Chapter 3:
Federalism
FEDERALISM
• two levels of government have formal authority
over the same land and people
• The division of power/authority between the
state and national governments
• Supremacy Clause: Article VI > makes the
Constitution, national laws, and treaties supreme
over state laws when the national government is
acting within its constitutional limits
– Judges in every state were bound to follow the
Constitution
Only 11 out of the
approximately 190
countries of the
world have federal
systems.
WHY FEDERALISM?
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Large size (land area)
Large population (sub-units for efficiency)
Diverse population (for diverse policy)
Decentralizes power
– with more decisions made in the states there are
fewer sources of conflict at the national level
– enhances judicial power, because the courts resolve
all the disputes that arise
• Decentralizes politics
– with more layers of government, more opportunities
exist for political participation, and there are more
opportunities for interests to have their demands for
public policies satisfied
Unitary Government
• all power resides in the central government
• most governments in the world today are unitary
governments
1. Great Britain, Japan
• b. American states are unitary governments with
respect to their local governments
– 1. local governments get their authority from the
states and can be created or abolished by the states
– 2. states can also make the rules for local
governments
Confederation
• the national government is weak and most or
all of the power is in the hands of its
components (for ex. individual states)
a. the U.S. under the Articles of Confederation,
the United Nations
• the workings of the American system are
sometimes called intergovernmental relations
– a. Intergovernmental Relations: the entire set of
interactions among the national, state, and local
governments
The Constitutional Basis of Federalism
A. The word federalism is not mentioned in the Constitution
B. 18th-century Americans had little experience in thinking of
themselves as Americans first and state citizens second
(strong state loyalty)
C. The Division of Power
• 1. the writers of the Constitution carefully defined the
powers of state and national governments
• 2. the writers favored a stronger national government, but
states were restrained as vital components of government
– a. states were given equal representation in the Senate, right to
control elections, and right not to be divided into new states
Enumerated Powers
• powers of the federal government that are
specifically addressed in the Constitution Article 1, Section 8
• The Congress shall have Power To lay and collect Taxes, Duties,
Imports and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;
[Altered by Amendment XVI "Income tax".]
• To borrow money on the credit of the United States;
• To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
• To establish a uniform Rule of Naturalization, and uniform Laws on
the subject of Bankruptcies throughout the United States;
• To coin Money, regulate the Value thereof, and of foreign Coin, and
fix the Standard of Weights and Measures;
• To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
• To establish Post Offices and Post Roads;
• To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
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To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and
Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be
for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing
such Part of them as may be employed in the Service of the United States,
reserving to the States respectively, the Appointment of the Officers, and the
Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular States, and the
acceptance of Congress, become the Seat of the Government of the United States,
and to exercise like Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings; And
10th 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”
Printz v. United States and Mack v. United States
(1997)
• Courts voided the congressional mandates of
the Brady Bill saying you cannot force states to
address particular problems and the national
government cannot force states law officials
to enforce a federal program
Establishing National Supremacy
• four key events have largely
settled the issue of how
national and state powers are
related
#1: The elaboration of the Doctrine of
Implied Powers
• McCulloch v. Maryland, 1819: the case that first
brought the issue of state versus national power
before the Supreme Court
• This case (dealing with the idea of a national
bank), the Supreme Court ruled that national
policies take precedence over state policies:
Chief Justice John Marshall wrote that "the
government of the United States, though limited
in its power, is supreme within its sphere of
action"
Elastic clause or implied powers: the national
government has certain powers beyond their
enumerated ones
“To make all Laws which shall be necessary and
proper for carrying into Execution the
foregoing Powers, and all other Powers vested
by this Constitution in the Government of the
United States, or in any Department or Officer
thereof”
• Powers of the federal government that go
beyond those enumerated in the Constitution
- Congress has the power to "make all laws
that are necessary and proper for carrying into
execution" the enumerated powers
• a. Elastic Clause: the final paragraph of
Article 1, Section 8 of the Constitution
• E.g. policies to regulate food and drugs, build
interstate highways, clean up dirty air and
water
Interpretation of the ‘Necessary and Proper’
clause has been controversial, especially during
the early years of the republic.
• Strict constructionists interpret the clause to
mean that Congress may make a law only if
the inability to do so would cripple its ability
to apply one of its enumerated powers.
• Loose Constructionists, on the other hand,
interpret the Necessary and Proper Clause as
expanding the authority of Congress to all areas
tangentially-related to one of its enumerated
powers.
• It is often known as the “Elastic Clause" because
of the great amount of leeway in interpretation it
allows; depending on the interpretation, it can be
"stretched" to expand the powers of Congress, or
allowed to "contract," limiting Congress.
• In practical usage, the clause has been paired
with the Commerce Clause in particular to
provide the constitutional basis for a wide variety
of federal laws
The Preamble
• “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”
• A unique aspect of the American system of
government is that, while the rest of the world
views the United States as one country,
domestically American constitutional law
recognizes a federation of state governments
separate from (and not subdivisions of) the
federal government, each of which is
sovereign over its own affairs.
• Sometimes, the Supreme Court has even
analogized the States to being foreign
countries to each other to explain the
American system of State sovereignty.
• However, each state's sovereignty is limited by
the U.S. Constitution, which is the supreme
law of both the United States as a nation and
of each state; in the event of a conflict, a valid
federal law controls.
• As a result, although the federal government
is recognized as sovereign and has supreme
power over those matters within its control,
the American constitutional system also
recognizes the concept of "State sovereignty,"
where certain matters are susceptible to
government regulation, but only at the State
and not the federal level.
#2: The definition of the Commerce
Clause
• “To regulate Commerce with foreign Nations,
and among the several States, and with the
Indian Tribes”
• Gibbons v. Ogden, 1824: Supreme Court
interpreted the clause very broadly, giving
Congress the power to regulate interstate
commerce, encompassing virtually every form
of commercial activity.
#3: The Civil War
• a. The War settled militarily the issue that
McCulloch had enunciated constitutionally
• b. A war fought over state power v. national
power
– Federal Supremacy vs. States’ Rights
#4: The struggle for Racial Equality
• a. Brown v. Board of Education, 1954: Supreme
Court held that school segregation was inherently
unequal, therefore ‘unconstitutional’
• b. Southern politicians responded with "massive
resistance" to the decision
– Governor George Wallace of Alabama blocked the
entrance of the school in an attempt to keep out black
students
• c. the conflict between the states and national
government over equality issues was decided in
favor of the national government
The Little Rock Nine
• Several segregationist councils threatened to
hold protests at Central High and physically
block the black students from entering the
school. Governor Orval Faubus deployed the
Arkansas National Guard to support the
segregationists on September 4, 1957. The
sight of a line of soldiers blocking nine black
students from attending high school made
national headlines and polarized the nation.
• On September 9, Little Rock School District
issued a statement condemning the
governor's deployment of soldiers to the high
school and called for a citywide prayer service
on September 12.
• Even President Dwight Eisenhower attempted
to de-escalate the situation and summoned
Governor Faubus to meet him. The President
warned the governor not to defy the Supreme
Court's ruling.
• Woodrow Nilson Mann, the Mayor of Little
Rock, asked President Eisenhower to send
federal troops to enforce integration and
protect the nine students.
• On September 24, the President ordered the
101st Airborne division of the U.S. Army to
Little Rock and federalized the entire 10,000
member Arkansas National Guard, taking it
out of the hands of Governor Orval Faubus.
States' Obligations to Each Other
• 1. Full Faith and Credit - Article IV, Section 1, requires each
state to recognize the official documents and civil
judgments rendered by the courts in other states
– a. Defense of Marriage Act: Congress said that states did not
have to recognize gay marriages, even if they are legal
elsewhere
• 2. Extradition: States are required to return a person
charged with a crime in another state to that state for trial
or imprisonment
• 3. Privileges and Immunities Clause: Article IV, Section 2,
accords citizens of each state most of the privileges and
immunities of any other state in which they happen to be
– a. Exceptions: state residents pay cheaper tuition at state
universities, only state citizens can vote in state elections,
special taxes on hotel rooms for out of state people
Dual Federalism
• a system of government in which both the
states and the national government remain
supreme within their own spheres, each
responsible for some policies
Cooperative Federalism
• a system of government in which powers and
policy assignments are shared between states
and the national government
• a. They may share the costs
• b. They may share the administration
• c. Federal Guidelines: most federal grants to
states come with strings attached (for ex.
Drinking Age)
• d. They may even share the blame for programs
that work poorly
Fiscal Federalism
• the pattern of spending, taxing, and providing
grants in the federal system
• 1. fiscal federalism is the cornerstone of the
national government’s relations with state and
local governments
• 2. the national government has a powerful
source of influence over the states – money
Grants-in-Aid
• federal funds are funds appropriated by
Congress for distribution to state and local
governments
• a. they are the main instrument the national
government uses for both aiding and
influencing states and localities
– 1. federal aid accounts for about 1/5 of all the
funds spent by state and local governments and
for about 17% percent of all federal government
expenditures
#1: Categorical Grants
• federal grants that can be used only for specific
purposes, or categories, of state and local
spending
• there are two types of categorical grants
• 1. Project Grants: federal grants given for
specific purposes and awarded on the basis of
the merits of applications (the most common
type of categorical grant)
• 2. Formula Grants: federal grants distributed
according to a formula specified in legislation or
in administrative regulations
#2: Block Grants
• federal grants given more or less automatically
to states or communities to support broad
programs in areas such as community
development and social services
– States have the discretion in deciding how to
spend the money