FEDERALISM

Chapter 3
Peter G. Doas
 Federalism
is a political system in which
power is divided and shared
between the national/central
government and the states
(regional units) in order to limit
the power of government.
MAIN FEATURES OF FEDERALISM

 DIVIDES GOVERNMENT AUTHORITY AND POLITICAL POWER

BETWEEN TWO SEPARATE AUTHORITIES – NATIONAL
GOVERNMENT AND STATE GOVERNMENTS

 EACH GOVERNMENT ENFORCES ITS OWN LAWS DIRECTLY ON

ITS CITIZENS

 BOTH THE FEDERAL AND STATE GOVERNMENTS PASS LAWS,

IMPOSE TAXES, SPEND MONEY. AND MAINTAIN THEIR OWN
COURTS

 NEITHER LEVEL CAN DISSOLVE THE UNION OR AMEND THE

CONSTITUTION WITHOUT THE CONSENT OF THE OTHER

 THE NATIONAL CONSTITUTION IS THE ULTIMATE LEGAL

SOURCE OF AUTHORITY (Both governments derive their powers
from the U.S. Constitution)
 American-Style Federalism
• In a federal system, authority is divided between
two or more distinct levels of government.
• In the United States the division is between the
national (federal) government and the states.
• Note also that local governments are not a separate
level of government. They are established by the
state and do not exercise independent,
constitutional authority.
 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

The workings of the American system are

sometimes called intergovernmental relations,
which refers to interactions among national, state,
and local governments.
 The Roots of Federalism

Modern federalism is largely an American

invention.
Most federal systems are found in countries that
are large and diverse.
Unitary government is the most common form of
government today.
 Defining Federalism
• Why is Federalism So Important?
– Decentralizes our politics
• More opportunities to participate
– Decentralizes our policies
• Which government should take care of which
problem?
• States can solve the same problem in different ways.
 Defining Federalism
Unitary Confederate Federal

Central Holds primary Limited powers Shares power with

authority regarding states the states
Regulates activities
of states

State Little or no powers Sovereign Shares power with

Regulated by Allocate some the central
central government duties to central government
government

Citizens Vote for central Vote for state Votes for both
government government state & central
officials officials officials
From Table 3.1
 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. the prevention of tyranny;
2. the provision for increased participation in politics;
3. and the use of the states as testing grounds or
laboratories for new policies and programs.
 Division of Power.

• The writers of the Constitution carefully

defined the powers of state and national
governments
• Although favoring a stronger national
government, states were retained as vital
components of government.
 Division of Power, continued.
• The supremacy clause deals with the question
of which government should prevail in disputes
between the states and the national government;
Article VI states that three items are the supreme
law of the land:
1. The Constitution;
2. Laws of the national government (when
consistent with the Constitution);
3. Treaties (which can only be made by the national
government).
The Powers of Federal Government

National Government – has what are

referred to as delegated powers.

3 types of delegated power:

- enumerated (expressed in constitution)
- Implied (necessary and proper clause)
- Inherent
 Inherent Powers

• Those powers that can be exercised

only by the National Government
because of the nature of power; conduct
foreign relations, make war even in the
absence of a formal declaration, etc.
 Enumerated Powers
• Powers of the federal government that are
specifically written/addressed in the constitution
– 17 specific powers granted to Congress
• Article 1, section 8 of the U.S. Constitution
• Taxation
• Coinage of money
• Regulation of commerce
• National defense
 Implied Powers
• Powers of the federal government that are not
specifically written in the constitution.

• Federal government uses the necessary and

proper clause to “create” these powers.

• The necessary and proper clause has often

been used to expand the powers of the
national government.
 State Powers
• Most of State powers 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. States also have some powers that the
central government also wields called concurrent
powers such as the right to tax, borrow money,
establish courts, and make and enforce laws.
 Denied Powers
• Article I, section 9 lays out powers
denied to the central government.
– For example: give preference to ports of
one state over another
• Article I, section 10 lays out the
powers denied to the states.
– For example: enter into treaties,
alliances, or confederations
 Relations among the States
• The Framers wanted a single country,
not 13 squabbling semi-countries.
• Article IV requires states to give "full
faith and credit" to each others' laws.
• States are also required to extradite
criminals if asked by another state.
 Relations among States
•Directly settled by U.S. Supreme Court under its original
jurisdiction

FULL FATIH & CREDIT:

Each State must honor the laws, records, & court decisions of every other state

INTERSTATE COMPACTS:
States may make agreements about solving shared problems

EXTRADITION:
Legal process by which a fugitive from justice in one State is returned to it from another
state
PRIVILEGES & IMMUNITIES:
No State may discriminate against a person who lives in another State
The Constitutional Division Among the
National Government and the States
 Constitutional Basis
• The Supremacy Clause
– The constitutional provision that makes the
Constitution and federal laws superior to all
conflicting state and local laws
– States cannot use their reserved or concurrent
powers to thwart national policies
 Understanding Federalism
• Advantages for • Disadvantages for
Democracy
– Increasing access to
government
– Local problems can be
solved locally
– Hard for political
parties / interest groups
to dominate ALL
politics
Democracy
– States have different
levels of service
– Local interest can
counteract national
interests
– Too many levels of
government- too much
money
 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.
– Marbury v. Madison
– McCulloch v. Maryland (1819)
– Gibbons v. Ogden (1824)
– Dred Scott v. Sandford (1857)
Marbury v. Madison (1803)
• At the close of the Adams
administration, Secretary of
State John Marshall forgot
to deliver a few judicial
commissions.
• William Marbury sued the
new Secretary of State,
James Madison, so that
Marbury could be
commissioned and begin
serving as a judge.
 Article III
and the Judiciary Act of 1789
• Article III of the Constitution specifically
details the Supreme Court’s original
jurisdiction.
• The Judiciary Act of 1789 gave the Supreme
Court the ability to issue writs of mandamus –
the power to order executive officials to
perform particular duties.
• Can Congress expand the Supreme Court’s
original jurisdiction?
• Is Marbury entitled to his commission?
Chief Justice John Marshall
• The framers intended the
Court’s original jurisdiction to
be exclusive. That is why the
Constitution is very specific
about which areas the Court
has original jurisdiction: each
one is listed.
• As a result, the mandamus
section of the Judiciary Act of
1789 is unconstitutional.
• Still, Marbury was
commissioned as a federal
judge the moment the president
signed and sealed the
commission. The fact that it
was never delivered or received
is irrelevant.
 McCulloch v. Maryland (1819)
• In 1791, the U.S. government created the
controversial first national bank.
• The State of Maryland tried to close a branch of the
Bank of the United States by making that branch pay
$15,000 in taxes. James McCulloch, who worked at
the Baltimore branch of the Bank of the United States,
did not pay the tax. The State of Maryland took him to
court.
• Issue #1
– Can there be a Bank of the US??
• Issue #2
– Can Maryland tax the Bank of the US??
 McCulloch v. Maryland (1819)
• McCulluch was the first major decision by the
Supreme Court under Chief Justice John Marshall
about the relationship between the states and the
national government.
• The Court upheld the power of the national
government and denied the right of a state to tax the
bank.
• The Court’s broad interpretation of the necessary and
proper clause and the supremacy 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.
• In Gibbons, the Court upheld broad congressional
power over interstate commerce.
 Dred Scott v. Sandford (1857)
• The Supreme Court articulated the idea of concurrent
powers and dual federalism in which separate but
equally powerful levels of government is preferable,
and the national government should not exceed its
enumerated powers.
• The Taney Court held that Mr. Scott was not a U.S.
citizen and therefore not entitled to sue in federal court.
• The case was dismissed and Scott remained a slave.
• Taney further wrote that Congress had no power to
abolish slavery in the territories and slaves were private
property protected by the Constitution.
 Stages of Federalism
STAGE 1: State-Centered Federalism-1787 to 1868

STAGE 2: Dual Federalism – Lasted until 1930s

STAGE 3: Cooperative Federalism – 1930s - ?

» Regulated Federalism - 1960s - ?
» Fiscal Federalism – 1960s - ?
» New Federalism -1969 - ?
 Stage 1
State-Centered Federalism
“State-Centered Federalism”
1787 to 1868

• From the adoption of the Constitution to the end of the Civil

War, the states perceived themselves to be the most important
units of the American Federal System

• States supported nullification and doctrine of secession

 Stage 2
Dual Federalism
• After the Civil War, a balance or spheres of influence
developed where each had dominance in specific areas

• This became known as Dual Federalism

• Dual Federalism
– Definition: A system of government in which both the states
and the national government remain supreme within their
own spheres, each responsible for some policies.
– Like a layer cake
– Ended in the 1930’s
 Stage 3
Cooperative Federalism
• From the 1930s and on, national government became
move involved and started to be more influential in
the relationship.

• This became known as Cooperative Federalism

• Cooperative Federalism
– Definition: A system of government in which powers and
policy assignments are shared between states and the
national government.
– Shared costs
– Shared administration
– States follow federal guidelines
 Marble cake federalism
Often used as a metaphor for
cooperative federalism
A more accurate metaphor for
today’s federalism
Elements of national and state
influence swirl around each
other, without clear boundaries.
 Intergovernmental Relations
Today
• Fiscal Federalism
– Definition: The pattern
of spending, taxing,
and providing grants in
the federal system; it is
the cornerstone of the
national government’s
relations with state and
local governments.
 Intergovernmental Relations
Today
• Fiscal Federalism continued:
– The Grant System: Distributing the Federal Pie
• Categorical Grants: Federal grants that can be used
for specific purposes. They have strings attached
– Project Grants- based on merit
– Formula Grants: amount varies based on formulas
• Block Grants: Federal grants given more or less
automatically to support broad programs.
• Grants are given to states & local governments
 Intergovernmental Relations
Today
• Fiscal Federalism continued…
– The Scramble for Federal Dollars
• $460 billion in grants every year
• Universalism- a little something for everybody
– The Mandate Blues
• Mandates are the “strings” attached to federal
money
• Unfunded mandates are requirements on state &
local governments- but no money
 The Balance of Power and
Control
• Many contemporary facets of federalism
involve questions of control.
– Mandates — require the states to carry out certain
policies (sometimes little or no federal government
aid is involved)
– Conditions on aid — require states/municipalities
to spend grant money in certain ways if they want to
receive federal funding
 Intergovernmental Relations Today

• Underfunded mandate-There are some

occasions when states would prefer not to
receive some federal aid – such as when
Congress extends a program that is
administered by the states and only partly
funded by the national government
 Consequences of the Federal
System
• A high degree of complexity in policymaking and
policy implementation
• Permits diversity of responses to different
situations
• Allows experimentation at state and local levels
• Entails substantial inequality
• Difficult or impossible to carry out certain kinds
of policies at state or local levels
Federalism and the Supreme Court
• By the 1980s and 1990s, many Americans
began to think that the national government
was too big, too strong, and too distant to
understand their concerns.
• The Supreme Court, once again, played a
role in this new evolution of federalism.
– For example: Since 1989, the Court has been
allowing states to introduce limitations on the
right to an abortion.
 United States vs. Lopez (1995)
• Was the first modern Supreme Court case to set
limits to Congress's lawmaking power.
– Alfonso Lopez, Jr. carried a handgun and bullets into
his high school.
– He was charged with violating Section 922(q) of the
Gun-Free School Zones Act of 1990.
• The government believed that the possession of
a firearm at a school falls under jurisdiction of
the Commerce Clause.
 Decision and Importance
• The Court said, “NO!” to Commerce Clause in
Lopez
– Too much of a stretch to connect guns in school to
commerce
– Federal government had overstretched it’s
boundaries
– Forced states to create the gun laws themselves.
– Why important? Interstate commerce, gun-free
school zones can not be federally mandated (states
rights)
 Continuity and Change
• Federalism as outlined at Philadelphia in 1787
has evolved considerably over time.
• Initially, the states remained quite powerful,
and the national government was small and
weak.
• Over time the national government became
progressively stronger.
• However, we have a Court today that is more
interested in reinvesting power in the Tenth
Amendment and in the states.