GOVT 2301
Federalism
Federalism is the third
constitutional principle we cover in
this class. As with the others, it
involves the division of power
within government.
Officially this refers to the division
of government into two levels: the
national and the state. Unofficially,
it also includes a third level, local
government, which can be a city,
county or a single purpose
government.
Remember that local governments
are not mentioned in the U.S.
Constitution. States, as part of
their reserved powers, have the
authority to pass laws allowing
groups of individuals to pass laws
regulating their interrelations.
American government is actually
composed of thousands of distinct
governments layered one upon the
other. Here’s a list based on 2007
figures.
National – 1
State – 50
Counties – 3034
Municipalities – 19,429
Township – 16, 504
School Districts – 13, 506
Special Districts – 35,052
What is a nation anyway?
The concept of a nation is not that
old. The Treaty of Westphalia
(1648) Created the modern nation
state with sovereign authority
within its borders.
Wikipedia: Country
Federalism is an Accidental
Principle
The American Federal system
grants sovereignty to two levels of
government.
This was not an anticipated
outcome of the Constitutional
Convention.
The division between the national
and state level was the result of
the compromise in the
constitutional convention dubbed
“The Great Compromise.”
You might want to look through a
couple of web resources: First,
Wikipedia’s: Federalism in the
United States.
The second link is to Wikipedia’s
category page on Federalism Case
Law. This takes you to various
other pages with information
about major court cases which
have ruled on disputes associated
with federalism.
A federal system is different than a
unitary or confederated. In the
former sovereignty rests fully in
the upper level, in the latter it is in
the lower level.
Unitary, Federal, and
Confederated Systems
Unitary: The national government
dominates and the states exist as
administrative units only.
This is the relationship that exists
between the state of Texas and the
254 counties. They have little
independent authority and
implement state laws.
Confederacy: The states possess
sole sovereign authority and a
weak central authority exists to
mediate disputes between them.
They have no real authority over
the states.
The Articles of Confederation
The Southern Confederacy
Two components of the Articles of
Confederation make this explicit:
The Articles of Confederation
Article II. Each state retains its
sovereignty, freedom, and
independence, and every power,
jurisdiction, and right, which is not
by this Confederation expressly
delegated to the United States, in
Congress assembled.
The Articles of Confederation
Article III. The said States hereby severally
enter into a firm league of friendship with
each other, for their common defense, the
security of their liberties, and their mutual
and general welfare, binding themselves to
assist each other, against all force offered
to, or attacks made upon them, or any of
them, on account of religion, sovereignty,
trade, or any other pretense whatever.
The theoretical idea behind
federalism is that each level of
government can best perform
certain functions and that
responsibility for these functions
should be divided accordingly.
Recall that the Constitutional
Convention was called by those
who were concerned that the
states, under the Articles of
Confederation, were unable to
adequate provide for their
commercial and security needs.
These had to be provided
uniformly across the states.
Broad – national – interests (as
defined by the federalists) were to
be provided by the national
government. These are listed in
Section Eight of Article One of the
Constitution – this will be covered
more thoroughly below.
Here’s a succinct graphic that
outlines the powers of the state
and national governments. Notice
that some powers are shared by
each.
Some terminology would be helpful
here:
Delegated (Enumerated) Powers:
Power specifically give to the national
government.
Reserved Powers: Powers (unstated)
granted to the states.
Concurrent Powers: shared by each
level of government.
Here is a more exhaustive list of
the powers held by each level of
government.
National Power
Internal improvements
Subsidies
Tariffs
Disposal of public lands
Immigration law
Centralized National Defense
Foreign policy
Copyrights
Patents
Currency
State Power
Property law
Estate and inheritance law
Commerce laws of ownership and exchange
Banking and credit laws
Labor and union laws
Insurance laws
Family laws
Morals laws
Occupations and professions laws
State Power (continued)
Public health and quarantine laws
Public works laws, including eminent domain
Building codes
Corporations law
Land use laws
Water and mineral resource laws
Judiciary and criminal procedure laws
Electoral laws, including parties
Local government laws
Civil service laws
Local Governments
Variances (adaptation of state law
to local conditions)
Public works
Contracts for public works
Licensing of public accommodations
Assessable improvements
Basic public services
A general term used to describe
the powers granted to the states
and by extension local government
is “police powers.”
police power is the government to
regulate behavior and enforce
order within their territory for the
betterment of the general welfare,
morals, health, and safety of their
inhabitants.
Its generally stated that local
governments perform “house
keeping” functions for
communities.
They keep things neat, tidy and
safe.
Local governments can take a
variety of forms: City, county, multi
purpose, single purpose.
Federalism also involves regional
governments as well
In Texas these are called Area
Councils of Government, they
attempt to coordinate activities
within the governing entities in a
particular area.
The local region is located in the
Houston-Galveston Area Council
A dispute:
What should the balance be
between national power sand state
power?
Centralism
vs
Decentralism
What are the advantages and
disadvantages of centralized
control and coordination?
What are the advantages and
disadvantages of de-centralized
control and coordination?
States:
The Laboratories of Democracy
AEI: Laboratories of Democracy.
A brief note:
The nation and the states are political
units primarily. They possess sovereign
power, traced to the people of course.
Local governments are primarily
economic units.
A city begins as an economic
enterprise first, and achieves
political status afterwards.
This is not true for counties.
A county is the administrative arm
of the state. It is responsible for
basic services to non-city residents
and for the provision of certain
state functions.
In Texas counties are responsible for:
- issuing state automobile licenses, among
other licenses issued by the state
- voter registration
- conduction of elections
- property tax assessment and collection
- maintaining vital records: birth and death
certificates
- conducting health and welfare programs
Controversy: What is the legal
status of cities, since that is not
established in the Constitution?
There are tow conflicting theories
about the status of cities. One is
Dillon’s Rule, the other is the
Cooley Doctrine.
Dillon’s Rule
Municipal corporations owe their
origin to, and derive their powers and
rights wholly from, the legislature. It
breathes into them the breath of life,
without which they cannot exist. As it
creates, so may it destroy. If it may
destroy, it may abridge and control
Cooley Doctrine
Local government is a matter of
absolute right; and the state
cannot take it away. The argument
was made in a concurring decision
in a court case, which does not
make it binding.
Dillon’s Rule predominates. A city
is subject to control by the state,
although solvent, powerful cities
are generally autonomous for all
practical purposes.
Non-solvent cities can be taken
over by states, though critics argue
that it undermines democratic self
determination.
City governments need charters
issued by the states in order to
govern. There two general types:
General Law
Home Rule
General Law
General law cities are smaller cities whose
powers are limited; they operate according to
specific state statutes that define their powers
and duties. They are restricted to doing what the
state directs or permits them to do. If a general
law city has not been granted the express or
implied power by the state to initiate a
particular action, none may be taken.
Home Rule
Home rule cities are cities with populations of
more than 5,000 in which citizens have adopted
home rule charters. A charter is a document that
establishes the city’s governmental structure
and provides for the distribution of powers and
duties among the various branches of
government. In order to be implemented, the
charter must be approved by the people at an
election. Likewise, changes in the charter must
be approved by a vote of the people.
The legal position of home rule cities is the
reverse of general law cities. Rather than
looking to state law to determine what they may
do, as general law cities must, home rule cities
look to the state constitution and state statutes
to determine what they may not do. Thus, if a
proposed home rule city action has not been
prohibited or pre-empted by the state, the city
generally can proceed.
Controversy exists over how
precisely the divisions between
national and state powers ought to
be can be drawn, or whether these
powers are shared to some degree.
Madison and Hamilton presented
plans which would have
established unitary systems.
Hamilton’s Plan
Madison’s Plan
Both proposed a national
government far stronger than the
states. The national government
could appoint state governors and
veto state laws.
They were unsuccessful
in doing so. The plans were
rejected.
A sufficient number of delegates
supported state power to force a
compromise.
The Great Compromise
Establishes the principle of
dual sovereignty
The people are sovereign and are
directly connected to the national
government, but so are the states.
The state and national
governments therefore are equal.
This is a very tricky relationship
that inevitably lead to conflict.
Among the questions raised:
What role should each level play in
governing? Was there a clear
intent established by the authors
of the Constitution that must be
maintained? Or is the relationship
meant to be dynamic?
The Civil War was fought, in many
ways, to resolve questions over the
relative power of each level of
government.
Several Federalist Papers focused
on this question. Lets review parts
of them.
From Federalist #41
That we may form a correct judgment on this subject, it
will be proper to review the several powers conferred
on the government of the Union; and that this may be
the more conveniently done they may be reduced into
different classes as they relate to the following different
objects: 1. Security against foreign danger; 2.
Regulation of the intercourse with foreign nations; 3.
Maintenance of harmony and proper intercourse
among the States; 4. Certain miscellaneous objects of
general utility; 5. Restraint of the States from certain
injurious acts; 6. Provisions for giving due efficacy to all
these powers.
Federalists 42, 43, and 44 go into
detail about each of these
functions.
Which leads to the following
conclusion in Federalist 45.
From Federalist #45:
The powers delegated by the proposed Constitution
to the federal government, are few and defined.
Those which are to remain in the State governments
are numerous and indefinite. The former will be
exercised principally on external objects, as war,
peace, negotiation, and foreign commerce . . . The
powers reserved to the several States will extend to
all the objects which, in the ordinary course of
affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement,
and prosperity of the State.
What does this mean?
Few and Defined:
The powers delegated to the
national government in Section
Eight of Article One and implied in
the General Welfare, Commerce,
and Necessary and Proper Clauses.
Numerous and Indefinite:
The states have the reserved
powers, meaning in essence
everything else.
The Constitution has since been
judged to contain several types of
powers.
Delegated
Inherent
Implied
Reserved
There is also a category called
concurrent powers where each
level of government has some
jurisdiction over the power.
The Delegated Powers
The Delegated Powers -- also called
the enumerated or the expressed
powers -- are those clearly written,
and listed, in the Constitution and
granted to Congress.
Its what Congress has the authority
to write laws about.
Article One, Section Eight
This is the part of the Constitution
where those powers are listed.
Note: I expect you to open up this
link and read through the specific
powers granted to the national
government.
Generally these powers fall into two
broad categories: commercial and
military. Whatever is clearly listed is
considered to be a delegated power.
The Constitution places few clearly
defined restrictions on the powers
of the national government. These
are found in
Article One, Section Nine
The Implied Powers
The Implied Powers are the powers
the are considered necessary in
order to carry out the delegated
powers.
These tend to be based on what
are called the “elastic” clauses.
These include:
The General Welfare Clause
The Commerce Clause
The Necessary and Proper Clause
The expansion of national power
over the course of time has been
driven by expanded
reinterpretations of these parts of
the Constitution.
Example: The Social Security Act
was found Constitution in
Helvering v Davis based on the
General Welfare Clause.
- the full story from SSA Online.
The Necessary and Proper Clause:
“The Congress shall have Power To . . .
make all Laws which shall be necessary
and proper for carrying into Execution
the foregoing Powers, and all other
Powers vested by this Constitution in
the Government of the United States,
or in any Department or Officer
thereof.”
Critical Dispute:
What does “necessary
and proper” mean?
Does it refer to any power that is
useful to government’s ability to
carry out a delegated power?
Or does it only refer to those
powers that are essential to it?
The Debate over a National Bank
It was argued by Hamilton to fall
under the clause because the bank
would help the national
government carry out its
commercial and currency powers.
Hamilton’s position would be
accepted in McCulloch v.
Maryland.
For a fuller discussion of cases
involving the necessary and proper
clause, click here for a link to
findlaw.com.
But decades later Jackson would
argue that these powers could be
carried out by the Treasury
Department without a National
Bank. The bank was not essential.
The Commerce Clause:
“The Congress shall have Power To
. . . regulate Commerce with
foreign Nations, and among the
several States, and with the Indian
Tribes;”
Links regarding the Commerce
Clause
Legal Information Institute
Wikipedia
FindLaw
Exploring Constitutional Conflicts
Key Dispute:
Does “commerce” mean trade in
finished products, or does it also mean
the manufacturing and labor involved
in creating those products?
The Commerce Clause became a
vehicle for further expansions of
national power.
Since the relationship between the
national and state governments is
due to interpretations of the
Constitution, the Supreme Court is
responsible for determining the
nature of federalism.
Gibbon v Ogden (1824)
A state could not prevent an
individual licensed by the national
government from engaging in
interstate commerce.
Licensing for interstate commerce
must be a national function in
order to ensure that licenses, and
commercial rules in general, are
consistent across the country.
During the bulk of the 19th Century,
the powers of the national and
state government were distinct,
but as technology improved,
commercial relations between the
state began to increase and
expand.
Over the past century the size of
the national government, and the
scope of its powers, has increased
significantly. This has required a
rethinking of the proper role of
each level of government and the
reinterpretation of constitutional
language justifying it.
It has also been highly
controversial. States tend to not
like federal encroachments on
what they see as their sovereign
power, but minorities in state
citizens often feel undeserved by
the state government and seek
redress on the national level.
Beginning in the 1880s, Interstate
Commerce Act of 1887, national
institutions had been established
that began interfering with state
sovereignty.
Some laws were found
unconstitutional, but not all of
them.
An example of unconstitutional
legislation:
The Keating-Owen Act of 1916,
which outlawed child labor, was
found unconstitutional in Hammer
v. Dagenhart.
“In our view the necessary effect of
this act is, by means of a
prohibition against the movement
in interstate commerce of ordinary
commercial commodities to
regulate the hours of labor of
children in factories and mines
within the states, a purely state
authority.”
The New Deal
The “New Deal” is the term given
to a series of laws passed in the
wake of the Great Depression that
granted addition powers to the
national government on the
premise that states were not able
to effectively handle the
emergency.
Also important:
The Progressive Era
The Great Society
The New Deal necessitated a
reinterpretation of constitutional
language, notable the definition of
the word: “commerce”
During FDR’s first term, the
Supreme Court did not find New
Deal legislation constitutional.
They held a rigid view of
commerce.
Found unconstitutional:
National Industrial Recovery Act
in
Schechter Poultry Corp.
v. United States
Found unconstitutional:
Agricultural Adjustment Act
in
United States v. Butler
This led to a conflict between the
executive and judicial branches
that came to a head in the court
packing scheme.
In order to resist the effort to add
new members to the court, the
court began reversing its opinions
of certain New Deal policies.
The key switch was by Justice
Owen Roberts.
The two most consequential cases:
National Labor Relations Board v.
Jones & Laughlin Steel
1937 - The Wagner Act, which
authorized the national government to
force corporations to recognize labor
unions was found constitutional
because labor was included in the
definition of commerce.
Wickard v. Filburn
1942 - The concept of interstate
commerce was expanded to allow
for national regulation of intrastate
activity if intrastate activity affects
interstate activity.
For almost 60 years no major piece
of legislation regarding the
commerce clause that allowed for
an expansion of national power
was found unconstitutional.
This was due at least in part to
Democratic successes in
presidential elections.
Many of these policies placed the
national government in a
cooperative relationship with the
states and local governments.
The national government would
establish an objective and
encourage the states to go along.
Often these are implemented with
matching grants.
The national government would
encourage the states to engage in
certain endeavors by matching
state dollars with federal dollars.
One of the first area projects
funded with matching federal
dollars was the dredging of the
Port of Houston.
Other Examples of Such Policies:
Welfare
Education
Transportation
Health Care
Some researchers have called this
era: Cooperative Federalism.
Whereas the relationship between
the national and state
governments previously had
resembled a layer cake, they
suddenly resembled a marble cake.
Interstate Highway System
primarily built with a mix of 90%
FHWA funds from the Highway
Trust Fund and 10% matching state
DOT funds.
Medicare
Medicaid
More recently (beginning in the
mid – 1990s) court cases have
ruled against further uses of the
Commerce Clause to expand
national power.
There have been efforts to halt, or
possibly roll back the expansion of
the national government, by
reinterpreting constitutional
language as it had been prior to
the New Deal.
The Constitution in Exile
movement.
The first indication that a shift
might be underway:
United States v. Lopez
1995 - The Supreme Court rejected the
argument that the national government
could pass a law based on the commerce
clause. They rejected the idea that the
federal government could outlaw gun
possession near school zones because it
had a suppressing effect on commercial
activity.
Gun Free School Zones Act was
judge to be unconstitutional
because it did not directly impact
economic behavior – it only
indirectly did so. In addition, the
activity was judged to be local in
nature.
“The Lopez court stated that
Congress may regulate (1) use of
the channels of interstate
commerce, (2) the
"instrumentalities" (for example,
vehicles) used in interstate
commerce, and (3) activities that
substantially affect interstate
commerce.”
A second:
United States v. Morrison
2000- The Supreme Court rejected
the argument that a national law
allowing women to sue those who
physically attack them was justified
since such activity interfered with
economic activity.
It focused on the civil rights
remedy of Violence Against
Women Act.
These and other cases indicated an
effort to roll back the scope of
national power under the
commerce clause, but the decision
in Gonzales v. Raich complicated
this.
Gonzales v. Raich
2005 – the Supreme Court
reaffirmed the constitutionality of
the national Controlled Substances
Act and its supremacy over
California’s Compassionate Use
Act.
“This activity was the result of the belief that federal
law preempted that of California. The government
argued that if a single exception were made to the
Controlled Substances Act, it would become
unenforceable in practice. The government also
contended that consuming one's locally grown
marijuana for medical purposes affects the interstate
market of marijuana, and hence that the federal
government may regulate—and prohibit—such
consumption. “
- click here for a summary of the various decisions.
Current questions involve the
potential constitutionality of the
Health Care Law.
Are challenges to the Health Care
Law offering an opportunity to roll
back the commerce clause?
The Reserved Powers
It also places few clearly defined
limitations on the powers of the
states. These are found in:
Article One, Section Ten
The last part of the Bill of Rights
established the reserved powers of
the states.
The Tenth Amendment
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.
The reserved powers generally are
called the “Police Powers.”
These are defined as laws
regulating the health,
safety, welfare, and
morals of a community.
These laws include
Criminal Law
Health
Education
Professional Accreditation
Licensing
etc ….
Some reserved powers are kept at
the state level, some are passed
down to the local governments.
The functions of local government
tend to be more “housekeeping” in
nature such as water, drainage,
sewage, street and road repair,
building permits, etc…
Inherent powers
These are the controversial, un
specified powers claimed by
presidents during times of conflict.
The Inherent Powers can include
anything a commander in chief
thinks is necessary to successfully
fight a war. Often these can involve
the suspensions of civil liberties
and the allowance of unreasonable
searches and seizures and
detention without due process.
There is debate regarding how
extensive this power should be,
especially when the nature of a
conflict is somewhat unclear.
The War on Terror
The relationship between the
national government and the
states was greatly affected by the
th
14 Amendment.
The 14th Amendment nationalized
citizenship and denied states the
ability to deny their privileges and
immunities.
This text will later allow the
national government the
opportunity to allow those who
feel they have been discriminated
against the ability to challenge that
discrimination in a federal court.
Relevant Text: “Section 1. All persons
born or naturalized in the United
States, and subject to the jurisdiction
thereof, are citizens of the United
States and of the State wherein they
reside. No State shall make or enforce
any law which shall abridge the
privileges or immunities of citizens of
the United States . . .”
The application of the Bill of the
Rights to the states has happened
piece by piece. The process has
been called the Selective
Incorporation of the Bill of Rights
to the States
Prior to the 14th Amendment, the
restrictions on legislative powers
spelled out in the First Amendment
– such as the free exercise of
religion – only limited national
power, not state power.
This changed gradually after the
14th Amendment when various
cases were brought to court
ultimately forcing the Supreme
Court to consider whether limits
on the national government
applied to state governments as
well.
An early case that raised this
question was United States v.
Cruikshank,
"We have in our political system a government
of the United States and a government of each
of the several States. Each one of these
governments is distinct from the others, and
each has citizens of its own who owe it
allegiance, and whose rights, within its
jurisdiction, it must protect. The same person
may be at the same time a citizen of the United
States and a citizen of a State, but his rights of
citizenship under one of these governments will
be different from those he has under the other."
The court has yet to decide the
meaning of the privileges and
th
immunities clause of the 14
Amendment.
A later example: the guarantee of
freedom of speech was
incorporated against the states in
the case of Gitlow v. New York