AMERICAN FEDERALISM REVISITED
INTRODUCTION
Federalism is described as a system of government with different levels or
tiers that are supreme or sovereign in different areas. All countries have
different levels of government with different powers at each level. A federal
system exists in countries where the different levels have formal legal or
constitutional protection. The United States government is federal in form,
with the states and national government sharing powers which are derived
from the federal constitution. The word ‘federalism’ is not mentioned in the
Constitution; the arrangement eventually adopted at the Philadelphia
Convention (1787) represented a compromise between those Founding
Fathers who wanted the states to be subordinate to a strong national
government and those who favoured the loose and weak confederation that
had been in place since 1781. In constitutional terms, the federal and state
governments are seen as being of equal status within their own distinctive
realms of authority. Wheare described federalism as ‘the method of dividing
powers so that the general and regional governments are each, within a
sphere, coordinate and independent’, while Grant suggests that it arose ‘out
of a desire to bolster national unity whilst accommodating regional
diversity’. It was probably envisaged that the states and the federal
government would each jealously guard the powers allocated to them, and so
it was highly unlikely that either power base would dominate the other. A
critical feature of the Philadelphia compromise was to secure the support of
the smaller states by providing them with equal representation in the Senate,
regardless of population size.
THE CONSTITUTION
The Constitution outlines the division of powers between the states and the
federal government. The federal government is provided with a number of
enumerated (or explicit) powers, inherent powers and implied powers.
Enumerated powers include responsibility for defence, currency, admission
of new states and regulation of inter-state commerce. Inherent powers, such
as foreign policy and the waging of war, are powers which the federal
government must of necessity have in order to represent the nation in its
relations with other countries. Implied powers are powers which are not
explicitly listed in the Constitution, but which are implied through the
‘necessary and proper’ (or ‘elastic’) clause in Article 1 Section 8. Article 1
Section 10 places limits on the powers of the states – they cannot form
alliances with foreign governments, declare war, coin money, or impose
duties on exports or imports. States have exclusive jurisdiction in areas such
as the conduct of elections, the creation of local governments, and the
regulation of intra-state commerce. The Tenth Amendment is the
cornerstone of states’ rights, declaring that ‘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.’ In other words, in
principle states have all those law-making and decision-making powers that
are not granted to the federal government by the Constitution. Such powers
take many different forms, with states taking responsibility in areas such as
education, public health, housing, welfare, maintenance of state highways,
regulation of industry, law enforcement, and in establishing local
governments such as counties and municipalities. In many of these areas,
such as highways and education, states share administrative responsibility
with local and federal government. Where the federal government and states
share powers, as for example in the cases of taxation and general welfare,
they are known as ‘concurrent powers’. States must also administer
mandates set by the federal government. For example, the federal
government may require states to reduce air pollution, provide services for
the handicapped, or require that public transportation should meet prescribed
safety standards. The federal government is now prohibited by law from
setting unfunded mandates – in other words it must provide funding, through
grants-in-aid, for programmes it mandates. Mandates can also pass from the
state to local government – for example, a state can set certain education
standards that the local school districts must abide by.
ADVANTAGES OF FEDERALISM
Federalism is particularly appropriate for an enormous country such as the
United States, with a population of over 270 million. It acknowledges the
very different traditions, history and cultural perspectives of the various
states, and allows for unity without uniformity. It provides for a diffusion
rather than a concentration of power, and affords citizens countless
opportunities to participate in politics. Democracy would be almost
inconsequential to an individual citizen if the system of government were of
the much more common unitary variety. If, however, considerable power to
make laws and set policies is located in states, cities, counties or local school
boards then individuals are able to exercise rather greater control over the
laws and institutions that govern them. A federal system also offers citizens
more choice. A citizen from Texas who dislikes the state’s drug laws can
move to California where the laws are more liberal. If people are unhappy
with the educational system in Alabama they can move to Connecticut. And
federalism offers states the opportunity to test out new ideas or solutions to
problems – hence they are potential laboratories of experimentation and
innovation.
FEDERALISM AS A RECIPE FOR CONFLICT
In the United States there has been a struggle from the moment the nation
was created between the state governments and the federal government. It is
a conflict that is enduring, and that was always intended to be so, as part of
the system of checks and balances that characterises the American
constitution. In drawing up the Tenth Amendment the framers of the
Constitution made the deliberate decision not to use the word ‘expressly’
before ‘delegated’, and so they could have circumscribed the powers of the
federal government much more strictly had they elected to do so. The
division of responsibility is far from clear on issues such as civil rights and
education; while the ‘Supremacy Clause’ (Article 6 Paragraph 2) ensures
that ultimately federal law prevails in any conflict with state law, it is the
Supreme Court’s ruling in all such disputes that is binding on both federal
and state governments.
A phenomenal change has occurred over time in the relationships between
the federal and state governments. For well over a century citizens were
protected (or not) by their state constitutions, while state and local
governments passed practically all of the laws that they were required to
obey; even now they are responsible for the lion’s share of legislation.
Today the federal government is much more involved in the lives of the
average citizen, while state and local governments may pass only those laws
that the federal judiciary deems constitutional. Throughout American history
federalism has been continually stretched, reshaped, and reinterpreted
through crises, historical evolution, public expectations, judicial
interpretation and national growth.
THE EARLY RULINGS OF THE SUPREME COURT
Jefferson and Madison believed strongly in the rights of the states and in
limits on the federal government, and asserted that each state could
determine for itself what was constitutional. This ‘doctrine of nullification’
denied the right of the federal government to assume undelegated powers.
But in Fletcher vs. Peck (1810) the Supreme Court declared a state law
unconstitutional for the first time, while in McCulloch vs. Maryland (1819)
the Court upheld the creation of a national bank, and thus interpreted the
‘necessary and proper’ clause in favour of an expansion of national
authority. In so doing Chief Justice John Marshall rejected Jefferson’s
narrow construction of the Constitution as a compact between sovereign
states, instead arguing it was a national constitution established by the
people of the United States. Thus construed, ‘necessary and proper’ meant
the federal government could take those ‘implied’ actions that were
appropriate to implementation of its prescribed powers, and not simply those
that were indispensable. In Gibbons vs. Ogden (1824) the Court went further
by adopting a broad interpretation of the ‘commerce clause’ of Article 1 of
the Constitution, judging that the federal government was entitled to regulate
the New York to New Jersey ferry since this enabled it to discharge its
responsibility for all navigable waters, even those within a state.
THE CIVIL WAR AND THE FOURTEENTH AMENDMENT
The appointment of Roger Taney as Chief Justice shifted the emphasis back
towards ‘states’ rights’. The Court defended the right of individual states to
preserve slavery, overturning a federal law for only the second time in Dred
Scott vs. Sandford (1857). The Northern state-dominated Congress was
reluctant to accept the judgement of a Court packed with Southerners, and
pressed ahead with legislation outlawing slavery; the Southern states argued
that the North had no right to impose the abolition of slavery on the entire
nation, and eventually seceded. The outcome was the Civil War, a war
ultimately fought over the authority of the federal government and the rights
of individual states, including the right of the Confederacy to leave the
Union. The victory of the North ended the debate over the right to secession,
but not that over the law-making rights of individual states. A particularly
significant shift in the balance of power occurred as a result of the
Amendments to the Constitution passed in 1868 after the Civil War. The
Thirteenth Amendment abolished slavery and the Fifteenth Amendment
gave the liberated slaves the right to vote. But it was the Fourteenth
Amendment that radically changed the federal-state relationship. The key
section reads as follows:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
For many decades the Supreme Court took a fairly conservative view of
these Amendments; in Plessy vs. Ferguson (1896) it upheld racial
segregation, so long as ‘equal’ facilities were provided by states for blacks
and whites. But by the 1920s the Supreme Court was interpreting the
Fourteenth Amendment to mean that the constitutional protections set out in
the U.S. Constitution apply to all citizens, and that no state or local
government has the right to abridge them. Since the Court is the ultimate
judge of what these rights are in any particular case this has in effect given it
the power to determine the constitutionality of any law passed by, or action
of the federal government. Similarly, the status of the Tenth Amendment has
been consistently undermined in Court rulings that have interpreted very
broadly the implied powers of the federal government that are found in the
‘necessary and proper’, ‘general welfare’ and ‘inter-state commerce’ clauses
of the Constitution.
DUAL FEDERALISM OR ‘LAYER CAKE’ FEDERALISM
Federalism in the first 150 years of American history is normally described
as ‘dual’ federalism, with clear distinctions between the separate and equal
spheres of activity of state and national government, buttressed by the
Supreme Court’s reluctance to permit the federal government to increase its
influence during the process of rapid industrialisation. Competition between
the two levels of government was chiefly over economic development and
regulation. Yet even in this early period federal relationships were often
characterised by partnership and cooperation. While there were few intergovernmental grants before the Civil War, the governments cooperated in
establishing new territories and the transportation needed to open up and
exploit the new lands. Financial transfers were virtually non-existent, though
some limited land grants were provided to the states to establish state
universities, and to the railway companies.
Following the Civil War, and the passage of the Fourteenth Amendment,
diversity among states was no longer seen as a guaranteed source of liberty.
While individual states might introduce progressive reforms, only the federal
government could take that agenda to all states. The federal government
became a more active regulator and reformer of the economic system; by the
end of the 19th century, it had greatly expanded its role in supporting and
regulating commerce. State actions to regulate railroads, rejected by the
Supreme Court in 1886, led to the Inter-state Commerce Act of 1887. Thirty
state railroad commissions were replaced by a federal authority, as were
existing state anti-trust and lottery laws. Similarly national laws relating to
food, common carriers and utility regulation had all been introduced by 1900
in the face of the Court’s continuing rejection of state actions. The Morrill
Act of 1862 providing for land grants to states to support public institutions
of higher education was the first time the national government participated
financially in a programme of state welfare.
The Sixteenth Amendment, granting the federal government the power to
levy an income tax, and adopted in 1913, stands as a watershed for modern
federalism. The size of the tax was modest by today’s standards, but it
created the foundation for 20th century federalism, with its emphasis on
inter-governmental transfers and the use of taxing and spending powers to
further national policies, and to meet rising public demands for education,
health and welfare provision. Even with the capacity to levy progressive
income taxes, national efforts at social welfare programmes were highly
tentative at first. But as the U.S.A. moved from a primarily rural and
agrarian society to an urban and industrial nation, federal involvement
increased; by 1920 there were eleven grant-in-aid programmes. Challenges
to the legality of such grants were rejected by the Court on the grounds that
participation in the programmes was voluntary on the part of the states.
COOPERATIVE FEDERALISM OR ‘MARBLE CAKE’ FEDERALISM
Hamilton had argued that a strong national government was needed to
respond to external enemies and to protect commerce. His view was
vindicated as a global depression and two World Wars led to the most
powerful national government in American history. Although the New Deal
was the most centralising period of federalism yet seen, the shift was well
under way before F. D. Roosevelt’s election in 1933. The federal
government’s greater flexibility in raising revenues following the adoption
of the 16th Amendment led to revenue sharing, with a pattern of federalism
that continues today – advance approval of state plans, formula funding or
distribution, requirements to provide matching funds, and detailed reporting.
The dependence of the states on federal finance to support their services has
inevitably – and, until the 1980s, increasingly – been central to the evolution
of federalism.
The federal government played such a dominant role in the New Deal that
some commentators have argued that the 1930s saw an end to the principle
of federalism as envisaged by the Founding Fathers. The Great Depression
of the early 1930s increased the expectation that the federal government
would intervene; many state legislatures were dominated by rural
representatives who had neglected the pressing problems of the urban areas.
The New Deal embodied the view that a national crisis requires a centralised
response, a view rejected in the first instance by the Supreme Court – ruling
for example in 1935 that the National Recovery Administration, established
by the National Industrial Recovery Act (1933) represented an
unconstitutional expansion of presidential authority (‘Extraordinary
conditions do not create or enlarge constitutional power.’). But by 1937 the
Court was more in tune with public opinion, reversing a number of its earlier
judgements, and for the first time giving the federal government the
authority to intervene in state affairs (in National Labor Relations Board vs.
Jones & Laughlin (1937). The federal government assumed authority over
areas of economic regulation and development that had been the states’
domain, including labour relations and agriculture, and established a
nationally based ‘welfare state’ with the passage of the 1935 Social Security
Act. Hence from the New Deal onwards state-federal relationships were
much closer than previously, with different levels of government working
together towards common objectives to overcome the challenges of poverty,
unemployment and homelessness. The doctrine of cooperative federalism
saw the federal and state governments as part of the same governmental
system, in which each was expected to cooperate with the other. Grodzins
describes the intermingling of governmental responsibility as a ‘marble
cake’ - in contrast to dual federalism’s ‘layer cake’ – ‘an inseparable mixture
of differently coloured ingredients’. In the era of marble cake federalism
many social support programmes remained under state control, albeit within
guidelines set nationally. In Grodzins’ view the federal government still
supplemented, assisted and stimulated states, rather than pre-empting them.
Between 1946 and 1961 21 new grant-in-aid programmes were established.
Eisenhower attempted to reverse the centralising trend, establishing the
Commission on Inter-governmental Relations to identify suitable activities
to return to the states. However, the commission found very few, and no
significant changes were implemented. In this post war period the courts for
the first time asserted national authority with regard to civil rights under the
equal protection clause of the Fourteenth Amendment. The confrontation
pitted southern states as deniers rather than protectors of liberty against the
federal government. Many southern states sought to defy federal executive
orders to integrate schools following the Supreme Court’s judgements in the
two Brown cases (1953, 1954).
CREATIVE FEDERALISM
Grodzins wrote his report on the state of federalism in 1960, and thus before
the period of national government activism that began with the election of
Lyndon B. Johnson in 1964. With a strong popular mandate and large
Democratic majorities in both houses, LBJ greatly expanded the national
commitment to addressing economic, social and racial injustice. The
‘creative federalism’ of this period was marked by an explosion of grants
that reached beyond the states to establish inter-governmental links at all
levels, and often bypassing states entirely, as was the case with the Model
Cities Act (1966) where the President attempted to work directly with local
government. Johnson’s Great Society and War on Poverty programmes
involved a significant increase in welfare provision, with the introduction of
Medicare and Medicaid, and an emphasis on regenerating inner cities and on
combating racial discrimination. Most of the new programmes required very
considerable national planning and federal funding, through categorical and
project grants, aimed at specific problems or groups; civil rights legislation
attached cross-cutting provisions to all grants. The 1965 Highway
Beautification Act was an example of a cross-over sanction, where aid for
one activity was tied to performance of a different one. Many laws passed by
Congress in this period – such as the Wholesome Meat Act (1967) – allowed
the federal government to assume responsibility in any state that had not
adopted standards at least equal to those in place by the federal government
within three years.
Johnson’s Great Society programmes resulted in a massive expansion of
federal spending on grants-in-aid, which increased from $8 billion in 1964 to
$19 billion in 1968, and to $32 billion by 1978. Categorical grants – grants
given to state and local governments for specific purposes - accounted for
some 98% of the total; the five of 1900 and 132 of 1960 had become 530 by
1971. The federal government attached strings to the funds, thus relegating
the states to the status of delivery agents for federal programmes, with little
account taken of local conditions. Block grants allow states much more
discretion; while the federal government specifies the areas of state
responsibility, the states are free to determine how and where the funds are
allocated.
‘COERCIVE’ FEDERALISM AND THE CONSERVATIVE BACKLASH
Some commentators describe the Johnson presidency as a period of
‘Creative Federalism’, a much more active version of cooperative
federalism, with its emphasis upon the need for greater cooperation and
shared decision-making between federal and state governments to overcome
major social problems. Kincaid refers instead to ‘Coercive Federalism’, on
account of the remorseless shift in the balance of power towards the federal
government, the increased resort to court orders and mandates to secure
compliance, and the strings attached to the receipt of categorical grants. The
constitutionality of the latter practice was confirmed much later in South
Dakota vs. Dole (1987), where the Supreme Court recognised the obligation
on states to raise the legal age of drinking to 21 as a condition of receiving
grants for roadbuilding programmes. During this period the federal
government clearly aimed to achieve its own defined policy goals, with far
more conditions attached to grants, and far less state involvement in the
design and implementation of programmes. States were also required to
undertake programmes that often they might have preferred to avoid –
particularly in areas such as civil rights, employment and training, welfare,
housing for the poor, and the environment.
The huge growth of federal programmes and expenditure inspired a backlash
among Republican politicians and from increasing numbers of voters.
Conservatives had always been critical of the growth of federal aid, and the
accompanying regulations. Programmes were frequently seen as wasteful,
bureaucratic, overlapping and conflicting, while relationships between state
and national administrators had become increasingly characterised by
conflict. The earlier Warren Supreme Court was singled out for criticism,
being seen as an aggressive ‘nationalising force’, downgrading and even
disregarding the Tenth Amendment.
NIXON’S ‘NEW’ FEDERALISM
Beginning with Richard Nixon’s administration there has been a series of
efforts to reduce national control over the grants-in-aid programmes, and to
revise the character of federal involvement in general welfare spending.
Nixon spoke of the need to create a ‘new federalism’ and argued that federal
government programmes encouraged state governments to accept funding
for programmes that they neither needed nor wanted – in other words, states
had become ‘aid junkies’, over-dependent upon federal government. Nixon’s
New Federalism was based upon the principle of ‘revenue-sharing’,
involving the federal government sharing some of its revenue with state and
local governments, and with no strings attached, thus providing the latter
with rather greater discretion in spending. Most of Nixon’s proposals made
little headway in Congress, though his period in office did see a growth in
block grants as a proportion of federal funding to about 25% of the total.
Some administrative reforms with a devolutionary objective were carried
out, including decentralisation of national programmes to field regions and
streamlining of services. The shift towards block grants and revenue sharing
went some way towards reducing federal requirements, giving states greater
autonomy in the spending of funds, while setting the stage for eventual
withdrawal or curtailment of federal fiscal support. But, as the size of the
federal budget became an increasing constraint on policy-making, Congress
tended to resort to the use of unfunded mandates and coercive grants to
achieve its policy objectives during the 1970s, which stiffened still further
state reaction against regulatory federalism. Unfunded mandates occur
whenever Congress requires state and local governments to act in specific
ways, but provides no compensation for the costs incurred.
REAGAN’S ‘NEW’ FEDERALISM
President Reagan came to office in 1981 determined to ‘demand recognition
of the distinction between the powers granted to the federal government and
those reserved to the states, to reduce the size of the federal government and
to hand powers back to the states, with the federal government increasingly
withdrawing from its funding and regulatory role. His initial State of the
Union address, in 1981, made it clear that mere adjustment of the delivery
system failed to address the real problem of a bloated federal government –
‘All of us need to be reminded that the federal government did not create the
states; the states created the federal government.’ Reagan saw many federal
programmes as wasteful and inefficient. He proposed a still greater use of
block grants by consolidating 83 categorical grants into six major categories
of block grant, while abolishing a number of other grants altogether, and
significantly reducing the number of federal regulations. He was
unsuccessful in his subsequent attempt to persuade Congress that the federal
government should take responsibility for Medicaid programmes in
exchange for the states administering food stamps and welfare. The Reagan
presidency witnessed a significant devolution of power and decision-making
to the states, though a number of new regulations, such as national standards
for birth certificates, driving licences and the drinking age, were introduced.
But, contrary to some claims, it did not witness a return to the former dual
federalism, simply because the principle of national regulation of state
activity was by now so entrenched. Neither did it result in a reduction in
overall federal spending on grants; indeed, it rose by some 30%.
Nevertheless, by the end of the Reagan era, states had been left to finance
more of their own programmes, while most block grants now fell into one of
four categories – health, income security, education and transportation.
FEDERALISM IN THE 1990s
There was only a modest reversal of this devolutionary approach during the
period of the Bush and Clinton presidencies, with the latter (a Southerner
from an area with historical resistance to federal interference) favouring a
relationship based upon negotiation and compromise rather than coercion,
and with marked enthusiasm for state innovation and local experimentation,
especially in the area of welfare policy. Federal budget deficits and the
GOP’s takeover of Congress in 1995 were also key factors in changing still
further the nature of federalism. The State of the Union address of 1996
acknowledged that ‘the era of big government is over’ and the Clinton
policy framework was one of loosening programme requirements to permit
state and local governments greater flexibility. Dye has described this
approach as ‘competitive federalism’, characterised by far greater lobbying
of Washington by the states, as well as experimentation with a number of
different state cost-cutting and revenue-raising exercises. The Welfare
Reform Act (1996) ended the guarantee of federal welfare aid to all lowincome mothers and families, substituting a block grant to the states, and
allowing them rather greater discretion over eligibility criteria and benefit
levels. The bill was signed by a reluctant Clinton prior to the 1996 election,
though he vetoed the proposal to convert Medicaid into a similar block
grant. The symbolic passage of the Unfunded Mandates Reform Act in 1995,
a central plank of Newt Gingrich’s ‘Contract with America’, made it much
harder for the federal government to impose policy requirements on the
states (as in cases such as Medicaid, the 1987 Water Quality Act, the 1990
Americans with Disabilities Act, and the 1993 Motor Voter Registration
Act), often under the threat of civil or criminal penalties, or as a condition of
receiving any federal grants, without providing the accompanying funding.
Before the passage of the Act some 30% of the annual budget of local
governments was devoted to such unfunded mandates. The Act represented a
triumph for Republican State Governors, many of whom had been elected
earlier in the decade, and whose campaign came to a head with the
Williamsburg Resolve of 1994 where Pete Wilson (then Governor of
California) complained that ‘the states are not colonies of the federal
government’, while George W. Bush (then Governor of Texas) declared that
‘my priority is for Texans to run Texas’.
THE SIGNIFICANCE OF THE REHNQUIST COURT
A number of Rehnquist Court rulings (often by 5 votes to 4) have underlined
the Court’s willingness to uphold states’ rights against unwarranted Federal
government interference. A number of examples are detailed here. In New
York vs. U.S.A. (1992) the Court struck down a federal law making states
liable for nuclear waste created by commercial reactors. In its U.S. vs. Lopez
(1995) ruling the Court declared unconstitutional part of the 1990 Gun-Free
Schools Zones Act, which had outlawed possession of a gun within 1000
feet of a school, declining to accept the ‘inter-state commerce’ justification
of the legislation offered by Congress – the first time for sixty years where
limits were imposed on congressional power to regulate commerce, and
described by the Washington Times as ‘a punch square in the kisser of
federal power’. The Court’s ruling in Seminole Tribe of Florida vs. Florida
(1996) struck down the 1988 Indian Gaming Act, on the grounds that suits
against casino companies on Indian reservations were a matter for states and
for individuals. This occurred at the same time as the 1996 Welfare Reform
Act was passed, a collaborative federalism measure producing the first block
grant for major federal programmes – Aid for Families with Dependent
Children and food stamps. This can be construed as evidence of state revival
alongside federal dominance, and especially through the funding
relationship. In Printz vs. U.S. (1997) the Court ruled unconstitutional
sections of the 1993 Brady Handgun Violence Protection Act which obliged
local sheriffs to carry out background checks on purchasers of guns. The
Court explained that the Act violated ‘the very principle of separate state
sovereignty’, which was ‘one of the Constitution’s structural protections of
liberty.’ In Alden vs. Maine (1999), the Court ruled that Congress had
exceeded its authority in allowing individuals to sue a state for the payment
of overtime wages to state employees under federal labour standards
legislation, while the outcome of Kimel vs. Florida Board of Regents (2000)
was to exempt states from suits based on federal laws designed to prevent
discrimination on grounds of age. In U.S. vs. Morrison (2000) the Court
struck down part of the Violence Against Women Act, which had provided a
federal remedy for gender-based violence on the grounds that such violence
was a threat to interstate commerce.
Yet these, and a number of similar rulings do not live up to the claims of
conservatives who believed that the Court would become an ally in the battle
against ‘big government’ and in the quest to restore states’ rights. In effect
the Court is tending to set an outer boundary for what is acceptable rather
than announcing a campaign against federal power. Almost as many Court
judgements have not favoured the states. For example, in U.S. Term Limits
vs. Thornton (1995) the Court ruled that the imposition of term limits by
states on Congressmen was unconstitutional. The Court, in Romer vs. Evans
(1996), held that a Colorado state constitutional amendment that invalidated
all existing state laws protecting homosexuals from discrimination violated
the equal protection clause of the Fourteenth Amendment. In Crosby vs.
National Foreign Trade Council (2000) the state of Massachusetts was
denied the right to introduce its own trade sanctions against Myanmar
(Burma) as a reaction to human rights violations in that country. Perhaps
most significant of all was the Court’s ruling in Bush vs. Gore (2000) which,
on Fourteenth Amendment grounds, over-ruled the decision of Florida’s
Supreme Court to order hand recounts of disputed election ballots, and thus
handed victory in the 2000 presidential election to George W. Bush.
‘PARADOXICAL’ FEDERALISM
It would nowadays be wholly inappropriate to dismiss the states as ‘mere
appendages of Washington’, as was often claimed during the period of
‘coercive’ federalism. Indeed, the states remain viable not least because
they exist as civil societies with their own political systems In more recent
years it has frequently been argued that ‘paradoxical federalism’ has
developed – in other words, the complexity of the federal-state government
relationship cannot be reduced to a basic ‘zero-sum game’ where an increase
in the power of one tier is always at the expense of the other. In reality there
has been a resurgence in the power and influence of the states as
administrative and innovative units at a time when the federal government
has remained dominant. States have increasingly improved the quality of
their services, and are delivering them more professionally. Political
institutions have been reformed, while programmes are managed more
efficiently. Many states have adopted an innovative approach, such as
Wisconsin’s public education voucher system, California’s affirmative
action programmes, the socialised healthcare system introduced in Oregon
and Hawaii, and the boot camps for young offenders seen in Texas. If
anything, the trend is increasing.
The ‘renewal’ of states reflects a number of factors, though chief among
them has been the reaction against an activist and over-zealous federal
government. The budget deficits of the 1980s and 1990s imposed obvious
constraints upon federal spending, and the periodic reductions in grant
coverage have enhanced the tendency towards greater state self-reliance in
finding their own solutions to pressing problems. The election to the White
House of a number of former state governors has reinforced the trend of
maintaining a national policy framework while devolving a number of key
decision-making powers, leaving the states (and, increasingly, local
governments) to decide how to allocate resources to the various programmes
and to individual benefit recipients. The Rehnquist Court has played a
significant role, redefining the limits of ‘inter-state commerce’ in a number
of rulings that have struck down Congressional laws, and establishing the
new ground rules whereby the federal government is able to employ
financial incentives, but cannot compel states to undertake their own
responsibilities in prescribed ways. The traditional role of states as policy
innovators was much in evidence in the final decade of the 20th century,
though this led inevitably to rather greater variations than previously in
programme resourcing and in individual benefit levels and eligibility
criteria, with much depending upon the willingness of state governments to
make funds available to localities and upon the ability of the latter to raise
additional finance.
In the early years of the present century, as national economic growth has
slowed, the health of most state budgets has deteriorated quite dramatically,
especially in those states already strapped for cash, and with practically all
state governors and legislatures now seeking reductions in programme and
benefit expenditure, or new means of financing spending. Ironically, if
predictably, the latter has coincided with a growing demand for more federal
grants-in-aid! State governments are also finding it increasingly difficult to
devise, implement and fund, on a statewide basis, programmes that address
the very diverse needs of different local communities. In recent years many
local governments have seized the initiative in addressing problems such as
crime, unemployment, homelessness and educational under-performance.
For example, the mayor of Chicago took control of the city’s education
system; the mayor of New Orleans imposed a system of curfews; the mayor
of Milwaukee introduced school vouchers.
The ‘new’ federalism, however, has yet to become a reality, since the
problems that caused the growth of the federal government in the first place
have not gone away. For example, if one state is unable to maintain an
adequate highway system, the economy of the entire region may suffer. If a
state has a sub-standard education system then the quality of the labour
force, the numbers on welfare and the criminal justice agencies in other
states will be affected. Environmental pollution, poverty and crime do not
respect state borders. The United States is an increasingly mobile and
interdependent nation, and its citizens demand more uniform and consistent
sets of rules, regulations and programmes. The creation of the Department of
Homeland Security and the Education Reform Act in recent months are
cases in point. Moreover, cooperative federalism resulted in the growth of a
national bureaucracy that became firmly entrenched and which seeks to
perpetuate itself. Congressmen have to respond to the demands of their
constituents and of powerful interest groups if they are to win re-election,
and many such demands involve the provision of federal funding or the
introduction of federal regulations. As the federal government continues to
give the states more responsibilities, the states are expected to come up with
the solutions to – and the money for - more and more problems.
‘BIRTHDAY CAKE’ FEDERALISM
According to Diamond (1974), Madison had to define federalism so that the
delegates at the Constitutional Convention believed that they ‘could have
their cake and eat it too.’ Some see the history of federalism as the history of
the national government challenging and overcoming the limitations on its
power set out in the Constitution. The original dual system was described by
McLean-Walker (1993) as a ‘layer cake’, with distinct, and separated
powers exercised by the different levels of government, but Grodzins (1966)
argues that a marble cake, swirled and inter-mixed, is a better description of
the intertwined policy-making and administrative functions of state and
federal governments. Walker (1995) claims that the plums that characterise
shared programmes under fiscal federalism suggest a fruit cake, and
Wildavsky (1998) adds the image of a birthday cake to the metaphorical
menu! This author’s view is that the federal government nowadays presents
the states with larger and larger birthday cakes, but that the celebration is
often muted since they are required to pay for more and more of the
ingredients. What is also clear is that there is not one power path connecting
Washington and the states but many, and the pattern they weave varies over
time depending upon factors of issue, political and economic circumstance,
public opinion and the personalities involved. Many ‘federalisms’ can, and
do, operate within this multi-layered structure. The relationship between the
federal and state governments is complex, and subject to continual variation,
fluctuation and re-definition.
QUESTIONS
1.
2.
3.
4.
5.
6.
7.
What role has the U.S. Supreme Court played in the shaping of
Federalism?
Did ‘Dual Federalism’ ever really exist?
Are ‘States’ Rights’ any more than an empty slogan for those who
detest the government in Washington?
Why have so many states become much more innovative in their
policy choices over the last two decades?
‘Federal dominance and state resurgence.’ Is this an accurate
description of modern federalism?
Was Ronald Reagan right when he declared that the federal
government was not the solution to but rather the cause of America’s
problems?
‘States are the basic building blocks of American life, and they remain
highly individual and distinctive.’ Discuss.
RECOMMENDED READING
Morton Grodkins – The American System (1966)
T.R.Dye – American Federalism (1990)
J.F.Zimmerman – Contemporary American Federalism (1992)
Newt Gingrich – To Renew America (1995)
Tinsley E. Yarbrough – The Rehnquist Court and the Constitution (2000)
Robert F. Nagel – The Implosion of American Federalism (2002)
RUSSELL TILLSON
St. Benedict’s School, Ealing