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Lecture PPTs

GOVERNING TEXAS

THIRD EDITION

ANTHONY CHAMPAGNE

EDWARD J. HARPHAM

JASON P. CASELLAS

Chapter 3

Texas in the Federal System

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Texas in the Federal System

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The relationship between the state and federal governments has remained a key issue in Texas. Recently, Governor Greg Abbott called for a U.S. constitutional convention to amend the Constitution and strengthen the powers of states versus those of the national government.

What role should the national government have in immigration policy, voter ID, affirmative action, and environmental legislation?

Texas state leaders have recently been at the forefront of calling for checks against the national government’s power

Why Federalism Matters

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1.Texas Governor Greg Abbott has called for a constitutional convention to pass nine new amendments that would limit national government power. While Abbott’s plan is unlikely to be adopted, it highlights the conflict between states and the national government in terms of authority.

2. Ask the students to discuss where federal and state governments have recently clashed concerning voter ID requirements, border control, same-sex marriages, bathroom access, or environmental protection.

Texas and the Nation

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In recent years, some Texans have called for a decentralized system of government. Some have looked back to the Republic of Texas as an ideal.

Understanding Federalism

Federalism is a system of government in which power is divided between a central government and regional governments

At its core is the decentralization of government

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Federalism is distinct from a unitary system, where all the power resides within the national government.

The United States and Texas flags that fly in front of many government buildings in Texas (including Dallas’s city hall, pictured here) reflect the nature of federalism. Both the national government and the state government are sovereign. The third flag is the flag of the city of Dallas.

Understanding Federalism: Conflicts

Political battles have been fought over the roles of states and the national government

These conflicts include disputes over

The states’ right to leave the union

The power of government to regulate business

The implementation of political reforms

Problems of race, poverty, and abortion

In federalism, both the states and the federal government are sovereign

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Sovereign: possessing supreme political authority within a geographic area.

Rather than being a part of a federal system, local governments were the creations of states, and continue to be so today.

The Tenth Amendment, commonly called the states’ rights amendment, states, “The 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.”

Understanding Federalism: Painting of Valley Forge

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During the American Revolution, the lack of a strong central government made it difficult for the United States to fund a strong military, as exemplified by terrible conditions for the troops at Valley Forge.

Federalism in Early America

The controversy over the federal system divided Americans

McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) promoted national power at the expense of state power

The Nullification Crisis in 1833: South Carolina tried to assert the right to veto (or nullify) national legislation passed by Congress

In 1869, the Supreme Court resolved the debate over whether states can secede from the Union in Texas v. White

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Federalism allowed the 13 former colonies to unite in useful and efficient ways, such as creating one military body and having a common currency and coherent trade policy, while still keeping (at the time) most other functions local.

In McCulloch v. Maryland, Chief Justice Marshall and the Supreme Court established that the “necessary and proper” clause in Article I, Section 8, of the Constitution provided a source of implied powers for the national government. This is the first pivotal case that set the precedent for future Court decisions regarding federalism.

During the Nullification Crisis, John C. Calhoun argued that a strong national government was a threat to the sovereignty of states and argued for a system along the lines of the original Articles of Confederation.

The Bill of Rights did not apply to the states until 1868 with the Fourteenth Amendment.

What benefits were gained that would have been impossible had they been 13 small countries?

Federalism in Early America: Painting of Shipping between New York and New Jersey

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A major power of the national government is the power to regulate interstate commerce. Gibbons v. Ogden (1824) was a key case that expanded national power. It held that Congress had the power to regulate interstate commerce, like shipping between New York and New Jersey, pictured here.

Dual Federalism

Following the end of Reconstruction, the Supreme Court further embraced dual federalism

Powers are strictly separated between the federal and state governments

Layer-cake federalism: a way of describing the system of dual federalism, in which there is a division of responsibilities between the state and the national governments

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Reconstruction: the period after the Civil War when much of the South was under military occupation.

Dual federalism: the system of government that prevailed in the United States from 1789 to 1937, in which most fundamental governmental powers were strictly separated between the federal and state governments.

As you outline the variations of federalism, ask the students to evaluate which makes more sense today in our diverse, technological, conflicted polity.

Figure 3.1: Dual versus Cooperative Federalism

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Dual Federalism: Marble-Cake Federalism

Marble-cake federalism

In marble-cake federalism, the boundaries between national government and state government have become blurred

The initial form was cooperative federalism, in which grants-in-aid were used to encourage states and localities to pursue nationally defined goals

The New Deal and categorical grants

Nixon’s New Federalism and block grants

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Categorical grants: congressionally appropriated grants to states and localities on the condition that expenditures be limited to a problem or group specified by law.

Wickard v. Filiburn (1942) suggested that the national government’s regulatory power under the interstate commerce clause was so broad that there seemed no boundaries on national power.

New Federalism: the attempts by Presidents Nixon and Reagan to return power to the states through block grants.

Block grants: federal grants that allow states considerable discretion on how funds are spent.

New Federalism was also furthered during President Bill Clinton’s administration, when major reforms were passed that gave the states a significant decision-making role with welfare programs.

Dual Federalism: Making Copper Utensils

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During the 1930s, Texans were affected by unemployment and drought that had led to massive poverty across the state. The federal government stepped in to help, employing people in public works projects. Here, people make copper utensils for a Texas hospital.

Coercive Federalism

Coercive federalism: federal policies that force states to change their policies

Contentious issues and conflicts

Unfunded mandates: federal requirements that states or local governments pay the costs of federal policies

Preemption: cases where the national government imposes its priorities on states

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What are some examples of unfunded mandates?

What are some examples of preemption?

Should unfunded mandates and preemption be constitutionally permissible?

Is either issue a violation of the Tenth Amendment―the so-called states’ rights amendment?

The Tenth Amendment allows states to pursue policies that are attuned with their political culture (as noted in Chapter 2) and public preferences.

Coercive Federalism: The States Respond

State leaders have become highly critical and resistant to new federal laws

Have vowed to reject new national gun laws

Have refused to initiate health insurance exchanges under the Affordable Care Act

A number of states, including Texas, have been involved in numerous lawsuits against the federal government

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The strong resistance that some states have shown to coercive federalism as it has become more common has also emerged within some recent Supreme Court decisions. Although no dramatic reinterpretations have occurred, the court did begin to place limits on Congress’ ability to legislate under the interstate commerce power.

Printz v. United States (1997) is a significant case in the past two decades that has returned some power to the states.

Coercive Federalism: Second Amendment Supporters

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Gun control is a key federalism issue. Here, protestors demonstrate in front of the Texas state Capitol in support of Second Amendment rights.

Coercive Federalism: Restrictions on the States

Major U.S. constitutional and statutory restrictions on the states

The Fourteenth and Fifteenth amendments affect the nature of federalism by providing the basis for major constitutional and statutory restrictions on state powers

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Many scholars argue that the Fourteenth Amendment to the U.S. Constitution is the most far-reaching in terms of its application to the states, as the “equal protection under the law” and the “due process clause” are continually contested in the judicial system.

Coercive Federalism: Incorporation of the Bill of Rights

Incorporation of the Bill of Rights

Its application to the states potentially changed in 1868 with the ratification of the Fourteenth Amendment, which clearly applied to them

Selective incorporation: rights in the Bill of Rights that are held to apply to the states because they are part of the “liberty” protected from the states in the Fourteenth Amendment

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Policies that may be very popular in one state may be entirely unappealing in another. Can students think of some examples?

Limits on the States

The equal protection clause

The equal protection clause became a useful legal instrument to combat racial discrimination

Plessy v. Ferguson (1896)

Brown v. Board of Education (1954) and the end of the “separate but equal” doctrine

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Herman Sweatt (right) walks with a white student at the University of Texas. Sweatt refused to attend a separate, all-black law school.

In Plessy v. Ferguson, the Supreme Court upheld state-required racially segregated train cars in Louisiana.

In Brown v. Board of Education of Topeka, the Supreme Court unanimously held that segregated public schools were inherently unequal.

“Separate but equal”: an interpretation of the equal protection clause of the Fourteenth Amendment that held that states could segregate races as long as equal facilities were provided.

Limits on the States: State Regulation of Voting

State regulation of voting

The Voting Rights Act is legislation designed to protect the right to vote

Part of the act requires preclearance by the federal government if changes are made in voting, such as the establishment of voter identification laws

Shelby County, Ala. v. Holder (2013) involved a challenge to Congress’s decision to reauthorize the Voting Rights Act and states’ rights

The U.S. Supreme Court held that states’ rights had been violated

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In August 2016, Texas and several other southern states announced major changes to their voter ID laws.

Is it reasonable to ask voters to provide a form of identification to vote, or is it a violation of their right to vote by imposing an undue hardship on the registered voters?

What does the research suggest?

Limits on the States: Independent State Grounds

Flexibility for states under the Constitution: independent state grounds

States do have some leeway to expand the rights of their citizens through a concept known as independent state grounds

Independent state grounds allow states, usually under the state constitution, to expand rights beyond those provided by the U.S. Constitution

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Example: the version of the Equal Rights Amendment adopted by Texas in 1972

Is the independent grounds concept well-grounded in the states’ rights concept and the Tenth Amendment?

Texas and the Obama Administration

Between the beginning of the Obama administration and the end of 2015, Texas sued the administration 39 times

Texas fought Obama’s immigration reform policy, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)

Claimed the decision would increase costs for state services

Conflict over redistricting methods

Texas argued for the metric for drawing districts should be total eligible voters rather than total population

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The lawsuits Texas has filed have covered a variety of issues, including air quality regulations, business regulation, climate change, education, health care, immigration, natural resources, voting, and gay marriage.

Thinking Critically about Federalism

Federalism has significantly changed over time, and there is no reason to believe it will not continue to do so

Leading Texans are now wishing to return greater power to the states, arguing that the national government is too distant, controlling, expensive, and unresponsive

The key question is whether the current relationship is best for resolving important policy issues

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What do you see as the most contentious issues involving federalism in the next five years in Texas?

Texas Election Day

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In 1965, President Lyndon Johnson made history by signing the Voting Rights Act into law. The purpose of the legislation was to eliminate racial discrimination in voting. A somewhat controversial element of the law was Section 5, which required states covered under that provision, including Texas, to have any changes to voting procedures approved by the Department of Justice or a federal court in the District of Columbia. The rationale behind what is termed “preclearance” was to ensure that the federal government would have oversight over voting laws in states that have had histories of excluding racial minorities from the political process.