Federalism

Sovereignty

• Systems of government are defined in terms of sovereignty:

  • Fundamental governmental authority.

  • The right to govern a particular people or territory.

Unitary States

• In a unitary state (or system) only the national government is sovereign.

  

• Country may be divided into provinces, counties, etc. but they are only administrative subdivisions.

• Examples include:

  • France

  • Israel

  • Japan

  • New Zealand

Confederations

• A confederation (or confederal system) is a government formed by sovereign states working together for common purposes.

  

• Central government's powers are limited to those granted by the states.

• Examples include:

  • U.S. under the Articles of Confederation.

  • Switzerland (until 1848).

  • The European Union (to an extent…)

Federal States

• A federal state (or federation) shares sovereignty between the national and subnational governments.

  

• The nation and its units (states, provinces, etc.) may have both overlapping and non-overlapping areas of responsibility.

• Examples include:

  • The United States (since 1789)
  • Brazil
  • Canada
  • Germany

Federalism in the United States

• Many national powers (sometimes called delegated powers), including some of the enumerated powers of Congress.

• Concurrent powers are shared between the state and federal governments.

• Reserved powers are powers executed by the states alone; however, other powers are denied to the states.

National (Delegated) Powers

Powers that can be exercised solely by the national government:

• Conduct foreign relations, including issuing declarations of war.

• Coin money and issue paper currency.

• Regulate interstate commerce.

• Regulate foreign commerce, including imposing tariffs and trade sanctions.

• Provide for national defense.

Concurrent (Shared) Powers

Powers that can be exercised by both state and national governments:

• Levy taxes; spend and borrow money.

• Establish courts.

• Charter corporations and banks.

• Make and enforce laws.

• Eminent domain: take private property for public use, subject to compensation.

Reserved Powers of the States

Powers that only the states may exercise:

• Regulate time, place, and manner of elections.

• Regulate intrastate commerce (commerce within the state).

• Organize political subdivisions like counties, cities, and school districts.

• Exercise police power over public health, safety, welfare, and morality.

• Ratify amendments to the U.S. Constitution.

Major Limitations on State Power

States may not…

• issue currency, coin money, or declare anything other than gold or silver legal tender.

• levy tariffs on imports or exports without Congress' approval.

• enter into treaties or alliances with other countries.

• enter into agreements with other states (known as interstate compacts) without Congress' consent.

• pass bills of attainder, ex post facto laws, or abridge contracts.

Obligations of the States

States also have certain obligations to the other states, subject to exceptions:

• Must give full faith and credit to the public acts of other states, such as court decisions and legal contracts. (However, note the public policy exception.)

• Must respect the equal privileges and immunities of citizens of other states; cannot discriminate against non-residents.

• Extradition of those suspected or convicted of crimes back to the state where they are wanted.

Federalism and the Courts

• Supreme Court decided it had authority to mediate issues of dual sovereignty in McCulloch v. Maryland (1819):

  • Necessary and Proper Clause (or Elastic Clause): gives Congress authority to “make all laws which shall be necessary and proper to carrying into execution” the enumerated powers: additional powers known as implied powers.

  • Supremacy Clause: federal constitution and laws “supreme law of the land.”

• Combined effect: Congress could go well beyond its enumerated powers, and states had to defer to expansion of federal power.

The Commerce Power

• Congress can “regulate commerce… among the several states.”

• Applied to state efforts to control trade between states in Gibbons v. Ogden (1824).

• During the New Deal era, Supreme Court allowed Congress to regulate almost any action that might affect the national economy: NLRB v. Jones & Laughlin Steel (1937); Wickard v. Filburn (1942).

• More recent example: medical marijuana case (Gonzales v. Raich, 2005).

The Spending Power

• Congress has the power to spend money providing for the “general welfare.”

• When Congress gives money to states and local governments, it often requires states to do things in return.

• 

  Examples:

  • Raising the drinking age to 21 (South Dakota v. Dole, 1987)

  • Seatbelt laws

  • Motorcycle helmet laws

Limits on Federal Power?

• The Supreme Court has occasionally said the federal government has gone too far:

  • In the 1990s, the Supreme Court struck down parts of several laws on federalism grounds.

  • In 2012, the Court somewhat limited the spending power in National Federation of Independent Business v. Sebelius (PPACA case): states could not lose all federal funds for existing Medicaid recipients if they refused to expand the program.

State Power and Nullification

• Two constitutional amendments designed to protect state governments' authority:

  • Tenth Amendment (states and the people retain powers not delegated to the federal government).

  • Eleventh Amendment (sovereign immunity).

• After McCulloch, some states argued in favor of the nullification doctrine: that states could refuse to follow federal laws they believed were unconstitutional.

• Reflects older compact theory of federal–state relations.

Dual and Cooperative Federalism

• Traditionally, relationship between state and national governments was understood as dual federalism: each government did its own thing, with little overlap in responsibilities.

• The expansion of national government power during FDR's presidency produced a new arrangement: cooperative federalism (sometimes called marble cake federalism).

• Rather than two separate “spheres” of power—the dual federalism model—powers of the state and national governments overlap. Reflects the nationalist theory of federal-state relations.

Cooperative Federalism in Practice

• Political scientists who defined the term believed there would be genuine cooperation between state and national governments to design effective programs.

• Instead, however, many of the new national programs gave states major administrative responsibilities but little input.

Using the Spending Power

• Congress has several options for getting the states to do things it is unable or unwilling for the federal government to do:

  • Categorical grant programs.

  • Block grant programs.

  • Using unfunded mandates.

Categorical Grants

• Federal grants to a state or local government that include specific rules and regulations for the use of funds.

• Examples:

  • SNAP (“Food Stamps”).

  • Head Start.

  • Medicaid.

  • No Child Left Behind.

Devolution and Block Grants

• States and some national politicians (former governors like Nixon, Carter, and Reagan) pushed for returning more powers to the states: devolution.

• Block grants: federal grants with fewer “strings” attached.

• Examples:

  • “Community Development Block Grants”

  • Temporary Assistance to Needy Families (TANF).

Unfunded Mandates

• Congress requires states to do things without providing the needed funding.

  • No Child Left Behind: required states to increase testing of students, but didn't pay to develop the needed tests.

  • 

    REAL ID Act: required states to make driver's licenses/state IDs more secure, but states had to spend millions changing issuing processes.

Is Devolution Dead?

• Although states are “laboratories of democracy,” and national politicians often use rhetoric supporting devolution, they remain reluctant to give up control.

• Politicians often are responding to public demands to “do something” about problems, even when state and local governments may be better equipped to solve them.