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FEDERALISM
Applying the 10th Amendment
The 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."
Federalism
Objectives:
1. The Roots of the Federal System
2. The Powers of Government in the
Federal System
3. The Evolution and Development of
Federalism
4. Federalism and the Supreme Court
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.
• 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.
Federalism Defined
• Federalism is…
–a political system in which power
is divided and shared among
different levels of government.
• State and Federal
– Limits the power of
government.
The Powers of Government in the Federal
System
• The distribution of powers in the
federal system consists of several
parts:
– Delegated powers
• Enumerated powers (Article I, sec.8))
• Implied powers (elastic clause)
– Shared powers (concurrent powers)
– Reserved powers
– Denied powers
Delegated Powers
• Article 1, Section 8 of Constitution lists delegated
powers.
• The enumerated powers of the central
government include the power to:
• lay and collect taxes
• provide for the national defense and make
regulations for the military
• regulate commerce with foreign nations, among the
states, and with Indian tribes
• coin money and regulate the value thereof
• declare war
• establish post offices
• issue copyrights and patents
Delegated Powers
• The national government may make
all laws which shall be necessary
and proper for carrying into
execution the enumerated powers.
• The necessary and proper clause
has often been used to expand the
powers of the national government
(elastic clause).
State Powers
• Often referred to as reserved powers and
come from the tenth amendment.
• Examples:
– Marriage & family laws
– Education
– State trade/commerce
– Conducting elections
– Establishing local governments
Concurrent Powers
• Powers shared between state and national
government.
• Examples:
–
–
–
–
right to tax
borrow money
establish courts
and make and enforce laws
Denied Powers
• Article I, section 9 lays out powers denied
to the national 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
Relations among the States
• The Framers wanted a single country,
not thirteen squabbling semicountries.
– Article IV requires states to give “full
faith and credit” to each others’ laws
and legal proceedings.
– States are also required to extradite
criminals if asked by another state.
– States recognize drivers’ and marriage
licenses, custody rulings, etc.
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)
• McCulloch 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 to establish a national bank and
denied the right of a state to tax the bank.
“The power to tax is the power to destroy.”
• 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.
– 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 (Article I, sec. 8: “to regulate
commerce with foreign nations, and among the several
states, and with the Indian tribes”)
• In Gibbons, the Court upheld broad congressional
power over interstate commerce.
Dred Scott v. Sandford
(1857)
• The Supreme Court articulated the idea of dual
federalism
– State and federal government are viewed as equals.
– Both governments were sovereign and with final authority within
their own spheres.
• 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.
• In the outcome, Chief Justice Roger Taney further wrote
that…
– Congress had no power to abolish slavery in the
territories
– Slaves were private property protected by the Constitution.
The Civil War and Beyond
• Dual federalism remained the Supreme Court's
framework for federalism
– and the prevailing notion in the Reconstruction and
Progressive Eras.
• Dual federalism finally ended in the 1930s,
– crisis of the Great Depression demanded powerful
actions from the national government.
Cooperative Federalism: 1930’s-50’s
• Prior to the 1930s, many scholars used the analogy of a
layer cake to describe federalism.
– Dual Federalsim
– Each layer had clearly defined powers and responsibilities.
• By the New Deal, the analogy of a marble cake seemed
more appropriate because
– the lines of authority were much more mixed.
– National government becomes major player in domestic policy.
– There is major shift in money from federal government to state/local
governments.
• Marble cake federalism is often called cooperative
federalism.
– much more powerful national government.
– States have a cooperative role, as did cities.
– Grants-in-aid monies flooded states for public works projects, work
programs, relief agencies
Federal Grant-in-Aid Outlays, 19402005
Regulated Federalism: 1960’s-70’s
• Increase in Categorical Grants:
– allocation of federal money to the states for a specific
purpose
– Examples: poverty programs, welfare, environment.
• Federal leadership saw these grants as a way to
compel individual states to behave in ways desired
by the national government.
– If the states refused to cooperate with the federal
government, it would withhold funds
– interstate highway funds & speed limit
New Federalism: Reagan
Revolution
1980’s-90’s
• Drastic cuts in federal domestic programs
and income taxes
– An attempt to re-establish the primacy of the
states.
– For the first time in thirty years, federal aid to state
and local governments declined.
– His idea was that federal government had gotten
too big.
– States should have more responsibility and
authority.
Issues during 1980’s-90’s
• Revenue sharing & matching funds
• Block grants:
– monies allocated to states for broad purpose
– Examples: education or poverty, with few regulations on
administering funds
• Unfunded mandates:
– Laws that direct states & localities to comply with
federal regulations,
– Examples: clean air laws & public access for disabled
• State budgetary constraints:
– recession
– constitutional requirement for balanced budget
• Intergovernmental lobby groups: NGA, USCM
The Devolution Revolution
Devolution = delegation of power & responsibility
Clinton Era reaction to growth in power of the national government due to
Republican majority in both houses of Congress
• President Clinton: responsibility to administer
federal programs as chief executive
• SOH Gingrich: roll back scope of federal government
and give back of power to the states
• Contract with America: shift responsibilities to states;
Unfunded Mandate Reform Act of 1995
• Gore’s Presidental Task Force on Reinventing
Government - traditional Republican issue
4. Federalism and the Supreme
Court
• Americans began to think that the national
government was too big, too strong, and too
distant to understand their concerns.
• U.S. Supreme Court, once again, played a role
in interpreting this new form of federalism.
– Cases involving abortion, gun control,
environment, use of commerce clause, right to
sue.
Rehnquist Court:
Reinterpreting Federalism
• Generally handing back power to the states
– Majority pro-states’ rights; 5-4 decisions
• Webster v. Reproductive Health Services
(1989) and Casey v. Planned Parenthood
(1992):
– states can restrict abortion laws
• U.S. v. Lopez (1995):
– federal law cannot regulate guns within 1000 of a
school BUT
• Bush v. Gore (2000):
– upheld deadline for selection of electors; struck down
FL SC
Summary – Key Points to
Remember
• Federalism is an important concept of the
American system of government meant to limit
the power of the national government.
• The notion of federalism has changed
drastically since the New Deal in the 1930’s.
• In the 1960’s and 1970’s the scope of federal
domestic policies and programs increased
steadily.
• In the 1980’s Reagan began a rollback of
federal funding for programs and funding to
states.
• In the mid-1990’s Republican Congress
promised to reduce the size and scope of the