American Federalism

by

Barrister Syed Mustafa Ali

Defining federalism

National government and state governments both have

assigned powers .
Both levels of government derive their power from the
constitution.
Two or more governments exercise power and authority
over the same people in the same territory
Both must agree to constitutional changes
The division of power between the national government
and the states is protected in the Constitution.
It was a middle ground between the systems of
government that were known at the time of the writing
of the constitution: confederal and unitary systems

What is Federalism?

Mere existence of state and

federal governments does not
make it a federal system.
Both the federal government
and the state government get
their power from a common
source - the constitution.

Forms of Government

Federalism significant government powers are

divided between the central government and smaller
governmental units
Confederation constituent units or states retain
ultimate authority and can veto major actions of the
central government
Unitary central government exercises all
governmental powers and can change its constituent
units

Alternatives to Federalism

Unitary Systems:
Puts all governmental power in the central government
Britain, France, Israel, and the Philippines.
Confederations:

Sovereign nations create a constitutional compact but

carefully limited the power of the central government
Articles of Confederation, The United Nations, European
Union

1. The Roots of the Federal

System

The Framers worked to create a political system that was

halfway between the failed confederation of the Articles
of Confederation and the tyrannical unitary system of
Great Britain.
The three major arguments for federalism are:
1.
2.
3.

the prevention of tyranny;

the provision for increased participation in politics;
and the use of the states as testing grounds or laboratories
for new policies and programs.

Advantages to Federalism

Suited for large geographic areas because it encourages

diversity
Avoids concentration of political power
Accommodates already existing state govt
State serve as training grounds for national leaders
Keeps govt close to people

Disadvantages to Federalism

Inflexibility inherent in a written constitution

Complex, dealing with many governments
Duplication of offices and functions
Conflicts of authority may arise

Key Constitutional Provisions Defining

Federalism

Article I, Section 8 sets forth the enumerated powers that

belong to the national government.
The 10th Amendment to the constitution reserves powers
not granted to the national government to the states or
to the people. (These powers have not been explained,
expressed, written down etc)
The necessary and proper clause of Article I, Section 8,
opens the door to implied powers for the national
government.
Article VI includes the supremacy clause stipulates the
national law supersedes conflicting state laws law

Three Lists of Subjects in the

Constitution

The constitution contains three lists of subjects:

A list of what the Congress can do (Article 1 Section 8)

A list of what the Congress cannot do (Article 1 Section 9)

(The exclusive, shared and implied powers of the Congress)

(The powers denied to the Congress)

A list of what the States cannot do. ( Article 1 Section 10)

(The powers denied to the States)

Constitutions Distribution of Powers

11

Article I, Section 8
The enumerated powers of the central government include
the power to:

lay and collect taxes on imports and exports

provide for the national defense and make
regulations for the military
regulate commerce with foreign nations, among the
states, and with Indian tribes
coin money and regulate the value thereof
declare war
establish post offices
issue copyrights and patents

Implied Powers
The central government may make all laws
which shall be necessary and proper for
carrying into execution the enumerated
powers. (Art 1 Sec 8 (18))
The necessary and proper clause has often
been used to expand the powers of the
national government (elastic clause).

The Elastic Clause (Article I, Section 8)

Congress shall have the power "to make all laws

which shall be necessary and proper for carrying into
execution...powers vested by this Constitution in the
government of the United States."
The constitution empowers the Congress to
regulate commerce with foreign nations and among
several states. The Congress has derived the power
from this clause the power to control all means of
transport and communication.
From the clauses giving the Congress the power to
promote general welfare, it has derived the authority
to pass social legislation like old age insurance
schemes etc.

State Powers

Most come from the Tenth Amendment that says: "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."
These are often referred to as reserve or police
powers (affecting health, safety, marriage, elections
and morals)
Conflict may arise with Article VI Sec 2 which is
the Supremacy clause- It states that Federal law
is supreme in the USA even over state laws.

Concurrent/ shared powers

Concurrent powers such as the right to tax, borrow

money, establish courts, and make and enforce laws are
powers shared with national government.
However, what will happen if there is a conflict between
Federal law and State Law on the same subject.
Doctrine of federal pre-emption: As the Supreme Court
stated in Altria Group v. Good, 555 U.S. 70 (2008), a
federal law that conflicts with a state law will trump, or
"preempt", that state law.
Consistent with that command, we have long recognized
that state laws that conflict with federal law are without
effect. Maryland v. Louisiana, 451 U. S. 725, 746 (1981)
Article VI (2)- Supremacy clause- National law supreme
over state law.

Denied Powers of the States

Article

I, section 10 lays out the powers

denied to the states.
enter into treaties, alliances, or
confederations
Maintaining armies
Laws impairing the obligations of
contract
Coinage

Denied Powers of the Federal

Government

Article I Section 9 lays out powers denied to

the central government.
Suspend the writ of habeas corpus
Bills of attainder
Ex post facto laws
Spend money without congressional
appropriation
Granting titles of nobility
give preference to ports of one state over
another

INTERSTATE RELATIONS

The Framers wanted a single country, not thirteen

squabbling semi-countries.

Article IV Section 1: Full faith and credit clause:

Full faith and credit shall be given in each state to
the public acts, records, and judicial proceedings
of every other state. And the Congress may by
general laws prescribe the manner in which such
acts, records, and proceedings shall be proved, and
the effect thereof.

States recognize drivers and marriage licenses,

custody rulings, etc.

INTERSTATE RELATIONS

Privileges and immunities clause (Article IV Section 2(1):

The citizen of each state shall be entitled to all
privileges and immunities of citizens in the several
states.
Extradition clause (Article IV Section 2(2):
A person charged in any state with treason, felony,
or other crime, who shall flee from justice, and be
found in another state, shall on demand of the
executive authority of the state from which he fled,
be delivered up, to be removed to the state having
jurisdiction of the crime.

Privileges

According to California law, a citizen is a person that

has taken up permanent residence in the state. A family
moves from Arizona to California and is denied welfare
benefits. The state requires them to be residents for at
least 1 year.

Is this constitutional?

3.

The Evolution and

Development of Federalism

The allocation of powers in our federal system has changed

dramatically over the years.
The Supreme Court in its role as interpreter of
constitution has been a major player in the redefinition of
our Federal system.

McCulloch v. Maryland (1819) gave a liberal

interpretation of the implied powers of the national
government.
Gibbons v. Ogden (1824) gave a broad interpretation to
the interstate commerce clause.

McCulloch v. Maryland

first major decision by the Supreme Court about the

relationship between the states and the national
government.
The Constitution was silent on the power to form Banks
in the States. The State of Maryland said it was therefore a
reserved power which they could exercise.
The Court upheld the power of the national government
to establish a national bank and denied the right of a state
to tax the bank. The power to tax is the power to
destroy.
The Courts broad interpretation of the necessary and
proper clause paved the way for later rulings upholding
expansive federal powers.

Gibbons v. Ogden

(1824)

The Gibbons case centered on the conflict between the

states and the powers of Congress.
Could New York grant a monopoly concession on the
navigation of the Hudson River? The Hudson River forms
part of the border between New York and New Jersey and
the U.S. Congress also licensed a ship to sail the Hudson.
The main constitutional question in Gibbons was about the
scope of Congress' authority under the Commerce Clause
(Article I, sec. 8: to regulate commerce with foreign
nations, and among the several states, and with the Indian
tribes)
In Gibbons, the Court upheld broad congressional power
over interstate commerce.

The Civil War and Beyond

Dual federalism remained the Supreme

Court's framework for federalism and the
prevailing notion in the Reconstruction and
Progressive Eras.

Dual federalism finally ended in the 1930s,

when the crisis of the Great Depression
demanded powerful actions from the national
government.

Fiscal Federalism

Federal Government granst aid to States and local bodies.

14% of the state budget comes from Federal Govt grants.
Fed. Gov. has power to review and examine state
schemes which make use of this aid.
Conditions are set by the Fed. Gov over how the money
is spent.
Fed. Gov. has right to set forth rules and regulations of its
own on the States.
Grants can be withheld if State is non- compliant.
Hence, State sovereignty is compromised.