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Federalism
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Forms of Government Based on
the Distribution of Power
• Unitary: All of the power resides in the central government.
- North Korea, Cuba
• Confederation: All of the power resides with the state or local
governments.
- Articles of Confederation, C.S.A.
• Federalism: Power is shared between the
central and state, local or other governments.
- United States
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Three Essential features of
Federalism
1. There must be a provision for more than one
level of government to act simultaneously on
the same territory and on the same citizens.
2. Each government must have its own authority
and sphere of power, though they may overlap.
3. Neither level of government can abolish the
other.
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Advantages of Federalism
• Overcomes weaknesses of the Articles of
Confederation.
• The states, operating as sovereign units, have
closer ties to the electorate than the national
government does.
• Fifty different sets of rules allow policy
experimentation and greater flexibility.
• Experimentation allows a more efficient pursuit
of national policy goals.
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Disadvantages of
Federalism
• Multiple political actors can promote duplication
and confusion.
• Coordination becomes difficult because states
operate as independent and sovereign units.
• Fifty different sets of rules and regulations not
only increase complexity but also create
potential for inequality in services and policy
across states.
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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)
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American Federalism:
1776 to Present
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Pre-Federalism Period: 1776 – 1789
Dual Federalism Phase I: 1789 – 1865
Dual Federalism Phase II: 1865 – 1901
Cooperative Federalism: 1901 – 1960
Creative Federalism: 1960 – 1968
• Contemporary Federalism: 1970 5/24/2017
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Pre-Federalism: The Critical Period and
The “Disunited States”
1776 – 1789
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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.
The 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.
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Dual Federalism Phase I:
1789 – 1865
•The concept of dual federalism is the idea
that the national and state governments were
equal partners with separate and distinct
spheres of authority.
•There existed little collaboration between the
national and state governments.
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State - Centered Federalism
(Jefferson)
vs
Nation-Centered Federalism
( Hamilton)
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The Powers of Government
National Government - one of
delegated powers.
3 types of delegated power:
- enumerated (expressed)
- implied
- concurrent
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National Powers
• Enumerated powers: Specific grants of authority
• Implied powers: Federal government has the
power to pass all laws “necessary and proper” to
provide for the “general welfare” of the United
States.
• National supremacy clause: Federal law trumps
state law; “preemption”
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Enumerated powers literally expressed
Article I, section 8
• lay and collect taxes, duties, and imposts
• provide for the common defense and general
welfare of the United States
• regulate commerce with foreign nations, and
among the states, and with Indian tribes
• coin money and regulate the value thereof
• declare war
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Implied Powers- not literally
stated but reasonable implied
• Article I, Section 8, clause 18
“necessary and proper clause” or
elastic clause
• The necessary and proper clause has
often been used to expand the powers of
the national government.
Example: McCulloch v. Maryland
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Concurrent powersPowers shared by the national
and state governments: the
power to tax
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Reserved Powers or State
Powers (police powers)
• Most of State powers come from the Tenth
Amendment that says: "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."
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State Powers
• 10th Amendment gives all powers not
designated to the federal government nor denied
to the states to the states and the people.
• 14th Amendment says that no state shall abridge
upon the privileges or immunities of any citizen
and that each state must provide due process
and equal protection for all citizens.
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Denied Powers
• Article I, section 9 lays out powers denied
to the central 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
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The Supremacy Clause
Article IV says that federal law
is supreme. (So if the states
and federal government
argue, the feds win.)
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McCulloch v. Maryland
(1819)
• McCulluch 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 and denied the right of a state to tax
the bank.
• The Court’s broad interpretation of the necessary
and proper clause paved the way for later rulings
upholding expansive federal powers.
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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 and
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.
• In Gibbons, the Court upheld broad congressional power
over interstate commerce.
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Doctrine of Nullification (1828)
• South Carolina Exposition – Calhoun’s
contention that the national government
was but a servant of the states.
• 1830 - Webster / Hayne Debate on the
Doctrine of Nullification.
• 1832 – South Carolina’s Nullification
Ordinance.
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Worcester v. Georgia
(1832)
The Marshall court had previously ruled in
Cherokee Nation v. Georgia (1830) that Indian
tribes in the United States did not have the
status of foreign nations (famously describing
them as "domestic dependent nations"); here the
court ruled that the Cherokee nation was a
"distinct community" with self-government, "in
which the laws of Georgia can have no force".
This ruling established the doctrine that the
national government of the United States—and
not individual states—had authority in Indian
affairs.
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Dred Scott v. Sandford
(1857)
• The Supreme Court articulated the idea of concurrent
powers and dual federalism in which separate but equally
powerful levels of government is preferable, and the
national government should not exceed its enumerated
powers.
• 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.
• Taney further wrote that Congress had no power to abolish
slavery in the territories and slaves were private property
protected by the Constitution.
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Dual Federalism Phase II:
1865 – 1901
Although the era of Dual federalism
continued, this period was marked by
erratic but increasing presence of the
national government into areas that had
previously been the purview of the states
such as the power to regulate business
and the economy as well as civil rights.
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Dual Federalism Phase II:
1865 – 1901
• Due Process and Equal Protection Clause of the
14th Amendment.
- Besides protecting newly freed slaves from
state actions it was also used to constrain
unfair business practices.
• The Sherman Anti-Trust Act (1890).
• The Interstate Commerce Act (1887).
• Plessy v. Ferguson (1890).
• Bradwell v. Illinois (1873).
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Cooperative Federalism: 1901 –
1960
• This period marked an era of greater
cooperation and collaboration between the
various levels of government.
• 16th Amendment – Income Tax.
• The New Deal and FDR, 16 on-going
projects established.
• States’ Rights Reconsidered
- Brown v. Board of Education, Topeka, Kansas
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Cooperative Federalism in action
• Grants-in-aid
– Categorical grants: “Here’s some money, but you do
exactly what I tell you to do with it.”
– Block grants: “Here’s some money, spend it how you
like as long as you it relates to what I want.”
– General revenue sharing grants: “Here’s some
money, do whatever you want with it.”
– Unfunded mandates: “I don’t have the money, but you
still gotta do exactly what I tell you to do.”
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Creative Federalism: 1960 – 1968
• LBJ’s Creative Federalism was a major departure from
the past. It further shifted the power relationship between
governmental levels toward the national government
through the expansion of grant-in-aid system and the
increasing use of regulations.
• 1962 – Baker v. Carr. Reapportionment and
gerrymandering.
• 1964 – The Great Society programs used states and
local governments as agents to implement national
policies and the volume of federal regulations increased.
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Contemporary Federalism: 1970 This period has been characterized by
shifts in the intergovernmental grant
system, the growth of unfunded federal
mandates, concerns about federal
regulations, and continuing disputes over
the nature of the federal system.
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New Federalism: Phase I
• Attempts by the Nixon and Ford Administrations
to redirect power relations within the federal
system. The principal tools were revenue
sharing and the consolidation of federal aid
programs into six special revenue sharing
programs.
• The intent was to shift funds, authority, and
responsibility to states and local governments in
an effort to more effectively manage the
intergovernmental grant system.
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New Federalism: Phase II
• President Reagan, rather than attempt to more rationally
manage federal aid as was the case in the Nixon
Administration, sought to fundamentally restructure the
system of governance.
• “The federal government did not create the states, the
states created the federal government.”
• 1981 Omnibus Budget Reconciliation Act consolidated a
number of social programs into nine block grants which
allowed for greater state and local autonomy and
flexibility in the fashioning of local strategies to address
federal objectives.
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New Federalism: Phase III
• Clinton Administration’s Reinventing
Government Initiative and the House
Republicans’ Contract with America were both
efforts to rearrange the power relationships in
the federal system and sought to greater
devolve authority to lower levels of government.
• 1988 - Seminole Tribe of Florida v. Florida.
• Congressional Term and the Concept of Dual
Citizenship.
• 1996 - Brady Gun Control Act.
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Federalism and the Supreme
Court
• By the 1980s and 1990s, many Americans
began to think that the national government
was too big, too strong, and too distant to
understand their concerns.
• The Supreme Court, once again, played a
role in this new evolution of federalism.
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Stages of federalism (cont’d)
• New Federalism
– Transfer of policy responsibility
from the federal government to
state governments.
– Decrease federal funding while
increasing policymaking
authority of the states—
“devolution.”
– Tradeoff between financial
dependence and discretionary
power
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Federalism in action
No Child Left Behind Act
– Problem:
• Declining student performance
– Solution:
• Federal funding requires tough
performance standards
– Unintended consequences:
• Localities forced to make huge investment
to implement testing requirements.
• Localities suing states, arguing that
testing requirements represent an
unfunded mandate.
• States opting out of federal funds and
performance standards.
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Conclusion
• Federalism provides a means for accomplishing
both federal and state policy goals.
• Federalism offers distinct advantages and
disadvantages.
• In general, policy responsibility is shifting toward
state governments.
• However, power sharing relationships between
the federal government and state governments
vary across time and across issues.
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Continuity and Change
• Federalism as outlined at Philadelphia in
1787 has evolved considerably over time.
• Initially, the states remained quite powerful,
and the national government was small and
weak.
• Over time the national government became
progressively stronger.
• However, we have a Court today that is
more interested in reinvesting power in the
Tenth Amendment and in the states.
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