1.2 Federalism
AP USGOPO
Mr. Loomis
Federalism
• System of government in which power is divided by a written
constitution between a central government and regional
governments
• When powers of the federal gov’t and the powers of the state govt’s
conflict, the federal government prevails
• Term federalism NOT found in the US Constitution, BUT clearly
defined in delegated (Fed), concurrent (shared), and reserved (state)
powers
“The Cardinal Question”
• Woodrow Wilson believed that the relationship between the national
government and the states “is the cardinal question of our
constitution system”
• Wilson further observed that the relationship “cannot be settled by
one generation because it is a question of growth, and every
successive stage of our political and economic development gives it a
new aspect, makes it a new question”
Three Systems of Government?
• Unitary
• Centralized system of gov’t in which all power is vested in the central
gov’t
• Most nations in the world today!
• Examples  Great Britain, France, China
Three Systems of Government?
• Confederate
• a decentralized system of gov’t in which a weak central gov’t has
limited power over the states
• US began as a confederation under the Articles of Confederation
• Example  United Nations
Three Systems of Government?
• Federal
• System of gov’t in which power is divided between a central gov’t and
regional gov’ts
• As a result, two or more levels of gov’t have formal authority over the
same area and people
• Examples  US, Mexico, Canada, Germany, India
The Framers Choose Federalism
• The Framers…
• …agreed that the confederate system of government under the
Articles of Confederation proved to be too weak to deal with the new
nation’s myriad problems
• …ruled out unitary system because the Revolution had been fought
against a distant central gov’t in London
• …chose to balance order and freedom by creating a federal system
that assigned powers to the national gov’t while reserving other
powers to the states
National Powers
(Expressed, Delegated, Enumerated, Implies,
Inherent)
• Regulate interstate commerce
• Coin and print money
• Declare war
• Establish federal courts below the Supreme Court
• Conduct foreign relations
• Make all laws “necessary and proper”
• Acquire and govern US territories and admit new states
• Regulates immigration and naturalization
National and State Powers
(Concurrent)
• Levy taxes
• Borrow money
• Spend for general welfare
• Establish courts
• Enact and enforce laws
• Charter banks
State Powers
(Reserved)
• Regulate interstate commerce
• Establish local governments
• Establish public school systems
• Administer elections
• Protect the public’s health, welfare, and morals
• Regulate corporations
• Establish licensing requirements for certain regulated professions
Expressed Powers
• aka Delegated / Enumerated
• Specifically granted to the federal gov’t by the Constitution
• Article I, Section 8  enumerates 27 powers to Congress
• Article II, Section 2  assigned the Pres several expressed powers
• Article III  grants “judicial power of the United States” to the
Supreme Court
• Several amendments contain expressed powers  example (16th –
Congress the power to levy an income tax)
Expressed Powers
• Key powers
• …to regulate interstate and foreign commerce
• …to tax and spend
• …war power
Implied Powers
• NOT expressly stated in the Constitution, but can be inferred
• Derived from Article I, section 8, clause 18  Elastic Clause (aka
Necessary and Proper Clause
• Gives Congress power “to make all Laws which shall be necessary and proper
for carrying into Execution the forgoing Powers and all other Powers vested by
the Constitution in the Government of the United States, or in any
Department or Officer thereof.”
Implied Powers
• Enables the national government to meet problems the Framers
could not anticipate
• Insured the growth of national power by enabling the federal
government to extend its powers beyond those enumerated in the
Constitution
Inherent Powers
• Derive from the fact that the US is a sovereign nation
• Under international law  all nation-states have the right to make
treaties, wage war, and acquire territory
Reserved Powers
• Held solely by the States (from Article IV and Amendment 10)
• 10th Amendment  “The power 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.”
• Neither delegated to national gov’t nor denied to states
• Reserve powers include  licensing doctors, establishing public
schools, and establishing local governments
• Also include police power  the authority of a state to protect and promote
the public morals, health, safety, and general welfare
Concurrent Powers
• Powers that belong to both the national and state governments
• Include the power to tax, borrow money, and establish courts
Prohibited Powers
• Powers that are denied to the national government, state
governments, or both (Article I, sections 9 and 10 and Amendments)
• Examples
• BOTH  no ex post facto law (after the fact) or bill of attainder (guilty without
trial) or suspended a writ of habeas corpus (holding in custody)
• Federal Gov’t  cannot tax exports
• States  cannot make treaties with foreign nations
Interstate Relations
• Article IV  addresses the issue of relationships between the states
• 1. full faith and credit clause  states are required to recognize the
laws and legal documents of other states (Ex – birth certificates,
marriage licenses, driver’s license, wills)
• 2. privileges and immunities clause  states are prohibited from
unreasonably discriminating against residents of other states.
Nonresidents may travel through other states; buy, sell, and hold
property; and enter into contracts
• Does NOT extend to political rights such as the right to vote or run for political
office, or the right to practice certain regulated professions such as teaching
Interstate Relations
• 3. extradition  states may return fugitives to a state from which they
have fled to avoid criminal persecution at the request of the governor of
the state
• 4. interstate compacts  states may make agreements, sometimes
requiring congressional approval, to work together to solve regional
problems
• Examples - “hot-pursuit agreements”, parole and probation agreements
• Port Authority of New York and New Jersey  regulate the common use of
shared natural resources
Guarantees to the States
• Article IV… provides national guarantees to the states
• Republican form of government
• Protections against foreign invasion
• Protections against domestic violence
• Respect for the geographic integrity of the states
National Supremacy
• Article VI  Supremacy Clause
• Helps to resolve conflicts between national and state laws
• Because two levels of gov’t are operating within the same territory
and over the same people, conflicts are bound to arise
• Supremacy Clause state that the Constitution, its laws and treaties
shall be the “supreme law of the land”
• McCulloch v. Maryland (1819)  SC upheld supremacy
• Gibbons v. Ogden (1824)  SC expanded the powers of Congress over
interstate commerce
Milestones in Establishing National
Supremacy…
• McCulloch v. Maryland
• http://www.oyez.org/cases/1792-1850/1819/1819_0
• Gibbons v. Ogden reading
• http://www.oyez.org/cases/1792-1850/1824/1824_0
• *both are part of the top 30 Supreme Court Cases!*
McCulloch v. Maryland (1819)
• Topic  Implied Powers
• Background
• Congress chartered the Second National Bank of the US in 1816
• In 1818, the Maryland legislature passed a law imposing a substantial tax on
the operation of the Baltimore branch of the bank
• James McCulloch, a cashier of the Baltimore branch, refused to pay the tax
• When the Maryland state courts ruled against him, McCulloch appealed to
the US Supreme Court
McCulloch v. Maryland (1819)
• Constitutional Questions
• Does the Constitution permit Congress to charter a bank?
• Does a state have a constitutional right to tax an agency of the US government?
• Courts Decision
• Led by Chief Justice John Marshall, the SC ruled that creating a national bank was
within the implied powers of Congress. Marshall acknowledged that the word bank
is NOT in the Constitution. However, the Constitution does specifically grant
Congress the power to impose taxes, issue currency, and borrow money. Although
the Constitution does not specifically enumerate creating a bank, if does grant
Congress the power to “make all laws necessary and proper for carrying into
execution the foregoing powers”. Congress may thus reasonably decide that
chartering a national bank is a “necessary and proper” way to carry out its expressed
power.
McCulloch v. Maryland (1819)
• The Court’s decision cont.
• The court also held that the Maryland law was unconstitutional because it
violated the principle of the supremacy of the national government over the
states. Marshall ruled that “the government of the United States, though
limited in its power, it supreme within its sphere of action.”
• Significance
• Confirmed the rights of Congress to utilize implied powers to carry out its
expressed powers.
• Federal programs to build interstate highways, regulate labor-management
relations, and inspect food and drugs are all justified as implied powers of
Congress
• Decision validated the supremacy of the national government over the states
by declaring that states cannot interfere with or tax the legitimate activities
of the federal government
Gibbons v. Ogden (1824)
• Topic  The Commerce Clause
• Background
• The New York legislature granted Aaron Ogden an “exclusive license” to run a
ferry service on the Hudson River between New York and New Jersey
• Thomas Gibbons obtained a license from the federal government to operate a
competing New York-New Jersey ferry service
• Ogden claimed that Gibbons infringed on the monopoly rights granted to him
by the New York legislature
• When the New York courts ruled against him, Gibbons appealed to the United
States Supreme Court
Gibbons v. Ogden (1824)
• Constitutional Questions
• Did the New York law violate the Constitution by attempting to regulate
interstate commerce?
• Does Congress have the exclusive rights to regulate interstate commerce?
• The Court’s decision
• Led by Chief Justice John Marshall
• The Supreme Court defined commerce as all commercial business dealing.
Thus commerce includes the production, buying, selling, renting, and
transporting of goods, services, and properties
• Because Congress regulates all interstate commerce, the Court upheld
Gibbons’ right to operate a ferry service in competition with Ogden
Gibbons vs. Ogden (1824)
• Significance
• Marshall’s brad definition of commerce enabled Congress to promote
economic growth by supporting the construction of roads, canals, and RR
lines
• Strengthened the power of the federal government to regulate interstate
commerce
• Today, the national government uses the commerce clause to justify the
regulation of numerous areas of economic activity and expansion of federal
power
Milestones in National Supremacy:
Nullification and the Civil War
• John C. Calhoun of South Carolina argued that a state can nullify or
refuse to recognize an act of Congress that it considers
unconstitutional
• The Civil War was both a conflict over slavery and a dispute over the
relationship between the Southern states and the national
government
• The Civil War forcibly refuted the doctrine of nullification while also
confirming that the federal union is indissoluble
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Milestones in National Supremacy:
The Expansion of the Commerce Clause
• The commerce clause had played a key role in the expansion of
federal power
• The national government now regulates a wide variety of commercial
activities, including radio signals, telephone messages, and financial
transactions
• The Supreme Court upheld the 1964 Civil Rights Act forbidding
discrimination in places of public accommodation such as restaurants
and hotels on the basis of its power to regulate interstate commerce
• 1964 Civil Rights Act  outlawed discrimination based on race, color, religion,
sex, or national origin
The Civil Rights Act of 1964
• Enforced the 14th Amendment
• Ended Jim Crow segregation in hotels, motels, restaurants, and other
places of public accommodation
• Prohibited discrimination in employment on the basis of race, color,
national origin, religion, or gender
• Create the Equal Employment Opportunity Commission to monitor and
enforce protections against job discrimination
• Prohibited the discrimination in employment on grounds of race, color,
religion, national origin, or sex
• Upheld by the Supreme Court on the grounds that segregation affected
interstate commerce
• *one of the top 10 acts of Congress!*
Milestones in National Supremacy:
The Struggle Over School Desegregation
• In Brown v. Board of Education (1954), the Supreme Court
unanimously held that school segregation was unconstitutional
• President Eisenhower sent federal troops to Little Rock’s Central High
School to enforce court ordered desegregation
• Despite initial resistance, national standards of racial equality
ultimately prevailed
Brown v. Board of Education of Topeka (1954)
• I - http://www.oyez.org/cases/1950-1959/1952/1952_1
• II - http://www.oyez.org/cases/1950-1959/1954/1954_1
• Ruled that racially segregated schools violated the Equal Protection
Clause of the 14th Amendment
• Reversed the principle of “separate but equal” established by Plessy v.
Ferguson (1896)
• http://www.oyez.org/cases/1851-1900/1895/1895_210
• *one of the top 30 Supreme Court cases!*
Intergovernmental Relations and Federalism
Today
• Since the founding of the United States, society has changed, and
federalism has evolved to meet the changes and challenges
Intergovernmental Relations and Federalism
Today
• Dual Federalism
• Earliest (1789-1932) interpretation of federalism
• A system of government in which the national and state governments
remain supreme within their own spheres.
• For example  the national government is responsible for foreign policy, while the
states have exclusive responsibility for the public schools
• Dual federalism is often called “layer cake” federalism.
• It characterized the relationship between the nation and the state governments until
the advent of the New Deal during the 1930s
• New Deal  FDRs program to help us out of Great Depression (Relief, Recovery, Reform)
• National government has authority over national matters and states governments
over state manners
• Example  states had sole responsibility of educating their citizens and the national
government had the sole responsibility for foreign policy
Intergovernmental Relations and Federalism
Today
• Cooperative Federalism
• In the 1930s the interpretation of federalism shifted to that of the national
and state governments sharing policymaking that grew from policies of the
New Deal era
• A system of government in which the national and state governments work
together to complete projects.
• For example  the interstate highways program features a partnership in
which national and state governments share costs and administrative
duties
• Cooperative Federalism is often called “marble cake” federalism because of
the blurred distinction between the levels of government
• Expanded during Lyndon B. Johnson’s Great Society that required greater
cooperation from the states in return for federal grants
• Great Society  set of domestic programs in the mid 1960s where the main goal was
the elimination of poverty and racial injustice.
Intergovernmental Relations and Federalism
Today
• New Federalism – Devolution
• During the administrations of Richard Nixon (implemented), Ronald
Reagan, and George H.W. Bush the national government attempted to
implement a reversal of cooperative federalism and place more
responsibility on the states and local governments
• Devolution – a transfer of power to political subunits (goal of new
federalism) RETURNING POWER TO THE STATES!
• For example  Welfare Reform Act of 1996
• Gave the states the money to run their own welfare programs
• States had wide discretion in implementing the federal goal of transferring
people form welfare to work
Welfare Reform Act (1996)
• Increased the power of the states relative to the federal government
• Replaced the Aid to Families with Dependent Children program with
block grants to the states
• Illustrated the process of devolution by giving state greater discretion
to determine how to implement the federal goal of transferring
people from welfare to work
• * One of the top 10 acts of Congress!*
Intergovernmental Relations and Federalism
Today
• Fiscal Federalism
• Refers to the pattern of spending, taxing, and providing grants to
influence state and local governments
• The national government uses fiscal policy to influence the states
through granting or withholding money to pay for programs
• In 2010, state and local governments received about $480 billion in
federal grants. These grants accounted for about 21 percent of all
funds spent by state and local governments.
Federal Grants – Grants-in-aide programs
• Money and resources to be used for specific projects or programs 
provided to state and local gov’ts
• Historical examples  (public works projects)
• Building canals, roads and railroads
• Land grants for colleges
Types of Federal Grants
Categorical Grants
• Made for specific, carefully defined
purposes (increased power of federal
gov’t because states must comply
with regulations)
• Example  money spent to build
interstate highways, wastewater
plants, school lunch programs
• May require matching funds (state,local)
• Project Grants – basis of competitive
application (Ex. university research
grant)
• Formula Grants – basis of established
formula (Ex. Medicaid)
• Medicaid - social health care program
for families and individuals with low
income and limited resources.
Block Grants
• Made for a broadly defined
purposes (fewer strings attached
than categorical)
• Give the states broad discretion in
how money will be spent
• More power for the states in making
decisions on how to implement a
program
• Examples  money given to the
states for homeland security and
community development,
education, health care
• States prefer these over categorical
Federal Grants - Revenue Sharing
• Proposed under the Johnson administration and popular under the
Nixon administration
• A “no strings attached” form of aid to state and local governments
• Could be used for virtually and project, but never exceeded more
than two percent of revenues
• Eliminated during the Reagan administration
Federal Grants - Mandates
• Mandate – a rule telling states what they must do to comply with
federal guidelines
• Civil rights and environmental protection are the most common
mandates
• For example  state programs may not discriminate against people
because of their race, sex, age, or ethnicity
• An unfunded mandate requires state and local governments to
provide services without providing resources for these services
• For example  the 1986 Handicapped Children’s Protection Act required
public schools to build access ramps and provide special buses, but the act did
not provide federal funds to pay for these additions
• 1994 – Congress passed the Unfunded Mandate Reform Act (imposed
limitations on Congress’s ability to pass unfunded mandate legislation
No Child Left Behind Act (2001)
• Required states to set standards and measurable goals that can
improve individual outcomes in education
• Requires the states to develop assessments in basic skills to be given
to all students in certain grades
• Represents a dramatic expansion of the federal role in education
• *One of the top 10 acts of Congress!*
Federalism
Advantages
Disadvantages
• Ideally suited to large
geographic area because it
encourages diversity in local
gov’t
• Avoids concentration of political
power
• Accommodates already existing
state gov’ts
• States serve as training grounds
for national leaders
• Keeps gov’t close to the people
• Inflexibility inherent in a written
constitution
• Complex, with many gov’ts to
deal with
• Duplication of offices and
functions
• Conflicts of authority may arise
Federalism
Advantages
Disadvantages
• Promotes diverse policies that
encourage experimentation and
creative ideas
• Provide multiple power centers,
thus making it difficult for any one
faction (interest group) to
dominate gov’t policies
• Keeps the gov’t close to the people
by increasing opportunities for
political participation
• Promotes inequality because states
differ in the resources they can
devote to providing services
• Enables local interests to delay or
even thwart majority support for a
policy
• Creates confusion because the
different levels of gov’t make it
difficult for citizens to know what
different governments are doing