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FEDERALIS
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WHAT’S TO COME
★
40 The Division of Power
★
43 The Evolution of Intergovernmental Relations
★
50 Federal–State Relations
★
56 Interstate Relations
★
59 Federalism and Civic Engagement Today
CITIZENSHIP AND THE DISPERSAL OF
POWER
BORDER WARS ❚ On Tuesday, May 1, 2012, Araceli Mercado Sanchez made
M
an illegal turn on her way to the store to purchase paper plates for her 3-year-old daughter’s birthday party. When she was pulled over by a sheriff’s deputy, Sanchez, who had left her home in a
rush, was unable to produce her driver’s license or Social Security card. Suspecting she was here
illegally, the deputy took her into custody and turned her over to a border-patrol agent.1
According to newspaper reports, “[T]he border-patrol agent transported her to a station in Blythe,
Calif., and then to Yuma, Ariz., where she was offered voluntary, expedited removal to Mexico. She
declined the offer. U.S. Customs and Border Protection issued her a notice to appear in court for a
removal hearing.”2 Sanchez spent two nights in a holding cell at the Eloy detention center, for processing and possible deportation.
Sanchez was brought to the U.S. illegally from Mexico at the age of 4, but she grew up in Arizona
and married Guillermo Garcia, a U.S. citizen. Her husband, a military officer stationed in Germany,
was informed of his wife’s detention just hours before deployment for combat. Sanchez had filed
necessary paper-work to comply with a 2010 policy put in place by the Obama administration
called “parole in place,” which allows immediate family members of military personnel to complete
the process of becoming legal residents without having to leave the country. But approval of her
request had not yet arrived on the day she was pulled over.
Sanchez’s ordeal was occasioned by Arizona’s SB 1070, one of the broadest and strictest immigration measures in the nation, which makes the failure to carry immigration documents a crime and gives
the police broad power to detain anyone suspected of being in the country illegally. The law, passed
by the Arizona legislature with broad support in 2010, was intended, say supporters, to assist the
federal government in stemming the influx of illegal immigrants who cost the state millions of dollars
in social services each year and who were allegedly responsible for an increase in the state’s
crime rate.3 Opponents claimed the law was a deliberate effort to drive out recent immigrants by making
their lives more difficult. The law served as a model for other states that quickly followed Arizona’s lead.
Eventually U.S. Immigration and Customs Enforcement confirmed Sanchez’s legal status and she was released.4 But until the Supreme Court ruled on the constitutionality of the
Arizona law later in the year, it was unclear whether it was permissible for state and local police to check
on immigration status of those they reasonably suspected to be in the country illegally while enforcing
other laws. In Arizona v. U.S. (2012), the court ruled such actions by the state were allowed. Writing for
the majority, Justice Kennedy wrote: “The mandatory nature of the status checks does not interfere with
the federal immigration scheme. Consultation between federal and state officials is an important feature
of the immigration system.”5
But the court struck down several other provisions of the Arizona law, including making it a state
crime for unauthorized immigrants to fail to carry proof of citizenship and forbidding undocumented
workers from applying for work. In these areas, Congress sets the rules on immigration as part of
its “inherent sovereign power to control and conduct foreign relations,” and the supremacy ✒
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As You >>
READ
• How is power dispersed in American federalism?
• How have the powers of the national and state
governments evolved over the nation’s history?
• What factors influence relations between national and
state governments today?
clause of the Constitution gives Congress the power to preempt state law where state law intrudes on federal authority. In
other words, states cannot make their own immigration laws. They must cooperate with the federal officials in the enforcement process and cannot impose their own punishments on the undocumented.
Where does that leave people like Sanchez in this tug of war between federal and state authorities? For now, they can
be detained by state authorities if they cannot provide proof of citizenship when they are picked up in connection with an
alleged crime. But the state must rely on the federal government for enforcement of immigration law, including possible
deportation; and in this arena, the federal government has broad discretion. The court also warned Arizona that it must
not engage in racial profiling or selective enforcement of its laws based on an individual’s appearance, setting up the
potential for continued litigation.
Conflict over immigration law is just one example of the tensions that can arise between our national and state governments as a result of a feature of the American political landscape known as federalism. Federalism disperses authority
among different levels of government, providing citizens with different points of access for voicing their concerns as well as
different units of authority with which to conform. This chapter focuses primarily on government at the national and state
levels, but the nation’s governmental structure is much more complex. In addition to the federal and state governments,
the United States is composed of 3,034 county governments, 19,429 municipal governments, 16,504 town and township
governments, and over 45,000 special and school district governments.6 Most of these governments have some taxing
authority, and all conduct legal and fiscal transactions with other units of government. Relationships among these various
levels of government continually evolve to reflect the changing political and financial currents of the day, potentially affecting the lives of millions of people like Araceli Sanchez.
THE DIVISION
OF POWER
Following the American Revolution, the nation’s Framers
faced the problem of organizing a rapidly growing nation
whose citizens cherished local rule. While history furnished
ideas for power sharing within
federalism Power-sharing
the national government—such
arrangement between the
as separation of powers and
national and state governments
in which some powers are
checks and balances—it offered
granted to the national
few workable models for nationgovernment alone, some
state relations. The individuals
powers are reserved to the
who framed the Constitution
states, some powers are held
were forced to devise their own
concurrently, and other powers
are prohibited to either or both
solution—a historic innovation
levels of government.
called federalism.
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Prevailing Models for Dispersing Power
Prior to the Constitutional Convention, two models of
intergovernmental relations predominated throughout the
world: unitary and confederated (see the figure on the next
page). Under a unitary form, all power resides in the central
government, which makes the laws. State or local governments act primarily as local vehicles to implement national
laws. Many of the Framers found this kind of distant government unacceptable and considered it a threat to personal
liberty. This form of government characterized the British
system against which the colonies rebelled and persists in
many nations today, including England and France.
In a confederation, states and localities retain sovereign
power, yielding to the central government only limited authority as needed. This form of government—which characterized
the government under the Articles of Confederation—was
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Great Britain has a unitary form
of government in which most
authority is exercised by officials at
the national level.
also clearly unacceptable, leading the Framers to call a convention in Philadelphia to address
its shortcomings. Confederations are, for the most part, relics of the past. Very few modern
nations employ this form of
government because it slows the
central government’s ability to
act. A confederacy does, however, characterize some intergovernmental organizations that
include nation-states as members, such as the United Nations.
The Federalist Solution
Even opponents of a strong national government understood that only a more “energetic” central power could
remedy the defects contained in the Articles of Confederation. These included a lack of control over interstate
commerce and the absence of a national currency, which
seriously limited the development of national markets.
Most significantly, however, the national government
lacked central taxing power, making it impossible to raise
money to repay the substantial debts it accumulated during the Revolution. The Continental Congress could assess
each state for taxes, but it had no
power to enforce collection. The
delegates to the Constitutional
Convention faced the problem
of providing the central government with enough power to function effectively but not so much
that it dominated the states. Federalism was their solution.
In a federal system, four main
attributes characterize power
arrangements among levels of
government:
1.
Diagrams of Unitary
and Confederated Forms
of Government
Unitary Government
Confederation
Arrows represent the flow of decisions and resources.
Central
State
Local
3.
enumerated powers Powers
specifically allocated to the
national government alone by
the Constitution.
implied powers Powers
necessary to carry out
constitutionally enumerated
functions of government.
reserved powers Powers
constitutionally allocated to the
states.
police powers Authority states
utilize to protect the health and
welfare of their residents.
Enumerated powers are
concurrent powers Powers
specifically granted to
shared by both state and
national governments.
the national government.
Article I in the U.S. Constitution expressly authorizes most of these powers.
Section 8 of Article I, known as the elastic clause,
implies that the national government exercises additional powers by authorizing Congress to make “all
laws which shall be necessary and proper for carrying
into execution the foregoing powers.” These powers
to implement constitutionally enumerated functions
are known as implied powers. The national government also exercises inherent powers characteristic
of any sovereign nation such as the power to wage
war and conduct international trade.
2. Reserved powers are granted specifically to the
states. The Constitution places certain limits upon
national power, and the Tenth Amendment reserves
to the states or to the people all powers not specifically granted to the national government. Many actions
states take with regard to protecting the health and welfare of their residents issue from their police powers.
Concurrent powers are shared jointly by the federal
and state governments.
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Attributes of U.S. Federalism
Powers of
National Government
Powers Reserved for
State Governments
Concurrent Powers
Make war
Regulate intrastate commerce
Tax and spend
Coin money
Protect health and safety
Borrow money
Pass laws
Establish courts
Charter local governments
Charter banks and
corporations
Regulate voting
Establish schools
Admit new states
Regulate interstate
commerce
Establish post offices
Raise army and navy
Establish uniform
naturalization laws
Fix standard weights
and measures
Powers Prohibited—
National Government
Powers Prohibited—States
Powers Prohibited—
National and State
Capitation tax
Make treaties
Ex post facto laws
Tax state exports
Impair contracts
Bills of attainder
Preferential treatment for
ports
Tax exports
Make war
Grant titles of nobility
4.
Prohibited powers are denied to either or both levels of government. The table above lists examples of
major powers in each category.
Many supporters felt that a federal system not only
was more practical but also
served as an additional guarprohibited powers Powers
denied one or both levels of
antee of individual freedoms.
government.
Madison argued that the federal
system offered a dual protection
of citizens’ rights. In The Federalist No. 51, he writes:
In the compound Republic of America, the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to
each subdivided among separate departments. Hence a
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double security arises to the rights of the people. The
different governments will control each other, at the
same time that each will be controlled by itself.7
For Federalists such as Madison, federalism protected
individual freedom, encouraged participation in national
affairs, and enhanced public security.
Antifederalists, however, remained suspicious of
the power of the national government. They found particularly worrisome the supremacy clause in Article VI,
which declared federal law supreme in instances when
national and state laws collided. Despite the addition of a
bill of rights explicitly limiting the federal government’s
ability to encroach on the rights of individuals and
states, Antifederalists remained uncomfortable with the
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The town-meeting form of government, which permits
local residents to act as legislative bodies, is largely
a remnant of our colonial past; however, many New
England towns still use them.
federal arrangement well into the formative years of the
new republic. They warned that the new federal system
would unravel the bonds of citizenship that they believed
flourished only in small, homogeneous communities.8 To
some extent, the debate over which conditions best foster
citizen participation—small, like-minded communities,
or larger, more diverse ones—persists. It seems clear,
however, that a federal system is well suited to a country
such as the United States, where regional interests must
seek accommodation with broader national goals.
THE EVOLUTION OF
INTERGOVERNMENTAL
RELATIONS
Although the Constitution provides ground rules for the
federal allocation of power, the balance of power among
various levels of government has not remained static. It
has ebbed and flowed over the course of the past two and
a quarter centuries, making federalism a dynamic force
in our nation’s history.
urging President Washington to support his plans
for a national bank that would finance the construction of canals and roads. Secretary of State
Thomas Jefferson opposed Hamilton’s plan,
arguing that a national bank favored northern
industry over southern farming and represented
unfair competition for state financial institutions. Congress authorized a twenty-year charter
for the bank in 1791, setting in motion a schism
between supporters of Hamilton and supporters
of Jefferson that led to the growth of the nation’s
first political parties.
The election of Federalist candidate John
Adams in 1796 increased tensions between the two
groups. In 1798, Adams pushed through Congress the
Alien and Sedition Laws, intended to stifle political
opposition to his foreign policy. In response, Jefferson,
Madison, and their allies developed the new philosophy
of nullification, which proclaimed that states had the
authority to declare national acts
nullification Doctrine that
unenforceable within their borasserted the right of states to
ders. Although both the Virginia
disregard federal actions with
and Kentucky state legislatures
which they disagreed.
passed resolutions affirming the
doctrine of nullification in 1798,
Jefferson ignored the doctrine after he won the presidency
in 1800. Several decades later, southern secessionists resurrected his nullification philosophy as the nation moved
toward civil war.9
Congress neglected to renew the charter of the First
Bank of the United States, which expired in 1811. However, it established a Second Bank of the United States
Alexander Hamilton (1757–1804) championed a strong federal
government with the power to take the lead in the nation’s
economic development (left). Thomas Jefferson (1743–1826)
broke with Hamilton, arguing that a national bank favored
northern industry over southern farming (right).
The National Government Asserts Itself:
1789–1832
In the early days of the new republic, former colonial
allies heatedly disagreed about how much power the Constitution granted the federal government. The Constitution left all sorts of questions regarding national and state
power unanswered, including the meaning of terms and
phrases such as commerce or necessary and proper. Federalists in the new government, such as the treasury secretary, Alexander Hamilton, advocated exercising strong
national authority in the arena of finance and commerce,
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In 1798, President John Adams (1797–1801)
pushed through Congress the Alien and
Sedition Laws to stifle political opposition at a
time when international tensions were on the
rise (left). Chief Justice John Marshall (1801–
1835) affirmed national supremacy in McCulloch
v. Maryland and several other cases (right).
in 1816, once again raising the ire of state banking interests. Maryland reacted by enacting a tax on operations
at the bank’s Baltimore branch, hoping to drive it out of
business. The bank’s clerk, James McCulloch, refused to
collect the tax, arguing that a state could not tax an institution created by the national government. After losing
his battle in state court, McCulloch appealed his case to
the U.S. Supreme Court, where John Marshall, a longtime Federalist supporter, presided as chief justice.
Marshall’s court was asked to decide two issues: (1)
Did the national government have the authority to establish a national bank, and (2) if so, could a state tax the
bank’s operations within its borders? In his landmark
decision, McCulloch v. Maryland (1819), Marshall ruled
against state interests on both issues. He found congressional authority to establish the bank under the “necessary and proper clause” of Article I:
The government which has a right to do an act, and has
imposed on it the duty of performing that act, must,
according to the dictates of reason, be allowed to select
the means. . . . To its enumeration of powers is added
that of making “all laws which shall be necessary and
proper for carrying into execution the foregoing powers,
and all other powers vested by
dual federalism Approach
this constitution, in the governto federal–state relationships
ment of the United States, or in
that envisions each level of
any department thereof.”10
government as distinct and
authoritative within its own
Marshall relied on the supremsphere of action.
acy clause to deny states the
power to tax a federal institution:
The result is a conviction that the States have no power,
by taxation or otherwise, to retard, impede, burden, or
in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution
the powers vested in the general government. This is, we
think, the unavoidable consequence of that supremacy
which the constitution has declared.11
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Marshall argued that taxation by the
states had the potential to destroy federal
institutions and undermine the supremacy of national law.
Marshall’s ruling set the stage for an
expansion of national power at a time
when economic production and commerce
were burgeoning. Inevitably, questions
soon arose regarding the national government’s powers to regulate commerce. In
1824, the Marshall court heard its first case
to test those powers, Gibbons v. Ogden. The case involved
a conflict between two steamboat operators, Thomas Gibbons of New Jersey and Aaron Ogden of New York. Both
men received rights to operate off the coast of New York
and New Jersey: Ogden from the state of New York and
Gibbons by an act of Congress. A lower court upheld
Ogden’s claim, ruling that the state of New York had the
right to regulate commerce with neighboring states, regardless of any concurrent national power over commerce. Gibbons appealed the case to the U.S. Supreme Court.
In Gibbons v. Ogden, the Marshall Court upheld the
supremacy of the national government in regulating commerce, not simply in intercoastal waterways but also
within states when commerce between or among states
was involved. Marshall also defined the term commerce
loosely, applying it to goods as well as to passengers.
This definition significantly expanded the power of Congress and the president to oversee the economic development of the new nation in areas previously considered
the preserve of states. Advocates for a strong federal role
in matters ranging from education to welfare would later
use the same logic to support their efforts.
Dual Federalism, Disunion, and War:
1832–1865
Nation-state relations in the period preceding the Civil
War were dominated by a philosophy of dual federalism.
Dual federalism holds that the powers of the state and
national governments are distinct and autonomous in
their own domains. Levels of government are likened
to layers in a cake that sit atop each other but do not
intermingle. This viewpoint gave rise to disputes over
the powers of each level of government, especially with
regard to finances and the thorny issue of slavery.
Marshall’s strong stance regarding the scope of federal power created resentment among southern farmers
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and financiers, who feared northern economic dominance.
generated the most controversy and continues to define
President Andrew Jackson’s administration further
many debates surrounding federalism today.
inflamed these fears by enforcing a tariff on imported goods
Federalism in the Age of
that protected northern manufacturers, causing some southerners
Commerce: 1865–1932
to threaten secession. Jackson’s
vice president, South Carolinian
With the end of the Civil War and
John C. Calhoun, resigned over
the principle of union firmly estabthe matter in 1832 and justified
lished, the nation moved into an era
his home state’s opposition to
of unprecedented economic change
the tariff by citing the Jefferand growth. Millions of rural farm
sonian concept of nullification.
workers joined large numbers of
Jackson adroitly solved the criimmigrants from foreign lands movsis by lowering the tariff, but
ing into the growing cities. The dantalk of nullification continued as
gerous working conditions in many
a debate over slavery took center
urban factories produced calls among
stage in national politics.
reformers for government intervenWhile fear of northern domition to improve the lot of American
nance and support for the doctrine
workers. During this era, however,
of nullification fueled souththe Supreme Court consistently
ern passions, the Supreme Court’s
refused to allow the federal govruling in Dred Scott v. Sandford
ernment to intervene in the right of
in 1857 inflamed abolitionist
states to issue licenses and to regulate
sentiment in the North.12 Applycommerce within their borders and
ing the perspective of dual fedrejected limits on businesses to coneralism to bolster the power of
tract for the services of employees.
the states, Chief Justice Roger In the 1830s and 1840s, abolitionists intensified
In Hammer v. Dagenhart (1918),
B. Taney rejected the authority their efforts to combat the institution of slavery.
for example, the Supreme Court
of Congress to outlaw slavery
overturned federal efforts to end
in the states and accelerated the momentum toward civil
child labor. Associate Justice William R. Day, citing the
war. Republican candidate Abraham Lincoln’s victory
Tenth Amendment, asserted that regulation of production
over a divided Democratic Party in the presidential elecwas not expressly delegated to the national government
tion of 1860 brought the legal stalemate over slavery to
and therefore was reserved to the states and to the people.13
an end as seven southern states seceded. Over the next
The Court delivered a blow to federal efforts to
four years, the United States and the Confederacy fought
restrain the growth of corporate trusts or monopolies
a bloody civil war to resolve not only the issue of slavery
in U.S. v. E. C. Knight Co. (1895).14 The E. C. Knight
but also disputes over the future of our federal system that
Company controlled over 98 percent of the sugar refining
rhetoric alone could not settle.
business in the nation and sought authority for contracts
After the Confederate surrender in 1865, Congress
to control even more. The 1890 Sherman Antitrust Act,
passed three new constitutional amendments as part of
its proposed reconstruction program. The
Thirteenth Amendment ended slavery.
The Fourteenth Amendment guaranteed
to former slaves basic rights under the
U.S. Constitution. Further, it asserts that
no state shall “deprive any person of life,
liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the
laws.” The Fifteenth Amendment gave
black males the vote. Of all the Civil
War amendments, the Fourteenth has
Failing to secure the help of the federal
government, reformers during the Progressive
Era turned to the states in their quest to end
child labor.
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however, sought to use the federal government’s interstate commerce power to limit such monopolization of
the market. In U.S. v. E. C. Knight Co., a majority of the
justices ruled that manufacturing is not commerce but
an intrastate activity subject to state control. The Court
argued that the activities of the company only incidentally and indirectly affected interstate commerce.
The Court was even reluctant to uphold a state’s power
to limit business activity within its borders. In Lochner v.
New York (1905), the Court overturned a New York state
law limiting the number of hours a baker could work.
The state legislature had passed the bill on the grounds
that extensive exposure to flour dust was detrimental to
the health of employees and that the state had the duty
to protect the health of its citizens. The Supreme Court
disagreed, arguing that the law interfered with the rights
of both the employee and the employer to enter freely
into contract, a freedom guaranteed by the Fourteenth
Amendment.15 Justice Oliver Wendell Holmes, Jr., issued
a stinging dissent that would later impact Court deliberations concerning the states’ policing powers.
Progressives during this period fought unfavorable
Court rulings by increasing pressure on local lawmakers.
Citizen reform groups, many headed by women such as
labor rights advocate Mother Jones (see “Portrait of an
Activist”), conducted marches and confronted political leaders with demands to end child labor, to improve
working conditions for women, and to limit the influence of big business on the political process. The success of interest groups at the state level put pressure on
federal lawmakers, producing a number of reforms that
again reshaped the face of federalism. Perhaps most significant among these changes were constitutional amendments permitting the federal government to tax personal
income (Sixteenth Amendment), the direct election of
senators (Seventeenth Amendment), and the expansion
of the voting franchise to women (Nineteenth Amendment). These amendments focused attention on the powers of the national government as an agent of change.
The Progressive Movement helped swing the pendulum
in the direction of increased federal power. President Theodore Roosevelt championed mine safety and meat inspection laws, signed the Pure Food and Drug Act into law in
1906, and expanded efforts to protect the nation’s forests.
Woodrow Wilson later extended federal powers over commerce by pushing for the Federal Trade Commission and
Mary Harris Jones, known as Mother
Jones, led a “Children’s Crusade” in 1903,
marching from Kensington, Pennsylvania,
to Oyster Bay, New York, to confront
President Theodore Roosevelt at his
summer home with a demand to end child
labor.
PORTRAIT
OF AN ACTIVIST
Mother Jones and the March
to Oyster Bay
It must have been a strange sight to see the 66-year-old
woman with a band of scrawny children, accompanied
by fifes and drums, marching through the streets of New
York. Mother Jones, as this Irish immigrant was known,
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had marched from Kensington, Pennsylvania—site of
a textile mill where the children and their parents were
striking—to confront President Theodore Roosevelt at his
summer home at Oyster Bay. Along the way, she stopped
to make speeches in which she asked the children to
show the stumps of fingers, hands, or limbs they had lost
while working in the dangerous mills.
Although Roosevelt refused to see her or pursue
national legislation outlawing child labor, Jones returned
to Pennsylvania and continued her fight. Her efforts first
bore fruit at the state level. In 1904, only fourteen states
forbade employment of children under the age of 14 in
factories; by 1929, nearly every state outlawed the practice. In 1904, only two states maintained an eight-hour
workday for children under age 16 in factories; by 1929,
twenty-nine states did.*
Change in the states led to progress at the national
level. In 1936, Congress passed the Walsh-Healey Act,
which prevented the use of child labor by companies
engaging in business with the federal government. In
1938, the Fair Labor Standards Act became law, prohibiting the interstate shipment of goods made by companies employing minors.
*Walter Trattner, Crusade for the Children: A History of the National Child Labor Committee
and Child Labor Reform in America (Chicago: Quadrangle, 1970), 184.
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Did
You
Know?
. . . That
Supreme Court
Justice Oliver Wendell
Holmes, Jr.—usually
celebrated for his progressive
rulings and dissents—in 1927
upheld Virginia’s right to
sterilize “feebleminded” Carrie
Buck with these brusque and
chilling words: “Three generations
of imbeciles are enough”?
the Clayton Antitrust Act of 1914. Although subsequent
Court actions weakened some of these measures, by the
time of the New Deal, the tide was clearly moving in the
direction of greater federal authority.
had previously been the states’ domain, including health,
welfare, labor relations, and agriculture. Programs for
social and employment security, a federal works project,
a national program for rural electrification, and regulation of the banking and securities industries all increased
federal participation in American life. Although federally
operated, many of these programs required state participation involving financial and human resources. The public reacted positively to Roosevelt’s so-called New Deal
initiatives, providing him with a landslide re-election
victory in 1936. The Supreme Court’s reaction was not
as enthusiastic.
In a series of cases, the Court struck down key pieces
of New Deal legislation, with Chief Justice Charles Evans
Hughes and his conservative allies on the bench usually
prevailing by a 5 to 4 vote. In 1935, the Court invalidated
the National Industry Recovery Act in the case of Schechter
v. U.S.16 The Court ruled that the act, which empowered
the president to regulate the hours, wages, and minimum
ages of industrial employees, was an unconstitutional delegation of legislative authority from Congress to the president. In U.S. v. Butler (1936) the Court invalidated portions
of the Agricultural Adjustment Act, which rewarded some
farmers for reducing production of certain commodities in
order to reduce surpluses that drove down prices. The Court
declared that such federal activities intruded into state and
individual decisions protected by the Tenth Amendment.17
Anticipating more bad news from the Court, Roosevelt
proposed a Court reorganization plan that would add one
new judge for each sitting justice over the age of 70.
Although Roosevelt pitched the plan as a way to lighten
the workload of elderly justices, he actually intended to
use it to pack the court with justices of his own choosing
The New Deal
and the Growth of
National Power:
1932–1937
Economic, not political,
developments triggered the
most dramatic increase in
federal authority, as the prosperity of the early twentieth
century gave way to the
Great Depression of the
1930s. In response to the
national crisis, President
Franklin Roosevelt’s administration created programs
of economic regulation and
development in areas that
President Franklin D. Roosevelt
(1933–1945) proposed a New
Deal with numerous federal
programs designed to address
Depression Era insecurities.
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Linda Brown of Topeka, Kansas, asked the Supreme Court to
allow her to attend a local school that only allowed white children,
helping to end segregation in Brown v. Board of Education.
who would produce decisions more to his liking. The
plan proved unnecessary, however, when the Court began
to decide subsequent decisions in the president’s favor.
Many historians credit the Court’s change in course to
Justice Owen Roberts, who altered his previously hostile stance toward New Deal legislation. His “switch in
time saved nine” prevented a confrontation over possible
expansion of the Court beyond nine members. With legal
opposition blunted, the federal government proceeded to
remake federalism by forever changing the role of the
national government in the lives of every American.
Cooperative Federalism: 1937–1960s
After 1937, Court opposition to New Deal legislation waned
and cooperative federalism became the dominant model for
state–federal relations. This approach emphasizes federal–
state partnerships as the primary means for solving public policy problems. It marries the federal government’s
financial advantage in tax collection with the states’ ability
to target services to local populations. The federal government typically sets minimum standards for benefits such
as welfare or medical
care and funds a por. . . That to get to her
tion of the costs. States
all-black school in Topeka,
have some flexibility
Kansas, third-grader
in enhancing federal
Linda Brown had to walk
benefits and delivera mile and cross a railroad
ing services, but they
switchyard, while a whitesmust also contribute to
only school was just seven
funding the program.
blocks away?
Cooperative federalism still characterizes
federal–state relations
today in areas including health, welfare, the
environment, education, and highway safety.
Such cooperative arrangements eased power struggles
between federal and state governments and allowed the
different units of government to reach mutual accommodations on a host of issues. The term marble cake federalism is sometimes used to describe the blending of
federal guidelines with state administration and implementation that characterized much social policy from the
1930s to the early 1960s.
Did You Know
?
Creative Federalism: 1960s–1970s
Linda Brown of Topeka, Kansas, just wanted to be able to
attend her local elementary school like African American
children in other states such as New York or California.
When the local school board denied her admission to the
48
•
all-white school and shuttled Linda to a separate school
for black children, her family sued for admission. When
her case and several others found their way to the Supreme
Court in 1954, Chief Justice Earl Warren found for a unanimous Court that the state of Kansas had denied Linda the
equal protection of the law guaranteed by the Fourteenth
Amendment.18 The case reversed an earlier 1896 “separate
but equal” ruling allowing the states to practice racial segregation as long as they provided relatively equal accommodations for each race. In Brown v. Board of Education,
the Court insisted that separate “is inherently unequal”
and, in subsequent cases, demanded that states tear down
the barriers to equal citizenship with “all deliberate speed.”
The decision sparked a revolution in citizen rights and
federalism. It cast a spotlight on the sometimes parochial side of state and local politics, one that seemed to
sacrifice the rights of those without a voice at the state
capitols. It likewise gave hope to those who had been discriminated against by state law that the national government would insist that every state accord all of its citizens
the same rights under the law. In a flurry of subsequent
decisions, the Court made it clear that states must conform to national standards regarding citizen rights. It also
affirmed that it would interpret the Fourteenth Amendment’s “due process” and “equal protection” clauses to
affect national standards in areas ranging from abortion19
to criminal prosecution20 to voting.21
The Civil Rights Movement of the 1950s and 1960s
produced not only new federal programs but also a model
of creative federalism that sought to eradicate racial and
economic injustice by targeting money directly at citizen
groups and local governments. Some programs offered
assistance directly to local populations, completely bypassing the states. Others allowed the federal government
to take over certain operations in states that failed to
adopt federal standards within a specific period of time.
Some federal initiatives expanded the social safety
net initiated in the New Deal by extending health and
welfare benefits to millions more Americans. Many of
these programs required state financial participation,
and this involvement has grown substantially over time.
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In 1965, for example, the federal government moved to
ensure health-care coverage for the poor under a program
known as Medicaid, which provides partial federal funding in return for guarantees from the states that they will
provide minimum coverage for all those eligible. Over
time this program has expanded in scope, and together
with new requirements emerging from health-care reform
legislation passed in 2010, the cost of keeping people
healthy will place an increasing financial burden on
particularly problematic for states because most of them,
unlike the national government, are required to balance
their budgets every year. To the added dismay of many
state officials, devolution did not stop the federal government from imposing new national standards or from
denying the states authority to develop their own policies
in some areas. Reagan himself fought state regulatory
initiatives in the areas of commerce and traffic safety and
signed into law a measure that required states to raise the
IN BROWN V. BOARD OF EDUCATION, the Court insisted that separate
“is inherently unequal” and demanded that states tear down the
barriers to equal citizenship with “all deliberate speed.”
state coffers. In some instances, the federal government
also places restrictions on who can get federal funds. To
qualify for federal money to build roads and bridges, for
example, states might be required to set aside funds to
employ a certain percentage of minority contractors.
In 1972, Richard Nixon sought to disentangle the federal government from aid to the states. He proposed a
program called revenue sharing that funneled money
directly to states and local governments on the basis of
formulas that combined population figures with levels of
demonstrated need. The expansive nature of these programs and qualifications spawned a reaction that changed
the nature of the federal–state partnership once again.
New Federalism and the Devolution
of Power: 1980–Present
The election of Ronald Reagan in 1980 brought changes to
federalism that limited the role of the federal government.
Reagan favored a model of smaller government, known as
devolution, which returned power to states and localities.
To achieve this end, he called for cutting federal programs
and reducing federal regulations that had made compliance with federal programs so burdensome to state officials. He also
reduced federal expenditures for
many existing programs and ended
revenue sharing.
Although pleased with reduced
regulation, states soon felt the impact
o f reduced federal expenditures
as they had to assume
a greater share of the
cost of government
programs. This was
President Ronald Reagan
(1981–1989) sought a
“devolution” of political
power with states playing a
more active role in governing.
minimum drinking age to 21 or face a reduction in federal highway funding.
The pace of devolution accelerated in the 1990s, as
all three branches of government seemed willing to cede
power to the states. In 1995, Congress passed legislation
requiring the federal government to provide detailed justification for programs that require states to spend more
than a certain amount of money. The following year,
President Bill Clinton supported welfare reform legislation that expanded the options available to states for
administering welfare policy. In 1995, the Supreme Court
signaled its willingness to put
cooperative federalism
the brakes on federal authorFederal–state relationship
ity by refusing to interpret the
characteristic of the post–New
commerce clause as allowing
Deal era that stressed state
and federal partnership in
the national government to
addressing social problems.
restrict the possession of handguns within a thousand feet of
creative federalism Federal–
state relationship that sought
a school. The Court said such
to involve local populations and
activity had nothing to do with
cities directly in addressing
commerce.22 More recently,
urban problems during the
the Court has strengthened
1960s and 1970s.
state immunity from federal
revenue sharing A grant
background checks for handprogram begun in 1972 and
gun buyers23 and relaxed stanended in 1987 that funneled
dards for compliance with
money directly to states and
local governments on the basis
federal antidiscrimination laws
of formulas that combined
in such areas as age24 and dispopulation figures with levels of
ability.25
demonstrated need.
Some observers of these
devolution A movement to
trends fear a reversal of hardgrant states greater authority
won rights guaranteed by the
over the local operation of
Fourteenth Amendment. They
federal programs and local use
worry that the nation will return
of federal funds that gained
momentum in the 1980s.
to an era of patchwork rights
where some jurisdictions offer
more protections than others or,
even worse, that the states will institute a more restrictive
environment for individual rights that favors the wishes of
legislative majorities. Even with recent devolution activities, however, the national government’s financial resources
allow it to retain a strong hand in steering the future course
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of federalism by providing states with financial
restrictive legislation in matters like immigration, and
incentives to adopt uniform policies.
by raising legal challenges to federal initiatives like the
Even supporters of devolution don’t want to
health-care reform act.
abandon federal leadership completely. Former
The future of federalism is likely to be clouded by
president George W. Bush championed the federal
financial uncertainty, especially in the face of the recent
government’s role in setting national testing stanserious recession. States are finding that some
dards for the nation’s public schools in his signature
federal programs are so burdensome that
legislation, the No Child Left Behind Act. He also
much of their state budgets are devoted
voiced support for an amendment to the U.S. Constito matching federal expenditures.
tution prohibiting gay marriages in order to prevent
This is particularly true of Medstates from granting marriage rights to gay couples.
icaid, which, in some states, conHot or Not?
Despite the trend toward devolution, the current
sumes 20 percent or more of state
Who should
era has witnessed presidents and Congress inclined
funds. To cope, some states have
to allow states authority and flexibility when those
begun cutting benefits and freezmake decisions
measures advance their own policy priorities but
ing reimbursements to doctors and
about school
demand greater federal control when states move in
hospitals. No doubt federal–state
curriculum:
a different direction. This is no less true for the Obama
relations will continue to evolve as
the federal
administration than it was for those in the recent past.
both levels of government tussle
For example, while President Obama allowed states to
over funding and their respective
government,
pursue their own paths when it came to matters like gay
responsibilities in a challenging
the states,
marriage, he took advantage of the economic downturn
economic environment.
or local
to aggressively use federal stimulus monies to advance
school
initiatives championed at the federal level in the areas
of health care, education, and energy policy. Some of
boards?
these initiatives even required the use of state financial
resources to accomplish these ends. Some believe these
actions border on a reversal of the traditional relationship between the states and federal government.
We have already discussed the broad outlines of
“Rather than states being the laboratories of democfederal–state relations from a historic perspective,
racy in and of themselves,” one expert says, “some of
noting the political currents that have characterized
them will become the federal government’s laboratothe relative powers of each level of government. We
ries of democracy.”26 This has created new tensions as
state legislatures challenge federal authority by refusnow turn our attention to the means by which these relationing federal cash in areas like transportation, by passing
ships continue to be redefined fiscally, politically, and legally.
FEDERALSTATE
RELATIONS
The debate over health-care reform pit supporters of a federal
mandate against states’ rights activists.
Fiscal Relations
Although national and state governments have
concurrent powers to tax and
spend, the federal government collects far more tax
revenue than do the states—
nearly three-fifths of all tax
revenue—and spends almost
twice as much as
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CHALLENGES AHEAD
The Supreme Court settled affirmatively
one of the most controversial issues
regarding the Patient Protection and
Affordable Care Act; namely, the constitutionality of the federal mandate that
individuals purchase health-care coverage. But the nature of that penalty was
called into question. During the debate
over health-care reform, proponents
were careful not to call this penalty a tax.
Instead, the mandate was to be enforced
by imposing a fine on those who failed
to obtain medical insurance. The federal
government is given the power to impose
this mandate, proponents argued, on
the basis of the commerce clause of the
U.S. Constitution. The clause has been
used over time by the federal government to regulate
the commercial activities that reach across states. The
medical market is national in scope and impacts citizens
in all states.
Chief Justice Roberts was able to cobble together a
majority only for the position that the mandate is sustained by the federal government’s taxing authority. He
rejected, however, the idea that the commerce clause
could be used to force individuals to buy things simply
because the government believes it is good for them.
This would be like forcing people to buy vegetables to
improve their health. Instead, Congress can, without
overstepping its authority, tax individuals in order to
achieve some salutary goal. Thus, the mandate is a tax
and not a penalty related to commerce.
The distinction between a tax and a penalty may be
crucial for the future of federal–state relations. By rejecting
the federal government’s use of the commerce clause, the
chief justice signaled the Court’s unwillingness to take an
state and local governments combined. Much spending
goes directly to individuals in the form of income security
through programs such as Social Security and Medicare
for the elderly. Many other programs, however, are funded
through grants-in-aid, which account for about 17 percent
of the federal budget. Nearly 90 percent of these grants
go directly to state governments, accounting for almost
30 percent of all state revenues.27 In turn, much of the
money spent by local governments comes from state grants.
Grants-in-aid are as old as the republic, but their use
became more widespread during the middle of the nineteenth century. One of the most successful aid programs
was the Morrill Act of 1862, which granted land to states
for building public universities specializing in agriculture,
mechanics, and military science. Early in the twentieth
century, the federal government increased the amount it
OF TAXES AND
VEGETABLES
expansive view of this authority. The decision left open the
possibility that the more conservative members of the Court
might entertain future challenges to federal programs long
justified on the grounds that they regulate activities with
a “substantial economic effect” on interstate commerce.
*Among the programs that have prevailed under the commerce clause since the New Deal are regulations regarding
workplace safety, the minimum wage, and civil rights.
The four justices who agreed with the decision but
rejected Chief Justice Roberts’s reasoning seemed to
realize the potential impact of rejecting the commerce
clause argument. Writing the concurring opinion, Justice Ruth Bader Ginsburg argued: “The Chief Justice’s
crabbed reading of the Commerce Clause harks back to
the era in which the Court routinely thwarted Congress’
efforts to regulate the national economy in the interest of
those who labor to sustain it.Ӡ
*NLRB v. Jones & Laughlin Steel Corp. 301 U.S. 1 (1937).
†
National Federation of Independent Business, et al. v. Sebelius, Secretary of Health and Human Services, et al. Slip Opinion, June 28, 2012.
appropriated for grants to the states, as it assumed greater
responsibility for interstate transportation as well as for the
health and welfare of its citizens. Grants programs further
expanded during the New Deal to address state needs arising from the Great Depression and again in the 1960s as
the federal government earmarked more funding for local
programs to revitalize urban life and to reduce poverty.28
The federal government employs a variety of grant programs to states and localities to carry out congressionally
approved initiatives. The two most common are categorical and block grants. Some types of grants give the donor
more authority in specifying how the money is spent.
Other types provide the recipient with more choices.
Categorical Grants
The largest class of grants-in-aid
is called categorical grants. These are reserved for special
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On February 17, 2009, President
Obama signed into law the American
Recovery and Reinvestment Act,
providing $787 billion in stimulus
money aimed at creating jobs to
further economic recovery starting at
the state level.
purposes such as health care for
the poor, highway safety, or flood
assistance. These grants sometimes require the receiving government to provide matching funds
and may include additional provisions to ensure the funds are spent
in a manner Congress approves.
Such funds, for example, cannot
be allocated in a way that discriminates on the basis of the race, ethnicity, or gender of those receiving
government services.
Some categorical grants are
made available to all eligible jurisdictions on the basis
of a formula, usually based on population and other factors. Medicaid is the largest such categorical grant to the
states, providing half or more of
the funds necessary to medically
categorical grants Federal
insure state residents who fall
programs that provide funds
for specific programs such as
below a certain income level. The
flood assistance.
states are required to pick up the
remaining costs and to provide a
block grants Federal programs
that provide funds for broad
minimum level of assistance.
categories of assistance
Categorical grants also fund
such as health care or law
specific projects targeted by
enforcement.
Congress for special treatment.
These project grants are awarded
on a competitive basis for a given period of time. In recent
years, presidents have used this type of funding to entice
states to participate in education reform. Under President
Obama’s “Race to the Top” program, the Department of
Education makes competitive grants to states that promise to advance more strenuous teacher evaluation and open
new charter schools.
The federal government currently sponsors over 750
categorical grant programs designed to help states and
local governments solve problems they cannot tackle
with their own resources.29 Critics claim that these programs impose burdensome requirements on recipients
and create a bewildering array of overlapping programs
that lack coordination.
how to spend its resources and relieve it of the need to
apply for grants from several different agencies. Unlike
many categorical grants, however, block grants place a
cap on federal funds. Critics of block grants claim that
Federal Grants to States
and Localities, FY 2012
(Estimated)
Other
Natural resources and environment
General government
Agriculture
Justice
Community and regional
development
Transportation
Income
security
Health
Block Grants
Originally devised in 1966, block
grants combine funding purposes of several categorical
grants into one broader category, allowing greater flexibility in how the money is spent.30 A block grant for
public health, for example, may combine previous grants
that allocated funds for eradicating individual illnesses.
Block grants allow the recipient government to decide
52
•
Education, training,
employment, social services
Source: Office of Management and Budget.
Note: These projections were subjected to cuts during fiscal year negotiations with Congress.
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it is believed that most will want to avail themselves of the generous funding that comes with
this program for the next several years.
Political Relations
Some programs, like the No Child Left Behind Act, establish
federal mandates but do not supply all the money necessary to
carry them out.
federal policymakers often have no way of knowing how
the money is spent or whether target programs meet the
needs for which the money is allocated.31
Ronald Reagan combined seventy-seven categorical
programs into just nine block grants in 1981 as part of
his commitment to devolving federal power.32 Congress
slowed the move toward block funding in subsequent
years but embraced it as a centerpiece of welfare reform
in 1996. Prior to this, categorical grants provided assistance to families living in poverty, guaranteeing funding
to recipients as long as they were in need. The new legislation called for block grants that allowed the states to
vary the amount and time for which recipients qualified
for assistance. This new approach allows states to adjust
requirements to local needs but creates a degree of variation that is sometimes confusing to recipients and difficult
for policymakers to monitor. The recent economic downturn has seen an increased number of destitute families
who have exhausted their benefits and are unable to find
jobs in a weak economy (as we discuss in Chapter 15).
The Patient Protection and Affordable Care Act passed
in 2010 added complexity to the grant-in-aid program. In
addition to requiring state compliance with the overall
provisions of health-care reform, the act makes dozens of
new formula and project grants available to the states for
programs such as community health, creation of high-risk
insurance pools and health-exchange databases, HIV prevention, and quality measurement. Many of these require
matching state funds, and some states had been reluctant
to apply for them because of the future commitments they
will incur. Of particular concern to many states struggling
with budget shortfalls was the portion of the health-care
law threatening to withhold federal Medicaid funds from
states failing to expand Medicaid protection to nonelderly
individuals with incomes up to 133 percent of the poverty
line. The Supreme Court’s invalidation of this provision
in their landmark 2012 ruling on the health-care law lets
states opt out of this provision without penalty, although
The interests of political actors at the national,
state, and local levels are often at odds for a number of reasons. Policymakers at each level face a
different constellation of legal, social, and political
pressures that can affect their fortunes at the polls.
As a result, it is not unusual for them to differ over
how best to fund government programs. As noted,
some types of grants—categorical grants, in particular—give the federal government more authority over the recipient government. Categorical
grants that provide visible benefits, like highways and
bridges, continue to be popular with Congress. They
enable lawmakers to take credit for creating programs and
for steering federal funds to their home districts or states.
In addition, they provide strict accountability for the use
of federal money. Some programs funded in this way also
create grateful constituents who receive ongoing benefits
that are protected by law. Lawmakers who depended on
minority voters for electoral support, for example, often
champion categorical grants, which can include provisions
for affirmative action hiring or for minority participation.
By contrast, many state and local officials favor the
decentralization, experimentation, and flexibility associated with block grants. They argue that local officials
know best how to address local problems and that they
should be free to experiment to
find solutions that work best for
federal mandates Federal
their own citizens. Members of
requirements imposed on state
and local governments, often as
local government have a stake in
a condition for receiving grants.
maximizing the flow of federal
dollars and minimizing the cost
unfunded mandates
Requirements imposed on
of compliance to taxpayers. With
state and local governments for
block grants, they may be able to
which the federal government
devote more dollars to pressing
provides no funds for
needs without raising taxes. They
compliance.
may even be able to subsidize
purely state and local functions by the infusion of federal
funds with few strings attached. Congress, however, has
curbed the growth of block grants, and studies show that
the administration of block grants is uneven. Some states
with a highly professional bureaucracy have successfully
addressed social problems with block grants, but other
states have lagged behind.33
State and local officials are also concerned about the
growing use of federal mandates—federally imposed
requirements on state and local governments ranging from
election reform to water treatment. They are especially
anxious about unfunded mandates, which are requirements that Congress passes without providing funds to
carry them out. In 1995, Congress passed the Unfunded
Mandates Reform Act to stem the tide of such mandates.
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The act requires the Congressional Budget Office to flag
law enforcement officers to determine immigration status
legislation that costs state governments or private secduring any lawful stop; created state crimes and penaltor bodies within the states more than $50 million for
ties for failure to carry federally issued alien registration
compliance. The bill’s sponsors hoped that members
documents; made it unlawful for an unauthorized alien
of Congress would be unwilling to pass legislation that
to knowingly apply for or perform work in Arizona; and
clearly increased the costs passed along to their home
permitted an officer to make a warrantless arrest if the
states. Although a Congressional Budget Office review
officer has probable cause to believe the person has comfound that this tactic substantially reduced the growth
mitted any public offense that makes the person removof unfunded mandates, such mandates persist.34 The
able from the United States. The federal government
No Child Left Behind Act, for
claimed the law intruded into an arena of federal jurisexample,
required
states
to
diction and sought to have the law overturned. In June
intergovernmental lobbies
adopt rigorous testing of stu2012, the Supreme Court affirmed the federal governProfessional advocacy groups
dents in a variety of subjects
ment’s “inherent sovereign power to control and conduct
representing various state and
local governing bodies.
but failed to provide full fundforeign relations.” It said the supremacy clause of the
ing for its implementation. The
Constitution gives Congress the power to preempt state
National Council of State Legislatures estimates that the
law where state law intrudes on federal authority. Nevact has cost the states more than $27 billion in unreimertheless, the court let stand a provision of the Arizona
bursed expenditures since its inception.35
law that allows state and local authorities to require
Debates over federal funding have spurred the growth
proof of citizenship from individuals police detain on
of intergovernmental lobbies to advance the interests of
suspicion of committing a crime. Those who cannot provarious state and local governing bodies. The National
vide such proof can be handed over to federal authorities
Governors Association is perhaps the oldest of these,
for possible deportation. The impact of this decision may
tracing its roots to the administration of Theodore Roobe widespread because many states have adopted similar
sevelt. The U.S. Conference of Mayors also lobbies
or even more restrictive immigration laws. Litigation is
actively at the state and national levels for programs that
likely to continue, however, over how the law is applied
address urban problems. Other lobbying groups represent
and whether enforcement discriminates against particuprofessional bureaucrats and administrators responsible
lar ethnic groups.
for the daily operation of government programs. Only a
The second landmark decision came in the challenge
handful of such groups existed prior to 1900; by the midto the Patient Protection and Affordable Care Act, Presi1980s, that number had mushroomed to more than
dent Obama’s signature legislative achievement. The law,
one hundred.36
which narrowly passed Congress, increased the regulaIt must also be realized that some types of
tion of the health insurance industry by requiring compapolicies are more likely to be promoted and
nies to accept all applicants regardless of previous illness,
more likely to be successful if they are underto remove maximum lifetime limits on benefits, and to
taken by one level of government rather than
allow children up to the age of 26 to remain on their
another.37 For example, the national government
parents’ insurance. The most contentious provision
is better equipped than state and local governments
required all persons to buy health insurance and
to address problems that spill across geographic
provided assistance in the form of subsiboundaries, like air pollution, or that involve the
dies to those who could not afford it. It
infusion of substantial resources, like aid to the
also established health-care exchanges
poor. State and local governments are better at
designed to help consumers comaddressing issues that require pinpoint targeting
pare insurance rates. Finally, the bill
Hot or Not?
of resources, like economic development for citrequired states to use Medicaid funds
ies or education reform.
to cover all non-Medicare eligible
Should states
individuals under 65 with incomes
and local
below 133 percent of the federal
governments
Constitutional Issues
poverty threshold. In what many
have the
observers believed was a surprising
decision, the Court upheld the law,
power to
The year 2012 was one of the most consequential in the
including the mandate that individuconstitutional history of federalism. Two issues were
regulate
als purchase health insurance if they
paramount: immigration and health care.
handguns?
are not covered by some other plan.
Immigration has traditionally been the province of
However, the Court rejected the claim
the federal government, specifically the U.S. Congress.
that the mandate reflected the constiAs we read in the opening vignette, Arizona passed its
tutionally permissible use of the comown immigration law in 2010, claiming that Congress
merce clause in regulating the behavior
had failed to protect Arizona’s borders by not providing
of individual actors in a national healthsufficient resources to fully enforce its own immigration
care market. Instead, the Court found the
laws. Among other things, the Arizona law required
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In 2008, the Supreme Court affirmed an individual citizen’s Second
Amendment right to bear arms, setting up future judicial challenges
over the legality of gun bans in major cities across the country.
mandate was sustained only under Congress’s power to
tax, a power they can use to promote the general welfare. This is an important distinction that may have longer term consequences. (See “Challenges Ahead”.) The
ruling also rejected the federal government’s authority
to deny Medicaid funds to states that refuse to expand
coverage to non–Medicare-eligible poor. The denial of
funds, the Court held, would constitute undue pressuring
of the states to accept policy changes with which they
disagree or find it impossible to comply.
The reasoning behind the health-care ruling reflects
the more restrictive stance the Court has taken in recent
years in cases involving the commerce clause. The clause
that allows Congress the right to regulate interstate commercial activities had been broadly interpreted since the
New Deal to allow the regulation of activity within the
states if those activities impacted interstate business and
the national economy. The Court had even allowed the
use of the clause in civil rights cases barring discrimination, such as Heart of Atlanta Motel, Inc. v. United States
(1964). In Garcia v. San Antonio Metropolitan Transit
Authority (1985), the Court held that Congress has the
power under the commerce clause to extend the Fair
Labor Standards Act to state and local governments. This
act requires that employers provide minimum wage and
overtime pay to their employees.38
In 1995, however, the Court, in United States v. Lopez,
signaled a new willingness to put the brakes on the expansion of powers granted under the commerce clause. The
case involved Alfonzo Lopez, Jr., who was charged with
violating the 1990 Gun-Free School Zones Act for carrying a concealed firearm into his Texas high school. He
argued that the law was unconstitutional because it relied
upon the commerce clause to regulate an activity that was
not strictly economic. The Supreme Court agreed, arguing that carrying a firearm near a school was insufficiently
related to commerce to justify regulation. The Court similarly limited Congress’s reach in United States v. Morrison
(2000) when it invalidated a provision of the federal Violence Against Women Act (VAWA). The case involved a
Virginia Tech freshman who claimed she was raped by two
members of the football team. When the state did not bring
an indictment, the federal government used the VAWA to
intervene. The Court invalidated portions of the act saying
that the law outlawed criminal activity already regulated by
the states and that it had no clear connection to commerce.
The Court also said the federal government had overreached in applying the Fourteenth Amendment in this case
because the amendment applies to regulating the behavior
of states and does not directly apply to individuals.
The Court moved again in recent years to limit congressional power over the states in a series of cases citing
the Tenth Amendment. In the 1976 case National League
of Cities v. Usery, the Supreme Court invalidated a federal law that extended the minimum wage to almost all
state and local employees. The Court’s majority argued
that the Tenth Amendment prohibited the national government from dictating what states can pay their employees. In 1992, the Court said Congress could not require
the state of New York to dispose of low-level radioactive
waste at its own expense in order to meet federal mandates
just because the private party that generated it could not
find suitable alternate means for disposal. Citing the Tenth
Amendment, Justice Sandra Day O’Connor said the law
“would ‘commandeer’ state governments into the service
of federal regulatory purposes, and would for this reason
be inconsistent with the Constitution’s division of authority between federal and state governments.”39 Several
years later, the Court invalidated a provision of the Brady
Handgun Violence Prevention Act requiring the chief lawenforcing officers in the states to run background checks
on handgun purchasers. The Court once again held it
unconstitutional to enlist the state in enforcing federal
law.40 However, in 2005, the Court ruled against California
in striking down a state law permitting the possession and
use of marijuana for medical purposes, holding that Congress’s authority to control the trafficking of controlled
substances trumped the state’s Tenth Amendment rights.41
Some states have proposed or passed resolutions
of state sovereignty based on the claim that the Tenth
Amendment gives them the authority to nullify federal
laws with which its legislature disagrees. These resolutions, however, lack the force of law.
Several cases in the late 1990s also cited the Eleventh
Amendment in upholding state sovereignty. In these cases,
the state was found to be immune from lawsuits brought by its
own citizens whether filed in federal court or within the state’s
own court system. For example, in Alden v. Maine (1999),
probation officers sued the state for failure to pay overtime in
violation of federal law. Citing the Eleventh Amendment, the
court ruled the states are immune from such suits. Writing for
the majority, Justice Anthony Kennedy held:
Federalism requires that Congress accord States the
respect and dignity due them as residuary sovereigns and
joint participants in the Nation’s governance. Immunity
from suit in federal courts is not enough to preserve that
dignity, for the indignity of subjecting a non-consenting
State to the coercive process of judicial tribunals at the
instance of private parties exists regardless of the forum.42
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The establishment of same-sex marriage laws in some states
begs the question of whether other states must recognize these
unions when gay couples move.
INTERSTATE RELATIONS
More recently, the Court has issued mixed judgments
on Eleventh Amendment protections for the states. While
the Court upheld Florida’s claim of immunity from
lawsuits by rejecting a suit brought by state university
employees claiming age discrimination,43 it affirmed the
right of a disabled man to sue the state of Tennessee for
not complying with portions of the federal Americans
with Disabilities Act by providing elevator access to a
state courtroom.44
Clearly, the range of powers legitimately exercised by
the national and state governments continues to undergo
constitutional examination by the courts. Similarly, the
range of powers exercised by local governments has
not escaped Supreme Court scrutiny. In 2008, a divided
Court in District of Columbia v. Heller rejected a strict
gun control law in the District of Columbia, arguing
that the Constitution provides federal protection for an
individual’s right to bear arms.45 In 2010, the Court, in
McDonald v. City of Chicago, extended the constitutional
protection of the Second Amendment’s right to keep and
bear arms to every jurisdiction in the nation.
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To function well, our federal system requires coordination
not simply between the national and state governments
but across state boundaries and even among localities
within the states. The Framers provided some guidance
for interstate relations in the Constitution, but the contours of interstate cooperation and competition continue
to evolve.
Cooperation and Competition
The full faith and credit provision of the U.S. Constitution directs states to recognize legal judgments in lawsuits that are valid in another state. An individual who
owes a sum of money to a creditor in Pennsylvania cannot escape his obligation by fleeing over the border into
Delaware. Delaware is required to recognize the judgment and enforce it if the creditor pursues him. Recognizing that not all interstate relations would be amicable,
however, the Framers provided that states with legal disputes may take their cases directly to the Supreme Court.
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One current issue that touches upon this provision is gay
marriage. If one state recognizes gay partners as legally
married with all the rights and benefits that accrue to married couples, must a state that outlaws gay marriage grant
the same recognition to the couple if they move within
its borders? Does federal law recognizing marriage as
between a man and woman trump same-sex partner marriages in the states?
Section 2 of Article IV provides that the citizens of
each state shall be entitled to all the same privileges and
immunities of citizens of the several states. This wording is ambiguous, however, and litigants often have asked
the courts to interpret its meaning. The Supreme Court has
ruled that states may not discriminate against nonresidents
when it comes to fundamental rights like freedom to make
a living and access to the political and legal processes of
the state. However, states can treat nonresidents differently in a number of other areas. For example, nonresident workers may pay different tax rates than residents,
and nonresident students may pay higher tuition and fees
at state schools.46
Cooperation among states is often fostered by the use
of interstate compacts, a device that is given explicit
approval “with the consent of Congress” in the Constitution (Article I, Section 10). Such compacts may involve
agreements to share environmental responsibility for
waterways that cross their borders or to develop transportation authorities across borders with the power to collect
fares and distribute revenues. Of course, not all states see
States have engaged in bidding wars by offering tax breaks and
other incentives to win foreign investors.
eye to eye when it comes to the
full faith and credit
use of resources that cross borConstitutional provision
requiring each state to
ders. Disagreements can result
recognize legal transactions
in political conflict or even
authorized in other states.
litigation before the Supreme
privileges and
Court. In 2007, Illinois residents
immunities Constitutional
and political leaders forced an
phrase interpreted to refer to
Indiana oil refinery to back down
fundamental rights, such as
freedom to make a living, and
from its plans to release higher
access to the political and legal
levels of waste products into
processes of the state.
Lake Michigan along the lakeinterstate compacts
shore both states share. Indiana
Cooperative agreements made
had given permission for the inbetween states, subject to
creased waste disposal but was
congressional approval, to
saved from litigation and conaddress mutual problems.
tinued political turmoil when the
refinery itself decided to withdraw its request.
Recent years have witnessed increased competition
among states as they vie for business investment. Despite
growing burdens faced by many states as a result of economic stagnation, increased costs for education and welfare, and federal mandates, states have been reluctant to
raise taxes for fear they will scare off potential investors or
lose businesses already planted within their borders. Competition has grown particularly fierce over foreign investments that make up a larger portion of American business
operations as globalization picks up steam. States find
themselves in escalating bidding wars by offering companies tax breaks and other incentives. It is estimated that in
1980, “landing a new Nissan plant cost Tennessee $11,000
per job created. In 1985, recruiting the Saturn Corporation cost the state $26,000 per job. In 1992, it cost South
Carolina more than $68,000 per job
to bring in a BMW plant, and the
estimates range from $150,000 to
$200,000 per job for the Mercedes
Benz plant in Alabama” that began
operating in 1997.47
Innovation in the States
In his dissent in the case of New State
Ice Company v. Liebmann (1932),
Justice Louis Brandeis argued that
the state of Oklahoma should have
the authority to determine which
businesses serve the public interest and therefore should be required
to obtain state licenses. This was
a legitimate way for them, he felt,
to protect public health and safety.
His dissent is most famous, however, for his faith in the power of
states to innovate within our federal
system:
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eighty-eight public policy areas ranging from corrections
to welfare from 1870 to the mid-1960s.49 Walker found
that larger, wealthier states whose urban populations are
well represented in the state legislature are most likely
to innovate and to more rapidly adopt ideas pioneered
in other states. New York, Massachusetts, and California
consistently scored near the top in state innovation.
Stronger competition between parties seems to have
increased state innovation after 1930. Presumably, competition makes the political parties less complacent and more
likely to innovate in order to bring new voters to their cause.
Walker also found greater innovation in states with more
professional legislatures and state bureaucracies. Regional
competition also increases innovation; states adjacent to
innovators are themselves more likely to innovate. Finally,
he found that the changes in mass communication and
technology allowed for more rapid and widespread adoption of new initiatives. More recent studies have found that
innovation is related to a state’s level of economic development and the availability of policy entrepreneurs—what we
might call legislative risk takers—who are willing to spend
considerable personal effort in advancing new ideas.50
Average Time for Diffusion
of Innovations (in Years)
Time Period
All Adoptions
First 20 Adoptions
1870–1899
52
23
1900–1929
40
20
1930–1966
26
18
Source: Jack L. Walker, “The Diffusion of Innovations Among the American States,”
American Political Science Review 63, September 1969, 895.
To stay experimentation in things social and economic is
a grave responsibility. Denial of the right to experiment
may be fraught with serious consequences to the Nation.
It is one of the happy incidents of the federal system that
a single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.48
American history is replete
with examples of public policy
innovation by states that served
as a catalyst for widespread
change. In 1898, South Dakota
passed a law granting voters the
right to initiate all forms of legWA
islation. States throughout the
Midwest quickly adopted the
OR
measure, as did many western
states. More recently, welfare
reform initiatives that originated
NV
in Wisconsin in the early 1990s
CA
served as a model for national
legislation in 1996. Health care
for low-income populations has
also improved as a result of state
initiatives in recent years. Massachusetts passed a law mandating the
purchase of health-care insurance in
2006, and President Obama adopted
AK
a similar approach in his effort to
promote universal health-care coverage in 2010.
Just how extensive is innovation
and diffusion in the American federal system? The question is hard
to answer because innovation is difficult to measure. Nevertheless, several
studies cast light on the matter. In a
pathbreaking study published in 1969,
political scientist Jack L. Walker
studied the spread of innovations in
Winning the Freedom to Marry:
Progress in the States
58
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MT
ND
ID
AZ
WI
SD
WY
IA
NE
UT
VT
MN
CO
IL
KS
OK
NM
TX
MO
AR
LA
NY
MI
PA
IN OH
KY
WV VA
NC
TN
MS
AL
ME
GA
NJ
DE
MD
DC
NH
MA
RI
CT
SC
FL
HI
Marriage
Broad domestic partnership/
civil union
Some protection for samesex couples
Broad domestic partnership/civil union
and anti-gay constitutional amendment
Neither relationship recognition
nor constitutional amendment
Anti-gay constitutional
amendment
Source: www.freedomtomarry.org/states
Note: Current as of November 2012.
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With over a half-million elective offices in the United States, 96 percent of which are at the local level of government, opportunities for
political involvement abound.
Walker and others have confirmed that federal grantsin-aid significantly shorten the time of diffusion, especially
among states that typically are slower to embrace innovation.51 Some states are willing to innovate consistently, but
the federal government must prod others into action.
Just as some levels of government are better equipped
to handle certain functions than others, each level of government also provides a unique combination of opportunities and challenges for citizen participation. Let us turn
to this topic now.
FEDERALISM AND CIVIC
ENGAGEMENT TODAY
Because federalism diffuses power across many competing power centers, it multiplies the number of opportunities for citizen political participation. Few of us may
have the opportunity to shape national policies directly
as members of the U.S. House or Senate, but many
opportunities exist for citizen political involvement at the
state and local level as elected officials or as volunteer
members of boards, associations, and neighborhood
councils. These positions afford citizens the opportunity
for intensive, direct participation in policymaking and
implementation and serve as training grounds for those
who wish to take the national political stage.
Participation at each level of government is also laden
with its own pitfalls and challenges. It may be easier to
devise solutions for states and localities, because local
populations are more homogeneous and share some of
the same regional values and traditions.52 Of course,
entrenched traditions that are difficult to overcome may
also hinder progress. For example, many states have
passed referenda to ban gay marriages and to bar social
services for illegal immigrants.
Although participation in the national political arena
requires patience in negotiating among competing interests and respect for a wide diversity of values and traditions, measures calling for the expansion of rights are
often more easily accommodated at the national level.
Interests that may be in the minority in an individual
state may be able to generate the critical collective mass
at the national level necessary to overcome local or
regional opposition. The civil rights movement demonstrated the strength numerical minorities can amass at the
national level.
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Ballot initiatives have become increasingly
popular devices for ensuring popular
participation in setting the legislative
agendas in many states. You can check on
the most recent ballot initiatives in your state
by examining the list maintained by Project
Vote Smart at http://votesmart.org/index.
htm. If you are interested in placing an item
on the ballot, you can contact your state’s
secretary of state for information about the
requirements. Most states require
a certain number of
signatures on a petition
and sometimes
charge a nominal
filing fee.
getinvolved!
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A group of political scientists studying the opportunities and challenges of federalism for civic engagement
summarized the matter as follows:
Active citizenship seems to flourish most naturally at
the local level and in smaller communities. This does
not mean that those who favor civic engagement should
abandon wider and more inclusive goals or that those who
favor diversity and inclusion should abandon local institutions. It does mean, however, that these two dilemmas—of
scale and diversity—pose difficult political challenges.53
Our discussion in this section echoes the debate that
raged between Federalists and Antifederalists during the
ratification of the U.S. Constitution. Federalists argued
for the benefits of combining local and regional interests
in a national policy, whereas Antifederalists were concerned that national politics would lack the unity of purpose and intensity of citizen involvement present at the
state and local levels. U.S. history shows that federalism
is flexible enough to accommodate both perspectives,
and both viewpoints often have been useful in charting
our nation’s course.
While a federal system such as ours—with many layers of government—provides added security for citizen
rights, it requires that we participate in governmental
decisions at multiple levels and understand the challenges
of participating at each level. Alexis de Tocqueville took
note of this when he toured America in the 1830s:
But when one examines the Constitution of the United
States, the best of all known federal constitutions, it is
frightening to see how much diverse knowledge and discernment it assumes on the part of the governed. The
government of the Union rests almost entirely on legal
fictions. The Union is an ideal notion which exists, so
to say, only in men’s minds and whose extent and limits
can only be discerned by the understanding.54
How much more daunting must it be for busy citizens to
fulfill the obligations of citizenship in our federal republic today!
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1.
How is power dispersed in American federalism?
•
The Constitution grants some powers, called enumerated,
to the national government. The power to declare war is
one example.
It reserves other powers for the states. For example, state
governments are empowered to create cities and towns.
It allows some powers, like taxing and spending, to be
shared jointly.
It prohibits both levels of government from taking certain
actions like passing ex post facto laws.
•
•
•
2.
How have the powers of the national and state
governments evolved over the nation’s history?
•
Federalism has produced periodic shifts in the relative
strength of the national and state governments, sometimes
strengthening the national government and sometimes
weakening it.
From our founding until about 1832, the national government asserted broad powers, particularly through court
decisions that affirmed the supremacy of national law.
From 1832 until the Civil War, a period of dual federalism
dominated in which national and state powers were kept
fairly distinct, like the layers of a cake.
After the war, the courts granted more powers to the states,
particularly in the arena of economic regulation.
The New Deal produced dramatic growth in the powers of
the national government despite resistance by the courts.
From about 1937 until the 1960s, the national and state
governments forged cooperative partnerships in addressing
social problems, with each partner contributing something
to a mix sometimes described as a marble cake.
The 1960s and 1970s witnessed a period of creative
federalism as the national government, in particular,
•
•
•
•
•
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Summary
experimented with new ways of addressing local problems
directly.
Ronald Reagan initiated an era of devolution in which
the national government turned more power and
responsibility for programs over to the states and local
governments.
3.
What factors influence relations between national
and state governments today?
•
The national government shares resources with the states
by making available various types of grants.
• Categorical grants provide funds for very specific programs and may come with a wide variety of strings
attached. Some are distributed on the basis of predetermined formulae; some are awarded competitively for
specific projects.
• Block grants fold money for programs into broader
categories and provide for more local discretion in
spending.
Members of Congress often prefer to provide categorical
grants over which they retain some control. State and local
officials often prefer block grants that provide more local
discretion. State and local officials often complain about
mandates that require states to provide services but do not
provide necessary resources.
Conflicts over the powers of the state and national governments often revolve around legal issues raised by the
Tenth Amendment, which reserves to the states powers
not granted to the federal government, and the Eleventh
Amendment, which limits the legal liability of state
governments.
Larger, wealthier states with substantial urban populations
and policy entrepreneurs are more likely to innovate with
the resources provided by the federal government.
•
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