Federalism
Shifts in Federal Power
How Federalism Works
Federalism is not a static institution but rather a dynamic process. While the national
government is sometimes able to impose its will on the state, federalism is more often a result of
negotiation, experimentation, and give-and-take. It is important to recall that Congress is made
up of representatives and senators who are elected from individual states, feel great loyalty to
those states, and are ultimately held accountable by electorates in those states. The federal
government uses both carrots and sticks to wield influence over the states.
When the federal government enjoys clear constitutional authority to act, it sometimes uses
mandates, legal directives telling the states what they must do to comply with federal legislation.
Examples of mandates include environmental standards with which states must comply upon
pain of financial penalties, and the Americans with Disabilities Act (1991), which requires,
among other things, that buildings be made readily accessible to the handicapped. In both of
these situations, compliance costs the states considerable sums of money. Unfunded
mandates, which require states to comply with federal regulations but do not provide federal
money to pay for the costs of compliance, are unpopular among state governments for obvious
reasons. If mandates are the stick of federal policy, grants are the carrots of fiscal federalism.
Grants are sums of federal money given by Congress to state or local governments. Grants
come in two general categories: categorical or block. Categorical grants are appropriated by
Congress for very specific reasons and typically impose very detailed requirements on the
recipient as a precondition of receiving the funds. Block grants are sums of money given to the
states for a particular purpose (e.g., health care, education) but lack the detailed requirements
of categorical grants. Republicans and state governments are more likely to favor block grants
than Democrats.
State action in a particular policy area sometimes conflicts with federal regulation. As a general
rule, the supremacy clause prevents or limits a state from acting when its actions would conflict
with or undermine federal law. This is the doctrine of preemption. Thus states cannot legislate
lower standards for air or water quality where the federal government has imposed higher
standards. States cannot attempt to regulate air traffic control as the federal government has
already used its commerce power to monopolize regulation of this function. Besides, who wants
separate states regulating air traffic anyway? The resulting danger to the safety of air
passengers would be intolerable. But preemption is not a rigid principle. In cases where it does
not thwart federal intent, state governments can regulate to impose higher standards than those
required by the national government. For example, California has been permitted to assign itself
higher environmental standards than those required by the US Environmental Protection
Agency.
Dual Federalism
Even though several early Supreme Court decisions, such as McCulloch v. Maryland (1819)
and Gibbons v. Ogden (1824), established a foundation for a powerful national government,
state governments and the federal government were considered co-equals with distinctly
different areas of authority and competence. This type of federalism is known as dual
federalism. While the federal government handled issues of war and peace, diplomacy, and the
provision of a transportation infrastructure, states generally regulated economic affairs and other
matters. In early days of the nation, a prevailing interpretation of the Tenth Amendment held that
states exercised authority over police powers (safety, health, welfare, and morals) without much
federal intrusion. Some political scientists refer to this period of federalism as the era of layer
cake federalism, with the roles of the federal government and state governments neatly divided.
The Civil War (1861-1865) significantly expanded the power of the federal government, but
without any immediate impact on the philosophy of dual federalism. The late 19th and early 20th
century's era of urbanization, industrialization, and corporate concentration placed increasing
demands on the federal government to regulate a more tightly integrated national economy.
However, the courts remained vigilant, if inconsistent, in guarding against the overextension of
federal power. For example, the US Supreme Court struck down a law of Congress outlawing
child labor as going beyond the federal government's power to regulate interstate commerce.
The New Deal and Cooperative Federalism
The Great Depression of the 1930s, the presidency of Franklin D. Roosevelt, and World War II
(1939-1945) permanently and drastically altered the balance of power between the states and
the national government. Economic collapse and the resulting mass unemployment seemed
beyond the capacity of the states to handle. This created a political environment requiring
extensive federal intervention. Federal regulation of economic issues such as the price of farm
products, the right of workers to organize in unions, and the imposition of a national minimum
wage became the new normal. By providing categorical grants to the states, the federal
government used its spending power to launch an ambitious program of public works that
included construction of buildings, roads, dams, and electrification of rural areas. The basis of
the modern American welfare state was laid in new government social programs such as Social
Security and the imposition of maximum hours of employment for most workers. Collectively,
these programs are referred to as The New Deal and mark an epic turning point in US history.
It was in this time period that the layer cake was smashed. The federal government encroached
on the powers formerly reserved to the states. Although the federal courts initially resisted this
extraordinary exercise of power, they gradually relented, allowing a much more flexible and
expansive judicial interpretation to the national government's powers under the interstate
commerce clause. In Wickard v. Filburn (1942), the Supreme Court upheld congressional
legislation restricting the amount of wheat an individual farmer could grow on his own land. As a
result, Congress could now exercise its power over any activity, even local, if it had a substantial
effect on interstate commerce. Layer cake federalism gave way to marble cake federalism, also
called cooperative federalism. This new era of federalism was characterized by joint federal
regulation of areas traditionally considered within the states' domain and large grants of federal
money to the states.
The Great Society and Expanded Federal Power
President Lyndon B. Johnson's presidency in the 1960s greatly expanded the federal role in the
United States economy and social life. The policies constituting his Great Society, which
included a rhetorical and substantive commitment to waging "war on poverty," committed
federal funds and regulation to education (Head Start), anti-poverty programs (Aid to Families
with Dependent Children and public housing), and urban renewal. The federal government also
began a massive commitment to providing health care for the poor and elderly through
Medicare and Medicaid. The use of categorical grants to federally fund not just state, but also
local, governments and organizations increased. The federal government also increased its use
of unfunded mandates to compel state and local action. Unfunded mandates, such as the
Americans with Disabilities Act (ADA), remain a primary source of friction between state and
local governments.
The Rise of New Federalism
Since the 1980s, there has been much interest over the rise of New Federalism. Under the
Reagan presidency in the 1980s, and a Republican-controlled Congress during the 1990s, the
theme of devolution, or transfer of responsibility for policies and programs from the federal to
state governments, became prominent. There was also a shift from categorical grants to block
grants in federal aid to the states. Block grants gave states greater control over how to spend
federal aid than categorical grants allowed. For this reason Republicans have typically
supported block grants to a much greater extent than Democrats, who tend to favor the
oversight and direction given to the federal government by categorical grants. A classic example
of devolution is the Welfare Reform Act of 1996.
In the judicial system, several key decisions of the Rehnquist and Roberts courts limited the
accumulation of federal power that had occurred since the 1940s. In US v. Lopez (1995), the
Supreme Court struck down congressional legislation making it a federal criminal offense to
carry a handgun within 1000 feet of a school. Similarly in US v. Morrison (2000), the Court
invalidated a law that allowed rape victims to seek a federal civil remedy, even in the absence of
formal criminal charges. In both cases, the Court ruled that Congress exceeded its authority
under the commerce clause. However, it is difficult to over-generalize from these decisions.
Subsequent decisions on the appropriate use of commerce clause authority by Congress have
been mixed. While the US Supreme Court upheld a state law in 2006 legalizing physicianassisted suicide, it also issued several decisions upholding the federal government's imposition
of the ADA on state governments and accepted greater national restriction of abortion
procedures.
How Do You Rule? Federalism and the Judiciary
The Supreme Court has played a significant role in determining the balance of power between
the federal and state governments. In this activity, you'll rule on court cases that impacted the
relationship between the national and state governments.
Interactive Activity: How Do You Rule? Federalism and the Judiciary
Presents eight Supreme Court cases that impacted the relationship between the national and
state governments.
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Case 1: Gonzales v. Carhart (2007). Ruling—The Partial-Birth Abortion Ban Act does not
threaten a woman's right to abortion under Roe v. Wade (1973).
•
Case 2: Gonzales v. Oregon (2005). Ruling—The Attorney General does not have the right
to block physician-assisted suicide. It leaves the regulation of the medical profession to the
states.
•
Case 3: Gonzales v. Raich (2005). Ruling—Congress has the power to ban and prosecute
the possession and use of marijuana for medical purposes, even if states permit it.
•
Case 4: Heart of Atlanta Motel v. United States (1964). Ruling—Under the Commerce
Clause, Congress has the power to enforce the 1964 Civil Rights Act ban on discrimination.
•
Case 5: Printz v. United States (1997). Ruling—Local sheriffs cannot be required to conduct
background checks under the Brady gun control law.
•
Case 6: Tennessee v. Lane (2004). States are not exempt from provisions of the federal
Americans with Disabilities Act.
•
Case 7: United States v. Lopez (1995). Ruling—Congress exceeded its commerce clause
powers and overstepped its boundaries by regulating a local criminal issue.
•
Case 8: United States v. Morrison (2008). Ruling—The Supreme Court struck down a
portion of the Violence Against Women Act. Congress cannot argue that gender-based
crimes (e.g. rape) have a substantial negative impact on interstate commerce.
Power Jeopardy
Having just fought the war against British tyranny, the Founding Fathers were vehemently
opposed to a national government that could mushroom into an all-encompassing, overreaching
central government far removed from its citizenry. To prevent this, the Founders established a
constitutional arrangement whereby power was divided between the national government and
the states. This arrangement is known as federalism. Test your knowledge about federalism by
playing "Power Jeopardy."
Interactive Activity: Power Jeopardy
Uses a Jeopardy game to review key concepts about federalism. Key concepts include: block
grants, categorical grants, Commerce Clause, concurrent powers, cooperative federalism, dual
federalism, Gibbons v. Ogden, enumerated powers, implied powers, layer cake, mandates,
marble cake, McCulloch v. Maryland, Necessary and Proper Clause, preemption, Privileges and
Immunities Clause, reserve powers, Supremacy Clause, Tenth Amendment, and unfunded
mandates.
Virtual Roundtable
Federalism is a system that has changed during the nation's history and today might be
unrecognizable to many of the Framers, as more power is concentrated in the hands of the
national government. Do you think the balance of power has shifted too much toward the federal
government?
Video: David Boaz, Executive Vice President, CATO Institute, Washington, DC
Video script:
My view is that the federal government has assumed way too much power and in particular, two
things have happened. There’s been a flow of power from the states and the individual to
Washington and within Washington, there’s been a flow of power from Congress to the
executive branch and I think both of those are mistakes. They don’t reflect the intentions of the
founders but also the founders were right. The founders understood that diverse sources of
power and authority, the separation of powers, the division of power was the way you
constrained power. This was the big problem the founders worried about. How do you set up a
government, give it enough power to do its job, and then constrain that power? And they tried to
do it in the Constitution and I think over 200 years, there have been ups and downs and even
today, there are some ways in which we have more freedom, others in which we don’t, but the
basic problem has been the federal government assuming too much power. These days the
federal government intrudes into our healthcare, our retirement, our education, and our local
schools, not to mention, tells us whether we can smoke marijuana, tells us it’s trying, – telling us
whether we can get married, whether the federal government will recognize marriages made in
the states, all kinds of things like that, yeah, I think the federal government has too much power.
End of video.
Video: James Ming Chen, Dean and Professor of Law, University of Louisville School of
Law
Video script:
What’s to me as a legal educator and a lawyer very intriguing about debates over federalism is
that just about every American believes in a robust national government in one form or another.
We do disagree as Americans belonging to one political affiliation or another over what form that
national involvement that robust federal government ought to take. Typically it is the political
right, those people considered right of center. We typically associate this with the Republican
Party, who are most enthusiastic about robust national power when it comes to military affairs
and it is typically the political left, those people we generally associate with the Democratic
Party, who are most robust about federal government involvement in civilian or economic
affairs. But really if you look back at the original constitutional scheme, the founders
contemplated a weak federal government on both dimensions and so the modern American
approach to the role of federal government, what contemporary America thinks about federalism
is that we like it. We like the national government. It just depends on whether you are a right of
center politically leaning person, in which case you like a national military or you are a generally
left leaning person in which case you like a robust national involvement in economic or civilian
affairs.
End of video.
Additional Resources
Books
American Lion: Andrew Jackson in the White House, by Jon Meachum.
Meachum's biography focuses on both the hugely influential president and his political
philosophy. "Jacksonian Democracy" changed the political landscape of the country by
emphasizing executive power, elected judges, manifest destiny, states' rights, and laissez-faire
economic policy.
States' Rights and the Union, by Forrest McDonald.
Before "states' rights" was associated with civil rights and desegregation, it was connected with
almost every important political battle of America's first hundred years. By studying the battle
over the Bank of United States, internal improvements, the Louisiana Purchase, and tariffs,
McDonald demonstrates how federalism is part of the national character.