Question

This assignment will guide you through the process of making policies, enabling you to better understand the multiple levels in policy-making decisions.

Respond to the following:

• What is the relationship between the state and federal government in policy making? How is the balance of power between the two weighed?

Answer 1

I.The relationship between the states and the federal government

States and the federal government have both exclusive powers and concurrent powers. There is an ongoing negotiation over the balance of power between the two levels.

Federalism describes the system of shared governance between national and state governments.

The states and the federal government have both exclusive and concurrent powers, which help to explain the negotiation over the balance of power between them.

The federal government can encourage the adoption of policies at the state-level through federal aid programs.

In the United States, the two major layers of government are at the state and national levels. This system, where more than one layer of government has jurisdiction over the same territory, is called federalism. Although it seems natural to US citizens that government is divided into multiple layers, in fact, there are only 15 federal republics in the world.

In the United States, the federalist system emerged because the states evolved from separate colonies, which had diverse populations and different needs. The Framers of the Constitution envisioned that state governments, not the national government, would be the main unit of government for citizens on a day-to-day basis.
In some ways, that’s still the case. States issue marriage licenses and set the terms for divorce. State governments issue driver’s licenses and car registrations. They decide statewide speed limits and inspection requirements for cars.

But the Framers would likely be surprised to discover the extent to which the federal government and state governments are intertwined today. The balance of power between the two levels has varied over time as the needs of society have changed.

Article IV of the US Constitution establishes the responsibilities of the states to each other and the responsibilities of the federal government toward the states.

Section 1 of Article IV requires that the states give “full faith and credit” to the public acts and judicial proceedings of every other state. In other words, states must honor each other’s decisions and legal judgments: a person who gets married in one state is still married if they move to another state, and an individual convicted of a crime is still in trouble if they go to another state.

Section 2 stipulates that the citizens of each state are entitled to all “privileges and immunities” of citizens in other states. This means that states can’t treat newcomers worse than their own citizens. For example, the Supreme Court ruled that a California law denying new residents welfare benefits for a year was unconstitutional.

One reason for the ongoing negotiation over the balance of power between states and the federal government is their exclusive and concurrent powers. Exclusive powers are those powers reserved to the federal government or the states. Concurrent powers are powers shared by the federal government and the states.
Only the federal government can coin money, regulate the mail, declare war, or conduct foreign affairs. These powers make a lot of sense: imagine if Wyoming could declare war on Canada, or Michigan could coin the Michigan Dollar. The exclusive powers of the federal government help the nation operate as a unified whole.
The states retain a lot of power, however. States conduct all elections, even presidential elections, and must ratify constitutional amendments. So long as their laws do not contradict national laws, state governments can prescribe policies on commerce, taxation, healthcare, education, and many other issues within their state.
Notably, both the states and the federal government have the power to tax, make and enforce laws, charter banks, and borrow money.

As we noted above, the balance of power between states and the federal government has changed a great deal over time. In the early United States, the division between state powers and federal powers was very clear. States regulated within their borders, and the federal government regulated national and international issues.

But since the Civil War in the 1860s, the federal government’s powers have overlapped and intertwined with state powers. In times of crisis, like the Great Depression, the federal government has stepped in to provide much-needed aid in areas typically controlled at the state level.

Although the general trend has been toward an increase in federal power, the states have also pushed back. For example, in the 1995 case US v. Lopez, the Supreme Court ruled that the federal government had overstepped its bounds by claiming the authority to ban guns from school grounds under the Commerce Clause. Because guns on school grounds aren’t related to interstate commerce, the Supreme Court ruled the gun ban unconstitutional.

One way that the federal government can influence the states is through the distribution of grants, incentives, and aid. State and local governments are eager to obtain federal dollars, but many of those dollars come with strings attached. Categorical grants from the federal government can only be used for specific purposes, and frequently include nondiscrimination provisions (saying that the distribution of the funds cannot be for purposes that discriminate against women, minorities, or other groups).

The federal government can also pass unfunded mandates that tie federal funding to certain conditions. For example, the National Minimum Drinking Act of 1984 stipulated that states must have a minimum drinking age of 21 in order to receive full federal highway funding.

Not all federal funding is strictly monitored. Block grants are federal grants given to states or localities for broad purposes. The state or local governments can then disburse those funds as they see fit.

Federalism in the United States today is very complex. It’s at the heart of many of our controversies of government today, such as who should control healthcare or education policy. In the next lesson, we’ll explore more about the constitutional interpretations of federalism throughout US history.

II.How is the balance of power between the two weighed?

When we think of a ‘balance of power’ we think of a weighing of interests between two entities, in this case the federal and state governments of the United States, both of which have vested interests in the powers which control and shape the nation. These powers are clearly shown in the United States Constitution at a federal level (enumerated), and have been reinforced by the Supreme Court in numerous cases. This essay will show how the powers of both federal and state governments are balanced under the Constitution of The United States of America (the constitution). To enable an assessment as to how the balance is achieved there is a need to understand the historical context in which it was created; this shall only be brief by highlight the start of the road towards a balancing of government. This shall cover how the balance is created by the Constitution, and why. The second part will discuss the establishment of the balance, showing what was established by the delegates in order to provide a shared measure of authority which remains today between state and federal government. Finally a discussion as to how this ‘relationship’ is evolving from the original ideals to something the founders would never have thought would happen. This will be demonstrated in a contemporary light through case law illustrations both recent and historical, congressional enactments and the intervention of the Supreme Court.

Historical development

To fully understand the current position with respect to the balance of power in the United States, it is necessary to understand the historical developments which lead to the formation of the Constitution, and subsequent federal and state division of powers.
The formation of the Constitution of The United States of America was a direct result of the peoples ‘dissolution with their imperial maters the United Kingdom, which later lead to the American War of Independence (1775-1783), and subsequent freedom for self-governance by the colonies.
The American people sort to fill a need in government, with a willingness to unite the colonies under one government clearly evident via the preamble ‘We the People of the United States, in Order to form a more perfect Union. The American people came together in Philadelphia (1774) under a cloud of ‘distrust’ in ‘big’ or ‘centralised’ government, fearing a creation of a bigger tyrannical government then the one they already had. It became clear in the conventions, over some twelve years that the states would be willing to surrender some, but not all of their powers to a centralised government due to the above mentioned fear. They wished to maintain some form of autonomy.
Federalismwas seen by the founders as a safe move, only giving so much power as was needed ‘to get the job done to the new federal government, and keeping back all the remaining power, thus preventing corruption, or a abuse of power.
Having established a willingness by all of the thirteen colonies to join under a ‘union’, the delegates would now need to establish how the division of power was to work, what powers would they be willing to give up for the establishment of federalism , and which they would retain.

Establishing the balance

The balance of power which would be established under the Constitution has been branded as ‘unique compared to other democratic nations around the world today, with the balance in favour of the states (the people) and their independence against the federal government, but this balance is shifting as will be shown below. This is ‘unique’ in the sense that most nations like Australia have the inverse with favour towards a national government away from the states.

In building a balance between the interests of the states and federal government, the framers enumerated the powers under Art. I – VII of the Constitution and more specifically article one, section eight. This section outlines the powers and areas for which the new federal government can legislate leaving the ‘remainder with the states. The federal government is limited to only these powers and any legislation outside would amount to ‘over-reach.
In order for the effective administration of the new national government there was a need to establish a law making body in which the enumerated powers could be used for the good of the nation. This new body was established under article one, section one of the constitution and would be known as ‘Congress. Congress shall ‘make all laws which shall be necessary and proper for carrying into execution any of the enumerated powers, alongside state legislatures. This new Congress would give the people the right of ‘representation’ under the new government, lacking under the old imperial system.
While each state would maintain their legal system including Constitutions, courts and the Legislature they would now have to contend with a federal law making body, Congress and its powers as given under the Constitution. This new court would give the ability for the states to object to new laws passed by Congress if a state felt it to be unconstitutional, and a violation of their rights in a form of judicial review.
This new court would have the power not only to review an act of Congress, but also would have the right to strike it down if so required, due to Congress enacting a law which was outside of their powers. This power of review was set into stone by the court in Marbury v Madison (1803).

My, how you have grown…

While the founders of the Constitution had an idea of a well balanced union in which state and federal governments confined their law making to their powers. One of the other creations of federation, the Supreme Court in a number of rulings had other ideas. While Congress has eighteen areas in which they have the power to legislate, with a little help from the Supreme Court some of which will be examined here, they have managed a ‘shift’ or ‘evolution’ in the balance of power from states, towards the federal government.
These cases revolve around one main clause in article one, section eight of the Constitution, being ‘the Commerce Clause’.
The Commerce Clause allows Congress to ‘…regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes. This power has been used widely over the years in many areas from farming to firearms control. This clause has allowed for Congress to make laws into areas which would normally be under state residual powers, by showing a connection between the ‘thing’ being controlled and commerce. For example firearms control and the Gun Free School Zone Act , normally covered by states ‘police’ powers.
The first case on the road to change, is that of Wickard v Filburn (1945) were the Supreme Court held that personal wheat usage by a farmer within his/her own state would amount to an effect on commerce as it may put a stop to the buying of wheat from external sources (interstate). Thus this ruling has allowed for Congress to apply regulation to activity that ‘might have an effect on interstate trade or commerce.

The second case is Gonzales v Raich (2005) this case allowed for a reaffirming that Congress may place any regulation on an ‘class of activity which could have a clear effect on interstate trade or commerce, even when it was confined within one state, in this case the use of a controlled substance on medical health grounds.
While the commerce clause has the ability for Congress to pass a law to regulate a ‘class of activity’ that ‘might’ have a detrimental effect on trade between states, this clause does have an twin sister, the ‘Dormant Commerce Clause which can have effect even without Congressional legislation. The dormant commerce clause has to ability to strike down any law passed by the state which would discriminate against another ‘sister state. The view is taken that if such discrimination was sound public policy, then Congress would have regulated in this area.
These cases clearly illustrate that Congress has and does exercise the power to regulate into state residual powers territory, slowly yet surely shifting the balance of power more towards the ‘centralised’ government that the people so surly feared in the first place, even at times without direct Congressional intervention.
This extension of power could very well explain the rise of the ‘American Tea Party’ in the current political climate, along with other issues that party has taken to heart. As these Congressional laws and court rulings show there is a direct shift away from the independence of the states to control their own activity, which was so heavily sort from the formation of the union, towards centralised government.
Another way in which federal powers have been extended, tipping the balance towards federal government away from the states is via the Fourteenth Amendment, Due Process Clause and Selective Incorporation. This has extended protections enshrined under the Bill of Rights onto states, thus in effect preventing any legislation being enacted by the states which would interfere with these ‘fundamental’ protections. The most recent example of this Selective Incorporation has taken place in McDonald v Chicago (2010) where the Supreme Court extended the ‘right to bear arms towards the states, finding the amendment applied to states by the Due Process Clause.
While this type of extension by the federal government law into the states’ rights is not seen as a negative, but clearly a positive step towards the protection of fundamental rights to all citizens, it is never the less a tipping of the balance of power from the states.

Conclusion

In this essay we have discussed three topics each having importance in demonstrating the balance of power between the federal and state governments. These topics covered the areas of historical context, where it was shown that the American balance of power was established out of disenfranchisement with the imperial government at the time, leading to a war and finally independence, but this disenfranchisement had left a deep scar on the nations psyche, a fear, of big, centralised government. Even with this deeply rooted fear there was a willingness by the people to work to build a nation for the people, even if it meant a leap of faith handing over some power to a new, unknown federal government under a new document called the Constitution of the United States of America.

The area of establishing the balance was the second to be covered which showed like most things American they had created a unique system which placed the power of the people at the forefront and the power of the nation second. To do this they established an order, a way to get things done and a way to give the people what they wanted representation. There was the establishment of a Congress, with enumerated powers in which to foster the new nation, while states maintained a wide mandate in which they could state law unique to their needs. They gave the people the representation they had craved in their new government in hopes to lessen the deep scar left years before, not only into Congress, but as a right of judicial review in the Supreme Court of the United States, while leaving the current judicial and legislative systems intact.

Finally there was the discussion as to how the federal government powers have grown over the years, with a continual shift away from the states towards, big, centralised government so feared at the birth of the nation. This shift has taken place with the help of the very document in which the people placed their hope of protection in, the constitution. This shift has taken place by enactments of Congress under such powers as the Commerce Clause, and enabled by the interpretations of the Supreme Court to the point of tipping the scales in favour of the federal government by allowing the overt enumerated encroachment into states residual powers. It has come to the point where rights are given with the one hand, and taken from the states with the other.

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