Chapter 3: Federalism
1. Defining Federalism and Understanding Importance
Federalism: A system of shared power between two or more levels of government
“We the People” give some power to state governments, and some power to the federal (central/national)
government in D.C. Our government exists to serve us, it must be the best or we would change it. We
chose to set up a federal system.
Major problems in federal systems:
What does each government do?
Which government is “in charge” of the other?
What happens when the government argue or disagree?
Pros & Cons of Federalism
Pros
- More layers of government = more decision
making institutions = easier for citizens to get
heard by government
- 50 states act as policy innovators (“laboratories
of democracy”) - e.g., Drug legalization, abortion
Cons
- Confusion or controversy over which government
is responsible for what (Katrina)
- Gradual expansion of federal judicial power
(federal courts decide federalism disputes)
Why Federalism?
Size?
Population diversity (ethnicity, religion, language)
Historical Accident!
2. The Constitutional Basis of Federalism
a. How does the Constitution divide power among the 50 states and 1 federal government?
i. We separated the power of government between the 50 states by giving each individual
powers of the body as a whole. The states are given key powers while, the national
government is given powers both implied and enumerated.
b. How did the federal (central/national) government grow in power relative to the states since 1789
i. The Power of Judicial Review
ii. The Doctrine of Implied Powers
iii. The Commerce Clause
iv. The Civil War (1861 - 1865)
v. The Civil Rights Movement (1954 - 1965)
c. What are the states obligations to each other
i. The Full Faith & Credit Clause (The “Comity Clause”)
ii. The Privileges & Immunities Clause (The “Anti-Discrimination Clause”)
3. Intergovernmental Relations Today (federalism in action)
The Division of Power
- Writers favored stronger national government, although they still gave state power “vital cogs” in
government
- Elastic Clause: Power to make all necessary and proper to carry out all enumerated powers
- Also created obligations of national government to state
- Article IV of the constitution answers the question: who prevails in a dispute between the national
government and the states with The Supremacy Clause
- Three Supreme Laws of Land
- The Constitution
- Laws of national government (when consistent with the Constitution)
- Treaties (which can be made only by the national government)
Chapter 3: Federalism
- State executives, legislators, and judges favor the constitution over state laws and constitutions.
- The national government cannot usurp the power of the states, but to what end?
- The 10th Amendment simply states that the national government only has the power given to it by
national government, which gives the state and/or people majority rule over anything not mentioned
there
- Federal courts can force states to obey the Constitution and federal laws and treaties although Eleventh
Amendment prohibits individual damage suits against state officials
- “Recently the Supreme Court has made it easier for citizens to control the behavior of local officials.”
“Individuals are permitted to sue local governments for damages or seek injunctions against any local
official acting in an official capacity who they believe deprived them of any right secured by the
Constitution.”
Establishing National Supremacy
Four Key Events: Lead to National and State Power choices were settled
1. The Elaboration of the Doctrine of Implied Powers
2. The Definition of the Commerce Clause
3. The Civil War
4. The Long Struggle for Equality
Implied Powers: Powers of the federal government go beyond those enumerated in the Constitution. The
Constitution states that Congress has the power to make all laws necessary and proper for carrying into
execution.
Enumerated Powers: Powers of the federal government that are specifically addressed in the
Constitution; for Congress these powers are listed in Article 1, Section 8 and include money, regulate it’s
value and impose taxes.
- To coin money
- Conduct foreign relations
- Regulate commerce with foreign nations and among states
- Provide an army, and a navy
- Declare war
- Establish courts inferior to the Supreme Courts
- Establish post offices
- Make laws necessary and proper to carrying out the foregoing powers
Federal Powers
- Article 1, Section 8 Enumerated (Express) Powers
- Power to regulate interstate & international commerce, declare war, and coin money.
- Unlisted powers are not allowed for the national government to use
- Article 1, Section 8 Necessary & Proper (Elastic) Clause
- Power to make all laws necessary & proper to carrying out their enumerated powers.
- Supremacy Clause
- Federal Constitution, Law, and Treaties are “supreme law of the land” (Trumps state late)
State Powers
- 10th Amendment (“Federalism 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.
Chapter 3: Federalism
- Police Powers - Power to make local laws to protect health, safety, & welfare of the people (e.g.,
criminal laws, education laws, and public safety laws)
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The Power of Judicial Review
Madison v. Marbury (1803) - Establishes Judicial Review
The Supreme Court (the federal courts too, but the supreme court primarily) has the power to review
acts of Congress, the President, and the states to determine whether they are constitutional.
Significance: The Supreme Court determines all federalism questions (especially how much power the
federal government has) The federal government is responsible for checking it’s own growth, by
stopping itself from expanding.
Example of an informal amendment to the Constitution
The power of Judicial Review has expanded the power of the federal government because the
Supreme Court, which decides what powers the federal government has, is technically speaking, a part
of the Federal Government
The Doctrine of Implied Powers
McCulloch v. Maryland (1819) - Establishes the Doctrine of Implied Powers
The N&P Clause gives the federal government certain implied powers in addition to it’s enumerated
powers specifically listed in Article 1. Effectively expands the power of Federal government further,
allowing for powers to be allowed as long as it helps the enumerated powers
Significance: Establishes the Doctrine of Implied Powers and greatly increases the power of federal
government
Facts: Congress creates National Bank in 1791. State of Maryland taxes Baltimore branch of National
Bank. Bank refused to pay.
Constitutional Question (Issues): (1) Does Congress have the power to create a National Bank. (2) If
yes, can Maryland tax the National Bank
Holding (Decision) 1: Yes, Congress does have the power to create a National Bank
Rationale: The power to create a National Bank is not an enumerated (express) power listed in Article
1, HOWEVER, the law establishing the National Bank is necessary and proper to carry out the
enumerated powers “to lay and collect taxes” and “to borrow money?”
Holding (Decision) 2: No, Maryland does not have the power to tax the National Bank
Rationale: If Congress has the power to create the National Bank (if it is constitutional) then the States
cannot interfere in any way with the exercise of this power because of the Supremacy Clause of Article
VI.
The Commerce Clause
“Congress has the power to regulate interstate and international commerce”
Gibbons v. Ogden: Establishes the Commerce Clause (Trade)
Key Significance: Begins the process of greatly expanding Congress express Commerce Clause
power (even w/o N&P Clause). Today the Commerce Clause is primarily constitutional basis for most
national government regulation (e.g., health care, education, drug policy)
Facts: federal government issues license to operate ferryboat in interstate river. Rival challenges
federal authority to issue such licenses.
Issue: Is navigation and transport of people “commerce” and therefore subject to federal power under
the interstate commerce clause?
Holding: Yes!
Rationale: Commerce means all economic activity not just the buying and selling of goods and services
(Why? Because I said so)
U.S. v. Lopez (1995)
Chapter 3: Federalism
• Key Significance: First case since New Deal (1930s) holding that a federal law exceeded Congress’s
Commerce Clause power. Beginning of new era of states’ rights (“devolution revolution”) enforced by
anti-Marshallian Supreme Court?????
• Facts: Lopez convicted of violating Gun-Free School Zone Act
• Constitutional Question: Is the GFSZA a valid exercise of Congress’s Commerce Clause power?
• Holding: No!
• Rationale: Carrying a gun near a school has N-O-T-H-I-N-G to do with interstate commerce
The Spending Clause
• Congress has the power to “Provide for the Common Defense and general Welfare of the United
States” (Congress has the power to spend money to make our lives better); Creates power through
money
Fiscal Federalism
• How the federal government uses the Spending Clause to control & influence the states (by spending
and giving away money); MONEY = POWER!
Federal Grants to States
• Categorial Grants (Grants-in-Aids): Grants that can only be used for specific projects or programs
(“categories”) specified by Congress; Main source of federal aid to states; Most restrictive type of grant
(maximum control of state government by the federal government). Major examples such as Medicaid
(healthcare for the poor) and Aid to Families with Dependent Children (AFDC)
• Block Grants: Grants for a general purpose (e.g. welfare, education) that can be spent however the
state wants. Gives states more power and freedom. Major example = Temporary Assistance for Needy
Families (TANF) replaced AFDC categorical grant; Emerged in the 1960s and 70s but never grew in
amount vs. Categorical grants because Congress likes control.
• “Conditions of Aid”: Definition: Strings (conditions attached to grants (“you only get this money if you do
this and this and this…”)
• South Dakota v. Dole (1995): Federal Block Grant conditions highway funds (to build & repair roads)
on raising drinking age to 21; Forms of pressuring (blackmailing?) state governments to enact
certain policies by threatening to withhold money.
• Revenue Sharing: Free money given to states by the federal government (a share of it’s revenue);
Gives states complete power & freedom to spend money as they see fit. Adopted by Nixon in 1970s
but ended by Reagan in 1980s (Why give away money for nothing?)
Federal Mandates
• Mandate: Order by Federal Government to State Government to do something. A major example
would be the Americans with Disabilities Act (ADA). Unfunded Mandates are orders by federal
government to state government to do something and to pay for it. Finally the Unfunded Mandate
Reform Act (1995) requires Congress to identify mandates that cost state governments more than
$50m to implement (not much help)
Events That Changed the Balance of Power (States v. Government)
The Civil War (1861 - 1865)
• The Civil War began because Southern States wanted to secede (leave the Union) and the Federal
Government (lincoln) didn’t let them
• The South lost! The Federal Government Won! Lincoln successfully defended the power of the federal
government over the states
3. Federalism in Action
• Dual “Layer Cake” Federalism
• Exclusive Spheres of Federal and State Power
• No shared power or cooperation between governments
• Cooperative “Marble Cake” Federalism
• Overlapping and shared federal and state powers
• Cooperation between governments (but also confusion and conflict)
• Best describes how federalism works today (because of the expansion of federal power since 1789)
Chapter 3: Federalism
Devolution Revolution (“New Federalism”)
• Devolution = Return of power from the federal governments to the state governments (turning back the
clock)
• Generally, Democrats support strong central government; Republicans support limited central
government “states rights”
• General Historical Trend towards bigger, stronger federal government since FDR’s New Deal
(response to Great Depression in 1930s)
• Trend challenged by Nixon in 1970s, Reagan in 1980s, and Tea Party in 2010s
Lopez vs. GFZA (95)
Violence against Women’s Act vs. Morrison (00)
Despite what congress has said, the VAMA and GFZA both are not included in the Commerce Clause
Interstate Commerce