CHAPTER 3
Federalism
Learning Objectives
3.1 Define federalism and compare it to other forms of government,
including confederations and unitary systems of government.
3.2 Explain how the Constitution differentiates between federal
government powers, state government powers, and concurrent
powers.
3.3 Describe the powers accorded to Congress under Article I.
3.4 Explain the significance of the supremacy clause, the preemption
doctrine, and the full faith and credit clause of Article IV in distributing
sovereignty.
3.5 Define the five eras of American federalism and assess the role
played by the Supreme Court in articulating state–federal relations
during each era.
3.6 Evaluate different forms of federalism (layer-cake federalism versus
marble-cake federalism) in the modern era.
3.7 Identify the advantages and disadvantages of federalism in terms of
fairness and accountability.
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Comparing
Systems
of
Government
3
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What is Federalism?
Comparing Federalism to Other
Systems of Government
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– Confederation (“confederacy”)-two or
more independent states unite to
achieve certain specified common aims.
(Articles of Confederation). States are
sovereign.
– Unitary system of governmentconstituent states are strictly
subordinated to the goals of the central
government as a whole. (Great Britain)
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What is Federalism?
Federalism
Division of power
State and federal
Sovereignty
Supreme political power of a government
to regulate its affairs without outside
interference. Federal government has
certain areas and the State government
has certain areas
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What is Federalism?
Government Powers in a Federal
System
Enumerated powers (spelled out)Article 1, Section 8 to powers to the Congress
(National Government)
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Authority to levy and collect taxes, borrow
money, coin money, and regulate interstate
commerce, bankruptcies, declare war, raise and
support armies, regulations governing
immigration and naturalization. ( States
enforcing immigration law because the Federal
Government is not enforcing law)
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What is Federalism?
Government Powers in a Federal
System
Necessary and Proper Clause
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(implied powers/elastic clause) The Framers did
not intend it to be used as an instrument to
expand federal legislative authority
unnecessarily. Affords the Congress the power
to pass all laws necessary and proper to carry
out its powers. To make laws that serve as a
means to achieving the expressly delegated
power. (collect monies/taxes, need bank though
bank is not mentioned in the Constitution.
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McCulloch v. Maryland 1819.
What is Federalism?
Government Powers in a Federal
System
Later on much controversy over the Federal
Government overreaching and ignoring States
Rights.
Reserved Powers-Those powers expressly
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retained by the state governments under the
Constitution. The state's rights were not
spelled out because it was assumed that
those not delegated to the Federal
Government were reserved to the States.
Safety,health, morals, and elections
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Tenth Amendment
What is Federalism?
Government Powers in a Federal
System
Concurrent powers-Those powers
shared by the federal and state
governments under the Constitution
Think of some of the powers the Federal
Government and the State Government
share? (Both state and federal
government lay taxes, both have
banks, courts)
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reserved.
What is Federalism?
Government Powers in a Federal
System
Powers that are explicitly denied to
both national and state
governments under Article 1 of the
Constitution
 Barred from favoring one state over another in regulating
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commerce, and it cannot lay duties on items exported from
any state.
 Cannot grant titles of nobility. Employees of the
government cannot accept salaries or gifts from foreign
heads of state.
What is Federalism?
Government Powers in a Federal
System
State governments (as well as the national government) are
denied the authority to take arbitrary actions affecting
constitutional rights and liberties.
 Neither national nor state governments may pass a bill of
attainder, an act of a legislature declaring a person( or
group) guilty of some crime, and then carrying out
punishment without a trial.
 Ex-post facto law- A law that currently punishes someone
for an act that took place in the past, at a time when the act
was not illegal (it was legal when they had performed the
act)
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What is Federalism?
The Supremacy clause
Article VI (6) It creates the standard than
no other law, state constitution, or
government action may override the US
Constitution. Provides that the
Constitution and federal laws override
any conflicting provisions in state
constitutions or state laws. Override state
constitutions/laws
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What is Federalism?
The Supremacy clause
– Martin v. Hunter’s Lessee (1816)-The
Supreme court case that established
that state governments and state courts
must abide by the U.S. Supreme court's
interpretation of the federal Constitution.
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What is Federalism?
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Doctrine of preemption-When acting
under authority granted to it under Article
I, Congress may pass laws that
supersede state laws. Federal laws
supersede all state laws on the matter
No Federal law, then state can enact law
(transportation regulations) in the state so
long as Congress hasn't passed legislation
that would conflict with the state law. Also,
State laws cannot burden interstate
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commerce.(Gibbons v.Ogden (1824)
What is Federalism?
Discussion: Should the federal government enforce
unpopular drug laws against reluctant state
governments?
Discussion: Should the federal government
enforce the immigration and naturalization laws
that have been passed by Congress and assist the
states in enforcing the law ?
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What is Federalism?
Relations Between the States
Full faith and credit clause (Article IV
(4) Forces states to abide by the official acts,
proceedings, and judicial decisions made by all
other states. (Ex. Marriage/divorce/child
custody)
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 Privileges and immunities clause
(Article IV (4)-Protects the right of every citizen
to travel,reside in the state, participate in
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business, professional, and legal pursuits.
What is Federalism?
Relations Between the States
Article IV Extradition-Article IV also provides
that the criminal laws of individual states must
be respected across state lines.
When a criminal in one state escapes to
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another state, the fugitive must be returned to
the state from which he fled. He or she is
normally “extradited” or handed over to the
original state either to stand trial or to
complete a previously imposed sentence.
What is Federalism?
Relations Between the States
Discussion: If the Bill of Rights was intended to
provide certain fundamental rights for all citizens,
shouldn’t those rights be uniform from state to state?
Discussion: Can you justify, for example, giving
criminal defendants in one state less constitutional
protection than defendants in another state? On
what basis?
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What is Federalism?
Relations Between the States
Article III, Section 2
U.S. Supreme Court decides disputes between
states- Ellis Island/New Jersey or New York.
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reserved.
The History of American Federalism
Whenever concurrent legislative power is exercised,
Congress can act in one of three ways:
Preempt the states altogether and assert exclusive
control over the subject matter.
Leave the states to act on their own. (Gonzales v.
Raich (2005) p. 71 (marijuana. (Immigration would be
just the opposite; Federal government not enforcing
the law.
Provide that the operation of its own law depends on
or is qualified by existing state laws. Federal
government many enlist state actors to implement
federal policies (Obamacare)
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The History of American Federalism
5 eras of American Federalism
(1) State-centered federalism (1789–
1819, 30 yrs)-The Constitution would never
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have been ratified if there was any further
subordination of the traditional state authority.
During this earliest period of federalism states
remained the principle authority for American
citizens.
State-centered federalism in which the states
managed their own affairs with very little
interference from the federal government
National government exceedingly limited
The History of American Federalism
5 eras of American Federalism
– State-centered federalism (1789–
1819, 30 yrs; con't)– Exception was nationwide economic planning
by Hamilton. First National Bank of the United
States to assume all the debts of the state
governments.
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The History of American Federalism
5 eras of American Federalism
(2)National supremacy period (1819–
1837)
John Marshall-states have extremely
limited sovereign authority , whereas
Congress is supreme within its own sphere
of constitutional authority.
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The History of American Federalism
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5 eras of American Federalism
(2)National supremacy period (1819–
1837)
 Used Supreme court cases to advance his
national supremacy(McCulloch v. Maryland
addresses national supremacy and the
necessary and proper clause to allow the
federal government to use its broad powers
to establish a national bank.
 Gibbons V. Ogden (interstate commerce)
Fulton and the steamboat/ NJ/NY
The History of American Federalism
5 eras of American Federalism
(3)Dual federalism (1837–1937). This
period included the tenure of Chief Justice
Roger Taney until the early years of
President Franklin Roosevelt and his New
Deal. (FDR came in 1932 but wasn't until
1937 that Supreme Court let him enact his
federal policies that overtook many state
policies
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The History of American Federalism
5 eras of American Federalism
(3)Dual federalism (1837–1937).
Congress had the authority to regulate the
territories and oversee the admission of
new states, while states retained
considerable authority to regulate
economic affairs. State authority acts as a
significant limit on congressional power
under the Constitution.
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The History of American Federalism
5 eras of American Federalism
(3)Dual federalism (1837–1937).
Dred Scott (1857)- National Government
could not regulate “property” (slaves) within
the state.
Andrew Jackson (no national bank but
used the supremacy clause to uphold the
Tariff of 1828
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The History of American Federalism
5 eras of American Federalism
(3)Dual federalism (1837–1937)
Calhoun -State sovereign allowed each state
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to nullify any law passed by Congress.
Jackson thought “impractical absurdity”
Calhoun wanted to call a convention of the
states (never successful) which prompted a
compromise tariff that lowered the rate.
FDR not able to implement his national laws
that would have usurped state powers until
1937. States allowed to address economic
The History of American Federalism
5 eras of American Federalism
(3)Dual federalism (1837–1937)
Calhoun -State sovereign allowed each state
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to nullify any law passed by Congress.
Jackson thought “impractical absurdity”
Calhoun wanted to call a convention of the
states (never successful) which prompted a
compromise tariff that lowered the rate.
FDR not able to implement his national laws
that would have usurped state powers until
1937. States allowed to address economic
The History of American Federalism
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5 eras of American Federalism
(3)Dual federalism (1837–1937)
Was a small interim during this period after
the Civil War-(1861-1865) that allowed the
Federal Government (Congress) to assert
national powers and congressional
authority over the confederate states to be
readmitted to the union (13th Amendment
1865 (cessation of slavery),14thamendment
1868 (due process ( life liberty and
property by states) equal protection, and
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The History of American Federalism
5 eras of American Federalism
privileges and immunities by states and
th
the 15 right to vote despite previous
servitude; African Americans)
Also had the 16 th Amendment ( income
tax) government had more revenues and
didn't have to answer to the states) and the
17th ( allowed citizens to vote in the
senators rather than the state legislators
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The History of American Federalism
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5 eras of American Federalism
 Nevertheless, states retained considerable
authority to regulate economic affairs that
were not directly within the “stream of
commerce” (child labor and minimum wage
set aside as unconstitutional for Feds)
Summary: Throughout the 1920's and into
early 1930's
Layer-cake federalism – authority of state
and federal governments exist in distinct
and separate fields.
The History of American Federalism
5 eras of American Federalism
(4) Cooperative federalism (1937–1990)Post-New Deal FDR(1937) period as
marking a shift from layer-cake federalism
distinct and separate) to a Marble-cake
federalism -intertwining state and federal
authority in an inseparable mixture.
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The History of American Federalism
5 eras of American Federalism
(4) Cooperative federalism (1937–1990)Post-New Deal FDR(1937)
Franklin Delano Roosevelt
Justin Owen Roberts changed and allowed
many of the New Deal Programs
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The History of American Federalism
36
5 eras of American Federalism
Cooperative federalism ( especially after
the marble cake in the late 30's and with
Lyndon Johnson ( in the 60's) afforded
Congress nearly unlimited authority to
exercise its powers through means that
often coerce state into administering and/or
enforcing federal policies.
So long as a link to interstate commerce
could be offered, Congress remained free
to exert its authority over the states.
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The History of American Federalism
37
5 eras of American Federalism
Cooperative federalism (con't)marblecake)
Lyndon Johnson-Great Society Programs
Grants-in aid. Grants from the federal
government to states that allow state
governments to pursue specific federal
policies, such as highway construction.
Federal has more discretion/control.
Had Block grants but grants-in aid
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The History of American Federalism
38
5 eras of American Federalism
(5)Reagan 1980-More control to the
states. (I believe New Federalism
happened earlier than 1990's (book)
Block Grants- Grants from the federal
government to states that allow state
governments to pursue specific federal
policies such as highway construction
Monies given to the states with few strings
attached. States have more
control/discretion
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The History of American Federalism
5 eras of American Federalism
Devolution -voluntary transfer of power by
the central government to state or local
government
New Federalism favors block grants
over categorical grants
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The History of American Federalism
5 eras of American Federalism
Reagan continued
Nevertheless, Congress in 1984) imposed
national Minimum Drinking Age/Highway
funds.(Example of a coercive burden on
states that rely on federal funding.
(Democratic Controlled House)
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The History of American Federalism
5 eras of American Federalism
Reagan continued
 South Dakota v. Dole (1987) Allowed
Congress to coerce state governments to
pass state laws by conditioning grants to
those states so long as the requirements
are related to the overall spending in
question.
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The History of American Federalism
42
5 eras of American Federalism
(5)“New federalism” (1990–present)
Supreme Court reigning in the “interstate
commerce” expansion. Reagan, George
Herbert Walker, and George W. Bush
nominated judges that at least would
consider the limitations of the Federal
government and the preservation of state's
rights. So shift the Supreme court to a
stance much more favorable to states'
rights
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The History of American Federalism
5 eras of American Federalism
“New federalism” (1990–present)
Supreme Court case-United States v
Lopez (states had authority to determine
whether guns should be limited around
schools.
United States v. Morrison (2000) domestic
abuse purview of the states.
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The History of American Federalism
5 eras of American Federalism
“New federalism” (1990–present)
Eleventh Amendment-Gave some extra
teeth to this amendment. Bars citizens of
one state from bringing suit against another
state in federal court. Plaintiffs are now
restricted from bringing suits in federal
court against public employers;instead
plaintiffs must bring suit in state court.
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The History of American Federalism
45
5 eras of American Federalism
“New federalism” (1990–present)
Clinton presidency- 1994 Republican
control of House and Senate
Contract With America (Newt Gingrich)
Signed a budgetary bill that cut federal
domestic discretionary spending for the
first time in three decades.
Welfare to Work/Temporary Assistance to
Needy Families(TANP)
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The History of American Federalism
5 eras of American Federalism
“New federalism” (1990–present)
Unfunded mandates – national laws that direct state
or local governments to comply with federal rules or
regulations (such as clean air or water standards but
contain no federal funding to defray the cost of
meeting these requirements. Also absorbed nearly
30% of some local budgets.) Passed Unfunded
Mandates Reform Act of 1995- prevented Congress
from passing costly federal programs without debate
on how to fund them and addressed a primary
concern for state governments.
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The History of American Federalism
47
5 eras of American Federalism
“New federalism” (1990–present)
9/11-support for strong and emboldened
government but support has dropped
sharply.
Obamacare- Supreme Court based it on
Congresses taxing authority and not the
Interstate Commerce. So states have
elected not to participate. Will have to
assume more burden after 3 years and
very expensive to the state budget.
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Has the Federal Government
Gotten Too Big?
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Comparing Federal Expenditures to
State Expenditures
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Comparing Federal Expenditures
to State Expenditures
50
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Comparing Federal Expenditures
to State Expenditures
51
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Why Federalism? Advantages
and Disadvantages
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Advantages of Federalism
– Accommodation of diversity-respond to
the specific demands or needs of state.
– The state's culture reflected in that
state's handgun control law (Texas)
– Strengthening of liberty through the
division of powers(Madison)-becomes
harder for corrupt agreement.
– Encouragement of laboratories of
democracy-1932 Louis Brandeis.
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Why Federalism? Advantages
and Disadvantages
Advantages of Federalism
Welfare reform in the 90”s
-imposed stricter requirements
seeking welfare
Also, can tell us what doesn't work.
California's deregulation of utilities-failure
and other states(TX) tried to implement
differently.
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Why Federalism? Advantages
and Disadvantages
Disadvantages of Federalism
Fiscal disparities among the wealth
of each state that will have different
tax resources to provide for
programs. Conn. vs. Mississippi
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Why Federalism? Advantages
and Disadvantages
Disadvantages of Federalism
Central government defers to state
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entities in the governing process,
such when it requires states to fund
their own welfare programs, wide
fiscal disparities among states
localities may mean disparate and
inequitable program for citizen in
different states (matching grant
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Why Federalism? Advantages
and Disadvantages
Disadvantages of Federalism
Although federal financing of state
developmental projects or other state
programs relieves some of their
inequity, the current trend toward
reducing state dependence on the
federal government promises more, not
less equity in the distribution of
government benefits across states
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