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The Roots of Federalism
How the circles and squares get along...
What is Federalism?
Who's job was it
to clean up after
Hurricane Katrina?
What is Federalism?
Should the national government step in to
regulate school performance?
Federalism in the Spotlight
Should the federal
government allow
states to legalize
the sale of
marijuana?
What is Federalism?

Definition:
 Two or more governments exercise power and
authority over the same people in the same
territory

-ORThe relationship between the federal
government (circle) and the state
governments (squares)
Political Systems Around the
World

Unitary System
 A way of organizing a country so that all power
resides in the national government.

Federalism
 Government powers divided between national
government and sub-units

Confederation
 Spreads government power between many sub-
units
Unitary System
Federal System
Confederal System
Federalism

Only 11 of 190 democratic nations have
federalism.
 Most democracies are unitary systems.

American federalism is often referred to as
“intergovernmental relations”
 Local, state, and national government
interactions
Why is Federalism?

Decentralizes our politics
 More opportunities to participate

Decentralizes our policies
 Federal, State, and Local governments handle
different policies.
 Can you think of any policies reserved for the
each?
 States tend to solve the same problem different
ways. → “Laboratories of Democracy” ~ Brandeis
Federalism
“the basic political fact of
federalism is that it creates
separate, self sustaining centers
of power, prestige, and profit.”
Constitutional Basis of
Federalism

Not specifically mentioned in the Constitution
 founders clearly defined the powers of the state and
national governments (sort of)

Supremacy Clause – Constitution is supreme law
of the land. So are:
 Laws made by Congress
 Treaties signed by the national gov't

However, nat'l gov't cannot usurp state powers
 10th Amendment
Government Power in
Federalism
Delegated Powers

The War Power
 Nat'l gov't responsible for protecting the country
 Includes raising army, navy, air force, mobilizing industry

The Power to Regulate Interstate and Foreign Trade
 Commerce Clause - regulates many human activities
(agriculture, transportation, finance, product safety, labor
relations). Most activites affect commerce in more than one
state → subject to the national government's authority.

The Power to Tax and Spend
 Congress has power to appropriate $$
 If it finances an activity it determines how the money will be
spent → Can withhold funds for multiple reasons.
Concurrent Powers

Concurrent powers
 Those that both national and state governments hold.

Examples
 levying taxes
 establishing and maintaining separate court systems.

Federalism limits state powers
 states cannot "unduly burden" their citizens with taxes.
 Cannot interfere with a function of the national
government
Reserved Powers

Powers held by the states alone
 Not listed in the Constitution
 Protected by the 10th Amendment – Powers reserved
to the states and the people.

Examples
 Est. local gov'ts
 Regulating trade within state

Controversial powers because they are not listed
in the Constitution.
 Debates between state and local gov't over their roles
Constitutional Basis of
Federalism
Interstate Relations in
Federalism

Full Faith and Credit Clause: Each state must recognize
official documents and judgments rendered by other
states.
 Article IV, Section I of Constitution

Privileges and Immunities Clause: Citizens of each state
have privileges of citizens of other states.
 Article IV, Section 2 of Constitution

Extradition Clause: States must return a person charged
with a crime in another state to that state for
punishment.
State Compacts
Necessary and Proper Clause

AKA the “Elastic Clause”

Congress has power "to make all laws which
shall be necessary and proper for carrying into
execution the foregoing powers."

Founders wanted constitution to be flexible
and long lasting.

Could not predict the future
The Necessary and Proper
Clause Debate

Alexander Hamilton
 Loose construction of the Constitution
 Powers of nat'l gov't were supreme law of the land
 Should be broadly interpreted → Supports necessary and
proper clause

Thomas Jefferson
 Strict construction of the Constitution
 Powers of nat'l gov't should be limited to the language of
the constitution.
 10th Amendment → Powers not specifically in the
Constitution are reserved for the states.
Homework

Federalism Case Studies
 Use your textbooks and the provided reading to
write case studies for the following cases:
▪
▪
▪
▪
McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824)
Barron v. Baltimore (1833)
U.S. v. Lopez (1995)
McCulloch v. Maryland (1819)
Facts
 Bank of US operated in MD
 MD did not want Bank of US in state → unfair
competition
 MD decided to tax the bank in an effort to put
it out of business
 McCulloch (Bank of US employee) refused to
pay tax and sued MD
McCulloch v. Maryland (1819)
Issue #1
 Is the Bank of the US constitutional?
Decision & Rationale
 YES. The national gov’t has implied powers
that go beyond delegated powers.
 US needs a national bank for borrowing,
lending, holding minted money, etc.
(delegated powers).
McCulloch v. Maryland (1819)
Issue #2
 Can a state tax the federal gov't?
Decision & Rationale
 NO. The federal gov’t is supreme. Since the
Bank of the US is constitutional, only the feds
may tax it.
 Marshall's ruling reaffirmed the supremacy
and necessary and proper clauses!
Remember
Gibbons v. Ogden (1824)
Facts
 AKA “The Steamboat Case”
 Ogden received a state licensed monopoly
to run a ferry across the Hudson River
 Gibbons also saw the potential of the traffic
between NJ and NY and obtained a federal
license.
 Ogden sued saying he had the valid state
license, even though Gibbons had US license
Gibbons v. Ogden (1824)
Issue
 What was the scope of Congress' authority
under the commerce clause?
Decision and Rational
 Gibbons wins! Expanded national power in all
areas of commerce law because nation
overruled state in interstate trade issues
 Commerce clause has no limits except those
found specifically in the Constitution.
Barron v. Baltimore (1833)
Facts
 Barron owned a profitable wharf in the
Baltimore harbor
 Sued the mayor of Baltimore claiming that
the city had diverted the flow of streams
during street construction and created
mounds of sand near his wharf
 The water too shallow for most vessels.
 City took lands w/o “just compensation” (5th)
Barron v. Baltimore (1833)
Issue
 Does the due process clause apply to the
states?
Decision and Rationale
 NO. Rights in the Bill of Rights only limit the
federal government, not the states. States
could ignore the Bill of Rights all together.
 Ruling has since been overruled (selective
incorporation & 14th amendment)
U.S. v. Lopez (1995)
Facts
 Lopez, a 12 year old boy, carried an un-loaded
weapon onto school grounds.
 Schools officials caught him and he was
arrested
 Charged with violation of the federal GunFree School Zones Act of 1990
U.S. v. Lopez (1995)
Issues
 Does the commerce clause give Congress the
authority to regulate guns in a school zone?
Decision and Rationale
 NO. “nothing to do with commerce” –
carrying a weapon through a school zone is
too much of a stretch for “commerce”
 Gun control laws are a state, not a federal,
matter
Federalism Over Time
Old School
 Dual Federalism
 Federal and State governments are dominate
in their own sphere
New School
 Cooperative Federalism
 Federal and State governments work
together to fix complex problems
2 Federalisms
Federal Gov’t = Icing
State Gov’ts = Cake
Dual Federalism

Earliest form of federalism

Examples:
– Nullification
– Dred Scott case

Began to decline after the Civil War
– National Government asserted its dominance over the
state

Continued decline through progressive era
– 16th and 17th Amendments increased power of the
federal government.
Cooperative Federalism

Began during Great Depression of the 1930's 
demanded strong action from the federal
government
– Major shift in money from state and local governments

States and municipalities have a cooperative role
with the federal government
– Federal government clearly supreme

Flow of money from Federal gov't to states and cities
continued to increase from 1930's-70's
– Categorical grants and federal mandates premier tool of
cooperative federalism
Cooperative Federalism
Q: How do you get the states to do what they
normally wouldn't do?
A: Money
 Cooperative Federalism also called “Fiscal
Federalism”

In the 1930's-70's the federal gov't used money as a
tool to get states to implement policy
– Categorical Grant → Federal $$$ with strings attached
• New Deal public works projects
– Federal Mandate → Requirement that a state
undertake an activity or provide a service
• Great Society environmental and civil rights laws
New Federalism

The Reagan Revolution of 1980's-90's
– Drastic cuts in federal funds and income taxes
– Attempted to re-establish the power of state
governments
– Federal aid to states declined for 1st time in 30 years

Tool of New Federalism
– Block Grants → $$$ given to states with a broad
purpose and few strings attached

Still a form of Cooperative or “Fiscal Federalism”
Devolution Revolution
 Devolution Return power to state governments
• Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (Clinton Welfare Reform)
• Returned welfare to the states in the form of Block
Grants
 Unfunded Mandates Problem
– Federal aid to states decreased
– Federal mandates did not
– States were asked to comply with federal mandates but
did not have appropriate funds
 Devolution Solution
– Unfunded Mandates Reform Act of 1995
– Congress must debate how to pay for a mandate.
Federal Grants-in-Aid 1960-2017
Acts of the Government Involving
Federalism Related Disputes
1.
Americans With Disabilities Act- required states to make facilities, such
as state colleges and universities accessible to individuals with
disabilities. No funds to support, though.
•
2.
Issue (s)
Civil Rights Act 1964- bars discrimination in the use of federal funds
because of race, color, national origin, gender, or physical disability.
Southern states blocked legislation for a long time and refused to
accept court rulings Many schools today lose funding for all programs if
discriminates illegally in one program.
•
3.
Issue (s)
Clear Air and Water Act of 1970- national air quality standards but
requires states to administer them and to appropriate funds for their
implementation
•
Issue (s)
Acts of the Government Involving
Federalism Related Disputes
4. Welfare Reform Act of 1996- required work
in exchange for temporary relief; no more
than two years could be used before parents
would be working or in job training. No
recipient could have more than five years of
assistance cumulatively
Ultimately, gave states money (Block Grants) and
gave them freedom to enforce the law.
Issue (s):
Acts of the Government Involving
Federalism Related Disputes
5.
Brady Handgun Violence Prevention Act- mandated that the chief law
enforcement officers in each local community conduct background
checks on gun purchasers.
Issue (s):
6.
Federal Mandate to Raise the Drinking Age to 21- states are now
required to raise drinking age to 21 in order to receive federal funds for
highways.
- Issue (s):
Acts of the Government Involving
Federalism Related Disputes
8. NCLB- Largest expansion of federal government’s
role in education since LBJ.
•
several states in the process of challenging federal
education regulations as education has traditionally been
viewed as being run by the state and local governments.
•
Issue (s):
Acts of the Government Involving
Federalism Related Disputes
Defense of Marriage Act:
•
•
•
Permits states to disregard gay marriages, even if legal in U.S.
Defines marriage as between a man and a woman.
Gay couples married legally in states are denied federal benefits
under the law.
U.S. v. Windsor: Decision
•
Definition & regulation of the right to marry is traditionally the
province of states (not in the enumerated powers of Congress).
•
Congress intended to and did interfere with this traditional
function of states by raising the cost to same-sex couples of
being married under state law.
Acts of the Government Involving
Federalism Related Disputes
10. Hurricane Katrina- best recent illustration of complex
relationship between federal and state governments.
11. September 11, 2001- Congress imposed sizable mandates on
the states to increase ability to deal with acts of terrorism,
but no resources necessary to increase state and local
capabilities.
•
Issue (s):
Other issues:
unemployment compensation, civil rights protections, income tax,
welfare reform, and health care.
Federalism is Good and Bad
Bad
“…the main effect of federalism
since the Civil War has been to
perpetuate racism…”
Harold Laski
Good
“The virtue of the federal system
lies in its ability to develop and
maintain mechanisms vital to the
perpetuation of the unique
combination of governmental
strength, political flexibility, and
individual liberty, which has been
the central concern of American
politics.”
David Elazar
Federalism Is Good
1. Encourages experimentalism  unity and uniqueness
2. Decentralization of politics.
– More opportunities to participate in government,
increases access to government.
3. Decentralization of policies.
– Two levels increase opportunities for government to
respond to demands for policies.
4. If a party loses strength at the national level, it can rebuild
at the state and local levels.
5. Diversity of opinions to be reflected in various policies
among the states.
6. Reduces decision making and conflict at the national level.
Federalism Is Bad
1.
Inequality among regions
2. Quality of services dependent on the state in which the
service is provided.
3. Diversity in policy discourages states from providing
services that would otherwise be available because poor
people may be attracted from states with lower
benefits.
4. Local interests impede national majority support of
certain policies.
5. So many local governments make it difficult for many
Americans to know which government is responsible for
various functions.