YYY+Federalism+Project

ABORTION

Like many idle issues in the US, abortion remains to be am extremely touchy topic. To people whom are considered as, “pro-life”, the thought of abortion makes them cringe with disgust and shame. Through their eyes, abortion, which includes taking a dose of the Plan B pill, is murder. They argue that living and developing fetuses, even within the first few weeks of creation, are human beings therefore their rights should be equally protected. On the other hand, people who label themselves as for, “pro-abortion” focus their argument on the rights of women and privacy. They claim that legalization of abortion improves the wellbeing of women in the US. With that, they further their claim by saying that women are more able and willing to partake on the many opportunities the nation provides. Abortion is the deliberate termination of a human pregnancy, usually done during the first 28 weeks of pregnancy. Originally, the decision was handed down to the reserved powers to decide but as the topic started to gain popularity, the conflict hole it currently has significantly deepened. The federal government, several times, attempted to settle these disputes with cases such as Doe v. Bolton and Roe vs. Wade. It’s no longer just a debate about abortion,” says Nancy Keenan, president of NARAL-Pro-Choice America. “These attacks on women’s reproductive health have gone too far,” (//Abortion Showdowns//, 772). Even with the Supreme Court’s decision of legalization of abortion in 1972 in the Roe versus Wade case, many are determined to overturn their ruling.
 * //What do you mean by "idle issues"?//**

Hoping to finally smooth the rugged rifts, the Supreme Court in 1992 deemed in the //Planned Parenthood of Southern Eastern Pennsylvania v. Casey// case that states had the power to regulate abortion if they did not place “significant obstacles” in the path of women who want to receive an abortion. Currently, at least 30 states require pregnant women who seek to have an abortion to take pre-abortion counseling, 24 states require a 24-hour lapse between the process. 34 states require minors to have parental approval in order for the procedure to happen. But with this compromise, both sides are still not satisfied.

This issue relates to the concept of federalism (which undeniably adds to the conflict) because the one who truly holds the power to make the decision is unknown, leaving the laws and court decisions to lie on unsteady ground, open to constant judicial review and fierce debate. It deals with the issues such as coverage and payment of abortions, the constitutionality of this right to abortion, and the regulation of standards. This issue, though, is not really an aspect of fiscal federalism because it has been decided that the federal government should not provide monetary aid to pay for the costs of an abortion; the few exceptions of this is in the cases of rape, incest, or danger to the woman’s life. The taxpayers should not be paying for the abortions of women who can’t afford them. **//Is this your opinion? How does this fit in to federalism, i.e. the federal gov exerting power in this instance?//** This issue of payment was a prominent part in Obama’s new Universal Health Care program, as well, in that he signed an executive order one day after the bill’s signing, stating that the new law would prohibit federal funding of abortion.

While this is not a fiscal federalism issue, it is subject to regulatory federalism. In the //Roe v. Wade// decision, it was decided that women have the right to abortion. According to the court ruling, this right is guaranteed in the first trimester, permits the regulation of procedure in the second trimester, and allows for a ban of abortion in the third trimester, with the exclusion of a ban on the formerly mentioned exceptions regarding the woman’s health and circumstances. The aspect of regulation is also within the powers of the states, allowing each state to take a different stance on the subject. Whereas some states adhere to the idea of allowing abortion, with standards and regulations, some states have banned abortion altogether. **//This is inaccurate - Roe v Wade ruled that abortions may not be made illegal by states, but states may put some restrictions - this is where the partial birth restrictions come in.//** For example, in the 1992 //Planned Parenthood v. Casey//, the Supreme Court rule on the regulations laws passed by Pennsylvania in which the state required that women must wait 24 hours before getting an abortion and that husbands or parents (if underage) must be notified of the abortion. As preciously stated, the court upheld the right for the states to pass regulations and they allowed for the period of waiting and the notification of parents, while rejecting the required notification of husbands. Also, in light of the recent health care law, certain states are regulating the prohibition of any governmental insurance coverage, some barring it with exceptions and some barring it altogether. Other forms of regulation have come about through certain laws, such as the Partial Birth Abortion Act, signed in 2003, banning partial birth abortion, unless the pregnancy endangered the woman’s life.

In terms of trends, both the federal and state governments have consistently supported the prohibition of allowing the taxpayers to fund abortions. What is inconsistent, though, is the states’ stance and regulation on abortion and the administration’s stance. From state to state, the regulations vary according to the ideals and priorities of the people. In relation, the administrations in more recent past years have gone back and forth on the issue; Clinton’s administration was more in favor of abortion rights, while Bush proved to be in favor of anti-abortion.

Lizel: Clearly, the reserved powers are fundamentally unable to successfully compromise with their citizens as well as the central government on this issue (which is saddening). America is looked upon as the land of opportunities that includes agreeable culture values and freedom; in this situation, culture values and freedom are in rivals. Who’s rights are we fighting for – the women’s’ or the fetus’s? Being partial to women, I believe that womens' rights should receive first priority over the fetus' so their choice should be up to them. Similar to a couple who is split on the decision if they want to give their child away after having delivered it, the male counterpart doesn’t have a larger say if they should or not keep the baby; the mother always has the final say. A fetus may be living, but it doesn’t mean that it is a human being yet. I believe that there are requirements of a human being such as possessing a fully functioning brain and emotions. According to studies displayed in the article, Abortion Showdown, a fetus has not developed a brain during its first weeks when one is able to abort. Regardless, if I were put in a situation where I had a choice, I would not abort simply because of my religion.

Although this debate hasn’t reached or is even close to reaching a permanent verdict, a topic as heavy as this one should be left up to the highest power, which is the federal government. Compared to the states, the delegated power’s decisions are more objective and rational. **//This is where you really need to discuss the Constitution and what you think it says: Art I:sec 8; elastic clause; general welfare clause for the Fed gov or 10th Amendment to support states having the power/authority to regulate//**

Francesca: One of the main aspects of this controversy is the lack of consensus or even majority within the nation; the country has too many varying opinions on this issue that it seems almost impossible to come up with a solution on the national level that will appease everyone to the best of its abilities. Therefore, I think that the power should rely more with the states. The people within the country vary so much in opinions and ideals that the regulations and reactions towards this federalism issue should be a reflection of the citizens. While the federal government should be able to set certain standards and regulations for the county, it should be under the discretion of the states to implement their own regulations, that are still in compliance with the ideals and standards of the federal government decisions. There will always be debate on this issue, but I think the best solution is to allow the states to have more power.

**DRINKING AGE**

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Drinking age is related to the concept of federalism because the federal government and the states had to reach a decision about the issue. Some states, one being South Dakota allowed people less than 21 years of age to drink alcohol and because of this the state was in a position that would cause them to lose federal highway funds if they did not make their drinking age 21. In 1984 Congress passed the **National Mimimum Drinking Age Act** which required the states to raise their ages for purchase and public possession to 21 by 1986 or lose 5% of their federal highways funds and 10% of their federal highway funds in 1987 if they allowed people under the age of 21 to consume alcohol. Some people opposed the Act because they believed that it infringed on states rights. The states then took this matter to court to declare the act as an unconstitutional one under the Tenth and Twenty-First Amendments. =====

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Moreover on July 17, 1984 President Ronald Reagan put forth the **Uniform Drinking Age Act** which ordered all states to adopt **21** as the legal drinking age within five years. Because of this by 1988 all states had set 21 as the minimum age.States that have chosen to have an outright ban of alcohol until 21 were Alabama, Idaho, Indiana, Kansas, North Carolina, and Pennsylvania. Some states however have no restrictions on private drinking and states like California, Colorado, Montana, New York, Texas, Virginia, West Virginia, Wisconsin, and Wyoming allow private drinking in specific locations and under the supervision of consenting family members. =====

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This particular issue is considered fiscal federalism because cash is transferred from the national government to the state government with the state government complying to the instructions of the national government. Also, the topic is subject to regulatory federalism because this particular type of federalism uses federal regulations to mandate certain functions for states and localities to perform. In 2008, over 100 college presidents opposed the drinking age to be 21 asked for it to be reconsidered. =====

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South Dakota, a state that had a drinking age of 19 challenged the new act. In the Supreme Court case **South Dakota v Dole** in June 1987 the Court said that the Congress acting indirectly to encourage uniformity in states' drinking ages was constitutional. The Court said that the legislation thought about the **general welfare** and in that the highways would be safer and highway spending would decrease if the minimum age was increased. The Supreme court made the argument that there could be no infringement on states' rights and the law was a 'relatively mild encouragement to the states to enact higher minimum drinking ages.' The Chief Justice said that the goal of reducing drunk driving was one of main purposes for which highways funds are expended and for there to be safer interstate travels. The Highway Act was federalism in action in how it showed how national and state governments could interact. =====

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The state government should have more say and authority in the determining the drinking age in America. The national government violated state's rights by taking control over the distribution and purchase of alcohol within the states, a direct violation of their reserved power to regulate intrastate commerce. Furthermore, the states should have the power to determine the standards for alcohol distribution and purchase because they also possess the reserved power to provide for the health and safety of the public, which each state should have their own power to judge what is necessary to benefit the people of each state. Congress exceeded their powers and violated the state's rights to ratify amendments, the due process of the Constitution, by making the decision to violate the Twenty-First Amendment, taking away states' decisions and votes for that amendment. Congress also violated state sovereignty because it limited the states power to make laws of their own concerning the matters of alcohol. =====

//**Teacher's note: Make sure you make a distinction between direct and indirect control. The national government didn't attempt direct control since Art I: sec 8 didn't make it a delegated power and they couldn't use the elastic clause to attach to a delegated power, BUT, indirect control was allowed. This is a perfect example of fiscal federalism resulting in the national gov getting the power in an indirect manner.**//

Physician assisted suicide is when a physician provides information to a terminally ill patient, and gives them the medication for the patient to perform the suicide. It is different from euthanasia, in which the physician, or another party, performs the act. A study from Endlink, a program developed through the national cancer institute, “more than 50% of doctors have received a request for some type of physician assisted suicide” (suite101.com).
 * PHYSICIAN ASSISTED SUICIDE**

Oregon first passed the **Death with Dignity** act to legalize Physician assisted suicide, which sets many restrictions on, but ultimately allows terminally ill patients with a life expectancy of less than 6 months to partake in physician assisted suicide. In 1997, New York and Washington decided to make physician assisted suicide illegal, a decision which the supreme court upheld.

In Washington et. Al v Glucksburg, the supreme court claimed that there was no constitutional right to suicide. The supreme made assisting in a suicide a crime, and asserted that “A person is guilty of [that crime] when he knowingly causes or aids another person to attempt suicide.”

In Vacco, Attorny General of New York, et al. //v.// Quill et al, New York physicians (who believed that it is “consistent with the standards of their medical practice to prescribe lethal medication for mentally competent, terminally ill patients who are suffering great pain) and a number of terminally ill patients sued New York State’s attorney General. They sued the **Equal Protection Clause**, the **fourteenth amendment**, to support their argument, and claimed that the attorney General was violating this right. While the Federal District Court disagreed, the second circuit reversed the decision, and ruled as follows: **“**(1) that New York accords different treatment to those competent, terminally ill persons who wish to hasten their deaths by self administering prescribed drugs than it does to those who wish to do so by directing the removal of life support systems, and (2) that this supposed unequal treatment is not rationally related to any legitimate state interest.”

The attorney general also sought to be sure that physician assisted suicide was made illegal in the entire United States of America. The attorney general’s office argued that that prescribing federally controlled medication for the use of physician assisted suicide overstepped the **Controlled Substances Act**. The opposers of physician assisted suicide also argued that physician assisted suicide is not a “legitimate medical purpose.” Oregon argued that this was not an area that the attorney general’s office should concern themselves with, and that the controlled substances act was intended to combat drug use. Oregon also noted that the practice of medicine is the Secretary of Health and Human Services responsibility, not the attorney general’s. Also in 1997, Congress created the **Assisted Suicide Funding Restriction act**, which states that federal tax funds cannot be used to pay for, or promote physician assisted suicide. States, however, allow for Medicaid dollars to be used to fund the law.

So who has the power? Does Oregon have the right to create the Death With Dignity Act? Should this decision be left to the States? Or should the Federal government step in on this issue? **//This is what you need to address. According to how you interpret the Constitution, is this a power that belongs to the Federal Gov or to the states and why.//**

** Death Penalty **
The death penalty, or capital punishment, is the sentence of punishment for a crime that one has committed. Capital punishment is not outlawed by the national government; states get to decide whether to have the death penalty or not. In addition, they decide the certain standards and a judge from their state decides the punishment a person receives. There are currently 15 states have abolished the death penalty with the other 35 keep capital punishment.

Capital punishment has existed for thousands of years. The first established laws for this punishment happened in 18th century B.C. by a king of Babylon and news ones have been created up until now. The word didn’t start abolishing capital punishment until WWII. With the devastation that occurred during this war, along with the creation of the Universal Declaration of Human Rights following the war, many countries decided to nip capital punishment in the bud altogether. Because universal abolition of the death penalty was not possible the UN tried to focus on limiting the death penalty by passing laws to protect young adults, pregnant women, and the elderly.The death penalty has existed as a capital punishment in America since the 1600s. The death penalties evolved overtime, starting in the 1700s during the abolition movement. States began to build state penitentiaries. Techniques of death sentences involved electrocution to lethal injection (as scientific advancements occurred later on).



This form of punishment is a federalism issue because it has to do with the issue of whether a state’s law prevails a national law. Although there hasn’t been much argument of who should be able to decide whether the death penalty should be abolished for good, the death penalty is constantly challenged as being unconstitutional by the 8th amendment. The 8thamendment is an amendment that prohibits the government from forcing excessive bails or fines, or cruel and unusual punishment on other people.

Constitutionally, the decisions of the Supreme Court involving the death penalty revolve around the constitutionality of the 8th Amendment – involving cruel and unusual punishment. Starting from the early 1900s, the states initially abolished the death penalty for all crimes (or limit it). Then in the 1930s, the death penalty and executions reached its highest levels (about 167 per year). Cases that dealt with the death penalty from the 1960s onward certainly have changed capital punishment in the eyes of the Constitution, and in regards to federalism.

An example of a court case protecting a group of people is **Atkins V Virginia**. Daryl Reynard Atkins was convicted of abduction, armed robbery, and capital murder. He was sentenced time again to death by the jury despite the fact that a forensic psychologist testified that Atkins was mildly mentally retarded and therefore, it violated the 8th amendment. The question of whether or not the execution of mentally retarded persons is prohibited by the 8th amendment was asked and the court ruled that it indeed was “cruel and unusual punishment.” Prior court cases such as **Ford V. Wainwright** in 1984 had banned the execution of insane persons and they required a process for determining one's mental abilities.


 * LANDMARK COURT CASES**


 * **FURMAN V. GEORGIA (1972)**, along with two other cases (Jackson v. Georgia and Branch v. Texas) Furman was burglarizing a home and while trying to escape, he tripped and fell and accidentally killed one of the residents. He was convicted of murder and sentenced to death. The Court decided that the death penalty in all three cases were of cruel and unusual punishment, violating the 8th Amendment. Justices Brennan and Marshall believed that the death penalty is unconstitutional in all instances, while others were concerned over the death penalty being a racial issue. The Court’s decision forced states and national legislature to rethink their punishments for capital offenses to make sure that the death penalty wouldn’t be held as a violation of the constitution . After Furman v. Georgia, the Supreme Court invited the states to rewrite their death penalty statutes to eliminate all the problems found in the Furman case. Following this case, 34 states decided to enact new death penalty statutes. Some states removed all of the discretion by mandating capital punishment for those convicted of capital crimes, while others sought to limit the discretion found in the Furman case by providing sentencing guidelines for the state judges and jury when deciding if the death penalty is appropriate for the case.
 * **GREGG V. GEORGIA (1976)**, one of a series of important cases (Jurek v. Texas, Roberts v. Louisiana, Proffitt v. Florida, and Woodson v. North Carolina). Gregg was guilty of robbery and murder – was sentenced to death. He challenged the Georgia Supreme Court claiming that his sentence was a cruel and unusual punishment, violating the Constitution. In a 7-2 decision, the Court held that the death penalty didn’t violate the 8th and 14 Amendments under all circumstances. The death penalty is appropriate under extreme criminal cases, in which the sentence is issued carefully and judiciously.
 * **WOODSON V. NORTH CAROLINA (1976**), North Carolina enacted legislation that made the death penalty mandatory for all first-degree murderers. The Court held that the N. Carolina law was unconstitutional because the law didn’t have standards to guide juries in determining the sentence of convicted criminals. The Court considered that the “fundamental respect for humanity” was important.
 * **ARIZONA V. RUMSEY (1984**), The state of Arizona had a judiciary system in which the state court would determine whether the death penalty should be sentenced, based on the aggravating and mitigating factors of a case. The Double Jeopardy Clause, however, prohibited Arizona from sentencing respondent to death. The respondent’s initial life sentence constitutes the acquittal of the death penalty, and the state can’t sentence a respondent to death on the conviction for first degree murder.
 * **FORD V. WAINWRIGHT (1986**), Court case that involved the convicted felony developing a mental disorder during the trial, making him incompetent to undergo the death penalty. Justice Marshall concluded that the 8th amendment prohibits the State from utilizing cruel and unusual punishment, and prohibiting the death penalty on someone who is insane, and requiring minimal procedural safeguards for resolving incompetency claims.
 * **LOCKETT V. OHIO (1978)**, An Ohio law required that the death penalty be issued to those guilty of aggravated murder. It was mandatory unless the offense was committed under coercion, or the offense was a result of mental disabilities. Lockett (who drove the getaway car for a robbery and was responsible for the murder of a pawnshop owner) was found guilty and sentenced to death. The Court decided that the 8th and 14th amendment required sentencers to not be precluded from considering a range of factors before issuing the death penalty. These factors included one’s character or record proffered as a reason for a sentence less than death. The Court held that the Ohio law didn’t permit the type of individualized consideration of these “mitigating factors” required by the amendments in the Constitution.
 * **PAYNE V. TENNESSEE (1991)**, Pervis Payne murdered Charisse Christopher and her daughter Lacie. During the trial, Payne provided witnesses to testify for his good character, while the prosecution had Charisse’s mother share how the death impacted her son Nicholas. Payne was sentenced to death. The Court ruled that the prosecution must be allowed to present similar evidence if the defendant has testimonies of his/her own circumstances.PULLEY V. HARRIS (1984), Pulley accused California of failing to provide for a judicial review of the proportionality of his dead sentence, claiming that it was unconstitutional and required a reversal of the sentence. The Court decided that the Constitution doesn’t require that a court review the sentence of death to compare it to similar cases to justify the decision.
 * **SPAZIANO V. FLORIDA (1984)**, Spaziano was convicted of first-degree murder. The court refused to offer lesser non-capital offenses when Spaziano refused to waive the statue of limitations. The jury convicted Spaziano a sentence of life imprisonment as an alternative. Florida law makes jury’s recommendation a recommendation, and requires the judge to examine the aggravating and mitigating factors to examine the case and override the jury or impose the death penalty.
 * **STANFORD V. KENTUCKY (1989)**, Stanford, a 17 year old was convicted of murder and robbery. He was sentenced to death under a state statute which permitted juvenile offenders to be sentenced the death penalty if they committed a capital crime. There was no national consensus with the imposition of capital punishments on minors. 12 out of 37 states that permit capital punishment prohibit the death penalty for minors. Court decided that the decision as to whether 16-17 year olds were allowed to be sentenced the death penalty must be made locally by the states and can’t be pronounced as cruel and unusual punishment.Penry v. Lynaugh (1989), case regarding the death penalty for mentally retarded offenders. The Court determined that executing the mentally retarded wasn’t considered as “cruel and unusual punishment” under the 8th amendment. Texas law didn’t allow the jury to give adequate consideration as a mitigating factor to Penry’s retardation. Penry was retried for capital murder, and sentenced to death (Penry v. Johnson) – the jury wasn’t able to consider Penry’s retardation as amitigating factor.
 * **BLYSTONE V. PENNSYLVANIA (1990)**, The Pennsylvania State Supreme Court requires a death sentence if a jury unanimously finds at least one aggravating circumstance and no mitigating circumstances or one or more aggravating circumstance that outweigh any mitigating ones. This is unconstitutional because it mandates a death sentence based on the outcome of the weighing processes instead of the actual actions taken place in the case. The Court decided that death is not automatically sentenced, but is imposed only after determination that an aggravating factor outweighs the mitigating ones.


 * //Good review of court decisions//**

Capital punishment and the death penalty were generally controlled by the national government up until it was reinstated in the 1970s. All the cases following Furman vs. Georgia included both national and state powers – most of the cases regarding the constitutionality of the 8th amendment in relation to the death penalty. As time progressed, states began to have more say in the guidelines to giving the death sentence to offenders.

Trish and I believe that it should be up to the states to decide whether or not they allow the death penalty as a punishment for a horrible crime. One of our reasons behind this decision is that it would be very hard to come up with a set of rules that a person would have to meet in order to be able to punish him/her with the death penalty. All states should have a say regarding the restrictions regarding the death penalty if people can’t form a consensus about it. In addition, it isn’t necessary for the national government to either allow or deny states the right to allow the death penalty in their state when we have the 8th amendment to determine whether the death sentence for a specific person is constitutional or not. **//But then who interprets the 8th Amendment - does each state do it? Right now the Fed Supreme Court has interpreted and then left it to states to either allow it or not and to regulate it (lethal injection; firing squad; electric chair). Do you think that is the proper interpretation of the Constitution?//**

**NO CHILD LEFT BEHIND**


 * How is NCLB related to federalism?**

No Child Left Behind is one of the touchiest issues when it comes to federalism. Traditionally, education had been managed all by the states, especially when it came to standards. However, with the passage of NCLB, the federal government, to the chagrin of some, has extended its power into the issue. It requires that all students be grade level proficient in reading and math, and requires that schools that are struggling to keep up in standardized test scores be labeled in need of help. It works by administrating grants to states that meet their own standards for proficiency, and denies money to schools that don’t meet such standards. This grant giving is the main mechanism by which NCLB operates.

Some say NCLB has soured the relationship between the federal government and the states, as the states view NCLB as an unwanted intrusion into their domains. The federal government views this is as a necessary step in order to provide everyone with a decent education. The argument whether the federal government has violated the principle of federalism by interfering in such a manner is a good illustration of the boundaries and functions of federalism itself. The separation of state and federal power is clearly seen and argued with in the issue of NCLB.


 * What has the role of the national and state governments been traditionally in this topic?**

No Child Left Behind (NCLB)was a monumental bill, with bipartisan support that required states to administer testing to make sure that students are keeping up to national standards, with a penalty of little to no funding if not properly conducted. A majority of the previous education acts and rulings have been related to segregation, racial profiling, religion, and firearms, but the enactment of NCLB has pushed these barriers in terms of the overall power of the Federal Government.

Government, on many occasions, stepped into the realm of education to administer new laws, and provide rulings for court cases. One of the first of a string of education related federal expansions were //Brown V. The Board of Education (1954) .// The Courts ruled that State Educational systems could not bar students from education based on their race or religion. This was heavily enforced by the federal armed forces, protecting African American students. The next was the National Defense Education Act (1958), although used to save face due to the recent Russian Sputnik I launch, provided scholarships to undergraduate and graduate student in hopes of furthering the space age. The next act, The Elementary and Secondary Education Act (1964), set a precedent by giving the government the authority to fund school systems directly for individuals with poor income. Even though this bill helped the wealthy more than the poor, it still was groundbreaking, allowing the Federal Government to directly involve itself with the education budget, creating a path for more reform.


 * What is your opinion on the topic as a federalism issue?**

On the relationship of federalism, the Constitution, and education, we feel that the states should be the ones holding the “power ball” when it comes to education. Because education is not directly delegated to Congress, and neither does it fall under the commerce clause or the general welfare clause, it should fall under the control of the states.

NCLB really stretches federalism to the limits. It acts similar to the issue of the drinking age and drivers’ licenses, when the federal government refused to give money to states that didn’t raise their drinking age **//(Fiscal Federalism at work).//** The grant issuing aspect of NCLB, its primary mechanism, does follow federalist principles. However, NCLB also has an unprecedented level of federal government interference in a state issue, like the fact that struggling schools have to be marked as such and students be given the option to transfer out. This second part of the program doesn’t really seem to have much constitutional backing.