Federalism
Chapter 3
Figure 3.2- Systems of Government

Source: O’Connor and Sabato, American Government Roots and Reform
Federalism Defined
A system of government in
which a written constitution
divides the powers of
government on a territorial
basis between a central or
national government and
several regional
governments usually called
states or provinces.
Why Federalism?
Dilemma: How would framers
create a new central
government that would be
strong enough to meet the
new country’s needs but at
the same time preserve
strength of the existing
states?
Division of Powers
 Each
level of government has its
own set of powers.
 Neither level can act alone to
change the basic division.
 Each level acts through its own
agencies, officials, and laws.
 Both levels derive their powers
from the people!
Dual System of Govt
 Two
basic levels of govt
Each has own authority
Each operates
over the same people
over the same territory
at the same time
Major Strength(s)
 Allows
local action in matters
of local concern.
 Allows for local traditions,
needs, and desires vary from
one State to another
 Allows for national defense,
foreign affairs, disaster relief
Enumerated Powers
 Spelled
out in the Constitution.
 Article 1 Section 8 – gives these
powers to Congress
 Include: taxation, coinage of
money, regulation of interstate
commerce, national defense.
Implied Powers
 Article
I, Section 8, Clause 18
gives Congress powers
“necessary and proper” to
carry out enumerated
powers.
AKA
the “elastic clause”
Necessary & Proper
“…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.”
Powers Denied Fed Govt
 Constitution
denies some powers
in writing
 Levy duties on exports
 Prohibit freedom of religion,
speech, press, or assembly
 Conduct illegal searches or
seizures
 Deny someone a speedy and
public trial/trial by jury.
Powers Denied Fed Govt
2
 Denied
by “silence” of Constitution:
nothing said
 Examples:
 Create public school system for
the nation
 Uniform marriage and divorce
laws
 Set up local governments
Powers Denied Fed Govt
3
 Denied
by nature of a federal
government system
 Example: Congress can not tax any
of the States or their local units. To
do so would give the Federal
government the power to destroy
state governments.
The States
 Reserved
Powers (Police Powers)
 10th Amendment
 Powers not given to the Federal
government by the Constitution
and not denied the States are
reserved to the States.
 The sphere of powers held by each
State is huge.
The States
2
 Most
of what government does
in the US is done by the States
(and local govts).
 Includes police power—the
power of a State to protect and
promote the public health, the
public morals, the public safety,
and general welfare.
Denied to the States
 Explicitly
stated in Constitution
 Making foreign treaties, printing
or coining money
 Inherently denied
 Can’t tax federal government
 May be limitations in individual
State constitutions
Concurrent Powers
 Powers
possessed and exercised by
both National and State
governments
 Levy and collect taxes
 Define crimes and set punishments
Figure 3.3- Distribution of Power

Source: O’Connor and Sabato, American Government Roots and Reform
Denied to all levels of
government
 Bill
of Attainder
 Law declaring an act illegal without
a judicial trial
 Ex post facto laws

Laws declaring an act illegal (creating
punishment) after it has already been
committed.
Relations Among the States
 Full
faith and credit clause
 Judicial decrees and contracts made
in one state are binding and
enforceable in another.
 Privileges and immunities clause
 Citizens of all states are afforded
the same rights (under federal law).
Relations Among the States
 Interstate
compacts
 Agreements
between states – must
be approved by Congress.
 Extradition clause
 States must return criminals to
other states where they have been
convicted or are to stand trial.
Supreme Law of the Land
 The
Supremacy Clause
 Constitution stands above all
other forms of law in the US
 “Linchpin of the
Constitution”
 McCulloch v. Maryland
Figure 3.1- Governments in the U.S.
Source: O’Connor and Sabato, American Government Roots and Reform
Relations Within the States:
Local Government

Local governments’ authority not granted
by the people but through state
governments
States establish or charter their administrative
subdivisions
 Local governments carry out or execute the
duties of state governments on smaller scale

Federalism
and the Marshall Court

Two rulings in the early 1800s had a major
impact on the balance of power between
national and state governments.

McCulloch v. Maryland (1819)


Upheld power of national government and denied the
right of state to tax national bank
Gibbons v. Ogden (1824)

Upheld broad congressional power to regulate
interstate commerce
Dual Federalism: The Taney Court,
Slavery, and the Civil War

Dual Federalism



Belief that having separate and equally powerful
levels of government works best
Implication: National government should not exceed
its constitutionally enumerated powers.
Dred Scott v. Sandford (1857)


Declared the Missouri Compromise unconstitutional
Congress lacked the authority to ban slavery in the
territories.
The Civil War, Its Aftermath, and the
Continuation of Dual Federalism

National government grew in size and powers
after Civil War.

13th, 14th, and 15th Amendments


Prohibited slavery and granted civil and political rights
to African Americans.
Supreme Court adhered to concept of dual federalism
Plessy v. Ferguson (1896)
 Confusion over regulation of commerce
 Inconsistent rulings on scope of national power

Setting the Stage for A Stronger
National Government

Sixteenth Amendment

Authorized Congress to enact a national
income tax
 Supreme
Court had found congressional
legislation in this area unconstitutional.

Seventeenth Amendment

Made senators directly elected by the people;
removed their selection from state
legislatures.
Cooperative Federalism: New Deal
and Growth of National Government

The New Deal (1933-1939)


intense governmental activity on the national level
response to Great Depression required the exercise of tremendous
national authority


Supreme Court worried about scope of these programs in terms of
regulating commerce and the economy


New agencies and programs
Court-packing plan response to anti-New Deal court decisions
New Programs required cooperation across all levels of government.
The Changing Nature of Federalism:
Layer Cake to Marble Cake

Layer cake federalism
Each layer, national, state and local, had
clearly defined powers and responsibilities.
 After New Deal, the nature of the federal
system changed.

 Marble
cake metaphor
 Cooperative federalism

The relationship between the national and state
governments that began with the New Deal
Federal Grants and National
Efforts to Influence the States



Morrill Land Grant Act of 1862
New Deal
Most grants were categorical grants


Grant for which Congress appropriates funds for a
specific purpose
1960s War on Poverty


Direct assistance to states, local governments, and
citizen groups
Grants used to push national agenda rather than
respond to state demands
New Federalism: Returning
Power to the States

New Federalism
Federal/state relationship proposed by
Reagan administration during the 1980
 Returned administrative powers to the state
governments
 Reagan Revolution
 Block grants

 Broad
grant with few strings attached
 Given to states by federal government for activity
in specified area (education)
New Federalism: Returning
Power to the States

The Devolution Revolution
Contract with America
 Unfunded Mandates

 National
laws that direct states or local
governments to comply with federal rules and
regulations but contain no federal funding to help
pay the cost of meeting those requirements

Personal Responsibility and Work Opportunity
Reconciliation Act of 1996
New Federalism: Returning
Power to the States

Federalism Under the Bush Administration
Budget shortfalls at federal and state level
 States raised taxes and cut services; received
aid from federal government
 Federal government expanded post 9/11

 Department
of Homeland Security
 No Child Left Behind

Example of preemption
The Supreme Court: A Return to
State’s Rights?


From New Deal to 1980s: Court has generally
expanded national authority at the expense of the
states.
Beginning in 1980s: Court interpretations altered






Willingness to allow Congress to regulate in a variety of
areas waned
Webster v. Reproductive Health Services (1989)
Planned Parenthood of Southeastern Pennsylvania v.
Casey (1992)
U.S. v. Lopez (1995)
Sovereign immunity
Bush v. Gore (2000)
Figure 3.4- Supreme Court and Federalism

Source: O’Connor and Sabato, American Government Roots and Reform Back
The National Government
and the 50 States
or
“What does “United States” really mean?
Republican Form of Govt
 Constitution
requires National
Govt to “guarantee to every
state in this Union a
Republican form of
government.”
 Generally understood to mean
a “representative
government”.
Republican Form of Govt
2
 Only
time ever really big issue
was after Civil War
 Congress declared several
southern States did not have a
“republican form of govt”

States had to ratify the 13th,
14th, and 15th amendments
Invasion/Internal Disorder
 Invasion
of any one state is
seen as attack on the US
 Federal system assumes that
each state will keep the peace
within its own borders
If
state can’t control some
situations, then National govt
provides protection against
internal disorder
Territorial Integrity
 National
govt must recognize
the legal existence and
physical boundaries of each
state.
 Congress must include
members from each state
 Article V: equal representation
in US Senate guaranteed
Admitting New States
 Only
Congress has this power
 Admitted 37 states since
original 13
 5 states created from exiting
states (Vermont, Kentucky,
Tennessee, Maine, and West
Virginia
 Texas was independent first
Admission Procedure
 Congress
issues enabling act
 Territory frames a State
constitution which is voted on
by the people of the territory
 Constitution submitted to
Congress for approval
 Approval = Statehood
Conditions for Admission
 Each
state enters on equal
footing with other states
 Utah had to outlaw polygamy
 Alaska had to give up claims
to land held by Native
Americans
 Arizona had to end recall votes
for Judiciary
Cooperative Federalism
 Large
and growing areas of
cooperation between National
government and the States
 Grants-in-Aid
Grants
of federal money or
other resources to States or
local units.
Goes back to time of Northwest
Ordinance of 1787
Criticisms of Grants-in-Aid
 Possible
for Federal
government to operate in
many policy areas where it
doesn’t have constitutional
authority
 Blur the line of division of
powers in our federal system
Revenue Sharing
– 1987
 Congress gave an annual
share of federal tax revenue to
the States.
 Known as “shared revenues”
 Almost “no strings” attached
 Popular with States
 Ended with Ronald Reagan
 1972
Categorical Grants
 For
specific, closely define
purposes
 Must use some of State’s own
money (usually matching)
 Have agency to administer
 Obey federal guidelines for the
grant
Block Grants
 More
broadly defined than
categorical grants
Health
care, social services,
welfare
 Fewer
strings so easier for
States to use
Project Grants
 To
States, localities, and
private agencies (who apply
for the grants)
 Many states use to fund job
training
 NIH issues grants for medical
research
Other forms of Aid
 FBI
helps State and local law
enforcement
 Army & Air Force equip and
train each State’s National
Guard units
 Census Bureau data essential
to State and Local planning
Lulu Payments
 Federal
monies going to local
governments in areas where
there are large federal
landholdings.
 Made in lieu of (take the place
of) property taxes which can
not be collected from Federal
government
State Aid to Fed Govt
 State
and local election
officials conduct national
elections
 Naturalization takes place
most often in State, not
federal, courts
 Federal criminals often
arrested by State/Local
officials
Interstate Relations
or
“How well do the states play together?”
Interstate Compacts
 No
State may enter into any
treaty, alliance, confederation.
 These kinds of arrangements
are what causes so much
trouble under the Articles of
Confederation.
Interstate Compacts2
 However,
the States may, with the
consent of Congress, enter into
interstate compacts —agreements
among themselves and with
foreign states.
 Over 200 compacts are now in
force for law enforcement,
resource development,
conservation
Table 3.1- Compacts by the Numbers

Full Faith and Credit Clause
Of
the Constitution
ensures that States
recognize the laws and,
documents, and court
proceedings of the other
States
Exceptions to FF&C
(1) One State cannot enforce
another State’s criminal laws.
and,
(2) Full faith and credit need
not be given to certain
divorces granted by one State
to residents of another State.
Extradition
 Extradition
is the
legal process by
which a fugitive
from justice in
one State is
returned to that
State.
 Extradition is
upheld through
Article IV, Section
2, Clause 2 of the
Constitution.
 Governors
are the
State executives
that handle the
extradition
process.
 If governor is
unwilling to return
a fugitive to a
State, federal
courts can
intervene and
order governor to
do so.
Privileges and Immunities
 The
Privileges and Immunities
Clause provides that no State
can draw unreasonable
distinctions between its own
residents and those persons
who happen to live in other
States.
Privileges and Immunities
2
 States
cannot, for example, pay lower
welfare benefits to newly arrived
residents than it does to its long-term
residents, Saens v. Roe, 1999.
 However, States can draw reasonable
distinctions between its own residents
and those of other space, such as
charging out-of-State residents higher
tuition for State universities than inState residents.