Federalism
Federalism
Is the process by which two or more
governments share powers over the
same geographic area.
The Tenth Amendment
“The powers not delegated to the U.S. by
the Constitution…are reserved to the
states respectively, or to the people.”
Reserved Powers Clause
FEDERALIST No. 28
Alexander Hamilton believed that people
could shift their support between state
and federal levels of government as
needed to keep the two in balance.
“If their rights are invaded by either,
they can make use of the other as the
instrument of redress.”
CONSTITUTIONAL
VAGUENESS
The Constitution does not spell out the powers
states have.
States were thought to be responsible for
poverty, public safety, health, and education.
Because of the constitutional vagueness, the
COURTS have largely defined the division of
authority between the federal government and
the states.
Formal Constitutional Framework
• The national government has only those powers
delegated to it by the Constitution.
• The national government is supreme.
• The state governments have residual powers;
meaning those neither assigned to the national
government nor denied to the states.
• Some powers are specifically denied to both the
national government and the state governments.
Powers Denied to the States
• Making treaties with foreign governments.
• Authorizing private persons to prey on the
•
•
•
•
•
shipping and commerce of other nations.
Coining money, issuing bills of credit, or making
anything but gold and silver coin legal tender in
payment of debts.
Taxing imports or exports.
Taxing foreign ships.
Keeping troops or ships in time of peace.
Engaging in war.
Interstate Relations
• Full faith and credit
• Privileges and immunities
• Extradition
• Interstate compacts
Federalism through History
DUAL FEDERALISM
1787 to late 1930’s
A 19th century concept of government
recognizing a duality of power between the
national and state governments,
each having a distinct
sphere of authority and
jurisdiction.
McCulloch v. Maryland (1819)
In 1819 McCulloch v. Maryland, Chief
Justice John Marshall considered whether
Congress had the power to incorporate a
Bank.
He wrote: Since the Constitution had given
Congress the power to “make all Laws
which shall be necessary and proper for
carrying into execution of the forgoing
Power, the Bank of the United States was
constitutional.”
The Supremacy Clause
The other issue: whether the state of Maryland
could tax a branch of the Bank of the United
States.
Since the Constitution and federal laws were
supreme under the Supremacy Clause of Article
VI, they took precedence over the laws of the
states.
“A state cannot tax those subjects to which its
sovereign powers do not extend..the power to
tax involves the power to destroy.”
Gibbons v. Ogden (1824)
First case to involve the Constitution’s
interstate commerce clause.
Chief Justice Marshall construed Gibbon’s
federal license to nullify Ogden’s state one.
Thus, he broadly defined the national
government’s power to regulate commerce,
consequently restricting the power of the
states.
The Civil War
One major historical event settled the
issue of national supremacy versus states’
rights.
The Civil War made it clear that the
national government is supreme—its
sovereignty derives directly from the
people and thus, states cannot secede.
Federalism through History
COOPERATIVE FEDERALISM
1930’s to 1970’s
The interpretation is characterized
by a sharing of governmental
powers for the
purpose of joint
problem solving.
Emergence
of a
National Economy
Federal-state distinctions much harder now.
Insurance companies sold policies to
customers both inside and outside a given
state. There were different laws regulating
identical policies that happened to be
purchased from the same company by
persons in different states. This didn’t
make a lot of sense.
The New Deal
The New Deal set forth a program that was
dictated at the national level but carried out at
the state level.
The new legislation included massive job programs
that provided work for unemployed Americans.
Other programs, like Aid to Families with
Dependent Children (AFDC) and Social Security,
offered assistance to people who could not work.
Thus, the states and federal government became
to be seen as partners.
Nixon
President Richard Nixon also advanced
the New Deal and Great Society:
• established the Supplemental Security
Income program
• expanded the food stamp program
• created the Environmental Protection
Agency (EPA) in 1970 to enforce laws
such as the Clean Air Act (1963).
Federalism through History
CREATIVE FEDERALISM
1970’s & 80’s
A form of cooperative federalism
extending federal grants-in-aid beyond
general governments to special districts
and private organizations.
The Great Society
The legacy of Roosevelt’s New Deal
continued with President Lyndon
Johnson’s “War on Poverty” three
decades later.
•Food Stamps
•Medicare
•Medicaid
Federalism through History
NEW FEDERALISM
1980’s & 90’s
Proposal to return social
and economic programs
from the federal
government to the states.
DEVOLUTION
PERMISSIVE FEDERALISM
The state’s share of power rests upon the
permission and permissiveness of the
national government.
Welfare Reform
Laboratories of Democracy
FISCAL FEDERALISM
The shared responsibility between the
national, state (and local) governments for
taxing and spending policies.
FEDERAL
INCOME TAX
LOCAL
PROPERTY TAX
STATE
SALES TAX
Unfunded Mandates
•Brown v. Board of Education of Topeka, Kansas
•Americans with Disabilities Act of 1990
•Motor Voter Act of 1993
•Americans with Disabilities Act required
businesses and state governments to provide the
disabled with equal access to services, buildings,
and transportation systems.
Purposes of Federal Grants
To supply state and local
governments with revenue
Purposes of Federal Grants
To supply state and local
governments with revenue
To establish minimum
national standards
Purposes of Federal Grants
To supply state and local
governments with revenue
To establish minimum
national standards
To equalize resources among the states, on
the “Robin Hood Principle” of taking,
through federal taxes, money from people
with high incomes and spending it, through
grants, in states where the poor live
Purposes of Federal Grants
To supply state and local
governments with revenue
To establish minimum
national standards
To attack national
problems yet
minimize the growth
of federal agencies
To equalize resources among the states, on
the “Robin Hood Principle” of taking,
through federal taxes, money from people
with high incomes and spending it, through
grants, in states where the poor live
Purposes of Federal Grants
To improve the operation and
levels of services of states and
local governments
Purposes of Federal Grants
To improve the operation and
levels of services of states and
local governments
To encourage the
achievement of social
objectives such as
nondiscrimination
Purposes of Federal Grants
To improve the operation and
levels of services of states and
local governments
To stimulate
experimentation and
new approaches
To encourage the
achievement of social
objectives such as
nondiscrimination
Purposes of Federal Grants
To improve the operation and
levels of services of states and
local governments
To stimulate
experimentation and
new approaches
To encourage the
achievement of social
objectives such as
To attack major problems nondiscrimination
but minimize the growth of
federal agencies
Federal Aid Highway Act of 1956 – building
highways and construction. The national
government financed 90% of the cost.
1974 Emergency Highway Energy Conservation
Act – States had to agree to limit highways
speeds to 55 mph if they wanted to receive
funding for highway repair.
A 1984 highway law withholds funds from states
that do not enact minimum drinking age of 21
and mandatory sentences for drunk drivers.
Types of Grants
Categorical Grants
Project Grants
Block Grants
Revenue Sharing
Types of Grants
Categorical Grants
Elementary & Secondary Education Act –
Provided money for reading, special education
and support programs for public school.
Types of Grants
Project Grants
Federal Aid Highway Act of 1956 – building
highways and construction. The national
government financed 90% of the cost.
Types of Grants
Since 1974 Community Development Block
Grant Program provided a flexible source of
annual grant funds for local governments
nationwide.
These projects must
either -
Block Grants
(1) benefit low- and
moderate-income
persons;
(2) prevent or eliminate
slums or blight; or
(3) meet other urgent
community
development needs.
Types of Grants
State and Local Assistance Act of
1972 initially delivered $4 billion per
year in matching funds to states and
municipalities. The program, which
distributed some $83 billion dollars
before it was killed by Ronald
Reagan in 1986, proved enormously
popular.
Revenue Sharing
FEDERAL REGULATIONS
Direct Orders
Regulations which must be complied with
under threat of criminal or civil sanctions.
FEDERAL REGULATIONS
Direct Orders
Regulations which must be complied with
under threat of criminal or civil sanctions.
Cross-Cutting Requirements
Federal grants which are extended to all
activities supported by federal funds regardless
of their source. If one act is violated, all funds
are withheld until compliance of the law is
achieved.
MORE FEDERAL REGULATIONS
Cross-Over Sanctions
These sanctions permit the federal government to
use federal funds in one program to influence
state and local policy in another.
MORE FEDERAL REGULATIONS
Cross-Over Sanctions
These sanctions permit the federal government to
use federal funds in one program to influence
state and local policy in another.
Partial-Preemption
Programs given to state to administer. If they do
not meet the nationally determined conditions or
standards, the national government will assume
the responsibility.