American Federalism
Seeming Paradoxes?
John Kincaid
Lafayette College
Easton, Pennsylvania
Biblical Root of Federalism
Federalism
 From the Latin
foedus
 Meaning
Covenant
 The first federal political ideas
articulated in North America
were those of the Puritans’
Reformed Protestant
Covenant Theology
Federal Theology
Articles of Confederation, 1781
“Whereas the Delegates of the United
States of America, in Congress
assembled, did … agree to certain
articles of Confederation and perpetual
Union between the States of
Newhampshire,
Massachusetts-bay,
Rhodeisland and Providence Plantations
….”
Preamble
Powers of Confederal Government













War, peace, treaties, and alliances
Appoint all U.S. land and naval officers
Build and equip a navy
Send and receive ambassadors
Decide rules for capture on land or water
Grant letters of marque and reprisal
Try piracies and felonies committed on the high seas
Settle inter-state boundary disputes
Regulate value of coinage
Fix standard of weights and measures
Regulate trade with Indians outside states
Establish post offices and postal rates
Borrow money or emit bills of credit on U.S.
Articles of Confederation, 1781
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.
Article I
U.S. Federal Constitution, 1788
“We the People of the United States, in Order to
form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the
common defence, promote the general Welfare,
and secure the Blessings of Liberty to ourselves
and our Posterity, do ordain and establish this
Constitution for the United States of America.”
Preamble
Principal Federal Powers
 Commerce
 Foreign affairs and defense
Federal Commerce Powers
 Borrow money
 Regulate interstate, foreign, and Indian
commerce
 Enact uniform naturalization laws
 Enact uniform bankruptcy laws
 Coin money and regulate its value
 Fix national weights and measures standards
 Punish counterfeiting of securities and coin
 Establish post offices and post roads
 Grant patents and copyrights
 Create courts inferior to the Supreme Court
Federal Foreign Affairs & Defense Powers
 Define and punish piracies and felonies on high seas
and offenses against law of nations
 Declare war
 Grant letters of marque and reprisal
 Make rules for captures on high seas
 Raise and support armies
 Provide and maintain a navy
 Govern land and naval forces
 Call up militia to execute federal laws, suppress
insurrections, and repel invasions
 Organize, arm, and discipline militia
 Govern D.C. and territories
James Madison
“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.”
Federalist 45
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.”
Common View of Federal System as “Levels”
Federal
a.k.a.
National
Government
State
Governments
Local Governments
Federal System as Matrix of Governments
Commerce
States
Social
Welfare
Local
Govts
Defense and Foreign Affairs
Civil
Rights
Expansive Federal Power Clauses
 Necessary and proper clause (Article
I, Section 8) a.k.a elastic clause, implied
powers clause, sweeping clause
 Supremacy clause (Article VI)
Dual Federalism, 1789-1932
 Federal and state governments occupy separate
spheres of sovereign power and should not interfere
with each other
 U.S. Constitution does not grant federal government
authority to fund state internal improvements (i.e.,
infrastructure)
 “national government is one of enumerated powers
only; Also, the purposes which it may
constitutionally promote are few; Within their
respective spheres the two centers of government
are “sovereign” and hence “equal”; and The relation
of the two centers with each other is one of tension
rather than collaboration.” Edward S. Corwin
Debate Over Nature of the Union
 Federal Constitution as Compact
among the States
 Federal Constitution as Covenant of
the People
Civil War
War Between the States
War of Northern Aggression
1861-1865
620,000 Deaths
Fourteenth Amendment, 1868
“No State shall … abridge the
privileges or immunities of citizens of
the United States;… 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.”
Section 1
Texas v. White, 1869
“The Constitution, in all its
provisions, looks to an indestructible
Union, composed of indestructible
States.”
Dawning of Federal Power









Interstate Commerce Commission Act, 1887
Sherman Anti-Trust Act, 1890
Federal Bankruptcy Act, 1898
Pure Food and Drug Act, 1906
Meat Inspection Act, 1906
Theodore Roosevelt’s New Nationalism, 1910
Federal Reserve Act, 1913
Woodrow Wilson’s New Freedom, 1913
Clayton Anti-Trust Act, 1914
Power-Booster Amendments
 Sixteenth Amendment, 1913
authorized federal income tax
 Seventeenth Amendment, 1913
provided for election of U.S. senators by
voters in each state
Creeping Cooperative Federalism




Morrill Act, 1862 (land grants for colleges)
Weeks Act, 1911 (forest-fire prevention)
Smith-Lever Act, 1914 (agricultural extension)
Federal-Aid Road Act, 1916 (highway
construction)
 Smith-Hughes Act, 1917 (teachers’ salaries for
vocational education)
 Fess-Kenyon Act, 1920 (vocational rehabilitation
for disabled veterans)
 Sheppard-Towner Act, 1921 (expectant mothers
and infants)
FDR’s New Deal Era
 Vast expansion of federal power into
private-sector economy
 Rise of social welfare as federal
responsibility
 Few intrusions into traditional prerogatives
of state and local governments
New Deal Cooperation
 Increased federal aid
 Little federal supervision
 Maintenance of dual regulation and taxation of
banking, securities, communications, public
utilities, and others
 Continuance of state regulation of insurance
 Federal-law exceptions for state and local
governments (e.g., Social Security Act of 1935
and Fair Labor Standards Act of 1938)
Historic Reversals
 Reversal of fiscal fortunes: federal
spending as percent of all own-source
government spending increased from 25%
in 1929 to 51% by 1939 and 70% by 1959;
local share dropped from 54% in 1929 to
28% in 1939 and 16% in 1959; state share
was 21% in both 1929 and 1939 but only
14% by 1959.
 Tenth Amendment “states but a truism”
United States v. Darby, 1940
Cooperative Federalism, 1932-1968
 Virtually all public functions are shared, not divided,
federal-state-local responsibilities
 Power is distributed in a non-centralized (rather than
decentralized) manner, making it nearly impossible to
identify a single locus of decision-making power
 Federalism is not a zero-sum game; increased federal
power does not necessarily decrease state powers
 Chaotic non-centralized political parties mediate conflict
and facilitate systemic IGR consent
 IGR bargaining and negotiation produce systemic
cooperation and collaboration that minimizes IGR coercion
 Federal, state, and local officials are colleagues, not
adversaries
 “the American system is … one government serving one
people.”
Coercive Federalism
Contemporary era of federalism (1968 present) in which the major political,
fiscal, statutory, regulatory, and judicial
practices entail centralization, state and
local cooptation, and the imposition of
many federal dictates on state and local
governments.
Rise of Coercive Federalism During the Late
1960s
 Civil Rights Movement, 1954-1968
 Nationalization of U.S. Bill of Rights, 19611969
 Rise of national television by 1960s
 Supreme Court’s “one person, one vote”
reapportionment decisions, 1964
 Triumph of primary elections over smokefilled rooms after 1968
 Democratic National Convention, 1968
 Collapse of traditional confederated party
system, 1964 - 1970
Rise of Coercive Federalism During Late
1960s
 Rise of social movements demanding
nationwide equality and national policies
to remedy spillovers
 Rise of institutional lobbying in
Washington, D.C.
 Rise of state and local public employee
unions and associations
 Interstate mobility and massive migrations
 Collapse of bicommunal federalism, 1964 1970
Confederate States of America
 States under CSA control
 States and territories claimed by CSA without formal secession and/or control
Source: http://en.wikipedia.org/wiki/Confederate_States_of_America, accessed July 1, 2008.
Official Support for Coercive Federalism
 Democrats and Republicans in Congress
and the White House
 Democrats and Republicans in state
legislatures, governors’ mansions, county
courthouses, city and town halls, and
school boards
Characteristics of Coercive Federalism
Federal Aid
 Shift of federal aid from places to persons
Summary Comparison of Total Outlays for Grants to State and Local
Governments, 1940-2015
*2010-2015 are estimated.
Source: Executive Office of the President, The Budget for Fiscal Year 2011, Historical Tables
(Washington, DC: U.S. Government Printing Office, 2010), pp. 249-250.
Federal Grants-in-Aid to State and Local Governments for Persons and Places
as Percentages of Total Grants, 1940-2015
*2010-2015 are estimated.
Source: Executive Office of the President, The Budget for Fiscal Year 2011, Historical Tables
(Washington, DC: U.S. Government Printing Office, 2010), pp. 249-250.
Consequences of Federal Aid Shift from
Places to Persons
 Place-based aid for infrastructure, economic
development, education, criminal justice,
government administration, etc. has declined
steeply
 State budgets have been locked into programs
involving rising federal regulation and escalating
state matching costs (e.g., Medicaid)
 Federal aid to local governments has declined
significantly
Characteristics of Coercive Federalism
Federal Aid
 Shift of federal aid from places to persons
 Intrusive conditions of aid (i.e., crossover and
crosscutting conditions)
 Increased earmarking
Characteristics of Coercive Federalism
Preemption
Under the supremacy clause of the
U.S. Constitution (Article VI, Para 2),
a federal law prevails over any
conflicting state laws.
Types of Preemption
1. Explicit/Express: Congress states
explicitly in a statute that it intends to
preempt incompatible state laws.
2. Implied: The courts or federal agencies
assume preemption if [a] a federal law
and a state law are in direct conflict or
[b] a state law hinders the achievement of
a federal-law objective.
Degrees of Preemption
1. Total (or Occupy-the-Field)
Preemption prohibits state action in
the field occupied by federal law.
2. Partial Preemption allows state
action, usually equal to or greater
than the regulatory standard set by
federal law.
Federal Preemption Statutes Enacted per
Decade: 1790-1989
Number of Statutes
120
100
80
60
40
20
0
<1900
19001909
19101919
19201929
19301939
19401949
19501959
19601969
19701979
19801989
Years
Banking, Finance, and Taxation
Commerce and Natural Resources
Civil Rights and Other
Health & Safety
Source: U.S. Advisory Commission on Intergovernmental Relations, Federal Statutory Preemption of State and
Local Authority: History, Inventory, and Issues. Washington, DC: ACIR, September 1992.
Federal Preemption Statutes Enacted:
1790-2004 (520 total)
Number of Statutes Enacted
120
100
80
60
40
20
<
19
00
19
00
-1
90
19
9
10
-1
91
19
9
20
-1
92
19
9
30
-1
93
19
9
40
-1
94
19
9
50
-1
95
19
9
60
-1
96
19
9
70
-1
97
19
9
80
-1
98
19
9
90
-1
99
20
9
00
-2
00
4
0
Years
Source: U.S. Advisory Commission on Intergovernmental Relations, Federal Statutory Preemption of State and Local
Authority: History, Inventory, and Issues. Washington, DC: ACIR, September 1992 and National Academy of Public
Administration, Beyond Preemption. Washington, DC: NAPA, May 2006.
Characteristics of Coercive
Federalism
Mandates
Direct federal orders requiring
state or local governments to
execute federal policy rules under
pain of possible civil or criminal
penalties.
Growth of Mandates






1
1
0
9
29
27
enacted in 1931
enacted in 1940
enacted 1941-1963
enacted 1964-1969
enacted 1970-1979
enacted 1980-1989
Mandate Relief
 Unfunded Mandates Reform Act, 1995
Eleven mandates exceeding UMRA
threshold enacted since 1995
UMRA does not apply to some policies
such as civil rights
Conditional Mandates
 REAL ID Act, 2005
State participation is voluntary and federal aid is
provided
But, if a state does not participate, its residents’
driver’s licenses will be invalid for any federalgovernment purpose, such as boarding an
airplane, riding Amtrak, applying for federal
benefits (e.g., Medicaid and Medicare), opening
a bank account, buying a firearm, and entering a
federal building.
Federal Rules Affecting State and Local Governments, 1994–2007
Source: Clyde Wayne Crews, Jr., “Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory
State” (Competitive Enterprise Institute, 2008), p. 24. Accessed July 18, 2008,
http://cei.org/cei_files/fm/active/0/10KC_2008_FINAL_WEB.pdf. Data compiled from “The Regulatory Plan and
Unified Agenda of Federal Regulatory and Deregulatory Actions,” Federal Register, various years’ editions; and from
online edition at http://reginfo.gov.
Characteristics of Coercive Federalism
Taxation
 Tax Reform Act of 1986: elimination of state
sales tax deduction and limits on tax-exempt
private-activity bonds
 Quill Corp v. North Dakota, 1992
 Internet Tax Non-Discrimination Act, 2007
 Lack of concern about federal tax-code changes
on state and local taxes
 Presumption that Congress has constitutional
authority to levy a sales tax or VAT
Characteristics of Coercive Federalism
Demise of Federal IGR Institutions
 Dismantling of OMB IGR Office in early 1980s
 Decline of U.S. Senate and House IGR
committees
 Dismantling of IGR unit in GAO in early 1990s
 Death of U.S. Advisory Commission on
Intergovernmental Relations (1959-1996)
 Politicization of agency IGR offices
Characteristics of Coercive Federalism




Decline of Political IGR Cooperation
Decline of willingness of elected and politically
appointed federal officials to cooperate regularly
with elected state and local officials as co-equal
representatives of the people
Washington, D.C., view of state and local
governments as merely lobbyists
NGA is just “another liberal lobbying group”
(Americans for Tax Reform)
Senator Carl Levin (D-MI): “There is no political
capital in intergovernmental relations” 1989.
Characteristics of Coercive
Federalism
Federalization of Criminal Law
Crimes in the U.S. Constitution
… the Constitution of the United States …
delegated to Congress a power to punish [1]
treason, [2] counterfeiting the securities and
current coin of the United States, [3] piracies
and felonies committed on the high seas, and
[4] offenses against the laws of nations ….”
Thomas Jefferson, Kentucky Resolutions, 1798
4450
4000
3300
3000
4
Source: John S. Baker, Jr., “Revisiting the Explosive Growth of Federal Crimes,”
Legal Memorandum 26 (Washington, DC: Heritage Foundation, June 16, 2008): 1-8.
Table 1A Is your state/province treated with the respect it deserves in the federal system of government?
Yes
2002
All Canadian Respondents
All U.S. Respondents
2007
2009
No
2002
2007
2009
45.4% 48.0% 43.1%
61.1 56.8 52.7
47.9% 46.7% 50.3%
27.3 34.7 37.9
38.0
42.1
64.3
26.9
30.9
24.0
58.6
52.9
27.0
66.8
60.7
70.1
Canadian Regions
Atlantic Provinces
Quebec
Ontario
Manitoba/Saskatchewan
Alberta
British Columbia
36.8
47.3
59.7
36.4
52.2
47.2
30.6
39.7
51.5
53.2
38.9
54.5
24.3
59.0
38.9
60.3
53.7
16.3
57.7
46.4
48.8
38.9
63.2
52.7
40.3
63.6
47.8
52.8
69.4
60.3
48.5
46.8
61.1
45.5
75.7
41.0
61.1
39.7
46.3
83.7
42.3
53.6
51.2
61.1
Canadian Federal Political Parties
Alliance
Bloc Quebecois
Conservative
Green and Others
Liberal
New Democratic
PC
24.8
23.8
59.4
45.7
52.0
69.6
74.7
36.8
43.2
45.1
Sources: Author Reference Deleted 2002; Author Reference Deleted 2005; Author Reference Deleted 2008; and authors’ 2009 survey.
Note: Percents exclude “Don’t know” and “No Answer” responses.
Table 1B Is your state/province treated with the respect it deserves in the federal system of government?
Yes
No
2002 2007 2009
2002 2007 2009
All Canadian Respondents
All U.S. Respondents
45.4% 48.0% 43.1%
61.1 56.8 52.7
47.9% 46.7% 50.3%
27.3 34.7 37.9
79.5
60.3
60.9
62.5
60.5
50.8
18.2
24.0
23.2
26.3
30.3
31.1
U.S. Regions
New England
Mid-Atlantic
East North Central
West North Central
South Atlantic
East South Central
West South Central
Mountain
Pacific
69.0
54.4
51.7
65.0
59.6
46.7
64.8
72.9 50.0
54.3 63.1
60.8
60.9
47.0
44.3
51.6
42.0
51.4 60.0
53.9
54.0
28.6
36.1
40.0
27.5
31.6
45.0
25.0
22.0 37.5
36.0 27.5
23.5
27.8
45.7
40.0
41.3
49.3
42.3 32.9
40.4
34.3
Sources: Author Reference Deleted 2002; Author Reference Deleted 2005; Author Reference Deleted 2008; and authors’ 2009
survey.
Note: Percents exclude “Don’t know” and “No Answer” responses
Table 2 Trust and confidence in the various orders of government, 2002-2009
Canada
2002
2004
2007
2009
Great Deal/
Fair
46.5% 37.0% 51.5%
48.9%
Little/None
54.1
United States
2002
2004
2007
Mexico
2004
2009
2009
Federal Government
62.0
68.0% 66.4%
53.1%
50.0%
42.6%
45.0
48.2
30.0
31.8
44.5
47.4
57.4
60.2
State/Provincial Governments
Great Deal/
Fair
50.8
45.0
53.6
58.0
64.8
68.3
66.0
54.6
43.7
37.4
Little/None
47.0
53.0
42.8
37.7
32.4
29.5
31.6
43.9
56.3
61.2
Great Deal/
Fair
64.1
69.0
55.6
60.0
67.3
73.4
68.0
62.3
52.0
33.3
Little/None
32.2
29.0
40.3
36.0
30.3
24.5
30.0
36.5
48.0
64.2
Local Governments
Note: Percents do not add to 100 due to exclusion of “Don’t Know” and “No Answer” responses.
38.3%
Table 3 From which level of government do you feel you get the most/least for your money?
Most for Money
Federal
Province/State
Local
None
DK/NA
Canada
2002
21.7%
29.0
20.8
17.9
10.6
2004
19.0%
32.0
34.0
--15.0
2009
23.8%
31.1
19.6
--25.5
United States
2002
2004
32.0% 32.6%
24.0
21.4
25.0
35.8
7.0
--12.0
9.5
2009
29.0%
26.0
31.0
--14.0
Mexico
2004
38.0%
25.0
23.0
--14.0
Note: In 2004 and 2009 “none” and “Don’t know” responses were combined.
Least for Money
Federal
Province/State
Local
All of the Above
None
DK/NA
Canada
2003
42.8
25.1
18.0
7.6
1.9
4.5
2007
41.0
23.4
18.9
--13.8
2.9
Note: “all of the above” was not a response option in 2007
United States
2003
29.8
23.4
19.5
9.7
6.6
11.1
2007
40.8
26.0
23.5
--1.0
8.7
Mexico
2003
34.9
17.7
22.9
12.0
4.8
7.8
Table 4 Which level of government has too much power / needs more power today?
Has Too Much Power
Federal
Province/State
Local
All of the Above
None of the Above
Don’t Know/NA
Needs More Power
Federal
Province/State
Local
All of the Above
None of the Above
Don’t Know/NA
Canada
2003
2007
56.2% 47.7%
28.3
18.8
4.7
5.7
3.7
11.2
4.0
7.1
3.0
9.7
2009
United States
2003
2007
50.6%
18.9
6.5
4.7
7.1
12.2
51.7%
15.8
5.9
8.6
8.9
9.2
66.1%
14.5
14.7
4.5
3.8
6.4
2009
Mexico
2003
2009
60.1%
22.4
6.3
3.7
4.8
2.7
65.4%
13.1
6.1
6.4
2.5
6.7
54.9%
24.1
9.2
2.4
5.0
4.3
Canada
2003
2007
United States
2003
2007
Mexico
2003
14.0% 10.5%
31.5
27.8
45.4
39.6
0.8
4.7
5.7
10.6
2.6
6.9
10.9% 8.2%
22.7
35.9
36.1
38.3
1.5
0.9
21.1 12.1
7.7
4.5
19.6%
42.9
17.1
7.7
6.6
6.3
Sources: Author Reference Deleted et al. 2003; Author Reference Deleted 2008; and authors’ 2009 survey.
Table 5A Responses to the federalism culture questions and scale of federal culture
Canada
2004 2009
Mexico
2004 2009
1. A federal form of government is preferable.
Strongly Agree
28.0% 24.7%
18.0%
Somewhat Agree
47.0
44.7
40.0
Somewhat Disagree
14.0
15.0
25.0
Strongly Disagree
7.0
6.1
17.0
DK/NA
5.0
9.5
Totals
1500 1000
1200
Sig=.000; cc=.275
2. A country in which everyone speaks the same language is preferable.
Strongly Agree
11.0
15.8
20.0
Somewhat Agree
20.0
21.7
40.0
Somewhat Disagree
25.0
18.2
25.0
Strongly Disagree
43.0
38.7
15.0
DK/NA
2.0
5.7
Totals
1500 1000
1200
Sig=.000; cc=.283
3. Having a strong leader in government is preferable.
Strongly Agree
23.0
11.0
Somewhat Agree
32.0
58.0
Somewhat Disagree
23.0
22.0
Strongly Disagree
20.0
7.0
DK/NA
3.0
Totals
1500
1200
Sig=.000; cc=.217
United States
2004 2009
16.6%
42.0
24.8
12.7
3.8
1216
43.3%
32.7
12.0
5.8
6.2
1000
27.2%
46.2
14.2
7.1
5.3
1000
18.7
35.1
24.6
17.2
4.5
1216
16.9
20.6
20.0
35.9
6.7
1000
14.1
24.6
22.0
34.4
4.8
1000
29.6
31.6
15.5
`16.8
6.6
1000
Table 5B Responses to the federalism culture questions and scale of federal culture
Canada
2004 2009
4. When making decisions, government is better off limiting discussion.
Strongly Agree
10.0
Somewhat Agree
25.4
Somewhat Disagree
19.6
Strongly Disagree
40.6
DK/NA
4.4
Totals
1000
Mexico
2004 2009
11.8
25.9
31.0
26.8
4.5
1216
United States
2004 2009
10.6
22.9
17.7
45.5
3.2
1000
5. Scale of Federalism Attitudes based on “strong” or “somewhat” pro-federalism responses to the three attitudinal questions asked
above each year.
0 (least pro-federal)
4.6%
5.1%
10.8% 6.3%
5.1%
6.5%
1
27.7
25.2
36.5
37.3
36.2
23.7
2
40.2
32.8
38.5 42.1
40.5
31.8
3 (most pro-federal)
27.5
36.9
14.3 14.2
18.2
38.0
Mean Score
1.91
2.02
1.56
1.64
1.72
2.01
Sig=.000; cc=.126