Federalism:
The sharing of power between national, state and local governments. The power sharing
arrangement has evolved, and in some cases devolved over time.
The National Government
Article VI of the Constitution declares that the Constitution and any laws passed under it are the
“supreme Law of the Land” - The Supremacy Clause. Thereby making state law and state
action subordinate to national law, in many cases.
The Constitution fashioned several different kinds of national powers and prohibits the national
government from taking certain actions. The Constitution created four major types of power:
enumerated, implied, inherent, and prohibited.
THE NATIONAL GOVERNMENT’S POWERS
Type
Key Clause
Explanation
Examples
Declare war, coin money, levy taxes,
Enumerated Article I, Section 8 Powers specifically
regulate interstate commerce, west
(expressed) Congress only
granted to Congress weights and measures, pursue
sciences
Necessary and
Powers that Congress
proper (Article I,
Regulate telecommunications, build
Implied
has assumed in order
Section 8)
interstate highways, draft
to better do its job
Congress only
Powers inherent to a Defend itself from foreign and
Inherent
Preamble
sovereign nation
domestic enemies, promote
Powers prohibited to
Article I, Section 9
Suspend the writ of habeas corpus, tax
Prohibited
the national
exports, grant titles of nobility
Congress only
government
 Enumerated Powers
In Article I, Section 8, the Constitution specifically grants Congress a number of different
powers, known as the enumerated powers, (fancy word for written). The enumerated powers
include, but are not limited to, the ability the power to tax and spend, declare war, coin money,
and regulate interstate commerce. Political scientists sometimes also refer to them as expressed
powers.
 Implied Powers
At the end of Article I, Section 8, the Constitution also grants Congress the power to do anything
“necessary and proper”, aka, the elastic clause, to carry out its duties. The powers given by this
clause are implied rather than stated. This clause has become a catch all for activities the
Congress finds necessary. The ACA, Obamacare, was created using this clause and defended on
the taxation authority of the Congress. Drafting people to serve in the military is not a power
specifically granted to the Congress. Congress instituted a draft as part of the implied power to
raise and support armies.
 Inherent Powers
Preamble to the US Constitution
“We the people of the United States, in order to form a more perfect union, establish
justice, insure domestic tranquility, provide for the common defense, 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.”
The preamble to the Constitution lays out the basic purposes of the United States government: to
provide for the welfare of its citizens and to defend against external enemies. Because the federal
government is sovereign, it also has certain powers called inherent powers, which are necessary
to protect its citizens and defend its right to exist.
 Prohibited Powers
Congress cannot tax exports or tell states how to choose electors for the Electoral College.
Concurrent Powers
All powers not granted in the Constitution to the national government are reserved for the
states. States, however, may hold some of the same powers that the national government has,
unless they have been given exclusively to the national government, either by provision of the
Constitution or by judicial interpretation. Concurrent powers are those that both national
and state governments hold. Examples are the concurrent powers of levying taxes and
establishing and maintaining separate court systems. Even so, federalism limits state powers in
that states cannot "unduly burden" their citizens with taxes. Neither can they interfere with a
function of the national government, nor abridge the terms of a treaty of the United States
government.
State Power
The Constitution also allows state governments some key powers:
 The right to choose the manner delegates to the Electoral College are selected.
 States also have a great deal of flexibility to write their own constitutions and pass their own
laws.
 All state governments have three branches identical to the national, how the power is
distributed varies state to state.
 Some state governors have a great deal of power, whereas in others, his or her power is
severely limited. The Line Item Veto allows some state governors the ability to “line out”
elements he/she does not like. While it is a state power, not all state allow it, and it is
unconstitutional at the national level, Clinton v. NYC 1997.
 Judicial appointments/elections vary state to state.
 Reserved Powers
The Tenth Amendment states that the powers not granted to the national government, and not
prohibited to state governments, are “reserved to the States.” The powers granted by the 10th
Amendment have been a serious point of contention throughout American history. The
Nullification crisis and the Civil War are 10th Amendment related. Recently, immigration, gun
laws, and refusal to implement healthcare changes are argued on 10th Amendment grounds.
 The Full Faith and Credit Clause
The full faith and credit clause, FFC, (found in Article IV of the Constitution) both establishes
and limits state powers. State governments must respect the laws and decisions of other state
governments, such as driver licenses and marriage certificates issued by other states. Depending
on the view, either the FFC expands or diminishes individual state power. A state’s decision is
binding on other states. At the same time, the clause limits state power by forcing the states to
honor one another’s laws. Consider the current same sex marriage debate or medicinal
marijuana, or personal use arguments.
 Local Governments
The Constitution places local governments entirely in the purview of the state government
Types of Local Government
There are approximately 84,000 local governments in the United States. Each
state has the power to define local government in any way it wants, allocating
different types and degrees of power and responsibility. All local governments
must be granted a charter by the state, defining its powers and responsibilities.
Some local governments ask for autonomy known as home rule: a promise by the
state government to refrain from interfering in local issues. State governments
give up this power because local governments with substantial autonomy can
often manage local affairs better than the state government could. Ultimately,
however, the state can still take power away from local governments, even those
with home rule.
There are a myriad number of local government forms. Local governments exist
with town governments, villages, townships, counties, and cities all having
different powers. The most common—and probably the least known—type of
local government is called a special district, a local government created focused
on a single issue or problem. Some special districts have elected leadership,
whereas others have leaders appointed by the governor or legislature.
Example: Special districts are the most numerous type of government in the
United States—totaling nearly 40,000 across the country. In some states, boards
of education are special districts. Most states also have very specialized districts,
such as water reclamation/treatment districts, oversight of public universities and
public transportation, libraries, and economic development districts. In all
instances, while the special district may act independently, local or state elected
officials retain some oversight.
Evolving or devolving: Federalism history
Dual Federalism (1789–1930)
Dual federalism: Until the Depression about 1930, the national government dealt with national
defense, foreign policy, and fostering commerce, whereas the states dealt with local matters,
economic regulation, and criminal law. This type of federalism is also called layer-cake
federalism because, like a layer cake, the states’ and the national governments each had their
own distinct areas of responsibility, and the different levels rarely overlapped.
Although the national and state spheres were largely separate, the Supreme Court established
national supremacy in 2 important cases:
McCullough v. Maryland
Gibbons v. Ogden - look them up.
THE "COMMERCE CLAUSE"
Gibbons vs. Ogden 1824.
 Aaron Ogden had been given exclusive license by the state of New York to operate
steam-powered ferryboats between New York and New Jersey. Thomas Gibbons
obtained a license from the U.S. government to operate boats in the same area, and when
he decided to compete with Ogden, Ogden sued, and the case went to the Supreme
Court. Several issues were at stake in defining federalism:

The definition of commerce - When New York’s highest court ruled against
Gibbons, defined commerce narrowly as only the shipment of goods, not
navigation or the transport of people.

National government’s powers over intrastate commerce – Does the national
government have the right to control any commerce within a state’s
boundaries?

State government’s powers over interstate commerce – Is interstate commerce
a concurrent power that states may share with the national government?
Marshall’s broad interpretation: John Marshall wrote the majority opinion in the case, an
expansive interpretation of the commerce clause that increased the national government’s
authority over all areas of economic affairs. Marshall defined commerce as all business dealings,
not just the transfer of goods, and he ruled that the national government could regulate within
states’ jurisdiction. On the other hand, interstate commerce is solely the right of the national
government, and so the New York court had no right to prohibit Gibbons’ trade.
Commerce Clause: At what point does interstate commerce begin and end?
With the booming Industrial Revolution of the late 1800s, the debate over the balance of power
between state and national government focused on the interpretation of the commerce clause,
which gives Congress the power "to regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes." At first, the Court tried to distinguish between
interstate commerce, which Congress could regulate, and intrastate commerce, which only the
states could control. Because most companies participate in both types of commerce, the Court
had a great deal of trouble distinguishing between the two. If a doughnut maker who sells donuts
in Pa. and ships some to Ohio and New York have different rules for production and
transportation?
Over the years this clause has been interpreted more and more broadly, so that today, the national
government regulates a wide range of commercial activities, including transportation, agriculture,
labor relations, finance, and manufacturing. Almost no type of commerce is controlled
exclusively by the states.
The Commerce Clause and Civil Rights
The Commerce clause also has been used to sustain legislation outside of commercial
matters. In 1964 the Supreme Court upheld the 1964 Civil Rights Act forbidding discrimination
based on race in public accommodations because
"Congress's action in removing the disruptive effect which it found racial
discrimination has on interstate travel is not invalidated because Congress
was also legislating against what it considers to be moral wrongs."
Discrimination affects interstate commerce, so Congress constitutionally could legislate against
discrimination. Again, many years later, Hamilton's loose interpretation of the Constitution
insured that the principle of national supremacy prevailed over that of states rights.
Reining in the Commerce Power
Since the 1990s the Supreme Court has been limiting the national government’s power under the
commerce clause. In United States vs. Lopez (1995) the Court ruled that Congress had
exceeded its authority when it banned possession of guns within one thousand feet of any
school. The law was declared unconstitutional because it had “nothing to do with
commerce.” In 2000, the Court held that the 1994 Violence against Women Act also
overstepped the Constitution with the statement that violence against women had an adverse
effect on interstate commerce.
The Civil War and the Fourteenth Amendment (1861–1868)
States Rights v. National Supremacy – Prior to the Civil War Amendments were written in a way
to restrict national power: “Congress shall make no law…” After the Civil War, The language
was dramatically different: Beginning with the 13th Amendment: “Congress shall have the power
to enforce…”
The Fourteenth Amendment, ratified a few years after the Civil War in 1868, includes three key
clauses, which limit state power and protect the basic rights of citizens:
The 14th Amendment is considered the most significant in its inclusiveness scope. The 14th is
used quite frequently in civil rights legislation. The current immigration debate and same sex
marriage debate hinge on the equal protection clause. States claim 10th Amendment immunities
while proponents of same sex marriage hold to the 14th Amendment, privileges and equal
protection clauses.
1. The privileges and immunities clause declares that no state can deny any citizen the
privileges and immunities of American citizenship.
2. The due process clause limits states’ abilities to deprive citizens of their legal rights.
3. The equal protection clause declares that all people get the equal protection of the laws
Cooperative Federalism (1930–Present) Hands off to hands on government
o Laissez Faire v. Government action and more regulation
The Great Depression, brought about by the crash of the stock market in 1929, was one of the
most severe economic downturns in American history. Many businesses failed, roughly one-third
of the population was out of work, and poverty was widespread. FDR implemented the New
Deal. Programs and policies that attempted to revive the economy and prevent further
depression.
Since the Depression the national government has become integrated with the state and local
governments, making it difficult to tell where one type of government begins and the other types
end. State and local governments administer many federal programs, for example, and states
depend heavily on federal funds to support their own programs. This type of federalism is called
cooperative federalism, or marble-cake federalism.
Cooperative Federalism in recent years has expanded to include cities and local government.
Creative Federalism: The national government has made opportunities available to local
governments to apply for or compete for federal money for projects. President Obama’s stimulus
package, The American Recovery and Reinvestment Act of 2009, provided opportunities
for local governments to gain federal money for much needed projects.
State v. national tug of war: the current state of Federalism
Since about 1970, the national and state governments have squared off over how best to allow
the states the flexibility they need and the need for a more cohesive nation. The concept of
providing states more flexibility with national government created programs is known as
Devolution or New Federalism: The concept of giving power back to the states. The state
argument is that the national government is too large and cannot adequately meet the needs of
individual a states, cities and local governments. The best example of devolution in practice was
the Welfare Reform Act of 1996. The national government devolved welfare from a nationally
run program to state governments to run with national government oversight. As the tug of war
continues, 10th Amendment proponents will continue to battle 14th Amendment backers.
Federalism in Practice: It is all about the Benjamins
Money plays a key role in the federal government’s relationship with the states. Congress
provides money to the states, but stipulates how this money should be used in order to force the
states to cooperate with federal policies.
Federal Aid to the States
Since World War II, states have come to rely heavily on federal money. The term grants-in-aid
refers to the federal government giving money to the states for a particular purpose. There are
two general types of grants-in-aid:
1. Block grants: Money given for a fairly broad purpose with few strings attached.
2. Categorical grants: Money given for a specific purpose that comes with restrictions
concerning how the money should be spent. There are two types of categorical grants:
 Project grants: Money states apply for by submitting specific project proposals
 Formula grants: Money given to states according to a mathematical formula
When the Republicans retook Congress in 1994, they changed many federal grants into block
grants. Instead of giving money to states to buy textbooks or repair schools, Congress gave states
blocks of money to spend on education in any way the states saw fit. The Welfare Reform Act of
1996 is also block granted, states must show they are meeting specific national criteria beyond
that they may spend the welfare funding in a broad way.
Federal Pressure on the States
The federal government uses a number of tactics to compel states to follow its policies and
guidelines. Congress can order states to comply or in some cases sue a particular state, but
usually applies pressure by threatening to withhold funds from reluctant states.
When the federal government decided to raise the drinking age to twenty-one, it denied certain
highway funds to states that opted not to comply. Also, the move to a nationwide DUI standard
caused some states to challenge national power. Again the national used money to move those
states in the direction it wanted.
Mandates
Sometimes the federal government orders states to do certain things, such as obeying housing
laws or environmental regulations. These demands are called mandates.
An unfunded mandate is one for which the federal government provides no money. For
example, the federal government has required state and local governments to live up to the
Americans with Disabilities Act without providing money to make buildings accessible to
handicapped people. State governments resent unfunded mandates because they drain state
coffers. The effect was not only felt at the state level, local school districts, and local government
buildings all had to comply with the ADA, stretching already tight budgets.
Preemption
Because of the supremacy clause, all laws passed by the national government take priority over
state and local laws. The national government, then, can override state laws if it can demonstrate
a compelling national interest; this practice is called preemption.
Horizontal federalism refers to the ways state governments relate to one another. States often
compete or cooperate on many different issues, from environmental policy to economic
development. One state, for example, may lower its tax rate in order to attract businesses away
from other states. States have a great deal of leeway in how they behave toward one another.
Also states may sue each other over issues relating to both. Texas threatened to sue Louisiana
over Louisiana’s lower drinking. Water rights are an issue in the Southwest US, and possibly
state gun laws will be challenged in the future.
THE ADVANTAGES AND DISADVANTAGES OF FEDERALISM
Few Americans believe that the federalist system should be abandoned, but the nature of
federalism is still a controversy today, and Americans still disagree about the balance of power
between national and state governments.
Advantage 1. Mobilization of political activity - A citizen has multiple entry points. The
various levels of government provide many alternatives for a citizen to be heard regarding
a concern. If a local official won't listen, a citizen may appeal to someone on the state or
national level.
Disadvantage 1. Confusion of political activity - The various levels of government can be
confusing to a citizen, so that he or she does not know which official to contact.
Advantage 2. Interest groups cannot easily take over the government. Powerful interest
groups cannot force their will upon less powerful groups because in order to control, they
would have to take over not only the national government, but state and local governments
as well. Small groups of people have a chance to be heard and influence legislation.
Disadvantage 2. Small but motivated interest groups can block the will of the majority for
extended periods of time. Sometimes small groups of people can impose their will for
extended periods of time on the majority. For example, a relatively small group of southern
senators blocked civil rights legislation for many years after most citizens favored such
legislation.
Advantage 3. Diversity of policies among states encourages experimentation and creativity.
50 different state governments tackle similar issues, and a good solution in one state can
be modeled in another. For example, if a state finds a good way to finance public education,
other states can mimic the plan, altering for special needs. On the other hand, if a state
tries something that fails, at least it affects only one state, not all.
Disadvantage 3. Diversity of policies among states creates inequality between citizens of
different states. Because states provide different levels of support, citizens in some states
have more advantages than those in other states. For example, welfare benefits vary
widely among the states, as do funding levels for public education.
Advantage 4. Diverse policies among states are good because uniform laws don't make
sense in many areas. For example, speed limits on highways should be under state and
local control, as should the minimum age for obtaining a driving license. Crowded New
Jersey should not have the same speed limits as does wide-open Montana. Young people in
farm states should be allowed to drive at early ages in order to help support the farm.
Disadvantage 4. Diverse policies among states even for speed limits and driving ages
create confusion and inequality. Although speed limits obviously need to vary, arbitrary
differences in state laws are confusing and outdated in this era of interstate highways.
Differences in driving ages are not fair to young people in states with higher age
requirements.