Federalism: How our
government works
Chapter 3
What is federalism? Why was a federal system so
important to the framers?
How does the Constitution lay out what powers
each level of government will have?
What are state, national, and concurrent powers?
What is federalism?
Federalism-a political system in which
power is divided and shared between
the national government and the states
• Derive all authority from the people
• Powers specified by a Constitution
The Supreme Court plays a critical role
in this power/influence struggle
Roots of the Federal System
• The Framers wanted a system that was
between the failed confederation of the
Articles and the tyrannical unitary system of
England
• The three major arguments for federalism are:
1. prevention of tyranny
2. provision for increased participation in politics
3. use of the states as testing grounds for new policies
& programs
Governmental Powers in the
Federal System
The distribution of powers in the federal
system consists of several parts:
– NATIONAL enumerated powers (Article I,
sec.8)
• implied powers (elastic clause or necessary and
proper)
• Supremacy clause (Article VI)
– STATE reserve (police) powers (10th
amendment)
– shared powers (concurrent powers)
– denied powers
Article I, Section 8
The enumerated powers of the central
government include the power to:
• 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/conduct war
• establish national courts, post office
Implied Powers
• The central government may make all
laws which shall be necessary and
proper for carrying into execution the
enumerated powers.
• The necessary and proper clause has
often been used to expand the powers of
the national government (aka elastic
clause).
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, and morals)
– Set time/manner/place of elections
– Ratify amendments to USC
– Exert powers not given to national gov’t
– Establish local gov’t
– Regulate state commerce
Relations among the States
• The Framers wanted a single country, not
thirteen squabbling semi-countries.
• Article IV requires states to give “full
faith and credit” to each others’ laws and
legal proceedings.
• States are also required to extradite
criminals if asked by another state.
• States recognize drivers’ and marriage
licenses, custody rulings, etc.
Concurrent (shared) powers
Concurrent powers exist as long as the power is not
within national/state scope or laws
Includes:
• right to tax
• borrow money
• establish courts
• make and enforce laws are powers shared with
national government
Denied Powers
(no authority for arbitrary actions against
rights and liberties)
• Amendment 9 lays out powers denied to the central
government and given to the people.
• Amendment 10 lays out the powers denied to the
federal government, given to the states/people.
• Neither level may pass bills of attainder, or laws
declaring an act illegal without a judicial trial (A1,
Sect. 10)
• Bars ex post facto laws, or laws that make an act
punishable as a crime after the fact (A1, S. 10)
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)
– Gibbons v. Ogden (1824)
– Dred Scott v. Sandford (1857)
McCulloch v. Maryland (1819)
• McCulloch was the first major decision by the
Supreme Court under Chief Justice John Marshall
about federalism.
• 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 Court’s 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 Congress about controlling commerce.
– Commerce Clause (Article I, sec. 8: “to regulate commerce
with foreign nations, and among the several states, and with
the Indian tribes”)
• 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.
• In Gibbons, the Court upheld broad congressional
power over interstate commerce.
Dred Scott v. Sandford (1857)
• The Supreme Court notes the idea of dual federalism in
which separate but equally powerful levels of
government exist
– national government should not exceed its enumerated
powers
• The Taney Court held that Scott was not a U.S. citizen
and therefore not entitled to sue in federal court
– Case dismissed, Scott remained a slave
• Court wrote that Congress had no power to:
– abolish slavery in the territories
– slaves were private property protected by the Constitution
– MO Compromise was unconstitutional
The Civil War and Beyond
• Dual federalism—when states and federal government
have mostly separate, distinct functions to serve the
people
– also called “layer-cake” federalism
– clearly defined responsibilities and goals
• Remained the Supreme Court's framework for
federalism and the ongoing relationship between
n’tl/state gov’t from 1870-1930
• Dual federalism finally ended in the 1930s
– crisis of the Great Depression demanded powerful actions
from the national government
Cooperative Federalism
1930’s-50’s
• By the New Deal (1931), the analogy of a marble cake
seemed more appropriate because the lines of authority
were much more mixed
– Fed. gov’t major player in domestic policy
– major shift in money from federal government to state/local
governments
• Marble cake federalism is often called cooperative
federalism with more powerful national government
– States/local have a cooperative role (work with fed. gov’t)
• Grants-in-aid monies flooded states for public works
projects, work programs, relief agencies (alphabetocracy)
Federal Grant-in-Aid Outlays, 1940-2005
Creative (Regulated) Federalism
1960’s-70’s
• Increase in Categorical Grants: allocation of
federal money to the states for a specific
purpose (e.g., poverty programs, welfare,
environment)
– a way to make states behave in ways desired by
fed. govt.
– if states refuse to cooperate, withhold funds (e.g.,
interstate highway funds)
New Federalism: Reagan Revolution
1980’s-90’s
• drastic cuts in federal domestic programs and
income taxes in an attempt to reestablish the
power of the states
• federal aid to state and local governments
declined
• Reagan’s idea was that federal government
had gotten too big.
– states should have more responsibility and
authority.
Issues during 1980’s-90’s
• Revenue sharing & matching funds
• Block grants: monies allocated to states for broad
purpose, such as education or poverty, with few
regulations on administering funds
• Unfunded mandates: laws that direct states & localities
to comply with federal regulations, without funding
– e.g., clean air laws & public access for disabled (ADA)
• State budgetary constraints: recession, constitutional
requirement for balanced budget
• Intergovernmental lobby groups: NGA, USCM (see
slide 26)
The Devolution Revolution
Devolution = delegation of power & responsibility
to the states, not the federal gov’t
• SOH Gingrich: roll back scope of federal
government and give back of power to the states
– Contract with America: shift responsibilities to states;
Unfunded Mandate Reform Act of 1995
• Clinton Era reaction to growth in power of the national government
due to Republican majority in both houses of Congress
• President Clinton: responsibility to administer federal
programs as chief executive
Federalism and the Supreme Court
• Poll after poll showed that Americans
began to think that the national government
was too big, too strong, and too distant to
understand their concerns.
• U.S. Supreme Court, once again, played a
role in interpreting this new form of
federalism.
• Cases involving abortion, gun control,
environment, use of commerce clause,
right to sue.
Rehnquist Court
Reinterpreting Federalism
• Generally handing back power to the states
• Majority pro-states’ rights; 5-4 decisions
• Webster v. Reproductive Health Services
(1989) and Casey v. Planned Parenthood
(1992): states can restrict abortion laws
• U.S. v. Lopez (1995): federal law cannot
regulate guns within 1000 of a school
• Bush v. Gore (2000): upheld deadline for
selection of electors
Summary – Key Points to Remember
• Federalism is an important concept of the American
system of government meant to limit the power of the
national government.
• The notion of Federalism has changed drastically since
the New Deal in the 1930’s.
• In the 1960’s and 1970’s the scope of federal domestic
policies and programs increased steadily.
• In the 1980’s Reagan began a rollback of federal
funding for programs and funding to states.
• In the mid-1990’s Republican Congress promised to
reduce the size and scope of the national government
and “return power to the states.”