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3 Federalism Chapter

The national cemetery at Gettysburg, where states’ rights were contested most violently in 1863.

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Federalism

T he term federal comes from the Latin foedus, which means a covenant, or an agree- ment linking different entities. A federal (or federated) system of government is one in which power is divided between a central authority and constituent political subunits.

Both types of government are linked in order to provide for the pursuit of common ends; at the same time, each government maintains its own integrity. Federalism, the doctrine underlying such a system, generally requires the existence of a central government tier and at least one ma- jor subnational tier of governments (usually referred to as “states” or “provinces”). Each tier is then assigned its own significant government powers. What may sound simple in the abstract has proven quite difficult in practice. How exactly does a political system divide sovereignty between two thriving branches of government without creating animosities among the com- peting branches that may threaten to undermine the system in the first place?De

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Learning Objectives

3.1 What Is FederalIsm? •   Define federalism and compare it to other forms of government, including con-

federations and unitary systems of government •   Explain how the Constitution differentiates between federal government pow-

ers, state government powers, and concurrent powers •  Describe the powers accorded to Congress under Article I •   Explain the significance of the supremacy clause, the preemption doctrine, and

the full faith and credit clause of Article IV in distributing sovereignty

3.2 the hIstory oF amerICan FederalIsm •   Define the five eras of American federalism and assess the role played by the

Supreme Court in articulating state–federal relations during each era •   Evaluate different forms of federalism (layer-cake federalism versus marble-

cake federalism) in the modern era

3.3 Why FederalIsm? advantages and dIsadvantages •   Identify the advantages and disadvantages of federalism in terms of fairness

and accountability

WATCH & LEARN for American Government Watch a brief “What Do You Know?” video summarizing Federalism.

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Now Although Congress often injects itself into the most hotly debated issues of the times, state governments are never far from the battle. In- deed, in a system of federalism, some state interests are responsible for spurring federal legislation forward, while states with competing interests offer resistance at every turn. Consider that by 1850, most slave states had grown tired of Congress’s half-hearted efforts at stopping fugitive slaves from escaping their Southern masters; although the Congress had passed a series of fugitive slave laws during the late eighteenth and early- to mid-nineteenth centuries, none were effective at overcoming Northern resistance. Certainly none of them proved as far reaching or as tough as Congress’s final effort in this regard: the Fugitive Slave Act of 1850. Southern officials had insisted on federal legislation that protected their states’ interests through heightened judicial enforcement; accordingly, the 1850 act—passed as part of the overall Compromise of 1850—offered slave states unprecedented protection from Northern resistors. The provisions of the law included: (1) harsh penalties imposed on marshals who refused to enforce

the law; (2) the virtual elimination of jury trials that favored the fugitive; and (3) the establishment of so- called “special commissioners” with jurisdiction to en- force the law, with or without the assistance of courts. Of course with Southern interests now emboldened, frustrated officials from Northern states continued to fight back. Eight Northern state legislatures passed so-called “Personal Liberty Laws” between 1850 and 1854—all were directed at undermining the Fugitive Slave Act by forbidding the use of state jails and requir- ing that bounty hunters provide more elaborate proof. Clearly state governments from different regions were at loggerheads, but that didn’t stop the two sides from increasingly exerting their respective wills on Congress. With room for compromise slowly dwindling, this bat- tle over states’ rights and the implications of federalism would rage on for another decade until the Civil War resolved the issue of slavery once and for all.

Antebellum Congress debates provisions of the Fugitive Slave Law in the 1850s.

U.S. Constitution featuring a federalist system, in which clear and explicit lines are drawn between the powers of sovereign state governments and sovereign federal government, is formally ratified.

1788 U.S. Supreme Court asserts its power to hold state governments to the terms of the federal Constitution in Martin v. Hunter’s Lessee.

1816 Chief Justice John Marshall articulates the national supremacy doctrine in McCulloch v. Maryland.

1819

During reign of “dual federalism,” states retain considerable authority to regulate economic affairs not directly in the stream of commerce between two or more states.

1837–1937

1850

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Although the U.S. Supreme Court in 2012 upheld most of the Patient Protection and Affordable Care Act, better known as “Obamacare,” it did strike down at least one key as- pect of the law: the so-called Medicaid expansion provisions. Since its enactment in 1965, the Medic- aid program has offered government-funded health care insurance to many families living at or below the poverty line. The health care law passed in 2010 would have required states to expand Medicaid to low-income residents living slightly above (up to 133% above) the poverty line as well; although the law required the federal government to fully fund the expansion during its initial three years, the Supreme Court decided these provisions violated states’ rights if they remained mandatory. The starkly contrast- ing positions taken by states in the aftermath of the Supreme Court’s ruling reaffirm that federalism and state prerogatives are alive and well in U.S. policymak- ing today. By late 2013, barely half the states (joined by the District of Columbia) had voluntarily embraced the Medicaid expansion provisions of the new law; by

contrast, at least 21 states had still refused to expand Medicaid in their home states, foregoing hundreds of millions of federal dollars in the process. Mean- while, governors and state legislatures in the handful of remaining states were busy negotiating with the federal government over a third possible option: ap- plying the federal funds to alternative state programs that accomplish similar goals outside the confines of “Obamacare.” Indiana, for example, asked the federal government for funds to expand its own statewide program to cover low-income residents who pay into a health savings account. The New Hampshire state government was considering a plan to channel Medic- aid money to private insurance alternatives. As long as the states have the legal capacity to go their own way in implementing policy, state officials may be willing to consider ways to adapt the federal largesse to their own interests.

Now Protestors at the Supreme Court march

in favor of Obamacare.

U.S. Supreme Court abandons dual federalism principles in a series of landmark cases, adopting a more expansive view of congressional authority.

1937 1980 Ronald Reagan elected 40th U.S. president on a party platform offering to return more policymaking authority to state governments.

1987 U.S. Supreme Court upholds National Minimum Drinking Age Act, which provides financial inducements for states to adopt a 21-year-old drinking age, as a valid exercise of Congress’s taxation power under Article I.

2012 U.S. Supreme Court narrowly upholds the Patient Protection and Affordable Care Act as proper exercise of Congress’s taxation powers under Article I.

2012

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3.1 What Is Federalism? Federalism is the doctrine underlying a political system in which power is divided between a central authority and constituent political subunits. For a system of federalism to maintain itself, it must sustain this division of powers by whatever means possible, including—but not limited to—a resort to the courts to define the proper bounds of authority. Perhaps the greatest chal- lenge facing any federalist system is the task of determining sovereignty, defined as the supreme political power of a government to regulate its affairs without outside interference. In a system based on federalism, sovereignty resides not just in the central government, but also within each of the subunits, which in the case of the United States are the individual 50 states. Yet how can there be two separate sovereign governments sharing power over the exact same territory? The distribution of national and local responsibilities to more than one sovereign power depends on how the terms national and local are defined. These definitions are important, for a government based on federalism must both achieve national unity for certain overarching purposes and also preserve local governments’ autonomy to respond to diverse subsets of citizens.

Related to these issues are complex questions concerning the nature of na- tional citizenship. American federalism rests on the principle that two separate sovereigns—the state government and the federal government—both exert authority over the individual. But can an individual citizen really be subject to two separate sovereign governments at the same time? U.S. citizens have of- ficial status as citizens both of the state where they reside and of the nation as a whole. Many take pride in both associa- tions. What remains unclear are the ob- ligations and duties that dual citizenship requires. Is national citizenship every citizen’s primary form of identification? To which sovereign government is the citizen obligated when the nation and in- dividual states are in conflict? Although these conceptual difficulties tend to be

unique to a federal system, there are other forms of government that involve multiple govern- ments or tiers of government, and these alternative forms have significant problems of their own.

Comparing Federalism to Other Systems of Government

A federal system of government can be thought of as existing on a continuum of different forms of government. At one end of the continuum is a confederation (or “confederacy”), defined as a league of two or more independent states that unite to achieve certain specified common aims. Those aims may be quite limited, as is often the case with offensive or defensive military alliances. For example, the Articles of Confederation, which prescribed the rules of government for the newly independent colonies until 1788, featured 13 states entering into “a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare.” Recently the European Community, a collection of European nations united in a commercial alliance, has acquired its own status as a type of confederation.1 Similarly, the United Nations is a league of countries from around the world that work together to enforce various provi- sions of international law. Although a confederation may be a useful arrangement to achieve some aims, it can result in political chaos, as when separate member countries bound only by limited rules strike out on their own at critical times, often to the detriment of the larger confederation.

confederation: A system of government (or “league”) in which two or more indepen- dent states unite to achieve certain specified common aims.

federalism: The doctrine underlying a system of govern- ment in which power is divided between a central govern- ment and constituent political subunits.

sovereignty: The supreme political power of a govern- ment to regulate its affairs without outside interference.

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Access Read Speaker to listen to Chapter 3.

Hispanic immigrants take the oath to become U.S. citizens.

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At the other end of the continuum is a unitary system of government, which subordi- nates the independent aims of constituent states (if any even exist) to the goals of the central whole. Although individual states within such a government may enjoy some form of repre- sentation in the central legislature (such as through the election of state senators) and may even assert their own systems of municipal law, sovereignty rests in the central government alone, with states exerting authority over citizens only through the larger government entity. Of the Western industrialized nations, Great Britain and France perhaps come closest to this unitary government ideal, with their provinces and subunits having little or no power independent of the national government. Problems with a unitary system of government often arise from the tendency toward hypercentralism, that is, the more or less complete reli- ance on the central government and the extinguishing of individual state differences. Such a system often hampers local officials from responding to the particular needs of their varying constituencies.

As Figure 3.1 shows, a federal system of government sits in the middle of this continuum, granting its member states significant power but still subordinating them to the national government in critical instances. James Madison believed this federal system was the pre- ferred “middle ground” of government types. At least 20 countries today, including Canada, Germany, Australia, and Switzerland, may be characterized as federal systems. It is the United States’ brand of federalism, however—first established with the ratification of the Constitution in 1788—that represents the most significant breakthrough in the evolution of this govern- ment type among modern nation-states.

Government Powers in a Federal System

Under the U.S. Constitution, the national government of the United States was formed to serve a community of 13 states, and each state delegated to the new central government significant powers while retaining full powers within its own constitutionally designated sphere of au- thority. The Framers of this new government relied on no overarching philosophy or political theory in designing this federalist form of government; federalism was simply a political com- promise calculated to build consensus among them. The powers delegated to Congress under Article I of the Constitution are called enumerated powers. The powers retained by the states are reserved powers. And the powers shared by the federal and state governments are gener- ally referred to as concurrent powers (see Table 3.1).

Article I, Section 8 enumerates the specific powers held by the national government. Among these are economic powers such as the authority to levy and collect taxes, borrow money, coin money, and regulate interstate commerce and bankruptcies; military powers such as the au- thority to provide for the common defense, declare war, raise and support armies and navies, and regulate the militia; and legislative powers such as the authority to establish regulations governing immigration and naturalization. Congress also enjoys the prerogative to make laws that are “necessary and proper” to carry out these foregoing powers.2

On its face, the Constitution appears to draw clear and explicit lines between the powers afforded the state and national governments: the national government assumes responsibil- ity for great matters of national importance, including the protection of national economic interests, relations with other countries, and the military security of the United States. All local and/or internal matters—including the health, safety, and welfare of citizens—were to be to the province of state governments. Indeed, in a delayed victory for states’ rights advocates who had opposed the proposed constitution before its ratification, the Tenth Amendment restates this fundamental division of powers: that any specific power not assigned to the federal govern- ment by the Constitution may be exercised by the states, unless the Constitution prohibits the states from exercising that power.

The Framers of the Constitution believed that Congress should legislate only within its enumerated powers under Article I; in their view the necessary  and  proper  clause (later referred to as the elastic clause) was not to be used as an instrument to expand federal legislative

reserved powers: Those powers expressly retained by the state governments under the Constitution.

concurrent powers: Those powers shared by the federal and state governments under the Constitution.

necessary and proper clause: The clause in Article I, Section 8 of the Constitution that affords Congress the power to make laws that serve as a means to achieving its expressly delegated powers.

unitary system of government: A system of government in which the constituent states are strictly subordinated to the goals of the central government as a whole.

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authority unnecessarily. Yet within a few years, competing views of the necessary and proper clause arose, giving the national government far more discretion in determining how to carry out its enumerated powers.

Figure 3.1 Comparing Systems of Government These three figures illustrate the most common configurations for (1) federal systems of government, (2) unitary systems of government, and (3) confederate systems of government. The directions of the arrows indicate the relationship that exists between the different forms of government. Note the two-way arrows found in the federal system.

State Government

State Government

State Government

State Government

Central Government

Federal System

State Government

State Government

State Government

State Government

State Government

State Government

State Government

State Government

Central Government

Unitary System of Government

State Government

State Government

State Government

State Government

Confederate Government

Central Government

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The Supremacy Clause

Overlaying this explicit system of enumerated powers for Congress and reserved powers for the states is the supremacy clause of Article VI, which provides that the Constitu- tion and the laws passed by Congress shall be “the supreme law of the land,” overriding any conflicting provisions in state constitutions or state laws. The supremacy clause gives special weight to the federal Constitution by ensuring that it cannot be interpreted dif- ferently from state to state. In the landmark case of Martin v. Hunter’s Lessee (1816),3 the U.S. Supreme Court rejected the Virginia Supreme Court’s attempt to interpret the federal Constitution in a way that conflicted with the U.S. Supreme Court’s own rulings. Accordingly, each state legislature and state judiciary not only must abide by the terms of the federal Constitution, it must also abide by the interpretation of those terms laid out by the U.S. Supreme Court.

The language of the supremacy clause also gives rise to the doctrine of preemption. When Congress exercises power granted to it under Article I, the federal law it creates may su- persede state laws, in effect “preempting” state authority. In practice, when a federal law clearly bars state action, the doctrine of preemption is relatively uncontroversial. For ex- ample, when the federal government acted to regulate the commercial advertising of tobacco products, it essentially “occupied the field,” and all state rules governing tobacco advertising

supremacy clause: The provi- sion in Article VI, Clause 2 of the Constitution that pro- vides that the Constitution and federal laws override any conflicting provisions in state constitutions or state laws.

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.

preemption: The constitutional doctrine that holds that when Congress acts affirmatively in the exercise of its own granted power, federal laws supersede all state laws on the matter.

Federal Government Powers (Enumerated Powers)

State Government Powers (Reserved Powers)

Concurrent Powers (Shared Powers)

Borrow money on U.S. credit Regulate intrastate commerce Spend money for general welfare

Regulate foreign commerce Regulate state militias Regulate interstate commerce

Regulate commerce with Indian nations

Conduct elections/qualify voters Establish bankruptcy laws

Conduct foreign affairs Regulate safety/health/morals Lay and collect taxes

Coin money/punish counterfeiting Ratify amendments Charter/regulate banks

Establish courts inferior to Supreme Court

Establish courts

Establish post offices Establish highways

Establish patent/copyright laws Take private property for public purposes (with compensation)

Define/punish high-seas offenses

Declare war

Raise and support armies, navies

Call forth militias

Govern District of Columbia matters

Admit new states to the Union

Establish rules of naturalization

Table 3.1 The Powers of the Federal and State Governments under the Constitution

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immediately gave way to the new federal standard. But when Congress enacts a law that does not clearly articulate its intentions with regard to state laws, a court may have to decide whether the doctrine of preemption applies, subject to later court review. In addition, Con- gress’s lack of action within its enumerated powers opens the door to limited state regula- tions. For example, a state government can enact transportation regulations affecting truck drivers in the state so long as Congress has not passed any similar laws and the state law does not burden interstate commerce.

Relations between the States

A federalist system must not only manage relations between the state governments and the federal government, it must also arbitrate disagreements among member states. A feature of American federalism in this regard is the requirement that individual states must re- spect the civil laws of all other states, as guaranteed by the full faith and credit clause of Article IV, Section 1 of the Constitution. This clause provides that each state must abide by the decisions of other state and local governments, including their judicial proceed- ings. This clause acts to assure stability in commercial and personal relations that extend beyond one state’s borders. For example, contracts duly entered into in California under the laws of that state cannot simply be ignored or invalidated by the courts in Arizona or any other state. Similarly, when an unhappy married couple meets the legal requirements of divorce in one state and ends their marriage, they are not required to meet new divorce requirements in other states, as the divorce decree of one state must be recognized as valid by every other state.

Even though the full faith and credit clause has traditionally re- quired states to respect the public proceedings of every other state, many state legislatures have attempted to prevent same-sex couples from asserting their newfound status as married couples. In recent decades at least 31 states have at various times passed laws denying recognition to same-sex marriages. In denying such recognition, these states once enjoyed the theoretical support of Congress, which in 1996 passed the Defense of Marriage Act, authorizing any state to deny a “marriage-like” relationship between persons of the same sex, even when such unions are recognized by another state. When the Supreme Court struck down section 3 of the Defense of Marriage Act in 2013, it rejected as unconstitutional a federal definition of marriage limited to heterosexual couples. Yet that ruling left intact (at least for the time being) the power of individual states to deny recognition of same-sex marriages legally formed in other states.

Another clause that provides for the equal treatment of out-of-state citizens is the privileges and immunities clause of Article IV. Through this clause, which guarantees that the citizens of each state are “entitled to all Privileges and Immunities of Citizens in the several States,” the

Constitution protects the rights of every citizen to travel through other states, to reside in any state, and to participate in trade, agriculture, and professional pursuits in any state.4 Some states have tried to limit memberships to in-state residents, or to impose hefty commuter taxes on out-of-staters who cross state lines each day for work. Such legislative efforts potentially conflict with the privileges and immunities clause. 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 another state, he or she is normally “extradited” or handed over to the original state either to stand trial or to complete a previously imposed sentence.

Article III, Section 2 of the Constitution gives the U.S. Supreme Court the authority to decide disputes between states. Although such jurisdiction is rarely exercised, the Court has taken its responsibility to arbitrate state conflicts seriously on those occasions when it has been asked to do so. For example, when officials in New York and New Jersey were battling in the

full faith and credit clause: The provision in Article IV, Section 1 of the Constitution that forces states to abide by the official acts and proceedings of all other states.

Gay marriage ceremony in Massachusetts.

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late 1990s over which of those two states could claim sovereign authority over Ellis Island, the site where millions of immigrants to the United States were initially processed, the Supreme Court authorized a fact-finding investigation on the issue. Presented with the evidence of that investigation, the Court ruled that Ellis Island was within the state boundaries of New Jersey — news no doubt to the millions of immigrants who thought they had disembarked in New York.5 The Framers of the Constitution believed it was critically important that the highest federal court enjoy the power to arbitrate disputes between state governments, a key compo- nent of American federalism.

3.2 The History of American Federalism In the more than two centuries that have passed since the ratification of the Constitution, dif- ferent conceptions of federalism have prevailed during different eras. Some of these shifting patterns in state–federal relations were inevitable given the changing state of the nation and the increasingly important role it would play in world politics. The dominance of a global economy in the late-twentieth and early-twenty-first centuries, changing patterns in population growth, and technological developments in communication and transportation all spurred wholesale reexamination of the nature of federal and state governmental functions. Various government figures—presidents, Supreme Court justices, and members of Congress—have also played a role in shaping the nature of federalism. The flexibility of the federalist system has allowed it to adapt to changing circumstances.

Although a clear delineation of periods may oversimplify history, scholars have identified at least five eras of American federalism:   1.  state-centered federalism, 1789–1819;

  2.  national supremacy period, 1819–1837;

  3.  dual federalism, 1837–1937;

  4.  cooperative federalism, 1937–1990; and

  5.  the “new federalism,” 1990–present.

Each of these periods is defined by some shift in the power relationship between the national and state governments.

State-Centered Federalism, 1789–1819

The Framers’ vision of federalism was relatively clear at the time the Constitution was rati- fied: other than in those policy areas expressly identified in Article I as subject to the national government’s control (the military, foreign affairs, creation of currency, and so on), state gov- ernments would have full sovereignty over all matters involving the health, safety and welfare of individuals. Indeed, it is tough to imagine the Constitution being ratified by the requisite number of states had it called for any further subordination of traditional state authority. And with some notable exceptions, the national government’s reach was exceedingly limited during the first 30 years of the Constitution’s history.6 At the urging of Treasury Secretary Alexander Hamilton, the Washington administration cautiously undertook some first steps in nationwide economic planning when it chartered the first National Bank of the United States and the federal government assumed all the debts of the state governments. Nevertheless, during this earliest period of federalism states remained the principal authority for American citizens. For the most part, each state managed its own affairs, often with little interference from the federal government.

National Supremacy Period, 1819–1837

Just before leaving office in 1801, President John Adams installed as chief justice of the Su- preme Court a fellow nationalist, John Marshall of Virginia. That appointment may have been

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the most significant act of Adams’s presidency; although the Federalists would never again occupy the White House or control Congress, the national-government-oriented party would influence American politics through Chief Justice Marshall for the next three decades.

Marshall’s national  supremacy  doctrine of federalism is most evident in the Supreme Court decision in McCulloch v. Maryland (1819),7 which concerned the National Bank of the United States. As Secretary of the Treasury during the Washington administration, Alexander Hamilton successfully pushed for Congress to charter the first bank of the United States in 1792, arguing that such an institution would help provide for a sound national currency and a national system of credit. Thomas Jefferson, then Secretary of State, and James Madison op- posed the bank, believing that the Constitution gave Congress no authority to charter such a bank. Consequently, when the bank’s 20-year charter expired, the Jeffersonian Republican– controlled Congress declined to recharter it. Recognizing that the lack of a national bank had hindered American efforts to obtain needed financial resources throughout the War of 1812, many in the Democratic-Republican Party, including Madison, who was now president, swal- lowed their pride and supported the chartering of a second national bank in 1816.

Marshall’s Court also refuted the power of state courts to interpret and apply the Con- stitution in ways that conflicted with the Supreme Court’s own interpretations. Thus the Constitution assumed its status as the uniform governing law of all the states. To Marshall, the Court’s duty was not to preserve state sovereignty, but rather “to protect national power against state encroachments.” Consistent with this view, the Marshall Court routinely in- terpreted Congress’s legislative authority quite broadly. In Gibbons v. Ogden (1824),8 for example, the Court invalidated a monopoly granted by the New York legislature covering the operation of steamboats in New York waters, because the New York monopoly was in conflict with a federal license.

The national supremacy doctrine articulated by Marshall was not without its critics. State politicians accused the Court of ignoring the sovereign power of the states. Some national poli- ticians were no less sympathetic. As president, Andrew Jackson opposed the National Bank and all internal improvements (such as the building of roads or canals) ordered by Congress as un- constitutional. He even vetoed a rechartering of the bank in 1832. Yet, at the same time, he also applied Marshall’s national supremacy doctrine in defending the Tariff of 1828. After Congress passed a highly protectionist tariff over the objections of Southern free-trade adherents, the South Carolina legislature adopted a series of resolutions negating the tariff on the theory that state sovereignty allowed each state to nullify any law passed by Congress that the state deemed unconstitutional. (New Englanders had used that same argument during the War of 1812 when a convention of the region’s states met in Hartford, Connecticut, in early 1815 and endorsed the right of states to interpose themselves against “dangerous infractions” of the Constitution by the federal government.) In response to the action by South Carolina, President Jackson declared that such a nullification was an “impractical absurdity” and rejected the right of individual states to refuse to obey federal laws. A call by South Carolina Senator John Calhoun and others for a “general convention of the states” to reconsider state–federal relations, including possible secession from the Union, elicited enthusiasm from numerous Southern states, but eventually the nullification crisis passed when Congress approved a compromise tariff that progressively lowered rates until they reached the same level they had been at in 1816.9

Although slavery was a crucial component of the fight between the Union and the Confed- eracy, the Civil War was at its core a struggle about the relationship between the states and the federal government. The Union’s victory undermined dual federalism’s “compact of states” prem- ise by rejecting the authority of states to leave the compact. Then, in a series of cases handed down after the Civil War, a newly constituted Supreme Court acknowledged national power and congressional authority to set the terms for readmitting former Confederate states into the Union. This power was considered an outgrowth of Congress’s exclusive and unquestioned authority not only to regulate the territories of the United States, but also to oversee the admission of new states to the Union. With 24 of the 50 states joining the Union between 1836 and 1912 (see Figure 3.2), admission to statehood was an important function of the federal government during this period.

national supremacy doctrine: Chief Justice John Marshall’s interpretation of federalism as holding that states have extremely limited sovereign authority, whereas Congress is supreme within its own sphere of constitutional authority.

McCulloch v. Maryland  (1819): The Supreme Court case that established that Congress enjoys broad and extensive authority to make all laws that are “necessary and proper” to carry out its consti- tutionally delegated powers.

Gibbons v. Ogden (1824): The Supreme Court case that held that under the Constitution, a federal license to operate steamboats overrides a state- granted monopoly of New York water rights.

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Under dual federalism, however, the states did retain considerable authority to regulate economic affairs that were not directly within the “stream of commerce” between two or more states, including matters concerning the manufacturing of products and the health and safety of factory workers. Ignoring McCulloch v. Maryland, the Supreme Court refused to give Congress the discretionary authority it enjoyed during the era of the national supremacy doc- trine. Regulatory legislation passed by Congress, such as child labor laws and many minimum wage laws, were set aside as unconstitutional. Once again the Court had greatly diminished the scope of the necessary and proper clause. Despite the onset of the Industrial Revolution, Congress was eventually rendered helpless to regulate the abuses of some businesses. Later, in the 1930s, the Court struck down a series of New Deal laws implementing pension and retirement systems for workers and regulating industrial relations.10 In this way, dual federal- ism prevented Congress from addressing the hardships brought on by the Great Depression.

Cooperative Federalism, 1937–1990

Faced with judicial opposition to New Deal policies regulating the workplace, retirement poli- cies, and other subjects traditionally ceded to the states, President Franklin D. Roosevelt (FDR) and his supporters grew increasingly frustrated. To them, the economic hardships of the Great Depression demanded an activist federal government, and a conservative Supreme Court now stood in the way. FDR and his allies in Congress proposed slowly expanding the size of the Supreme Court from 9 to what would eventually become 15, which would allow Roosevelt to “pack” the Supreme Court with advocates of a broader vision of federal legislative power.11 The proposed “court-packing plan” became unnecessary, however. As public frustration with the Court was mounting, one member of the Court in 1937 (Justice Owen Roberts) suddenly did an about-face, abandoning dual federalist principles in favor of a more expansive view of congressional authority. A shift in just one vote had a significant impact; a shift in two votes on the Supreme Court meant that nearly all federal legislation would now survive High Court scrutiny. Once Roosevelt was able to add his own judicial appointees to the mix, the Court as a whole was ready to support unprecedented exercises of congressional power.

Social scientists speak of the post–New Deal period as marking a shift from layer- cake federalism, in which the authority of state and federal governments is distinct and more easily delineated, to a system of marble-cake federalism, in which state and federal

dual federalism: The doctrine of federalism that holds that state authority acts as a sig- nificant limit on congressional power under the Constitution.

layer-cake federalism: Description of federalism as maintaining that the authority of state and federal govern- ments exists in distinct and separate spheres.

marble-cake federalism: Description of federalism as intertwining state and federal authority in an inseparable mixture.

Figure 3.2 Admission of States to the Union

KY 1792

IL 1818

IN 1816

OH 1803

PA 1787

ME 1820

DE, 1787

NJ, 1787

CT, 1788 RI, 1790

MA 1788

NH 1788VT

1791

MO 1821 MD, 1788

NY 1788

IA 1846

WI 1848 MI

1837

OR 1859

CA 1850

MN 1858

NV 1867

KS 1861

WV 1863CO

1876

NE 1867

TX 1845

LA 1812

AR 1836

MS 1817

AL 1819

GA 1788

FL 1845

SC 1788

NC 1789

VA 1788

WA 1889

AZ 1912

NM 1907

UT 1896

ID 1890

MT 1889

WY 1890

ND 1889

SD 1889

OK 1907

AK 1959

HI 1959

TN 1796

STATE Year Admitted

© 2

01 6

Ce ng

ag e

Le ar

ni ng

® .

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authority are intertwined in an inseparable mixture. This new era, later labeled as the period of cooperative federalism, in some ways harkened back to the national supremacy doctrine articulated by John Marshall. Congress once again became the judge of its own powers, in- cluding those powers implied under the necessary and proper clause. Congress could, for example, restrict the activities of labor unions, criminalize loan sharking, or enact any policy under the theory that it may be “necessary and proper” to exercise enumerated powers such as the power to regulate interstate commerce. The limits on congressional power under so- called cooperative federalism were thus quite small: so long as some link to commerce could be offered, for example, no matter how tenuous such a link might be, Congress remained free to exert its authority over the states. When Congress passed civil rights laws in 1964 under the premise that racial discrimination in restaurants and hotels “burdened” interstate commerce, the Supreme Court barely batted an eye at what was in fact an extremely broad reading of congressional authority.12

Cooperative federalism, however, can be distinguished from Marshall’s doctrine of national superiority. Whenever concurrent legislative power is exercised, Congress can act in one of three ways:   1.  Preempt the states altogether and assert exclusive control over the subject matter.

  2.  Leave the states to act on their own.

  3.  Provide that the operation of its own law depends on or is qualified by existing state laws.

This last category provides an opening in state–federal relationships that even Marshall could not have anticipated: the possibility that the federal government might actually enlist state officials and other state actors to implement federal policies.

The positive aspects of cooperative federalism are obvious. The expansion of the central government beginning in the 1930s into the $6.3-trillion-per-year behemoth that it is to- day means that federal officials now have huge sums of money at their disposal, as shown in Figure 3.3. Individual states can benefit from this pool of funds whenever the federal govern- ment passes on some of its revenues directly to the states to initiate and administer programs. Grants-in-aid from the federal government to the states have been used to fund state educa- tional initiatives, build roads, and provide unemployment relief, among other programs that fulfill purposes expressly approved by Congress and/or its federal regulatory agencies. Federal grants also help balance the economic inequities that arise because states have vastly different tax bases. Occasionally the federal government has transformed grants-in-aid, which are al- located only for specific programs or policies, into block grants, which state or local govern- ments may use at their discretion for more generalized programs.

The collaboration between state governments and the federal government in the era of co- operative federalism also carried some negative implications for state sovereignty. Federal gov- ernment officials increasingly insisted that federal appropriations to the states be accompanied by various conditions. Often these consisted of “protective conditions,” designed to ensure that the state would administer its program consistent with the objectives of Congress. For example, Congress required that states receiving educational assistance meet federal requirements for educating handicapped children, including the creation of individualized education programs for students with special needs. On occasion, however, Congress has imposed coercive burdens on states that increasingly rely on such federal assistance. In 1984, for example, Congress passed the National Minimum Drinking Age Amendment, which withheld 5 percent of federal high- way funds from any state “in which the purchase or public possession of any alcoholic beverage by a person who is less than 21 years of age” is lawful. The purpose of the law was to decrease the number of serious automobile accidents among those aged 18 to 20—statistics showed that this group was responsible for a high percentage of accidents on the nation’s highways.

Although the conditions imposed by the National Minimum Drinking Age Act essentially coerced state governments to pass laws at the behest of the federal government, the Supreme Court generally approved of such tactics in South Dakota v. Dole (1987).13 Yet when Ronald Reagan was

cooperative federalism: The doctrine of federalism that affords Congress nearly un- limited authority to exercise its powers through means that often coerce states into ad- ministering and/or enforcing federal policies.

grants-in-aid: Grants from the federal government to states that allow state governments to pursue specific federal policies, such as highway construction.

block grants: Grants from the federal government to the states that may be used at the discretion of states to pursue more generalized aims.

South Dakota v. Dole (1987): The Supreme Court Case that 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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Figure 3.3 Comparing Federal Expenditures to State Expenditures The system of federalism dictates that the federal government, not the states, must provide national defense. By contrast, state expenditures focus on educational expenses, criminal justice, and social services in particular. Although different systems of categorization make budget comparisons among governments difficult, a glimpse of the budgets of the federal government and two state governments provides some interesting insights as to where your tax dollars are going . . . or not going.

California-FY 2013–14

Health and human services

9% Corrections

17%

Transportation 11%

Natural resources 5%

Environmental protection

1% Education

38%

Labor development 3%

Government operations & general government

7%

Legislative, judicial & executive

5% Other 4%

Source: ebudget.ca.gov (FY 2013–14)

Federal Government-FY 2013

Defense 18%

Human resources 21%

Health care 25%

Social Security 24%

Net interest 6%

Other 3%

Physical resources (including energy)

3%

Source: Office of Management and Budget (FY 2013)

elected president in 1980, he openly trumpeted federal initiatives to return policymaking authority to the states. In his first State of the Union Address in early 1981, Reagan proposed to terminate the federal role in welfare and return to the states 43 other major federal grant programs.

The voluntary transfer of power by the central government to state or local governments is known as “devolution.”14 If Reagan’s proposals had been fully implemented, such a large-scale devolution of federal programs would have returned federal–state relations to the version of fed- eralism that existed before the New Deal. As it turned out, however, strong resistance from the Democratic-controlled House led to the defeat of many of Reagan’s devolution initiatives. None- theless, Reagan administration rhetoric emphasizing federal deregulation and increased state responsibilities set the stage for more sweeping reforms to be implemented in the years ahead.

The “New Federalism,” 1990–Present

Scholars assessing the state of federalism since 1990 have failed to reach a consensus on the proper label for characterizing what appears to be a counterthrust favoring states’ rights in certain areas. This new era of federal–state relations has been marked by a resuscitation of state authority, helped by a Supreme Court that, since the early 1990s, has been far more attentive

Source: Massachusetts Budget and Policy Center (www.massbudget.org) (FY 2013)

Education 18%

Health care 42%Human services

10%

Infrastructure & housing

5%

Law & public safety 8%

Local aid 3%

Other 14%

Massachusetts-FY 2013

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to protecting states’ rights. The changed composition of the Court accounts for this shift. Be- tween 1991 and 2005, four Reagan appointees to the Court (Chief Justice Rehnquist and As- sociate Justices Antonin Scalia, Sandra Day O’Connor, and Anthony Kennedy) and one of George H. W. Bush’s appointees (Associate Justice Clarence Thomas) generally favored states’ rights in federalism disputes.15 (In 2009 and 2010, President Obama replaced liberal justices with like-minded nominees, and thus was unable to reverse this recent trend.) The modern Court’s decisions on federalism fit into a number of different categories.

Second, since the mid-1990s, Congress’s virtually unlimited authority to regulate interstate commerce has been scaled back somewhat. In United States v. Lopez (1995), the Supreme Court declared that Congress could not ban guns in school zones.16 Whereas during the cooperative federalism era Congress regulated all manner of criminal and social activities, the present-day Supreme Court has more strenuously insisted that Congress must show a clear connection with commerce when exercising its power to regulate interstate commerce, for example. Then, in 1997, Congress ran into more obstacles when it enacted a law entitling sexual assault victims to sue their perpetrators in federal court. Once again, the Supreme Court stood firm for state sovereignty, ruling in United States v. Morrison (2000) that the law was unconstitutional, on the grounds that domestic abuse had only a slight connection to commerce.17 Even when the high Court upheld the controversial individual mandate provisions of Obamacare in NFIB v. Sebelius 2012, it did so while offering a key concession to states’ rights enthusiasts: that while the mandate to purchase insurance may have survived scrutiny as a valid exercise of Congress’ power to tax, such a penalty on inactivity was not a proper use of Congress’ commerce clause powers. In that sense, the Court’s decision in the case continued down the path set out by Lopez and Morrison.

Meanwhile a Supreme Court increasingly intent on protecting states’ rights has given new teeth to the Eleventh Amendment, which bars citizens of one state from bringing suit against another state in federal court. As a result of Court decisions, many plaintiffs are now restricted from bringing lawsuits in federal court against public employers; instead, plaintiffs must bring suit in state courts.18

Of course Supreme Court decisions are not solely responsible for the resurrection of state sovereignty that has occurred over the past decade and a half. Political develop - ments have also altered the character of American federalism in important ways. Many of President Reagan’s federalism initiatives met with limited success in a Democratic- controlled House of Representatives. For example, his own Republican Party’s platform in the 1980s called for the abolition of the Department of Education; yet that controver- sial proposal proved a nonstarter in the Congress. Still, his administration managed to push through deregulation initiatives in a num -ber of partially preempted programs, and it relaxed federal oversight of state performance to a considerable degree. In addition,

six years after Reagan left office, Republicans took control of both the House and the Senate for the first time since the early 1950s. In 1994, Newt Gingrich (R-GA), then House Minority Whip, and 366 other Republican candidates for Congress ral- lied around the “Contract with America,” a series of initiatives they promised to introduce in the first one hundred days of the 104th Congress. (Republicans would maintain control of at least one and usually both houses of Congress for more than a decade, up until the Democratic sweep of both houses in 2006.)

In the end, that Congress passed few revolutionary new laws. A standoff between President Bill Clinton, who refused to sign the budget resolutions, and Congress, which threatened to close down the government unless the president gave way, led to government shutdowns in November 1995 and January 1996; eventually, on April 26, 1996, Clinton signed a budget bill

Like this Texan, many citizens take pride in their home states.

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Access the Federalism Forum: Discussion—Patient Protection and Affordable Care Act

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When must the Federal Government Put State Governments in Their Place?

THe MOre THeY STAY THe SAMe

THe MOre THiNgS CHANge,

C itizens of the United States are also citizens of one of the 50 states. Policies in the states are by no means uniform. Notwithstanding some of the uni-

form testing requirements imposed by federal No Child Left Behind legislation, educational policy differs widely from state to state. So too will an individual accused of a crime find one state’s criminal justice system far more onerous and difficult than another. The federal govern- ment (which includes federal courts) has occasionally stepped in to smooth out those differences, much to the chagrin of states that prefer to maintain their own unique identity on specific issues. Sometimes uniformity is fa- vored as a matter of good policy; at other times it may be mandated by the Constitution itself. This delicate balanc- ing act between state interests and the need to maintain states’ unique political and cultural identities has never been easy to maintain.

In 1850, Congress debated a legislative compromise at a time when Northern and Southern senators were growing increasingly anxious about the future course of slavery in the United States. Although Southern legisla- tors recognized the right of Northern states to forbid slav- ery, they rejected all efforts to undermine Southern laws that allowed the practice. In passing the Compromise of 1850, Congress defused the confrontation and put off the threat of secession for the time being by ensuring that new territories like New Mexico and Utah could decide on their own whether to be slave states; it also strength- ened the enforcement of fugitive slave acts. Thus while Congress did not mandate uniform laws on slavery, it did manage to bring Northern states into line with the clear expectations of Southern states. In this instance unifor- mity was not possible, and the only feasible compromise would have to accept that reality for the time being.

In 1963, uniformity in the treatment of criminal de- fendants was squarely at issue before the U.S. Supreme Court. By late 1962, close to half of the states were au- tomatically providing indigent defendants a right to free counsel whenever jail time was a possibility. In fact, just prior to the landmark Supreme Court case of Gideon v. Wainwright (1963),19 22 of those states urged the Court

to adopt this right as a federal standard. By contrast, many states (including Florida) provided such counsel only on a case-by-case basis—if an indigent defendant seemed competent enough to try his or her own case, judges usually insisted that he or she do so. Could such a patchwork of protections stand under the Sixth Amend- ment? “No,” said the Supreme Court, which in Gideon effectively nationalized the requirement that counsel be provided to indigent defendants. Following the landmark decision, the second half of the 1960s witnessed the cre- ation of public defender programs across the country.

In 2010, the U.S. Supreme Court once again inserted itself into a social and cultural debate where individual feelings tended to run high. This time the issue was gun control. In 2007 the Court ruled that the Second Amend- ment protects an individual’s right to possess a firearm for public use. Its ruling was limited, however, to federal restrictions on firearms (in that case it was a D.C. law); the Supreme Court did not address whether the Sec- ond Amendment applied to state laws as well under the process known as incorporation. (Incorporation is dis- cussed in detail in Chapter 4). Certainly the possession of firearms has different implications for residents of the South Bronx than it does for residents of rural farmland in Wyoming. Does the Fourteenth Amendment hold all gov- ernments accountable to the protections afforded by the Second Amendment? The Supreme Court’s answer was “yes.” On June 28, 2010, the Court held in McDonald v. Chicago that the Second Amendment right to bear arms applies to all 50 states as well as the District of Columbia.

For Critical Thinking and Discussion 1. 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?

2. Can you justify, for example, giving criminal defen- dants in one state less constitutional protection than defendants in another state? If so, on what basis?

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that cut federal domestic discretionary spending for the first time in three decades. Yet the bill did not achieve anything close to the revolution that the leaders of the 104th Con- gress had hoped for. Devolution of programs to the states has instead evolved far more gradually, through legislation like the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which capped federal block grants to states for welfare aid. States have been encouraged by the law to create their own cost-efficient welfare benefits programs. But the states’ rights movement stopped significantly short of the vaunted “de- volution revolution” promised by Republican House leaders when they first took control in 1995.

In the wake of the terrorist attacks that occurred on September 11, 2001, Americans ral- lied around the flag, offering their support for a strong and emboldened federal government, as seen in Figure 3.4 But in the decade since then, support for the federal government has dropped sharply, falling even below pre 9/11 levels. For better or worse, public frustration with the immense size and power of the federal government is a modern reality, and politicians in Washington, D.C., must account for this sentiment when they introduce new programs.

3.3 Why Federalism? Advantages and Disadvantages Supporters of federalism point to several advantages offered by this form of government, and opponents of federalism counter with arguments of their own concerning the disadvantages of this form of government.

Advantages of Federalism

Supporters of federalism cite among the specific advantages of this form of government that it is more likely to accommodate the needs of a diverse citizenry, to strengthen liberty by dividing powers between levels of government, to encourage experimentation, and to respond to change.

Accommodation of diversity. If a unitary system of government threatens to treat citizens of different states as interchangeable parts for purposes of quick and easy administration, federalism acts as an important counterbalance to this trend. A citizen of the United States can also take pride in being a citizen of Texas or some other state with a clearly defined culture or character. State and local politicians can perhaps respond to the specific demands or needs of their citizens better than a central government can. The culture of a state may be reflected in

Figure 3.4 Has the Federal Government Gotten Too Big? Source: Gallup poll, January 17, 2013. (http://www.gallup.com/poll/159875/americans-similarly-dissatisfied- corporations-gov.aspx)

50

60

51 48 48 46

44 41

31 30 3630

40

50

60

70

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Percentage of Those Surveyed Expressing Satisfaction with Size and Power/Influence of Federal Government

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THROUGH THE YEARS: SuPreMe COurT DeCiSiONS iMPACTiNg Our LiVeS

Gonzales v. Raich (2005) In 1996 California voters passed Proposition 215, making it the 14th state to legalize the use of mari- juana for medicinal purposes. Of course those laws stand in conflict with federal statutes criminalizing all forms of marijuana use, as Angel Raich learned in 2002 when she was arrested under the Federal Controlled Substances Act for using homegrown marijuana. Raich’s doctors claimed that without the marijuana her life would be threatened by excruciat- ing pain. So which law applies under those circum- stances? In Gonzales v. Raich, the Supreme Court held that Congress does indeed have the power to control or ban marijuana for medical and nonmedical uses. Subsequently, the federal government essentially determines the state of the law by its own patterns of enforcement. Between 2006 and 2009 the federal government used criminal raids and other means to thwart California’s marijuana users, including those

using it for medicinal purposes. Since early 2009, however, the Obama administration has adhered to an enforcement policy that countenances medical mari- juana distribution/use in California and elsewhere. Thus while the federal government enjoys superiority in the world of drug enforcement, federal policy is not tone-deaf to the reality that the use of marijuana for medical purposes enjoys increasing levels of support from the public.

For Critical Thinking and Discussion 1. Should the federal government enforce unpopular

drug laws in the face of reluctant state governments?

2. Do competing governments in this context offer more effective checks and balances, or do they simply create a source of confusion for citizens?

that state’s handgun control laws, its rules on the distribution of alcohol, or its laws concerning abortion, prostitution, the use of land, and many other issues that tend to receive differing levels of support across America.

Strengthening  of  liberty  through  the  division  of  powers. In Federalist No. 51, James Madison argued that “in the compound republic of America” the power surrendered by the people is divided between two distinct governments. This division provides security against a concentration of power in a single, unitary government. Madison also considered the division of such power “essential to the preservation of liberty,” because it becomes harder for a corrupt agreement between these two separate governments to last for long—in the unlikely event that one entire government turns corrupt, the other government would still be available to check that government’s abuses. Thus the existence of two distinct levels of government, combined with the separation of executive, legislative, and judicial powers within each of those governments, offers individuals considerable protection. Accordingly, Madison argued that “a double security arises to the rights of the people.”

Encouragement of laboratories of democracy. In 1932, Supreme Court Justice Louis Brandeis made famous a metaphor for creative federalism when he wrote that “a single courageous state may, if its citizens choose, serve as a laboratory, and try social and economic experiments without risk to the rest of the country.”20 This notion of states serving as “laboratories of democracy” is encouraged by a federalist system that gives the states authority to craft policies at the outset, while at the same time affording the central government authority to implement

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policies that prove successful throughout the nation. During the 1930s, FDR borrowed from the experience of various states in crafting many New Deal policies. In 1993, the Brady Bill passed by Congress drew heavily on successful state gun-control provisions that established waiting periods for handgun purchases. The flip side of such successes is also significant: state policies that proved to be failures discourage broad-based applications by the federal government. For example, given that California’s deregulation of utilities helped bring about an energy crisis in that state in early 2001, it seems unlikely that other states or the federal government will seek similar forms of deregulation anytime soon.

Disadvantages of Federalism

Opponents of federalism present arguments of their own concerning the disadvantages of this form of government. Chief among their objections to a federalist system are the unfairness caused by economic disparities among the states, questions about government accountability for many public programs that are inherent with competing sovereigns, and the system’s heavy reliance on the courts to define the nature of federalism.

Fiscal disparities among the states. States differ markedly in the wealth of their citizens, and thus in the taxable resources available to them for programs. According to the U.S. Department of Commerce’s Bureau of Economic Analysis, Connecticut’s citizens in 2012 boasted a per capita personal income of $59,687, more than 70 percent higher than that enjoyed by citizens of Mississippi ($33,657).21 Because of these fiscal differences, the amount that states have available to spend on governmental programs varies widely. Furthermore, when the central government defers to state entities in the governing process, such as when it requires states to fund their own welfare programs, wide fiscal inequalities among states (and localities) may mean disparate—and inequitable—programs for citizens in different states. Advocates of social equity and justice routinely complain about this consequence of federalism. Although federal financing of state developmental projects or other state programs relieves some of these inequities, the current trend toward reducing state dependency on the federal government promises more, not less, equity in the distribution of government benefits across states.

Lack of accountability. Numerous government programs fall under the exclusive authority of neither the state governments nor the federal government; both may act, either may act, or, in some cases, neither may act. At least in the abstract, federalism creates the prospect of multiple levels of government vying for the opportunity to address economic or social problems. In practice, however, the federal and state governments often play a game of “chicken,” each hoping the other will act first and assume greater economic responsibility, and perhaps accountability for failures. In an era when public frustration with rising taxes discourages government spending, this “blame game” may go on for years, with both sides accusing the other of shirking its responsibilities to the public. During the 1990s, for example, many state governments eliminated benefits for the needy and imposed stricter requirements on those seeking welfare. State legislatures facing growing budget deficits hoped to “push” the poverty problem onto other states by passing laws that encouraged poor people to move to states with more liberal benefits programs. During this same period Congress passed welfare legislation in 1996 that transferred welfare responsibilities back to states. Critics charge that this arrangement of shared accountability quickly transforms into a lack of accountability, with neither government accepting responsibility for dealing with problems.

* * * * * *

Contentious issues often begin as debates over the substance of legislation: Should fugi- tive slaves who escape to freedom be returned to their masters? Should immigration enforce- ment extend to local police officers stopping individuals and demanding that they produce evidence of citizenship? Yet when significant questions about resources and enforcement in- evitably arise, those issues quickly transform into even larger questions of jurisdiction and

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Access the Federalism Forum: Polling Activity—State Income Tax

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sovereignty: Can the federal government order states to accept Medicaid expansion funds? If it cannot, are states entitled to the money when they offer alternatives better suited to their own needs, but that accomplish federal goals? States tend to respond to federal programs and the mandates that flow from those programs based on political factors as well: Do the citizens of the state want to be part of the federal program? Are they willing to pay more taxes to fund their own programs? Sweeping federal programs ensure a measure of uniformity from state to state; sometimes uniformity also helps to avoid confusion and prevent abuse; at other times, however, variations among the states allow for valuable policy experimentation as well as the protection of local concerns and interests. Dividing sovereignty is never easy: In the case of fugitive slave acts and the recent battle over Obamacare funds, it has been especially contro- versial. No one ever said federalism was a simple doctrine. As long as federal and state gov- ernments keep the public interest in mind, the debate over applications of federalism should continue to serve as a mostly healthy (if a bit uncomfortable) form of political dialogue.

FrOM YOur PerSPeCTiVe

The Real-Life Benefits of Attending College Close to Home

UCLA students walking to class on the school’s Westwood campus. In recent years, state universities such as UCLA have increased the number of admissions offers extended to nonresidents as a means of generating more revenue.

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M any high school seniors dream of attending colleges or universities in distant and exotic locations, far from the watchful eyes of parents

or guardians who may be footing the bill. Did you ever dream of attending the University of Hawaii, or perhaps the Florida Keys Community College?

While admission standards to such schools may or may not pose an obstacle, the bigger issue may be finan- cial. State legislatures try to attract in-state students by offering lower-cost in-state tuition: They know that those students will often stay in the state after graduation and secure good jobs, contributing to the state’s economy. For example, if you live in Wisconsin and you want to go to the University of Rhode Island, your college tuition in 2013 would have cost you $26,444. But if you were from Rhode Island, it would only cost you $10,878. UCLA offers perhaps the biggest home-state discount in the country: $34,098 in tuition per year for out-of-staters, as compared to just $11,220 for California residents.

For Critical Thinking and Discussion 1. Did you consider attending (or are you currently

attending) a school far from your own home state?

2. As a high school senior, were you aware of the significant disparities in tuition charged by some public universities to students from other states?

3. Should states be allowed to financially discriminate against out-of-state applicants? Why or why not?

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3.1 What Is Federalism?  •  Federalism links the central government of the United States to all 50 state governments. Sovereignty resides concurrently

in both the central government and state governments, as distinguished from confederations (simple alliances of powerful independent states) or unitary systems of government (in which the subunits are subordinate to the central government).

 •  The Framers of the Constitution assigned to the federal government matters of great national importance (including foreign and military affairs) and assigned to the states all local and internal matters, including those relating to the health, safety, and welfare of citizens. Concurrent (or “shared”) powers include taxation, banking and bankruptcy regulations, spending for highways, and other forms of general welfare.

 •  In addition to managing foreign and military affairs, Article I also vests Congress with the power to borrow money on U.S. credit, coin money, establish post offices, admit new states, and establish rules of naturalization, among other authorities.

 •  The supremacy clause of Article VI provides that the Constitution and all federal laws override (or “preempt”) conflicting provisions in state constitutions or state laws. The full faith and credit clause of Article IV requires that states respect each other’s acts and official proceedings.

3.2 The History of American Federalism  •  Beginning in 1819, the Supreme Court under Chief Justice John Marshall substituted the Framers’ vision of state-centered

federalism with a national supremacy doctrine that deferred to Congress as the supreme authority within the sphere of its own constitutional powers. Beginning in 1837 a system of “dual federalism,” in which state authority served as a severe limit on congressional power, reigned for nearly a century. The Great Depression ushered in an era of “cooperative federalism” (1937–1990), which allowed Congress nearly free reign. During the current period of “new federalism” (1990–present), state sovereignty has once again been resuscitated to resist certain forms of congressional coercion.

 •  In the modern era, relatively clear divisions between state and federal authority (i.e., “layer-cake federalism”) have given way to an intertwining of federal and state authority (i.e., “marble-cake federalism”). Through grants-in-aid and block grants, the national government has placed huge sums of federal money at the disposal of states, while still imposing conditions on states and state officials to help administer federal laws.

3.3 Why Federalism? Advantages and Disadvantages  •  Supporters of federalism argue that it accommodates diversity, strengthens liberty, and encourages states to serve as

“laboratories of democracy.” Opponents of federalism object to the unfairness caused by economic disparities among the states. They also complain about the lack of government accountability for programs managed by competing sovereign powers, as well as the system’s heavy reliance on the judiciary to define the nature of federalism and enforce its perimeters.

SuMMArY: PuTTiNg iT ALL TOgeTHer

block grants (p. 66) concurrent powers (p. 59) confederation (p. 58) cooperative federalism (p. 66) dual federalism (p. 65) federalism (p. 58) full faith and credit clause (p. 62)

Gibbons v. Ogden (1824) (p. 64) grants-in-aid (p. 66) layer-cake federalism (p. 65) marble-cake federalism (p. 65) Martin v. Hunter’s Lessee (1816 ) (p. 61) McCulloch v. Maryland (1819) (p. 64) national supremacy doctrine (p. 64)

necessary and proper clause (p. 59) preemption (p. 61) reserved powers (p. 59) South Dakota v. Dole (1987) (p. 66) sovereignty (p. 58) supremacy clause (p. 61) unitary system of government (p. 59)

KeY TerMS

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  1.  The provision of the Constitution declaring that state constitutions and state laws my not conflict with the Constitution is known as the  a.  elastic clause.  b.  supremacy clause.  c.  necessary and proper clause.  d.  dominance clause.

  2.  The requirement that all states recognize and abide by the official acts of other states is known as  a.  full faith and credit.  b.  preemption.  c.  privileges and immunities.  d.  extradition.

  3.  The specific powers delegated to Congress, such as the power to coin money, are referred to as  a.  reserved powers.  b.  concurrent powers.  c.  shared powers.  d.  enumerated powers.

  4.  What clause in the U.S. Constitution makes it easy for a citizen to change his or her official state of residence? In what other ways do Americans benefit from this clause?

  5.  Which of the following Supreme Court cases did not favor broad federal government power to regulate?  a.  McCulloch v. Maryland  b.  Gibbons v. Ogden  c.  South Dakota v. Dole  d.  Lopez v. United States

  6.  The doctrine of federalism that gives Congress nearly unlimited authority to exercise its powers to coerce states into enforcing federal policies is

 a.  dual federalism.  b.  layer-cake federalism.  c.  marble-cake federalism.  d.  cooperative federalism.

  7.  Funds provided by the federal government to the states that may be used at the discretion of the states for more generalized policy goals are called  a.  grants-in-aid.  b.  block grants.  c.  federal matching funds.  d.  continuing appropriations.

  8.  In this period of “new federalism,” the Supreme Court has issued a number of decisions that have resuscitated state authority. What are some of these decisions, and how did they empower state authority?

  9.  Which of the following individuals made famous the metaphor that states might serve as “laboratories of democracy”?  a.  Thomas Jefferson  b.  James Madison  c.  Louis Brandeis  d.  Ronald Reagan

 10.  Differences in per capita income among states  a.  lead states to spend different amounts of money on

government programs.  b.  do not matter, thanks to federal financing initiatives.  c.  decrease state dependency on the federal

government.  d.  are relatively insignificant.

 11.  What are the main arguments that have been advanced in favor of the system of federalism in the United States?

 12.  What are the main arguments against the system of fed- eralism in the United States?

TeST YOurSeLF

1. b. (LO 3-1); 2. a. (LO 3-1); 3. d. (LO 3-1); 5. d. (LO 3-2);  6. d. (LO 3-2); 7. b. (LO 3-2); 9. c. (LO 3-3); 10. a. (LO 3-3)]

Chapter 3 Federalism 75

MASTer THe CONCePT OF FeDerALiSM wiTH FOr AMeriCAN gOVerNMeNT

REvIEW for American Government Access Key Term Flashcards for Chapter 3.

STAY CuRRENT for American Government Access the KnowNow blog and customized RSS for updates on current events.

TEST YouRSELF for American Government Take the Wrap It Up Quiz for Chapter 3.

STAY FoCuSEd for American Government Complete the Focus Activities for Federalism.

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