, that the federal government is the place of last resort to protect citizen rights when states trample on the rights and lives of the groups that local politicians disdain. Whether we are considering racial justice, reproductive rights or worker rights, local movements focusing on local injustices have often been most successful when they have been able to bring the power of the national government to bear in the name of decency, dignity and justice.
Washington Must Redress State Injustice,” Michael C. Dawson, John D. MacArthur professor of political science and director of the Center for the Study of Race, Politics and Culture at the University of Chicago. Used with permission.
The Repercussions of Big Money
Bob Hall is the executive director of Democracy North Carolina, a nonprofit organization that tracks money in politics.
July 16, 2013
State or national politics? If you’re filthy rich, spend your money right and are lucky, you can have a big impact on both. Take the case of mega-millionaire James Arthur “Art” Pope of Raleigh, N.C.
Like the Koch brothers, Pope inherited his daddy’s business and a yen for right-wing politics. He runs a chain of discount stores and through the family foundation and company, he’s pumped more than $40 million over the past decade into a network of North Carolina think tanks, advocacy groups and hard-line conservative politicians. His foundation is the second-biggest donor to the Kochs’ Americans for Prosperity, and Pope gives to dozens of national causes. But his focus remains on North Carolina.
Until recently, Pope has had little to show for his investment in moving the state rightward. He’s run unsuccessfully for statewide office, financed attack ads to defeat (and agitate) moderate Republicans and sponsored questionable research through his nonprofits. But in 2010, he finally hit the jackpot. Republicans gained majority control of both chambers in the North Carolina General Assembly for the first time in more than 100 years, thanks to supercharged Tea Party voters, unengaged Obama supporters (especially white Democrats and Independents) and a post-Citizens United splurge in spending. Groups financed with Pope money spent $2.2 million in 22 swing legislative races and won 18 seats.
What a lucky year to win. When the Census data arrived in early 2011, the new Republican majority proceeded to redraw the state’s 13 Congressional and 170 legislative districts. A national Republican group (backed with Pope money) financed the chief map drawer, and Pope sat at his side to add local knowledge. The final maps divide more precincts than any redistricting plan in North Carolina history. Zigzagging district lines, like walls, separate and crowd blacks into fewer super-Democratic districts while creating many more heavily white, Republican-leaning districts. Call it computerized apartheid.
With the gerrymandered maps in place, the 2012 elections produced bigger Republican majorities in the state legislature and a lopsided 9–to–4 G.O.P. majority for the new Congressional delegation, even though Democratic Congressional candidates received 51 percent of the votes statewide. Art Pope focused his money on “independent” groups that spent millions to ensure G.O.P. victories for the governor and a swing seat on the state Supreme Court that will ultimately rule on those maps.
Once the new governor, Pat McCrory, was in office, he installed Pope as the state's budget director, where he now influences an amazing swath of policy, from education to criminal justice, health care to employment benefits, tax fairness to elections. Pope chose state politics, but thanks to state control of redistricting, he can play federal politics, too.
“The Repercussions of Big Money” Bob Hall, executive director, Democracy North Carolina. Used with permission.
Advertisers Say National, State and Local Politics Matter
Mark Fratrik is a vice president and the chief economist of BIA/Kelsey, a research and consulting firm.
July 16, 2013
There are a number of drivers behind the recent spate of transactions for local TV stations. Buyers are hungry for retransmission fees and economies of scale, and they are motivated by today’s relatively low interest rates and a renewed confidence in local stations’ positions in local media markets.
Political spending at these television stations in 2012 helped foster that renewed confidence. Many executives and investors expect the 2014 election to bring similar or higher spending. Even as campaigns use more alternative media—like online outlets, social media and local cable systems—local television stations are still a sought-after medium for candidates to get their messages out.
 What can media deals and forecasts reveal about political priorities? Certainly campaigns will still need to spend to get those messages out to potential voters. State and local races with viable candidates in two parties will have the most spending, as those general elections can be affected by greater voter education. Other races with only one dominant party may see a significant amount of spending in the primaries, as those elections are often decisive. Further, states with multiple television markets will also have significant spending, because to educate the voters, candidates must place advertisements across many local television stations.
Do ad spending in 2012 and forecasts for 2014 indicate a greater emphasis on national politics, or state and local elections? So far the answer looks like “all of the above.” The markets that will see the most campaign ads in 2014 are those that are competitive at the local, state and federal levels. Some markets may see mostly ads for the presidential and Congressional races? others will be blitzed by state legislative candidates, mayoral campaigns and city council races. From all these sources, ad buys for local TV time will be huge, as campaigns at every level—and interest groups—present their arguments to as many potential voters as possible, through as many media as possible.
“Advertisers Say National, State, and Local Politics Matter,” Mark Fratrik, chief economist, BIA/Kelsey. Used with permission

Supporting Question 3- How are public attitudes toward federalism changing?
  • Source A: Pew Research Center, graphs detailing citizens’ thoughts on government effectiveness, Views of Government: Key Data Points, Pew Research study (excerpt), October 2013 
The share of the public saying they are angry at the federal government stood at 30% in our October survey, up 11 points since January (http://www.people-press.org/2013/10/18/trust-in-government-nears-record-low-but-most-federal-agencies-are-viewed-favorably/). Anger is most pronounced among Tea Party Republicans. Fully 55% of Republicans who agree with the Tea Party say they are angry with the federal government—about double the percentage among non-Tea Party Republicans (27%) and Democrats and Democratic leaners (25%).
The more negative view of the federal government has resulted in a growing gap between how Americans see Washington as compared to their state and local governments.

Ten years ago, roughly two-thirds of Americans offered favorable assessments of all three levels of government: federal, state and local. But in a survey conducted March 2013, public views of the federal government in Washington have fallen to a new low, while the public continues to see their state and local governments in a favorable light. (http://www.people-press.org/2013/04/15/state-govermnents-viewed-favorably-as-federal-rating-hits-new-low/).

In the 2012 Values survey, 69% of Americans said the federal government should only run things that cannot be done at the local level.
  • Source B: John Samples and Emily Elkins, graphs detailing public opinion on the role of state and federal governments, “Public Attitudes toward Federalism: The Public’s Preference for Renewed Federalism,” Cato Institute, September 2014  For much of its history, the United States had a notably decentralized government structure. Since the 1930s, the national government has undertaken new efforts to regulate the economy and society and to redistribute resources. Those new efforts have implied a greater centralization of authority in Washington. In the past the public often supported such centralization. Public opinion about federalism has changed. Voters are more supportive of decentralized policymaking on many issues where they previously supported a stronger national role. This shift in the public mood is consistent with other polling data that indicates profound distrust in the capacity of the federal government to act on behalf of the public good. On some issues, like national defense, much of the public continues to support national primacy. Such issues are often assigned to Washington by the Constitution. In contrast, much polling finds that many citizens believe state and local governments are likely to perform better than Washington. Americans support a more decentralized federalism than in the past both on particular issues and as a general matter of institutional confidence.
    The following figures appear in the Cato report:
Supporting Question 4- Should state government have the power to legislate what is best for its citizens?
  • Legal Drinking Age Case Study: United States Department of Transportation, description of drinking age laws, “National Minimum Drinking Age Act Fact Sheet,” 1999 Public domain. US Department of Transportation, National Highway Traffic Safety Administration. www.nhtsa.gov/people/injury/alcohol/community%20guides%20html/pdfs/public_app7.pdf
  • Legal Drinking Age Case Study: Rick Bragg, observation about Louisiana’s defiance of federal law, “Louisiana Stands Alone on Drinking Age at 18,” New York Times, March 23, 1996 From The New York Times, March 23, 1996. ©1996 The New York Times. All rights reserved. Used by permission and protected by the Copyright Laws of the United States.
  • Legal Drinking Age Case Study: Associated Press, description of change in Louisiana drinking age law, “Louisiana Court Upholds Drinking Age at 21,” New York Times, July 3, 1996 Associated Press. http://www.nytimes.com/1996/07/03/us/louisiana-court-upholds-drinking-age-of-21.html.
  • Environmental Protection Case Study: Jody Freeman, video segment describing federal fuel efficiency standards, Constitution USA: Federalism, Public Broadcasting System, 2013  NOTE:  Teachers and students can watch the video segment on fuel efficiency standards by clicking on this link:  http://www.pbs.org/tpt/constitution-usa-peter-sagal/federalism/#.VLko3FolkjY
  • Environmental Protection Case Study: Excerpt of Johnathan H. Adler testimony before House Energy and Commerce Subcommittee, Washington Post, 2014  The Washington Post by Washington Post Co. Reproduced by permission of Washington Post Co. in the format Educational/Instructional Program via Copyright Clearance Center. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/11/state-and-federal-responsibilities-for-environmental-protection/
  • Environmental Protection Case Study: Ron Nixon, article describing EPA rulemaking on water use, “EPA’s Proposed Rules on Water Worry Farmers.” The New York Times, March 13, 2014.  From The New York Times, March 13, 2014 ©2014 The New York Times. All rights reserved. Used by permission and protected by the Copyright Laws of the United States. The printing, copying, redistribution, or retransmission of this Content without express written permission is prohibited
New York State Social Studies Framework Key Idea & Practices 12.G1 FOUNDATIONS of AMERICAN DEMOCRACY: The principles of American democracy are reflected in the Constitution and the Bill of Rights and in the organization and actions of federal, state, and local government entities. The interpretation and application of American democratic principles continue to evolve and be debated.
 Gathering, Using, and Interpreting Evidence     Civic Participation