American Federalism & State Government Dual Sovereignty • States are sovereign – They are independent of the federal government • Have their own inherent powers, constitutions, chief executive, budgets, legislatures, courts. • The States created the federal government and gave it specific powers. – When state laws conflict with federal law, the federal law prevails. • Feds can preempt state law with federal laws. • But feds must justify their action based on a specific power granted by the constitution. – And states can call a constitutional convention to rewrite the constitution if a super majority (2/3rds) of states vote in favor of holding a convention. • Article V of the US Constitution Have • Some saythe yes!States Reached That? • Michigan voted 2014 to call a constitutional convention to amend the constitution to require a balanced federal budget • It was the 34th state. Florida voted yes in 2010 • But questions remain. – 12 states have rescinded their yes votes. – The constitution does not address rescissions. – House Speaker had lawyers looking at issue. • Federalism is the distribution of powers between the federal and state governments. – It is a constantly evolving relationship. • The courts are the umpires. • The federal government’s income tax allows it to offer states incentives to adopt programs like Medicaid – even though the feds cannot order the states to provide health care to their poor people. • But the feds could extend Medicare to all citizens of all states if Congress could pass it. • Local governments are NOT Local Governments not Sovereign independent. – They are creatures of the states and can be abolished or ordered to do things they don’t want to do. • All levels of government are bound by most of the US constitution’s privileges and immunities – But incorporation of the bill of rights has been selective and evolving. Not all provisions apply to state actions. • States have own constitutions and charters and local governments their charters – Often these confer rights and protections from state or local action. American Federalism The question of the relation of the states to the federal government is the cardinal question of our constitutional system. It cannot be settled by one generation, because it is a question of growth and every new successive stage of our political and economic development gives it a new aspect, makes it a new question. Woodrow Wilson 1908 Federalism: Where autonomous governmental units work within a system of rules for the division of public policy responsibilities. Confederation Federalism Unitary Government • In a federal system of government, • Sovereignty refers to powers which a constituent state or republic possesses independently of the national government. • In a confederation constituent entities retain the right to withdraw from the national body, • but in a federation member states or republics do not hold that right. Definition of Federalism • System of rules for division of public policy responsibilities among a number of autonomous governmental agencies. • Rules are set forth in constitution. What each gov can do, powers they have • Autonomous units – can act in broad areas without approval of any other unit. Not just admin units. Dual sovereignty: US and FL. Both govern different aspects of our society Other federal systems • Canada, Australia, Argentina • In Canada, national government much weaker and provinces stronger. – And provinces powers are unequal (asymmetric federalism) • More countries moving toward federalism Governing the Supercity Layers of Governance in Whitehall, Pennsylvania 17. United States of America 16. Commonwealth of Pennsylvania 15. Air Quality Control Region 14. Southwestern Pennsylvania Regional Planning Commission 13. Western Pennsylvania Water Company 12. Allegheny County 11. Allegheny County Port Authority 10. Allegheny County Criminal Justice Commission 9. Allegheny County Soil and Water Conservation District 8. Allegheny County Sanitary Authority 7. City of Pittsburgh 6. South Hills Area Council of Governments 5. South Hills Regional Planning Commission 4. Pleasant Hills Sanitary Authority 3. Baldwin-Whitehall Schools Authority 2. Baldwin-Whitehall School District 1. Borough of Whitehall Census Bureauof defines as follows: Entity Definition a Government A government is an organized entity, which, in addition to having governmental character, has sufficient discretion in the management of its own affairs to distinguish it as separate from the administrative structure of any other governmental unit. Must possess all three critical attributes: • existence as an organized entity, • governmental character, and • substantial autonomy. Census Bureau Census: 87,527 governments (from Statistical Abstract) •One federal; •Fifty state; •Five basic types of local County Governments (3,033) • Exist in all states except Connecticut and Rhode Island and DC – called boroughs in Alaska, parishes in Louisiana Municipal Governments (19,492) • Cities, boroughs (except in Alaska) • Villages, and towns (except in the six New England states, Minnesota, New York and Wisconsin). – Composite city-county governments are treated as municipal Township Governments (16,519) • Provide general government services for areas without regard to population concentrations. – Include towns in six New England states, Minnesota, New York and Wisconsin, and townships in eleven states. Special District Governments (37,381) • Provide one or limited number of designated functions – have sufficient administrative and fiscal autonomy to qualify as independent governments. – Examples, Southwood is a special district. • Libraries, mosquitoes, fire, community development • https://dca.deo.myflorida.com/fhcd/sdip/OfficialList deo/ School District Governments (13,051) • Created to provide public elementary, secondary, and/or higher education – have sufficient administrative and fiscal autonomy to qualify as independent governments. – They exclude school systems that are "dependent" on a county, municipal, township, or state government. A Little History • Articles of Confederation • Federalist Papers • The Federalism Solution Articles of Confederation: 1776-1781 • States ran the country. – National body was unicameral, equal reps from each state, no taxing power, no commercial treaty power, no power to enforce existing treaties or punish foreign treaty or trade violations. No functioning executive apparatus. • Different currencies from state to state. • Became clear we needed stronger national government – But how to keep in check so didn’t usurp powers of states and individuals. Federalists vs anti-federalists Compromise • Convention called to revise Articles of Confederation – But “runaway convention” threw out and replaced with new constitution • Strong nat gov, with independent state governments – power divided between two levels. • Certain specific functions to feds: commerce, national defense. 10th Amendment • Anti feds insisted on 10th amendment – Says “powers not delegated to US by Con, not prohibited by it to the states, are reserved to the states respectively, or to the people. • Constitution gives only about 17 specific powers to the feds, so seemed very strong restriction on feds. But 4 clauses gave very broad grant of power to national government • Congress authorized to: – “provide for the general welfare,” – “make all laws which shall be necessary and proper” for executing this and other powers given to the legislature – “regulate interstate commerce” and – “supremacy clause” where fed and state law conflict, fed law supreme. Implied Powers Doctrine • Evolution within the federalist framework: – In 1819, a key court case, McCullah v. Maryland, came before the Supreme Court chaired by Jon Marshall, a hard-core federalist. – At issue was a national bank in Baltimore, which Maryland argued was not listed as a national power in the constitution. – The court adopted the notion of "implied powers" saying that the power does not have to be specified in the constitution but rather can be implied from it. Pandora’s Box • But the federal role was pretty minimal for quite a while. – Largely because the federal government had very little money. • But when the country began to change, to become more urban and needs were apparent, – the Progressive period began with its more positive view of government and the adoption of the federal income tax in 1913, – the federal government was seemingly in a better position to take on a strong role. Court Shifts Against National Power • Nonetheless, in the first decades of the 20th century courts protected dual sovereignty – and refused to use the commerce clause to justify federal action. • As late as 1935, the court said that the Congress could not regulate the sale of poultry • because the regulation took effect after the chickens arrived within the state of Illinois – not while they were in transit. • Courts struck down most national powers till Roosevelt’s threat to pack the court. Shifts Back toward Federal Power • In the 1960s and 1970s, activist Warren court asserted strong federal dominance • Civil rights and criminal rights. – Used interstate commerce clause and the 14th amendment of equal rights to great advantage. – Over the years, due process clause of 14th amendment has gradually incorporated most of the US Constitution’s Bill of Rights • Dynamic system – political issue – swings back and forth. – States clearly weaker than 200 years ago – But stronger than 20 years ago. Key Constitutional Provisions • Interstate Commerce • Three factors courts’ consider when determining if a state’s actions violate the Commerce Clause: – whether they regulate commerce that takes place entirely outside a state’s borders – whether they have the practical effect of controlling out-of-state transactions; – what consequences would be for other states’ regulations • and what would occur if every state did something similar to the actions of the state in the case before them Other Important Sources of Federal Power • • • • Supremacy Clause Welfare Clause 10th Amendment 14th Amendment “incorporation” of the Bill of Rights Advantages of Federalism • • • • • • Prevents abuse of power by national gov. Flexibility Innovation: Laboratories of Democracy Competitive edge Management Facilitates subcultures Disadvantages of Federalism • • • • Coordination problems Parochialism Inequities Moral hazard – States abuse federal programs since not paying the bill – shift state responsibilities to feds Key Relationships of Federalism • • • • States as sovereigns States as partners States as advocates States as principals in state-local relationships States as sovereigns • Constitutional context – 10th & 11th amendments – Requirement of federal justification • Can act on their own – Police power: • Authority to protect health, morals, safety, welfare – Regulate contracts, education, crime, traffic, land use, marriage, professions, business, charities, many other aspects of life – Power is inherent in state sovereignty – Frequently innovate in health and social policy, justice, etc., e.g.., regulation of insurance started in Massachusetts States and Federal Governmental System I. Similarities A. Three branches of government --Two houses --A chief executive, appointed cabinet, bureaucracy --A judiciary including both trial and appellate levels B. The duties of the three branches are nearly identical --Legislature passes laws, appropriates, oversees executive branch --Legislature is organized by parties and uses committee system --Legislators seek to get reelected --President/Governor sets agenda, oversees running government C. Both have constitutions D. Both are sovereign governments E. Both are lobbied by interest groups and are provided funds by PACs F. Policymaking similarities --Stages --Role of policy entrepreneurs --Issue networks --Captured agencies --Issue Cycles --Collective action problems Differences: State/Federal & State-State A. Feds: No balanced budget requirement; no term limits; supremacy clause; interstate commerce authority; treaties, war power;$ B. Many differences exist among the 50 states in terms of the powers, structure and organization of government 1. Among legislatures – – – – Size of chambers Time in session Staffing, Salaries Partisanship, Term limits • 2. Among governors Formal powers Informal powers Plural Executives 3. Among courts Often elected or chosen using Missouri Plan Florida Term Limits • The “Eight is Enough” campaign collected signatures to have placed on the ballot in 1992. – It passed with 77% of the vote in November of 1992. • According to Florida term limits: – State Representatives may serve 4 terms or 8 years in the Florida House. – Senators may serve 2 terms or 8 years. – There is no ban on running for office again in Florida. • In 2002, 78% of Florida citizens were still in favor of term limits. State Powers • Powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people. • Amending the constitution • Proposing a constitutional convention States Traditional Role in Health and Safety • Argument that power came directly from crown to states – Inherent in role of government. - Traditional exclusivity in state health insurance - Now threatened - But medical licensure still state function - Problem for national providers - Must conform to differing state laws State Constitutions • All have a bill of rights. • Some go further than US Constitution. – FL and others: Privacy, Blaine Amendment – FL alone: pregnant pigs • 18 including FL have initiative, some have referendum, recall – Signature requirements vary • All have executive, legislative, judicial role defined. – All but one bicameral, sizes vary greatly. State Budgets, Federal Grants To States, etc • The National Association of State Budget Officers – NASBO – Survey of States Spring 2016 • http://www.nasbo.org/home States as Partners • • • • Federal government often can’t do it alone States implement federal programs Feds provide incentives for state action Feds want to avoid hot potato – Minimum essential benefits package for PPACA • Delegated to states by DHHS Concurrent Powers • Powers exercised jointly by federal and state governments • Both can borrow money, raise a variety of taxes, charter banks, establish courts and prisons, give grants, fund a wide variety of social programs, maintain a militia/army, regulate occupational safety, control pollution. Exclusively Federal Powers • States can’t regulate interstate commerce, restrict inter-state navigable rivers, coin money, enter into treaties (but can do interstate compacts) • No role in foreign affairs – Can’t enter treaties or block them • Can engage in trade missions • When state and federal laws conflict, supremacy clause makes federal law supreme. – Federal legislation in an issue area tends to preempt state action in that area. Constitutional Mandates on States • Must give full faith and credit to every other states’ public acts, records, court rulings • Give same rights, privileges and immunities to every states’ citizens that it gives to its own. • Agree to extradition of individuals who have fled justice into their state • But policeman in one state has no authority in another Federal Grants in Health Medicaid Children’s Health Insurance Plan (SCHIP) Maternal and Child Health Block Grants Preventive Health and Health Services Block Grants Community Mental Health Services Block Grants Block Grants for Prevention and Treatment of Substance Abuse Social Services Block Grant Abstinence Education HIV Programs Special Programs for the Elderly Development Disabilities Regulatory Federalism • Mandates • part of grants • Preemption • HIPAA • Crossover Sanction: • Highway Trust Funds • Partial Preemption: • State Option to Take on Function/HIPAA, OSHA, HI Rate Review • • • • • • • States as InnovatorsHealth Policies • Drug costMA Model for ACA effectiveness Patient bill of rights• Assisted suicide 25 Mental health parity- • Teleprofessions 16 • HI mandates Liability for health • Prescription drug plans-3 controls Health insurance • Assisted living coverage in MA, regulations Maine, VT, others • Medical marijuana Restrictions on • Physician “Unions” abortion • Vaccine refusal Medicinal marijuana States as Advocates • States lobby for some federal involvement – Even sue feds for failure to enforce law • States lobby against some federal involvement States as Principals for Local Governments • Localities are not sovereign • Rely heavily on states – Funding – Authority – Regulatory strings Local Governments • • • • Not sovereign governments Not in U.S. Constitution Are “creatures of the state” Have charters, home rule provisions granted by state--but can be revoked Judicial Roles both Parallel and Overlap • U.S. Supreme Court – Supreme on interpretation of federal constitution and federal law • State Courts – Supreme on state laws • Attorney Generals – Share ideas, seek partners for class actions The Judiciary Sources of American Law Constitutions - United States Constitution - State Constitutions Statutes and Administrative Regulations passed by federal or state legislative bodies and turned into regulations by bureaucracies - States also empower counties, cities, municipalities and certain special districts to adopt charters and under those, to pass laws or ordinances. Case Law spawned from court decisions These are based upon a combination of precedents set in earlier cases interpreting laws and regulations and the common law from the US and sometimes other countries, including tort law. Multiple Levels of Courts • US judicial system comprised of – Federal Court system – State Court Systems (in each state) • Most cases are heard in state court • Cases rarely go from state to federal or vice versa – Local Courts • (Ranging from State Supreme court to local county judge in rural counties – several levels and overlapping jurisdiction in between Basic Judicial Requirements - State courts hear cases involving disputes or violations under state law and the state constitution - State cases end at the state supreme court - unless they are appealed to federal court on the grounds that state law or the state constitution or the state court’s rulings conflict with federal law or the federal constitution - When there is no federal question, state courts are supreme - Individuals can often chose federal or state courts for their cases when both have laws on a subject - Jurisdiction of federal courts typically requires: A Federal Question or Diversity of Citizenship (citizens of two states, or a state and a foreign country) Federal Court System • 3 levels of Federal Courts – 94 US District Courts, 1-4 per state (632 judges) • Original jurisdiction, try cases • Decisions apply only in that district – If not overturned on appeal, decisions valid in other states due to “full faith and credit” clause of US constitution – US Court of Appeals • 11 US Circuits plus District of Columbia & US Court of Appeals for the Federal District (total 13) (179 judges) • Hear appeals from cases tried in District Courts – Also hear appeals from Administrative Courts like Federal Tax Court and Administrative Agency rulings like FTC, FCC, CMS, EPA, etc – Decisions apply only in that circuit unless affirmed by US Supreme Court (though other circuits review and may follow) • US Supreme Court – Hears only appeals from Circuit Courts, except certain exceptions of original jursidiction spelled out in Constitution. Which Cases Reach Supreme Court • a subjective process, but certain factors increase a case’s chances o when two lower federal courts are in disagreement o when a lower court’s ruling conflicts with an existing Supreme Court ruling o when a case has broad significance o when a state court has decided a substantial federal question o when the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law o when a federal court holds an act of Congress unconstitutional o when the solicitor general is pressuring the Court to hear a case Types of court decisions opinion - unanimous majority concurring dissenting o affirm o reverse o remand How Do Courts Make Policy? judicial review – the power of the courts to declare the acts of governmental officials unconstitutional judicial activism – taking a broad view of the Constitution and using power to direct policy towards a desired goal judicial restraint – rarely using judicial review and limiting judicial action in the policy process Examples of Federal Court Imposing National Standards on States • Grisswold v CN found privacy right in penumbra of bill of rights; – Said state law banning some sexual practices, even among married couples violated federal constitutional guarantee of privacy • Roe v Wade spelled out trimesters & differing role of govts based upon discussions with physicians – Acted like a legislature – gathering facts Wyatt v Stickney 1971: Bryce Mental Hospital of Tuscaloosa AL • Built 1850s. Massive. 5000 patients including geriatric w no dx of mh. Fire hazard, no ventalation. Human feces caked floors, walls, toilets. Beds lacked sheets. Pts slept on floor. Showers cracked, leaked. Most patients tranquilized, bed ridden and not bathed for days. Stunk unbearably. • Federal Judge Frank M. Johnson Jr ruled that keeping pts confined w/out guarantee of adequate treatment violated 14th amendment ban on depriving of life, lib, property w/out due process of law. Also violated 8th cruel and unusual. • So set standards for cleanup and reform: minimum staff ratios to patients; guidelines for toilet ratios to patients; water temp of dishwahsers. • Was interpreted to mean, treat, don’t just warehouse, or let them go. • States let them go by thousands. Slept on grates, created homeless crisis. • Good or bad decisions? Leave them to rot; Come to rescue? • Judicial activism? Checks on the Judiciary Executive Checks - implementation - Appointments Legislative Checks - Appropriation of funds to carry out rulings - Constitutional amendments - Amending laws to overturn court’s rulings Public Opinion - Sometimes can ignore decisions - pressure for non-enforcement - influence judicial opinions Judicial Self-Restraint - narrow focus of judicial questions - stare decisis - tradition of restraint State Courts • Similar in levels, procedures to federal courts – Lowest courts hear conduct trials – State appellate courts hear appeals from decisions of lower state courts – Decisions of state supreme court final on state law and state constitution • unless challenged as violating federal constitution or law – Some judges appointed by governor, others elected • Lobbies try to influence who gets elected to court • Once elected, most run unopposed The End 1.Give some examples of the ways in which federalism has introduced perverse incentives into public policy. 2.Why are states important in health policy? Please answer in 100 words or less. Draw only from course materials. That includes websites in slides. Use footnotes where appropriate. Short phrases.
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