Government History Term Paper

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status of federalism within the U.S. It is the thesis of the paper that the President, the Courts and Congress have assumed influential and significant roles in the shaping of federalism in recent decades. Initially, a conceptualization of federalism will be offered as established by the founding fathers. Current literature will then be used to identify factors associated with and the role assumed by the presidency, the Courts and Congress in federalism as it exists today within the U.S.

Conceptual Framework unique federal system of government to replace the original Articles of Confederation was established b the U.S. Constitution. On the basis of federalism, the Framer's of the Constitution delineated that national concerns were to be handled by a national legislative branch and executive branch of government while concerns at the local and state level would be handled by state legislatures and governors. It was the intent of the Framer's that only within specifically delineated areas would federal power displace state authority.

Conceptually, the Framer's believed that federalism offered the most promising design for insuring the effectiveness of government within the U.S. It was strongly believed that government is likely to work better when it is as close as possible to the governed. On the basis of this assumption, the primary premise of federalism is that the federal government's proper role is limited to carefully defined and constitutionally legitimate problems beyond the reach of the individual states. While some have confused federalism with "states rights," essentially, a second underlying principle associated with a federal form of government is that states have powers, rather than rights. This principle was clearly conveyed by the Framers in the Ninth and Tenth amendments as evidenced within the following:

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Amendment X:

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."

As the U.S. And the issues confronting the country and her citizens have grown increasingly complex, efforts to apply the principle of federalism have been challenged. In spite of these challenges, on the basis of the Constitution, adherence to federalism is clearly expected with ongoing efforts to respect and maintain the delineation between state and federal powers an ever present demand.

In a keynote address at the James Madison Day Convocation in 2001, the central event of a weeklong James Madison University 250th anniversary celebration of James Madison's birth on March 16, 1751, Supreme Court Justice Clarence Thomas called attention to the importance of the universal principles established within the Constitution, of which federalism was one. Justice Thomas explained that the Framer's recognized "that men by nature become tyrannical, so government must be limited" and that via federalism, the Framer's had insured that the United States "to enjoy unprecedented political stability and economic and social prosperity for more than two centuries."

As further explained by Justice Thomas, Madison and the other framers made a significant advance in politics and political theory - "an advance that allowed them to create a government strong enough to defend itself and the liberties of its people, but limited enough that it would itself not become the destroyer of those self-same liberties."

Federalism, according to Thomas, represents a major safeguard of liberty, acting as a check on national government while protecting the powers given to the states.

Justice Thomas clarified that federalism "didn't just de-centralize decision making or diffuse power....it created independent sovereigns that can't be commandeered or taxed by another and creates organizations of resistance against unjust use of [national] power."

Factors Influencing Federalism

In reviewing the literature of relevance to federalism and its recent resurgence, a number of factors have been documented as influencing current thought and efforts to re-affirm the importance of a federal form of government. Each of these factors will be reviewed.

The Presidency of Bill Clinton

President Bill Clinton's presence in American politics during the 1990s played a major role in influencing current federalism history. Bill Clinton, who was elected president in 1992, had been a leader in the National Governors' Association and a believer in state innovation and experimentation at the time he was governor in Arkansas. Similar to other state elected officials during the 1980s and 1990s, Clinton was very much against any suggestion that federal-one-size-fits-all solutions could be applied to the problems faced by the states. He was strongly against unfunded federal mandates and cost shifts from federal to state governments.

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During the first months of his presidency, Clinton made an effort to meet frequently with and listen to the pleas of state officials about restoring balance in the federal system. In response to the issues raised by state legislators and governors, Clinton issued an executive order that told federal agencies to stop imposing unfunded mandates on state and local governments in October 1993. This effort by Clinton represented one of several steps implemented during the 1990s that helped to free states to design their own solutions to challenges presented by federal policy.

Unfunded Mandates Reform Act of 1995

Consideration to the effect of the Unfunded Mandates Reform Act of 1995 ("the UMRA" or "the Act") on the enactment and implementation of modern administrative statutes as related to current influences on federalism today appears to be important. In order to effectively examine the influence of the Reform Act on federalism, one must first consider the lawmaking power given to Congress, the principle of enumerated powers, and the principles associated with state sovereignty. At the time the Framers developed the Constitution, one principle utilized was that the lawmaking power would be assigned to Congress exclusively. While this principle has been largely ignored, it represents an important foundational principle that may partly explain the different levels of effectiveness that have been achieved by Title I of the Act, which is applicable to Congress, and Title II, which is applicable to executive agencies.

Enumerated powers represents another important principle when considering the effect of the Reform Act. While the principle was largely disregarded for the better part of the 20th century, it has regained renewed interest since the Supreme Court's decision in United States v. Lopez, which was rendered shortly after Congress enacted the UMRA. Thus assessment of the UMRA's influence on federalism should be conducted with recognition given to the renewed interest in enumerated powers.

While much of the debate associated with the UMA has focused on the need to protect state and local governments from an overreaching federal government, little attention has been paid to one of the Founders' key purposes for keeping States as separate sovereign entities in the constitutional system. When the Framers envisioned the federal structure of the government, they were committed to the maintenance of state governments as separate sovereign entities and not just federal administrative units for the purposes of protecting private liberty and not simply to protect the States qua

States.

The federal structure accomplished this, in part, by insuring accountability in government, as Justice Scalia noted in his opinion for the Court in Printz v.

United States.

At the time Congress implemented the Contract with America, the above principles were those that guided their efforts.

The overall influence of the Unfunded Mandates Reform Act of 1995 on federalism is found in its effect in imposing some much-needed discipline on Congress, even though the exemptions included within the original Act prevented it from achieving the kind of massive reforms it was intended to have. Title II of the Act, which applies to the mandates of federal agencies, has not been as effective and failed to insure that regulatory agencies used assessment of pending regulations by a neutral agency in order to eliminate self-serving assessments. In spite of these shortcomings, the Reform Act represents a major effort to insure that the principles of federalism are adhered to.

Newt Gingrich and the Contract with America

The enactment of the UMFA was brought about and represented a component of the Republican's control of the Congress in 1994. Congressman Newt Gingrich and other Republican strategists initiated a national campaign around that which was known as the Contract with America, that promised to end federal unfunded mandates and to transfer power to state governments. The combination of a Republican congressional majority committed to returning powers back to the state as well as the efforts of President Clinton aided in dramatically shifting responsibilities to state governments. As well, the lobbying clout of the National Conference of State Legislatures and other state and local groups strengthened these efforts by advocating for a series of new laws that were passed and relevant to state sovereignty.

In addition to the Unfunded Mandate Reform Act, efforts to return power to the states included passage of other legislation, including the welfare reform act, a major revision of the safe drinking water act, surface transportation legislation, a new children's health law, changes to Medicaid….....

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