Federalism Essentials
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Federalism Essentials


One of the clearest distinctions between the
American political system, the way the United States is set up, and other countries is Federalism.
Federalism was simply one of the choices: unitary government where all the power is
in the central government, or a a confederation, which is how the US actually started out with
the first Constitution, which is a kind of loose arrangement, national government has
very little power, and all the states or regions have a lot of power, or federalism where you
kind of divide certain authorities between the national government and the states. That’s
the system that emerged after the Philadelphia Constitutional Convention. Federalism was
not chosen through some ideological principles, that it was ‘better’ than something else.
Federalism was simply a practical way of arranging government in a fairly large country, and
a country with a lot of regional differences, with a lot of regional history, different
economies in the South and in the North, kind of a different view of the world. And so Federalism
was seen as a way of keeping together thirteen colonies that essentially had a lot of diversity
and had a lot of differences. Slavery, for example, was a huge difference between the
North and the South, slave-holding states and others, and through federalism they were
able to sort of say, let’s agree on the things we can agree on and leave controversial issues
like slavery and others that would have made it impossible to create a country for later.
So in the section on Federalism, we recommend that you look at a take-away message, as the
most important message which is, in the United States, power is distributed between the central
government and the states. Exactly which powers depends upon over time on new circumstances.
The internet didn’t exist, the airplanes didn’t exist when the Constitution was written. Interstate
highways didn’t exist, international trade was very limited. And so over time, the definition
of what are the powers of the central government and the powers of the states, has changed
somewhat, but what has stayed the same is the principle that we should have a fairly
strong national government that can keep the country together.. And then figure out exactly
what role the states should play, for example, in education and other things, and what role
the national government should play. And Federalism defines that, it spells it out, and it’s constantly
changing over time. So now let’s talk about current issues in federalism and really the
core issue is, “Who has the power? What level of government has the power?” What is federalism?
Federalism is really the physical structure of government set forth in the Constitution,
shared authority between state and national government bodies, and the relationship between
the national government and subunits of government. This system has inherent friction — that
is inherent friction built into this process because the necessary and proper clause gives
power to Congress to do what is necessary to carry out its enumerated powers. On the
other hand, the Tenth Amendment says that the powers not delegated to the U.S. by the
Constitution, nor prohibited by it to the states, are reserved for the states. So you
see an inherent conflict with that arrangement. And that leads to federalism’s central question:
Who has the power? Current issues in federalism — we see issues in federalism, who has the
power, play out in any number of area — marijuana regulation, immigration, same-sex marriage,
gun laws, health care, education policy. You see the haze of marijuana regulation. Federal
law is that all pot sales are illegal — marijuana is seen in the same category as heroin and
LSD. The federal government has really sent conflicting signals on enforcement. For a
long period of time, they would enforce, but it appears now that the federal government
is not going to enforce marijuana regulations the same way it has in the past. The states,
at the same time, Washington and Colorado have legalized marijuana for recreational
use. 20 states, including California, have legalized medical marijuana. We also see cities
and counties out there trying to regulate, limit or outright ban pot dispensaries or
regulate marijuana on their own. Another issue, immigration. Long has been the authority of
national government. But states have been frustrated with the influx of immigrants and
frustrated by the lack of reform at the national level. That’s why we see something like the
Arizona law, very tough on immigration. The U.S. Supreme Court overturned a major provision
of that law, but left intact a provision allowing police to check immigration status while enforcing
other laws. The message is: This is a federal issue. Another issue, same-sex marriage, long
believed to be the responsibility of the states. The Defense of Marriage Act of 1996 denied
benefits and recognition to same-sex couples. That was overturned by the U.S. Supreme Court
in 2013. Justice Kennedy wrote: “The federal government defers to state-law policy decisions
with respect to domestic relations.” We see more and more states permitting same-sex marriage.
Gun laws, there are federal gun laws, states are pushing back a little bit on those federal
gun laws and Congress is pushing back on its own. Health care, though the Affordable Care
Act, the federal government is involved — health-insurance exchanges and Medicaid expansion. States are
pushing back, opting out of the exchanges or Medicaid expansion or both, refusing to
enforce consumer protections, restricting federally funded workers hired to help people
enroll in coverage. The states’ decision to take a hands-off approach to enforcing the
law is expanding the role of the federal government. In education policy, we see the federal policy
of No Child Left Behind, states have been seeking waiters to that policy. They’ve been
granted some of those waivers. Even districts are seeking waivers, so even local districts
are trying to get waivers so they can do their own thing on education. So the remain question
about federalism is: Where do we go from here? And with that we return to the question: Who
has the power? What we’re going to see is courts are going to play a significant role
in federalism issues. A lot of issues, we’ve seen it already with immigration, same-sex
marriage, those types of issues , courts are called on to play a significant role and make
important public policy decisions. The real magic of federalism, the real beauty of it,
is that each generation gets to consider this question. As times change, as moods change,
as laws change, each generation is going to be able to address the question of who has
the power — what’s the most appropriate level of government that should decide or be responsible
for these policy areas. With that, please use this lecture, read your text and your
study guide to help you with your quiz. Good luck!

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