Federalism
- The doctrine underlying a system of government in which power is divided
between the central government and constituent political sub units
(Intergovernmental Relations, IGR).
Confederation:
league of two or more states that unite to achieve certain goals. (NATO, EU).
Unitary System of Government:
sovereignty rest in the central government
Evolution of Federalism:
- John Marshal Chief Justice (1801-1835)
- McCulloch v. Maryland (1819) – 1816 Congress enacted legislation to charter the
Second Bank of the US – 2 years later Maryland legislature decided to levy a tax on
all banks that were not chartered by the state. Bank of the US refused to pay the tax.
-> Marshall’s decision: 1) US does have the right to charter a bank (Necessary and
Proper Clause) 2) Maryland did not have the right to levy a tax that would cripple a
federal institution.
DUAL FEDERALISM:
- Under this era of federalism state and national government were on equal footing.
The national government was not superior, but did have authority in certain areas.
However the states were considered powerful players.
- Leading up to the Civil War the southern leaders created the Doctrine of
Nullification, which stated that each state had retained its sovereignty upon joining
the US. Therefore a state could declare any laws or actions of the national
government “null and void” if they clashed with state’s interest or goals. No really
tried to evoke this doctrine but it was important to set the tone.
- Doctrine of Secession. – the ability for states to leave a nation and become
sovereign due to disagreements with the national government.
- 1861-1865 the Civil War (war between the states) was not just a matter of slavery,
but of federalism.
Federalism Post Civil War:
- 12, 13, 14th amendments – each prevented the ability to take away human rights of
people and gave Congress the ability to enforce these new laws, thus diminishing
the state’s power.
- The New Deal -> economic crisis (Great Depression) -> social security, regulating
farm production, environment regulations, etc. = mass National government control
- court packing.
- Cooperative Federalism (1932-1963): A response to the Great Depression
(1929). FDR began to impede upon the state’s reserved. Each layer of government
within the state and national seemed to overlap. There was mass cooperation due to
the state of the economy, but the lines began to blur nearing the end of the 1950’s,
post WWII.
- Creative Federalism (1963-1969): LBJ initiated this new form of federalism where
the National Govt. imposed their policies upon the states through “strings-attached”
grants and funding.
- Johnson’s Great Society
- Nixon fought this new federalism with “devolution”. To transfer fiscal or policy
power from the national level to the state level.
Grant-In-Aids
- Categorical Grants
- Block Grants
Dillions Rule vs. Home Rule
In particular, I want to bring your attention to the discussion on Dillon’s Rule vs.
Home Rule (starting on page 7). You see, the U.S. Constitution is silent on the
inherent powers of our local government. When the Constitution or a statute is
silent, that’s when judges come in and interpret that silence (or ambiguity). In the
great state of Iowa, Judge John Forrest Dillon (hence, “Dillon’s Rule”) held that local
governments only have the powers that are expressly given to it by the state in one
of three ways:
(1) granted in express words;
(2) necessarily implied or necessarily incident to the powers expressly granted; and
(3) absolutely essential to the declared objects and purposes of the corporation —
not simply convenient, but indispensable.
In states that follow Dillon’s Rule, the state legislature typically enacts an “enabling
statute” giving the local governments the ability to act within a defined scope (i.e.,
particular areas). If the local government usurps this authority then the local law
may be stricken. New York, for example, follows Dillon’s Rule. See NY Gen. Mun.
Law Section 96(1). Because of this, it wasn’t until 1978 when New York
municipalities were allowed to permit community gardens.
Conversely, state that follow Home Rule take a different approach. In these states,
there is a broad grant of power from the state giving municipalities the authority to
handle local matters without the need for special legislation by the state specifically
giving this authority so long as there is no conflict with state laws. In these states,
when authorization is vague, it is assumed that the municipality has the power
unless it is expressly denied.
Advantages of Federalism
- Diversity, balance of power, diverse legislation
Disadvantages of Federalism
- Fiscal disparities amongst states, lack of accountability, powerful court system,
unfunded mandates,