American Democracy in Context. Joseph A. Pika

results of these membership changes were striking. In case after case, the Court went on to overturn dual federalist precedents. In April 1937, the Court upheld the National Labor Relations Act in a broad cooperative federalist ruling that rejected the rigid interpretation of the direct–indirect test it had used the year before. Now Congress could use its commerce clause power to regulate the production of goods as well as the transportation of goods across state lines. The vote in that case was still 5–4.⁴⁴ But only four years later, the transformation was complete. The Court unanimously overturned Hammer v. Dagenhart, a landmark 1918 dual federalist ruling that had held that Congress could not use its commerce clause power to regulate child labor by stopping the shipment of goods produced by children across state lines. In its new embrace of cooperative federalism, the Court dismissed the Tenth Amendment as merely a “truism.”⁴⁵

      Implementing Cooperative Federalism

      The expansion of national power made possible by the “switch in time” led to a much more complex relationship between the national government and the states. The old dual federalist relationship has sometimes been described as “layer cake federalism,” with each layer of government having clearly defined responsibilities. With the federal government becoming more active in telling states and localities what to do, the cooperative federalist relationship looked more like a swirled marble cake. States now cooperated with the federal government (hence the term cooperative federalism) by implementing its rules and regulations rather than having independent control as they did under dual federalism.

      As Congress’s power to regulate increased, it imposed more and more legal requirements on states (ranging from dictates to maintain the privacy of medical records to regulations designed to maintain clean air and drinking water). Money from the federal government to implement these requirements typically came in the form of categorical grants. These are grants for states to do very specific federally mandated things. Sometimes, in order to qualify for funds, states are required to match a portion of a grant with their own money. Categorical grants are used to pay for such things as Medicaid and food stamps, programs that were part of President Lyndon Johnson’s so-called Great Society in the 1960s—a federal expansion agenda that also included “War on Poverty” initiatives such as Head Start (which offers preschool education for poor children) and Upward Bound (which helps prepare poor high school students for college). The Great Society also expanded the federal government’s role in the arts, environmental protection, and motor vehicle safety.

      categorical grants Funds from the national government to state and local governments that must be used to implement a specific federal regulation in a particular way, leaving recipients no flexibility regarding how to spend the money.

      unfunded mandate A legal requirement imposed on states by Congress to administer a program that comes with no federal money to pay for it.

      Such programs, of course, cost money. Not surprisingly, the federal budget steadily increased as the federal government took on more and more responsibilities. Sometimes Congress imposed a legal requirement on states to administer these programs but offered no money to pay for them. These requirements are called unfunded mandates. The 1990 Americans with Disabilities Act (ADA) is a good example. This law mandates that public transportation be accessible to people with disabilities, but it does not pay states or localities to retrofit trains and buses to comply with the law. Paying for such unfunded mandates became a substantial portion of many states’ budgets.

      Picture Yourself …

      Amidst California’s “Anti-Okie” Panic of the 1930s

In the 1930s, a period of prolonged drought led to severe dust storms that devastated farms, particularly in the state of Oklahoma and the surrounding Great Plains region. This so-called Dust Bowl struck at the worst possible time—in the midst of the Great Depression. It destroyed millions of acres of farmland and forced tens of thousands of families to abandon their farms and relocate. In all, it is estimated that as many as two million people were left homeless by the Dust Bowl.^a

^a The Dust Bowl, directed by Ken Burns (2012, Washington, DC: Florentine Films), http://www.pbs.org/kenburns/dustbowl/about/overview/

Suppose you were one of these impoverished farmers who lost everything and went looking for a better life elsewhere. No matter what state you came from, you would have been derisively dubbed an “Okie” (because so many of the migrants came from Oklahoma). Let’s assume you chose to go to California (a particularly popular destination in those days). Would you worry about California letting you in? Probably not, since today, we take it for granted that states cannot prohibit the entry of citizens from other states. But worry you should. Overwhelmed by the tremendous influx of impoverished people from other states, California reacted by trying to keep out their fellow Americans. There, you and your fellow Okies would have been marginalized as “‘criminals,’ ‘troublemakers,’ ‘parasites,’ ‘enemies of society,’ or, even worse, ‘radicals’”—even if you had been a prosperous pillar of your community before the Dust Bowl destroyed your farm.^b

^b Thomas Conner, “The Anti-Okie Panic,” This Land, November 10, 2016, http://thislandpress.com/2016/11/10/the-anti-okie-panic/

Had you arrived at the California border in 1936, you would likely have been rudely turned away by armed officers of the Los Angeles Police Department (LAPD). The LAPD Police Chief, James Edgar (“Two-Gun”) Davis, deployed 136 of his officers to 16 major points of entry into California to block the migrant caravan. Had you somehow gotten into the state, Davis—who once said that constitutional rights only benefited “crooks and criminals”—would have threatened you with arrest and a 180-day jail term with hard labor.^c No one in California seems to have suggested building a wall at that time, but some might have welcomed it. In the spring of 1936, the San Francisco News commissioned John Steinbeck to write a series of articles about the plight of these migrants. Published in October 1936 as “The Harvest Gypsies,” they led to Steinbeck’s classic 1939 novel The Grapes of Wrath.

^c Cecilia Rasmussen, “LAPD Blocked Dust Bowl Migrants at State Borders,” Los Angeles Times, March 9, 2003, http://articles.latimes.com/2003/mar/09/local/me-then9

      Then, in 1937, California passed legislation that criminalized bringing or helping to bring indigent people into the state. Thus, if you had friends or family in California who brought you into the state, they could have been punished, too. That is precisely what happened to a California resident named Edwards. He drove to Texas in 1940 and brought back to California his wife’s brother, who was unemployed. For this act of charity, Edwards was tried, convicted, and given a six-month suspended jail sentence.

Is that constitutional? Existing Supreme Court precedent at the time suggested that the California law used to convict Edwards could, indeed, be a valid exercise of California’s police power. In an 1837 case, Mayor of the City of New York v. Miln, the Court concluded that it is “as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported.”^d

^d Mayor of the City of New York v. Miln, 36 U.S. 102 (1837) at 142.

Edwards,