FEDERALISM
A Uniquely
American System
Unit 1 Lecture B
Federalism
is a political system in which power is
divided and shared between the
national/central government and the
states (regional units) in order to limit
the power of government.
Federal System - divides government
authority between a national and state
governments
Unitary System - places formal
authority in the central government
Confederal System - places authority
in the hands of state governments.
The Roots of the Federal System
•
•
The Framers worked to create a political system that was halfway between
the failed confederation of the Articles of Confederation and the tyrannical
unitary system of Great Britain.
The three major arguments for federalism are:
1. the prevention of tyranny;
2. the provision for increased participation in politics;
3. and the use of the states as testing grounds or laboratories for new
policies and programs.
State - Centered federalism
(Jefferson)
vs
Nation-Centered Federalism
( Hamilton)
The Powers of Government
National Government - one of
delegated powers.
3 types of delegated power:
- enumerated (expressed)
- implied
- inherent
Enumerated powers literally expressed
Article I, section 8
• lay and collect taxes, duties, and imposts
• provide for the common defense and general
welfare of the United States
• regulate commerce with foreign nations, and
among the states, and with Indian tribes
• coin money and regulate the value thereof
• declare war
Implied Powers- not literally
stated but reasonably implied
• Article I, Section 8, clause 18
“necessary and proper clause” or
elastic clause
• The necessary and proper clause has
often been used to expand the powers of
the national government.
Inherent powers
Powers which belong to the
national government by virtue of
their existence
Reserved powers or
“State Powers”(police powers)
• Most of State powers come from the Tenth
Amendment that says: "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."
Concurrent powersPowers shared by the national
and state governments
Denied Powers
• Article I, section 9 lays out powers denied to
the central government.
– For example: give preference to ports of one
state over another
• Article I, section 10 lays out the powers denied
to the states.
– For example: enter into treaties, alliances, or
confederations
The Supremacy Clause
Article IV says that federal law
is supreme. (So if the states
and federal government
argue, the feds win.)
The Evolution and
Development of Federalism
• The allocation of powers in our federal system has
changed dramatically over the years.
• The Supreme Court in its role as interpreter of
constitution has been a major player in the redefinition
of our Federal system.
– McCulloch v. Maryland (1819)
– Gibbons v. Ogden (1824)
– Dred Scott v. Sandford (1857)
McCulloch v. Maryland (1819)
• McCulluch was the first major decision by the
Supreme Court under Chief Justice John Marshall
about the relationship between the states and the
national government.
• The Court upheld the power of the national
government and denied the right of a state to tax the
bank.
• The Court’s broad interpretation of the necessary and
proper clause paved the way for later rulings
upholding expansive federal powers.
Gibbons v. Ogden (1824)
• The Gibbons case centered on the conflict between the states and
the powers of Congress.
• Could New York grant a monopoly concession on the navigation
of the Hudson River? The Hudson River forms part of the
border between New York and New Jersey and the U.S.
Congress also licensed a ship to sail the Hudson.
• The main constitutional question in Gibbons was about the
scope of Congress' authority under the Commerce Clause.
• In Gibbons, the Court upheld broad congressional power over
interstate commerce.
Dred Scott v. Sandford (1857)
• The Supreme Court articulated the idea of concurrent powers
and dual federalism in which separate but equally powerful
levels of government is preferable, and the national government
should not exceed its enumerated powers.
• The Taney Court held that Mr. Scott was not a U.S. citizen and
therefore not entitled to sue in federal court.
• The case was dismissed and Scott remained a slave.
• Taney further wrote that Congress had no power to abolish
slavery in the territories and slaves were private property
protected by the Constitution.
STAGES OF FEDERALISM
There have been FOUR STAGES OF
FEDERALISM throughout American history.
1789
I. “DUAL
FEDERALISM”
1937
II. “COOPERATIVE
FEDERALISM”
1960
1970
III. “REGULATED
FEDERALISM
1990
IV. “NEW
FEDERALISM
STAGES OF FEDERALISM
STAGE 1: “Dual Federalism” (1789-1937)
1. Central government focused on promotion of
commerce and distribution of resources.
2. States retain most remaining powers.
STAGES OF FEDERALISM
Stage 1: Dual Federalism
Power of the national government set forth in
Article I, Section 8 of the Constitution
•
•
•
•
Commerce clause
“necessary and proper clause”
McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824)
STAGES OF FEDERALISM
STAGE 2: “Cooperative Federalism” (1937-?)
Franklin Roosevelt’s “New Deal” sparks a revolution in
national policy-making and an increased role for the
national government altering the balance of federal power.
STAGES OF FEDERALISM
STAGE 2: “Cooperative
Federalism”
In NLRB v. Jones and Laughlin Steel
(1937), the Supreme Court
expanded its interpretation of the
commerce clause to allow the
national government to regulate
as well as promote interstate
commerce.
STAGES OF FEDERALISM
STAGE 2: “Cooperative
Federalism”
The New Deal’s expansion of the
national government and the
executive branch further
empowered the national
government at the expense of
state autonomy.
STAGES OF FEDERALISM
STAGE 2: “Cooperative Federalism”
The national government would ensure state cooperation
with federal policies by offering grants-in-aid.
Block grants are given to
states for general purposes
and allow state officials
greater discretion over
how funds will be spent.
Categorical grants are given to
states for more specific
purposes and most of the
discretion remains in the
hands of federal officials and
officeholders.
STAGES OF FEDERALISM
STAGE 3: “Regulated Federalism” (1960s-?)
As state and local governments came to depend on
grant-in-aid support, the national government
further intervened in state government decisionmaking by threatening to withhold such grants.
This is also known as “COERCIVE
FEDERALISM.”
STAGES OF FEDERALISM
STAGE 3: “Regulated
Federalism”
To regulate speed limits within states,
the national government threatens to
withhold federal transportation
dollars thus coercing states to
comply with federal mandates.
Case study of the "Double Nickels“
• The federal fifty-five-mile-per-hour speed limit was repealed in December 1995
after two decades.
• Twenty states (mostly Western ones) increased their speeds to seventy miles per
hour or more.
• Montana imposed no daytime speed, and Nevada had no speed limits at all at
anytime.
• Why were fifty-five-mile-per-hour speed limits imposed in the first place?
– To save gas after oil shortages in the 1970s.
– Insurance industry studies say fewer highway deaths at lower speeds.
– Same law removes helmet rules and zero alcohol tolerance rules.
• Uncle Sam: the carrot and the stick
– Federal government involved through highway construction funds (Federal
Highway Trust Fund).
– To get federal funds, states kept lower speeds until Congress changed the law in
1995.
• President Clinton and Congress responded to states' complaints (the federal system
and election politics in action).
STAGES OF FEDERALISM
STAGE 4: “New Federalism” (1969-?)
The waning in some respects of Franklin
Roosevelt’s “New Deal” coalition and programs
sparks a counter-federal trend, known as NEW
FEDERALISM, that begins to return discretion to
the state and local governments.
STAGES OF FEDERALISM
STAGE 4: “New Federalism”
The “new federalism” trend of
returning discretion to the states
began in the executive branch
as the Nixon, Carter, and
Reagan Administrations gave
states a larger role in
administering federal policies.
STAGES OF FEDERALISM
STAGE 4: “New Federalism”
The Republican takeover of
Congress after the 1994
elections led to a series of
policies where the federal
government “devolved” power
to the states.
Welfare reform is a good example
of such “devolution.”
STAGES OF FEDERALISM
STAGE 4: “New Federalism”
In United States v. Lopez (1995) and
United States v. Morrison (2000),
the Supreme Court reversed its
course by restricting its
interpretation of what constituted
“interstate commerce” to justify
federal government involvement
in the states.
STAGES OF FEDERALISM
“we would have to pile inference upon inference in a
manner that would … convert congressional
authority under the Commerce Clause to a general
police power of the sort retained by the States.
Admittedly, some of our prior cases have taken
long steps down that road …, but we decline to
proceed any further.”
--Chief Justice William Rehnquist, writing for
the
majority in United States v. Lopez
(1995)
The Changing Nature of
Federalism
• Prior to the 1930s, many scholars used the analogy of a layer cake
to describe federalism.
– Each layer had clearly defined powers and responsibilities.
• After the New Deal, the analogy of a marble cake seemed more
appropriate because the lines of authority were much more mixed.
• This marble cake federalism is often called cooperative federalism
and has a much more powerful national government.
• States have a cooperative role, as did many cities.
States are allowed to be different
Can be wide variety in criminal statutes,
punishments, etc . . .
States are required to give “full faith and
credit” to honor the “public acts, records, and
judicial proceedings” of other states
1993 – Hawaii – gay marriage possible
1996 – Defense of Marriage Act – states don’t
have to recognize same-sex marriage
1998 – Court rules that Missouri court can ignore
Michigan court order to ban testimony
Citizens from one state have the
same rights and the citizens of
another
• Article 4, section 2 – privileges and
immunities
• No discrimination between state residents
and out-of-state residents, criminal
extradition
Modern Problem?
“competitive federalism” – states
compete amongst each other to make
themselves more attractive to
business – can create a “rush to the
bottom”
THE COSTS OF DIVIDED
GOVERNMENT POWER
Through federalism and the
separation of powers, the
Constitution sets up conflicts which
act as barriers to collective action.
Thus, when collective action is necessary and
desirable, the government must overcome these
barriers.
THE COSTS OF DIVIDED
GOVERNMENT POWER
9/11 as a turning point:
• 2001-Present
– 9/11 increased the power of the federal government
– Unfunded Mandates: federal government requires programs or
standards but does not provide funding to achieve them
Federalism and the separation of powers provide impediments
to the national government’s ability to meet the threat of
terrorism, which requires swift and concerted national
government power.
THE COSTS OF DIVIDED
GOVERNMENT POWER
FEDERALISM’S
CHALLENGE:
National, state and local
governments must
overcome their natural
conflicts to work
together to meet
terrorist threats.
SEPARATION OF POWERS
CHALLENGE:
The legislative, executive, and
judicial branches must
overcome the natural
struggle between their
various “ambitions” to act
collectively.