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Federalism and the
Separation of Powers
What is Federalism
• To understand federalism, we must first
understand how a unitary system works.
– UK
– France
• Unitary systems differ in many ways from
federal systems and amongst themsevles.
Unitary systems
• Elections
– vote for parties not candidates.
– Party that wins the majority of seats in the
legislature forms the government.
– The leader of this party is the Prime Minister.
– Single party government is the norm with single
member districts.
Unitary systems (cont)
• Proportional representation (PR) systems:
– Parties get number of seats in legislature
proportional to vote totals.
• There are usually minimum requirements (thresholds)
• Often result in coalition governments as no
single party wins a majority of the seats.
– Italy, Germany.
– Sometimes even minority governments form.
Unitary systems (cont)
• How does this effect policy formation?
– Answer largely depends on electoral system.
• Single-party government:
– A sort of benevolent dictatorship.
– Very few veto players—effective governance.
• Multi-party government:
– More voices/more interests/tougher CA problem.
– Better quality outcomes/more representative.
Unitary systems (cont)
• How do governments fail?
– They lose elections.
• Elections can be called at the leisure of the gov’t, but
must be called every few years.
– The lose the support of parliament
• Called a vote of no confidence.
• Not common under single-party govt.
Federalism
• Federalism:
– The division of powers and functions between
different levels of government.
– In the U.S.—the state and federal levels.
– Works to limit the power of both by granting
sovereignty to each level.
• Under the Articles, the states had total sovereignty.
• Led many to resist ceding power to national gov’t.
Who decides what?
• Expressed Powers:
– Powers specifically granted to the federal
government in the Constitution.
• Implied Powers:
– Derived from necessary and proper clause.
• Reserved Powers:
– Derived from 10th amendment.
– Powers not granted to the federal are reserved to
the states.
What are states’ powers
• Police power:
– The power reserved to the state govt to regulate
the health, safety, and morals of its citizens.
• Gun laws.
• Abortion laws.
• Drinking laws.
• Concurrent power:
– Powers possessed by both state and national
• Levy taxes
Promoting Unity between states
• Full faith and credit clause:
– Requires each state to honor the public acts and
judicial decisions of other states.
– Some legal battles in the near future…
• Privileges and Immunities
– States can’t discriminate against other states’
residents.
– Extradition issues.
Two types of federalism:
• Dual Federalism
– The pre-1930s U.S. system.
– Two-layered (national and state).
– States and local did most of the governing.
– Federal gov’t exercised limited power.
THE FEDERAL SYSTEM: SPECIALIZATION OF
GOVERNMENTAL FUNCTIONS IN THE
TRADITIONAL SYSTEM, 1789–1937
Two distinct levels, but…
• Article 1, section 8:
– “Necessary and proper”
• Also called the Elastic Clause
– Commerce Clause
• Congress can “regulate commerce with foreign nations,
and among the Several States, and with the Indian
Tribes”
• Has been used to defend National
superiority/encroachment on States
McCulloch v Maryland (1819)
• Can Congress charter a
bank?
• It does and it’s
unpopular
• Maryland levies a 2%
tax.
• James McCulloch (bank
agent) refuses to pay.
McCulloch v Maryland
• It goes to Supreme
Court.
• Two main questions:
– Can Congress charter a
bank.
– Can a State tax Federal
entity?
Answers…
• (1) Yes. Under the necessary and proper
clause, this is a Constitutional exercise of
federal power.
• (2) No. The 10th Amendment reserves to the
states only powers not delegated to the
federal government the power to tax. Also,
the Supremacy clause kicks in here.
Gibbons v Ogden
• NY state legislature
gives Ogden steamboat
monopoly.
• NJ steamboat operator,
Gibbons, tries to steal
some of the business.
• Ogden is upset—
pressures NY to act.
• Gibbons hires Webster
and goes to SC.
Gibbons v Ogden (1824)
• The 2 big questions:
• Does the Constitution
permit the federal govt
to regulate navigation?
• Is the NY monopoly
Constitutional under
the 10th amendment or
does this violate the
Commerce Clause?
Gibbons v Ogden-the answers
• Yes. Commerce is more than just buying and selling
while the power to regulate commerce within a state
belongs to the state, commerce among not stop at
the border.
• No. The NY monopoly is unconstitutional because
the Supremacy Clause gives the federal govt’s laws
precedent here despite the 10th Amendment. (but
only because the fed gov’t chose to regulate).
Nationalization
• Bottom line: Power is
shifting from the states
to the federal gov’t.
• The 10th Amendment
usually loses at the
Supreme Court level.
• It’s kind of like the Ohio
State of Amendments.
FDR and the New Deal
• In the 1930’s President
Roosevelt expanded the
power and scope of the
federal gov’t to
unprecedented levels.
• Gave rise to fierce battles in
the court.
– At first, FDR lost.
– By the late 1930s, the
court had changed its
tune and began to
support expansion of the
federal gov’t.
New Deal
• Roosevelt’s New Deal was a
comprehensive set of
economic regulations and
relief programs (massive in
size and scope) intended to
fight the Great Depression.
• To justify its unprecedented
intervention in the
economy, FDR invoked the
commerce clause.
LBJ and the Great Society
• Elected in 1964, Lyndon Johnson
and his Democratic Congress
launched a War on Poverty – part
of a Great Society agenda.
• Passed more than 100 new
categorical grant programs. Spent
over $5 billion 1964-65.
• Grants supplemented state
programs/national goals.
• Traditional state and local
responsibilities became federal
ones.
The other type of federalism
• Cooperative Federalism:
– Post New-Deal system in which grants-in-aid have
been used strategically to ‘encourage’ states and
localities (without commanding them) to pursue
nationally defined goals. Also known as
intergovernmental cooperation.
– Also known as…
Also known as…
Bribery
Cooperative Federalism
• Grants-in-aid
– Carrots, or ‘bribes’ whereby Congress gives money
to states with conditions that the money be spent
for a specific purpose.
• No Child Left Behind
• Have become much more common over time.
THE HISTORICAL TREND OF FEDERAL GRANTS-IN-AID
From Cooperative to Regulated
• Federal gov’t has expanded from economic to
social policies.
– Intervention on behalf of individual rights and
liberties.
• Federal gov’t provides grants-in-aid but set
conditions.
– Setting national standards.
• American with Disabilities Act
From carrots to sticks
• Unfunded mandates
– National standards imposed on state/local
governments by the federal gov’t without funding.
• National elections.
• Indigent legal representation.
• Lots of programs/standards.
– Unfunded Mandates Reform Act (1995)
• Requires fed to pay for programs over $50 million.
New Federalism
• Battles continue between states and federal
gov’t.
– Nixon and Reagan pushed to give more power
back to the states.
– Rallying cry for many Republicans starting in the
1980s and continuing today.
New Federalism: Block Grants
• Another alternative to
categorical grants: block
grants.
• Like categorical grants,
funds are appropriated to
achieve a particular policy
goal with specific
administrative procedures.
• Policy targets are only
generally stated.
• Fewer strings are attached.
FOUR VIEWS OF FEDERALISM
American Government, 12th Edition
Copyright © 2012 W.W. Norton & Company
Separation of Powers
• “There can be no liberty where the legislative
and executive powers are united in the same
person…”
• Checks and Balances
– Mechanisms through which each branch of gov’t
is able to participate in and influence the activities
of the other branches.
CHECKS AND BALANCES
Legislative Supremecy
• Congress is the most important branch.
• Given that Congress would likely dominate
other branches
– Madison recognized concerns in Federalist 51
– Congress split into two houses.
• Further separation of powers limits ability of Congress
to dominate.
• Divided gov’t further constrains power.
Executive-Legislative relations
• Post-Watergate
– Congress put lots of limits on the President.
• Reagan era
– Reagan played nice with Congress and won back some
powers
• But a spot of bother over illegally funding an illegal war.
• Clinton got impeached.
• W “the Decider” fought over exec privilege.
– Confidential communications not to be shared with Congress
• Obama and the current Congress—at each other’s throats.
Supreme Court and SOP
• Judicial Review
– Idea that the courts can decide on the
Constitutionality of acts of other branches.
– Periods where the court has been more/less
active, but judicial review is relatively uncommon.
• Generally more pro-President.
– Some exceptions (Nixon and Clinton, for example)
A NEW FEDERAL SYSTEM? THE
CASE RECORD, 1995–2006
• More judicial activism lately.
• Less deference to Congress.
• A push back to states’ rights.