American Government
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3 Federalism
Learning Objectives
By the end of this chapter, you should be able to do the following:
Analyze the relationship between federal and state governments Distinguish between national and state authority Describe how American federalism has evolved Describe the mechanics of intergovernmental relations and analyze the tools by which the national government achieves state compliance Analyze the constitutional bases for tensions between the states and the national government Analyze arguments both for and against federalism
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In April 2010, the State of Arizona enacted a law that requires state and local police to enforce the existing federal immigration statute. The law was passed because state legislators and the Arizona governor sought to reduce the number of Mexican immigrants illegally crossing the border into Arizona. While the federal government has always required all immigrants to carry proof of either citizenship or their right to be in the United States, under the new state law, officers who suspect someone of being in the United States illegally can demand to see the appropriate papers and, if warranted, make an arrest.
Federal officials objected to the new Arizona law because they maintain that only the federal government may create immigration policy, and Arizona has no business interfering with federal authority. The law's defenders respond that Arizona is only taking action because the federal government has failed to enforce existing law. Further, they point out that law enforcement officials can request proof of legal status only after an officer has detained someone for another violation.
If allowed to stand, the law gives state and local authorities increased power over who remains in the state because they can turn those without proof of legal status over to federal authorities for deportation. Other states might follow suit. Critics of the law allege that this will lead to racial profiling, since it presumes that the bulk of illegal immigration comes from Mexico, and therefore appears to target Latinos. From Arizona's perspective, the lack of federal border policing costs the state money in the form of services provided to non‐taxpaying individuals. Moreover, children of illegal immigrants who are born in Arizona are automatically U.S. citizens and therefore enjoy the rights and privileges afforded to the rest of the state's legal population.
A federal district court has already upheld some sections of the law and thrown out others. Nevertheless, Arizona is appealing the ruling, and the case is surely destined for the Supreme Court. At issue is the rightful power and authority of state governments in relationship to federal authority.
This case nicely illustrates several questions about the meaning of federalism. Does Arizona have the authority to enact such legislation, or does federal authority over immigration supersede state sovereignty? There are provisions in the Constitution that support both positions, and the Supreme Court will ultimately have to strike a balance. Whatever the Court decides, this case illustrates the tensions built into the Constitution's federal structure of government.
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The Framers thought a federal system would secure individual liberties. The division of power between a sovereign national government and individual sovereign states would help make power so diffuse that the rights and liberties of citizens could not be easily encroached upon.
3.1 Understanding Federalism In the last chapter, we said that separation of powers was the cornerstone of the American Constitution. But that is only one cornerstone; the other is federalism—where the national and state governments share the authority that is derived from the people. Recall that the Preamble to the Constitution says, "We the People of the United States, in Order to form a more perfect Union. . . ." It does not say, "We the states." This is what distinguishes the Constitution from the Articles of Confederation, which essentially said, "We the states." The Constitution declares that sovereignty, or the ultimate authority to govern, rests with the people. Through the Constitution, the people distribute their sovereignty to the units of government in a federal system.
The concept of federalism can be interpreted in a couple of ways. On the one hand, it might indicate that a national government has supreme authority over fifty states that are equal to one another. Alternatively, it can mean that the national government and states carry equal sovereignty. In the latter interpretation, which was prevalent in the United States from the Constitutional Convention up until the 1930s, neither party had the authority to tell the other what to do. Rather, the states and the national government had to cooperate. Since the 1930s, when the federal government became more involved in domestic policy functions, federalism has come to be understood as a relationship in which the states are more subordinate to the supreme power and authority of the national government. This understanding, however, is not absolute; rather, federalism needs to be viewed as a continuum. At one end is the extreme of strict states' rights, and at the other end is absolute national authority. Depending on our needs, a pendulum swings back and forth between the two extremes.
The idea of coequal sovereignty lies at the core of the American constitutional system. Recall from Chapter 2 that the Constitution is a contract between the states and the national government. The thirteen original states agreed to enter into that contract with the understanding that they would not surrender their sovereignty. The phrase "We the People," while establishing the principle of popular sovereignty, can also refer to the people of the original 13 states coming together, which would serve to maintain the concept of state sovereignty. In order to have a common defense, they also agreed that they needed a strong national government.
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Constitutional Basis of Federalism
Unlike many other decisions made at the Constitutional Convention, federalism was not based on established political theory. It was a solution to a problem. The national government formed under the Articles of Confederation was dependent on the states' willingness to cooperate. People questioned whether this new federalist arrangement of shared sovereignty would work any better.
From the Framers' perspective, a federal system would serve to secure individual liberty. They assumed power to be a finite commodity. Therefore, in addition to the division of power among three separate but equal branches of government, the further division of power between a sovereign national government and individual sovereign states would make power so diffuse that the rights and liberties of citizens could not easily be encroached upon. By establishing a federal system, the Framers rejected the concentration of power and authority in the hands of a central government.
This emphasis on the concept of sovereignty, and the fact that the central government does not act directly on the people (this is left to state and local governments), is what distinguishes a federal system from a unitary system. In a unitary system, power and authority are concentrated in one central, sovereign government. A large unitary system with
one government fulfilling all functions would be cumbersome, so there are often provinces, which are similar to states, that are essentially administrative subdivisions of the central government. Provinces exercise whatever powers are granted to them by the central government. Unlike the federal system, however, these units are not sovereign entities. Even if they are granted a degree of autonomy, the central government can tell them what to do. This means that lawmaking is concentrated in the central government, and the function of the subdivisions is simply to implement those laws.
A unitary system can be highly efficient, as there is no question of who has authority. Great Britain is an example of a unitary form of government. The British government is the central authority, and the governments of its constituent countries, such as Scotland and Wales, have only the powers that are granted to them by the British government.
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3.2 Division of Power and Authority Between the States and the National Government As we noted in the last chapter, the Constitution was written in very general language. This has resulted in ambiguity about where national power and authority end and state power and authority begin, and vice versa. In other words, the Constitution has a built‐in tension between the national government and the states. That tension has long been part of American history, and it continues to be the source of political conflict today.
Figure 3.1: Chart of U.S. Federalism
While the state and national governments both have their own clearly delineated sets of powers, they also share the authority to perform some functions.
National Power
The two principal bases for national power are found in the Interstate Commerce Clause and the Supremacy Clause of the Constitution. The Commerce Clause, found in Article I, Section 8, says that Congress shall have the power to "regulate Commerce with Foreign Nations, and among the several states. . . ." On the basis of this provision the national government can regulate various activities so long as they bear on interstate commerce. For example, the national government claims the power to pass environmental regulations because pollution travels across state lines.
The Supremacy Clause in Article VI asserts that the Constitution and the laws made by the national government it establishes are the highest authority in the land:
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The Tenth Amendment states that all powers not expressly given to the federal government automatically fall to the states.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to be Contrary notwithstanding.
Further support for national power can also be found in the Treaty Clause, in Article II, Section 2, which grants the president the power to make treaties with other countries provided he gains the consent of a supermajority of the Senate. There it says: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . . ."
State Power
As we have seen, the defining feature of the American federal system is that states share power and authority with the national government. In fact, the entire Bill of Rights, at least prior to 1868, was understood to protect state sovereignty because it did not apply to the states; it imposed limitations only to national authority.
State power, however, is really assumed in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." If no authority to do something is expressly stated in the Constitution, that authority is assumed to fall to the states.
Federal–state relations often hinge on the tension between these two bases of power. For example, with the issue of hunting, the Constitution says nothing about regulating game (animals hunted for food or sport). Therefore, under the Tenth Amendment, it becomes a state authority. But then consider the 1920 Supreme Court case of Missouri v. Holland. In 1918, the U.S. government signed a treaty with Canada, which was ratified by the Senate, to protect migratory birds. A treaty is the supreme law of the land according to both the Treaty and Supremacy clauses. The state of Missouri asserted states' rights and said
that it was not bound by the treaty. Missouri argued that the national government's treaty did not trump a state's power to regulate game because the Constitution grants no explicit authority for the national government to do so. The Supreme Court held otherwise, asserting that because treaties were the supreme laws of the land, there was a limit to states' rights and authority here.
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What are those limits? In short, when a state's interest interferes with a national interest, there are to be limits on state power and authority. But there has to be a basis for that national interest in the Constitution itself. The Constitution grants specific powers to Congress, and in doing so it withholds those powers from the states. As an example of this, Article II, Section 2, as cited above, establishes that treaties are made by the president and ratified by Congress and Article VI makes it clear that they are the supreme laws of the land. But Article I, Section 10, adds: "No State shall enter into any Treaty, Alliance, or Confederation. . . ." So it is here that we have an example of the Constitution granting express authority to the national government and withholding it from the states.
But in the absence of provisions that both grant express powers to Congress and withhold them from the states, we assume that Congress does not have the power and that states do. As an example, nowhere in the main body of the Constitution does it say that the national government will be responsible for providing public education. You may be used to getting a free education in a public school, but it is not a constitutionally guaranteed right. Rather, in the absence of an express power of the national government, states assume, on the basis of the Tenth Amendment, that public school education is a state issue. Because states have been providing public school education for close to 200 years, the public may have come to expect it. But that expectation is based on tradition, not the Constitution.
State Sovereignty Versus National Unity
The Constitution has a built‐in tension around which much of American politics revolves. The language of the Tenth Amendment appears to trump national authority unless that national authority is spelled out in the Constitution. If the states are sovereign, there can be no national authority that interferes with that sovereignty. And yet, if there is no national authority because it will always be trumped by state sovereignty, then the United States can never be a single, united nation.
Recall from the discussion in the last chapter about federalists and anti‐federalists that following the Constitution's ratification, there was great concern among advocates for the states that they might lose their sovereignty to the national government. Also, recall that because of the division between free states and slave states, which were more populous because they had slaves, there was the compromise of the Three‐Fifths Clause. James Madison attempted to calm fears that the compromise made some states more powerful than others by predicting that the nation would grow and admit more states, thereby diluting the power of each. But there were those who were not calmed by this idea. Slave states were concerned that as more territories were admitted to the union as free states, over time the slave states would be outnumbered. The abolition of slavery would require a constitutional amendment, but if enough free states were admitted, there would in
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South Carolina statesman John C. Calhoun (1782–1850) was a strong advocate of states' rights.
time be a three‐quarters majority of free states to ratify such an amendment. Thus, some in the South, most notably John C. Calhoun from South Carolina, wanted to allow the states to exempt themselves from the union when a national action in any way interfered with their sovereignty.
Nullification and Interposition
Calhoun wrote a famous pamphlet titled A Disquisition on Government, which was published shortly after his death in 1850. In it, he expressed concern that over time the southern states would be outnumbered. To preserve state sovereignty, he proposed two mechanisms to assert states' rights: nullification and interposition. Both mechanisms would allow a state to effectively decide that a federal action does not apply to it.
Nullification would grant veto power to each state, similar to that of the president. Calhoun suggested that for a bill to become law, a majority of each state legislature, in addition to a majority of both houses of Congress, would have to pass it. In other words, if the legislature of just one state voted against the measure, it would not become law.
In the case of maintaining the institution of slavery, nullification would have allowed any state to veto anti‐slavery legislation. They would have been able to veto the Missouri Compromise, which had been passed to allow territories above the 36° 30' north parallel to be admitted as free states and those below it to be admitted as slave states.
Given that each state has different interests and priorities, the likely consequence of nullification would be to effectively paralyze the national government, as it would have no authority. Adoption of nullification would have made the Constitution of 1787 no better than the Articles of Confederation it sought to replace.
Interposition was a less drastic proposal, but it too would have meant a weak federal system. With interposition, a state would "interpose" its sovereignty between itself and the national authority, which means that it would place a barrier between itself and the national action. By doing this, the state would say that a national law passed by both houses of Congress and signed by the president does not apply within its borders. The state would in effect exempt itself from following that law. This would have allowed states that were admitted above the 36° 30' as free states to say after their admission that the prohibition of slavery does not apply to them.
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Again, if all states were free to use interposition, the result would be a weak national government, just as there was under the Articles of Confederation. While neither nullification nor interposition ever took firm root, the fact that the two ideas were even suggested demonstrates the early tensions that existed between state and national sovereignty. Calhoun's argument highlights the tensions built into the American federal Constitution.
Local Autonomy
Within the American federal system, cities—sometimes known as localities—are very different from states. States are sovereign and, as such, have a great degree of power and authority. The Constitution says nothing about local governments. Rather, it assumes municipalities to be the province of their respective states. Most local governments are created by an act of a state legislature or an amendment to a state's constitution. Thus, local governments do not have power and authority the way the states do. They may have some independence, but only as much as their states are willing to give them.
Dillon's Rule
The guiding principle in these matters is known as Dillon's Rule. Judge Forrest Dillon was a judge in the Iowa court system and, after 1869, on the United States Circuit Court of Appeals for the Eighth Circuit. In 1868, serving on Iowa's 7th Judicial Circuit, Dillon heard a dispute between the state and a city and expressed the following opinion:
Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.
Cities, in other words, are creatures of the state. Any dispute between a municipality and a state would have to be resolved against the municipality and in favor of the state. Dillon elaborated on this idea in his book Municipal Corporations, published in 1872, and it came to be known as Dillon's Rule. Cities have only those powers that have been expressly granted to them by state legislatures or by their state constitutions. In theory, then, the state of New York would be able to destroy New York City at any time. In practical terms, this means that the state government has the sovereign authority to define a city's legal boundaries, its form of government, and its powers and authority.
Home‐Rule Versus Dillon's Rule
Most cities like New York City have Home‐Rule Charters, which establish the parameters of local authority. A city with a home‐rule charter is generally much more autonomous than one without. The charter is like a constitution and either is granted by the state's legislature or is a provision in the state's constitution. It grants a city the authority to rule itself, which includes the power to tax
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An example of Dillon's Rule was the New
its residents to pay for services. In the absence of a home‐rule charter, cities are assumed to be governed by Dillon's Rule, which gives state legislatures much more power over them.
This is not to say that a city with a home‐rule charter has unlimited authority and that it is never subject to Dillon's Rule. State governments still have ultimate control. As an example, in recent years the mayor of New York City has sought to reduce traffic congestion with a plan known as congestion pricing. Under this plan, drivers entering the city would be required to pay a surcharge. The idea was that if the price of driving increased, people would then opt to take public transportation and traffic congestion would decrease. But New York City could not enact this plan on its own. The New York state legislature would have to approve it, which it never did because the plan would have affected not only New York City residents but also commuters from surrounding suburban communities.
In constitutional terms, then, there is a clear chain of command. The national government interacts with the states and the states interact with their respective local governments. In traditional federalism, there really is no interaction between the national government and localities. The image that one often has of this type of federal system is that of a layer cake, with one layer siting on top of another. The reality, however, is far more complicated. As we will see later in the chapter, both the national government and the localities have found ways to bypass the states.
Types of Local Government
In the United States today there are more than 3,000 local governments of different types and with different responsibilities. Each state constitution provides for local entities, including counties, municipalities, and special districts. County governments are generally responsible for record keeping (births, deaths, land transfers, etc.), the administration of elections (including voter registration), construction and maintenance of local and rural roads, zoning, building code enforcement, and the administration of justice. One who is charged with a crime in, say, Montgomery County in Pennsylvania will be tried in a court in Montgomery County. The functions of counties vary from state to state and often depend on the function of the largest city in them.
Municipalities are incorporated cities, towns, or villages within a county that have their own governing and taxing authority. Some municipalities take up an entire county, like San Francisco. Some, like Chicago, are the principal cities in their respective counties, and others, like New York City, span several counties. Municipalities are responsible for public safety, maintenance of city streets, parks and recreation, wastewater treatment, trash removal, zoning and building code enforcement, fire and rescue services,
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York mayor's plan to reduce traffic congestion by requiring drivers to pay a surcharge when they enter the city. The plan, proposed by the city, required state legislature approval.
animal control, public transportation, and other essential services. The bigger cities tend to provide assisted housing, operate public hospitals, and administer social welfare programs funded by the city, the state, or the federal government. Many cities also
own or regulate public utilities such as water, electric power, natural gas, and telecommunications.
A third type of local government, known as the special district, operates independently of other local governments and is usually established to serve a specific purpose within a specific geographic region. As such, it often has its own taxing authority. The Alameda County Water District in California is an example of a special district. It can impose fees and other regulations on those living in Alameda County. Another example is the Port Authority of New York and New Jersey, which maintains bridges between the states. It also maintains the airports and engages in some office construction.
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3.3 Contemporary Federalism as Intergovernmental Relations If the Framers were alive today, they might not recognize the federal system because it has evolved so much. When they designed the Constitution over 200 years ago they conceived of federalism as a formal division of power and authority between the states and the national government. Today, we think of federalism less in terms of formal divisions and more in terms of working partnerships between the states and the national government. In fact, when we talk about federalism today, we talk in terms of intergovernmental relations (IGR), whereby the states and the national government must work together to achieve a common public purpose.
This does not mean that the working relationship is always easy. The tension between state and national sovereignty continues to exist. Still, states find it necessary to work with the national government if for no other reason than to meet the needs of their own citizens. Unless it is part of its explicitly stated power, the national government cannot really order states to do something. Even when it can, it has no enforcement power to compel the states to obey, other than to use the tools of fiscal federalism, which is the power of the purse to enforce compliance. On the other hand, the national government is not obligated to assist the states when they make a request. In fact, that might be seen as an intrusion on states' rights. To return to our opening vignette, this means that while the federal government is obligated to enforce immigration policy by patrolling the borders, it is under no obligation to routinely inspect documents the way Arizona law authorizes state and local officials to do.
Grant‐in‐Aid
Despite the built‐in tension, the national government has several tools at its disposal to help ensure cooperation from the states. These tools usually take the forms of carrots and sticks. The principal carrot is the grant‐in‐aid, which is money given by a unit of governance, usually the national government, to another unit of governance, usually the states, to do something. If the national government gives the state of Colorado money to repair highways, for instance, that money is usually considered to be a grant‐in‐aid. Not all grants‐in‐aid are the same. There are three basic types: categorical grants, block grants, and general revenue sharing (GRS) (See Table 3.1).
Categorical Grants
A categorical grant is money given for a specific function, and it can be used only for that function. As an example, if the money that the national government gives to Colorado for highway repairs is a categorical grant, it can be used only for highway repairs. What if Colorado's highway department takes this categorical grant, repairs all of its highways, and finds that it has $1 million left over? Can
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A categorical grant is money given to a state by the federal government for a specific purpose. A grant given to build roads, for example, can be used only for that purpose.
it then take that money and use it for its underfunded education budget? The answer is "no." There is no flexibility and discretion when it comes to categorical grants.
Through categorical grants the federal government is able to wield influence over both states and localities. In many cases, during the 1960s categorical grants would be offered on a two‐for‐one matching basis, whereby the federal government would offer two‐thirds the cost of a program if states and/or localities came up with the other third. If, for example, the federal government thought it might be beneficial to rehabilitate blighted sections of Chicago with a renewal program, it would ask Chicago if it was interested. Because Chicago was only responsible for one‐third of the cost, it might be interested, whereas it might have passed if it had to pay the entire cost.
In other cases, a local government might apply for a categorical grant to do something, figuring that two‐for‐one matching offers an opportunity to meet residents' needs it otherwise might not have been able to. The two‐for‐one matching basis caused the number of categorical grants to grow tremendously, particularly during the 1960s.
Block Grants
Block grants offer states more flexibility than categorical grants. Whereas the categorical grant is single purpose, the block grant is multipurpose. A block grant is actually a block of several categorical grants that are related to one another. Within the block are several separate programs, and the recipient of the grant can choose which programs to fund and can move money around from one program to another. In other words, block grant monies are fungible, or interchangeable, which means that they can be spent in a number of ways.
If a city is given an urban development block grant that has within it housing, job training, parks, and schools, the city can decide that it prefers to spend all its money on schools and nothing on the other items. So long as the money is spent within the block, there is freedom to choose. There may be a degree of efficiency here as well. If some money is spent on all these items, but housing does not require what was originally allocated for it, the city or state can take the difference and apply it to parks that cost more than anticipated.
General Revenue Sharing
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General revenue sharing takes the flexibility of a block grant even further by allowing the recipient full discretion over how to spend the money. Instead of dividing funding into blocks, it is assumed that states and localities need general aid. The national government then allocates to states and cities a portion of national revenues based on a population formula, with more populous states receiving more money than less populous ones. For example, the state of Texas might receive a few million dollars from the national government to spend any way that it would like. If Texas prefers to use those revenues for highways and prisons while spending nothing on housing and job training, that is the state's prerogative. Most governors prefer revenue sharing to block grants because it gives them the most discretion. These monies are the most fungible.
Table 3.1 Comparative Financing
Categorical Grants Block Grants Revenue Sharing
Single purpose Multipurpose Multipurpose
Very restrictive Less restrictive Least restrictive
Non‐fungible More fungible Most fungible
No local or state discretion Limited state or local discretion
Maximum state or local discretion
Funds may be spent on what money was specifically given for.
Funds may be spent on any program within the block.
Funds may be spent on anything the local government wants.
Alters state and local spending priorities as they may be tempted to take on more than they can afford.
Seeks to restore state and local discretion.
Seeks to restore traditional balance of power and authority between the states and the national government.
With states and localities receiving more federal money, the federal government is in a position to tell states what to do and limit their discretion.
Coercive Measures
Grants‐in‐aid are the primary carrots at the national government's disposal. Coercive measures, or "sticks," include cross‐over sanctions, compliance through the courts, and the use of federal marshals.
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The federal government has taken the state of Arizona to court to force compliance with federal immigration laws.
Cross‐over Sanctions
A cross‐over sanction is a threat to withhold national funds from programs states like, or even need, if they do not implement other programs the national government wants. This is the main stick at the national government's disposal. Through the national government's power of the purse, it can effectively assert and enforce national authority. As an example, Congress passed the National Minimum Age Drinking Act in 1984, which required states to pass laws making the minimum age for drinking alcohol 21. Under this law, states that did not raise the minimum legal drinking age would lose their federal highway funds. The law never really established a national minimum drinking age; rather, in effect it established a goal and used the cross‐over sanction as a mechanism to achieve it. Still, the national government used the cross‐over sanction to compel states to pass state minimum age drinking laws in accordance with its wishes. It is a bit like a parent threatening to withhold his child's allowance unless the child behaves in the manner that the parent wants.
Compliance Through the Courts
The national government can also attempt to secure state compliance through the courts. In the case of Arizona, the national government, unhappy over the state of Arizona's attempt to enforce its own immigration laws, can—and has— taken the state to court. A district court has already upheld some provisions and thrown out others.
This may not be as much of a stick as it appears. A court that issues a judgment against a state has no real enforcement power. There is nothing to stop Arizona from saying that it does not care what a judge has said, and it will act as it sees fit. This scenario is, however, less likely today than it was in the beginning years of the republic. A tradition of respecting and abiding by judgments of courts has evolved over time; Chapter 7 will explore this in more detail. Even though there is no real enforcement authority, the sting of having been ruled against is usually enough to secure state compliance.
Use of Federal Marshals
The national government's last resort is to send federal troops to enforce the law, especially if a court has ruled against a state. This use of force occurs very rarely. As an example, in the 1954 case of Brown v. Board of Education (which is explored more in Chapter 8), the Supreme Court held that Kansas's racial segregation of the schools violated basic principles of equality and was therefore unconstitutional. A year later the Court ruled that schools nationwide would have to integrate, which
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In 1957 President Eisenhower used federalized troops to force the Little Rock, Arkansas, schools to comply with the Supreme Court's ruling in Brown v. Board of Education. Here, the troops are moving protestors away from the high school.
meant that there could no longer be separate schools for whites and blacks.
Many states, particularly in the South, refused to comply. The conflict came to a head in 1957 in Little Rock, Arkansas, where the schools were ultimately integrated when President Eisenhower ordered federal troops to escort black students to what had previously been an all‐white school. In a typical state emergency, the governor of a state calls on the state's National Guard. As the Arkansas National Guard was under the command of a governor who refused to comply with the Supreme Court, President Eisenhower "federalized" the military group, which in effect made the members of the guard U.S. army troops under his authority as commander in chief. This represents an extreme case as it involved brute
force following the failure to negotiate a resolution to a conflict. Such events can add tension to the federal–state relationship.
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3.4 Historical Phases of Federalism Like the U.S. Constitution and core American values, federalism has meant different things at different times in American history. We can think about it as having evolved through five key phases. From the first, known as Dual Federalism (1789 to1933), through Cooperative Federalism and Creative Federalism (1933 through the early 1970s), the balance of power shifted from the states to the national government. Then, in two phases of the New Federalism that characterized American politics during the 1970s and 1980s and has continued until today, there has been an attempt to rebalance the distribution of power between the states and the national government.
Dual Federalism, 1789–1933
The first phase of federalism, Dual Federalism, was dominant from the Constitution's ratification in 1789 until 1933, when the national government became more active during the New Deal, which was the label President Roosevelt gave to his legislation package intended to help Americans suffering in the Great Depression. Dual Federalism means that the states and the national government are equally sovereign within their respective spheres of influence.
There is a division of labor between the states and the national government. Historically, the national government was responsible for national defense, which meant securing the borders and safeguarding against foreign invasion, and maintenance of foreign policy, the national currency, and delivery of the mail. States were responsible for local law enforcement, criminal justice, education, and maintenance of infrastructure such as roads, canals, and other waterways. States principally held what has been referred to as state "police power," which is essentially the power to regulate the behavior of their citizens. In constitutional terms, the state police power was often expressed as the power to protect the "public health, welfare, and morals" of the community, and it paralleled John Stuart Mill's harm principle, which was discussed in Chapter 1.
Critically, neither the national government nor the states interfered in each other's spheres of sovereignty. Just as critically, police power was viewed specifically as a state function. As an example, under Dual Federalism if you lost your job and needed assistance, you applied for state unemployment compensation. There was no national unemployment office because that would be considered a state function.
Although Dual Federalism lost its dominance after 1933, it did not disappear completely. Other phases were layered on top of it, slowly changing the relationship between governments. The end of this phase did not mean that the national government welcomed interference by the states in its sphere of sovereignty; rather, it was the states that welcomed national interference, especially because they lacked the resources to meet the needs of their citizens.
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People line up for food during the Great Depression. This severe economic downturn ushered in the era of Cooperative Federalism, as the federal government assumed more responsibility for domestic policies.
As the Arizona case illustrates, the national government is responsible for overseeing the borders and determining who may legally enter the country. That is a national function; not a state function. This means that the state of Arizona may not deny a person passage across its borders. People in the country legally are free to move across state lines. At issue is whether Arizona can ask people for proof that they are here legally, or does the state have to assume that they are? Whereas Arizona appears to want the national government to enforce immigration law, the national government does not appear to be as welcoming of state interference with national authority.
Dual Federalism prevailed during simpler economic times. During the Great Depression, which lasted from 1929 until the United States entered World War II in 1941, when millions of Americans lost their jobs, the states found that they were not adequately equipped to deal with the needs of so many unemployed citizens. People's most basic need was money to purchase goods and services. When the Great Depression began in 1929, there was no such thing as retirement income in the form of Social Security, the federal program that, among other functions, provides pensions to senior citizens. States and private charities provided unemployment insurance and public assistance for the poor, but at inadequate rates given the scope of the crisis. In most cases, Americans either worked until they died or were taken care of by their children. The national government programs that came to be known as the New Deal were designed to put purchasing power into the hands of the people. Ultimately, they formed the basis of a new social contract between Americans and the national government.
Cooperative Federalism, 1933–1960s
As the national government assumed responsibility for more domestic policy during the Great Depression, it designed and funded programs, and then left their implementation to the states. This is called Cooperative Federalism, because it involves the states and the national government working together to implement public policy and deliver goods. This phase ushered in the era of intergovernmental relations.
As an example, Congress passed the Social Security Act in 1935, which created a retirement program for senior citizens and public assistance for the poor. The public assistance part of it was originally called Aid to Dependent Children (ADC), and during the 1960s it became Aid to Families with Dependent Children (AFDC). As a matter of Cooperative Federalism, the
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national government established the program, created guidelines for its implementation, and provided funding for it. The states then delivered the aid to poor people. States could determine exactly who would be eligible to receive assistance, and they could even determine how much people would receive so long as they met the minimum criteria put forth in the national guidelines. So, if you applied for welfare, you would go into a state welfare office where the staff would determine your eligibility and how much assistance you could get. Each state could establish its own criteria for the receipt of public assistance. It was not uncommon, then, for states like Texas, Alabama, and others in the South, where there was a deep ambivalence toward federal programs because of a cultural tradition of patronage, to provide substantially less assistance than states like California and New York, where there was less ambivalence toward these programs.
No longer did the states and the national government operate separately; now they worked together. But the national government increasingly drove public policy, and the balance of power shifted in its favor. Americans looked to the national government for solutions to their problems, largely because the states did not have the resources to address them. But the states also looked to the national government for solutions, and through Cooperative Federalism they ceded some of their sovereignty in their traditional domain of domestic policy to the national government.
Creative Federalism, 1960–1972
Creative Federalism began in 1960 and represented a major shift in power from the states to the federal government through use of grants‐in‐aid and greater use of regulation. On one level, it attempted to establish national standards of behavior through the 1962 Supreme Court ruling Baker v. Carr, which required states to reapportion their congressional districts, and the 1965 Voting Rights Act, which outlawed placing obstacles in the way of African‐Americans who sought to vote in the South. On another level, the national government sought to create new programs through the offers of numerous grants‐in‐aid to both states and localities.
But Creative Federalism also used cross‐over sanctions to achieve state compliance in other areas. As an example, when Congress passed the Voting Rights Act, many of the states chose not to enforce it. Using the cross‐over sanction, the national government threatened to withhold promised subsidies, such as funding for highway repairs. Initially, there were some strongly segregationist states that were willing to forego their highway subsidies. Ultimately, however, these states began to enforce the law when they realized that they needed the national funds. Arguably, the national government could just as easily have sent in federal marshals to make sure that people could vote, but that would have heightened the tension between the national government and the states. In contrast, with the use of cross‐over sanctions, the states came to the conclusion that complying with national policy was in their best interests.
Programs for Positive Change
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Through Creative Federalism, the national government seeks to be the force behind positive and creative change. One example of this is using the right of eminent domain to obtain land for urban renewal projects.
Creative Federalism entailed more than the enforcement of negative rights, though. The national government also sought to be the engine behind positive and creative change. As an example, the national government wanted to beautify the nation's cities through programs of urban renewal. In its simplest form, urban renewal entailed rebuilding or renovating blighted sections of cities, many of which were considered slums. City governments would seize big tracts of land with their power of eminent domain, clear them, and then construct new housing in the form of town houses, high‐rise apartments, and even office complexes. In cities like Philadelphia and Boston, where sections dated back to colonial times, urban renewal involved the restoration of old houses. In each case, the goal was to attract middle‐class investment back to the cities.
Because states and localities could not afford to secure urban renewal on their own the national government offered them urban renewal funds on a two‐for‐one matching basis. The national government would pay two‐thirds of the costs with the expectation that the cities would then pay the remaining third. During the 1960s cities like New York were able to engage in many projects through this arrangement. Mayors including John Lindsay used the wide range of categorical grants available to build their political bases by engaging in Lowi's distributive politics (discussed in Chapter 1). The effect was to alter local spending priorities, and many critics of these programs thought that they distorted state and local spending priorities. Cities and/or states still had to come up with their own funds, and they were often spending on projects they otherwise would not have considered.
Creative Federalism also caused another transformation: for the national government to directly offer deals to cities was to bypass the traditional federal relationship between the national government and the states. Traditionally the national government dealt with the states, and the states dealt with their respective cities. In the era of Creative Federalism, the national government increasingly believed that it could tell the states what to do. If enough carrots were offered, the states would fall in line with national policy priorities. Creative Federalism appeared, at least to its critics, to erode traditional state sovereignty. State budgets had grown because of national spending priorities. Categorical grants‐in‐aid proliferated from around 100 in 1961 to about 500 in 1969, and recipients often found that they were enticed into spending money that they did not have.
This trend was not only altering state and local spending priorities, but national spending commitments also greatly increased out of the desire to be creative. Aside from the proliferation in
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categorical grants, overall grants to the states increased from the 1940s, and they represented a significant increase in the percentage of money going toward domestic policy (Table 3.2).
Table 3.2 Historical Trends in Federal Grants (Dollars in Billions)
Fiscal Year Amount of grants‐in‐aid
Total* Domestic Programs**
Gross National Product***
1940 $0.9 9.2% 12.7% 0.9%
1950 2.3 5.3 11.6 0.8
1960 7.0 7.6 20.6 1.4
1970 24.1 12.3 25.3 2.4
1980 91.4 15.5 23.3 3.4
1990 135.3 10.8 17.9 2.4
2000 285.9 16.0 22.8 2.9
2009 538.0 15.3 20.4 3.8
2010 estimate 608.4 17.6 24.1 4.2
2011 estimate 625.2 16.4 22.4 4.1
2012 estimate 584.3 15.7 21.7 3.7
2013 estimate 567.5 15.1 20.9 3.4
2014 estimate 623 15.7 21.9 3.5
2015 estimate 661 15.8 22.3 3.5
* Federal grants as percent of federal outlays. ** As a percent of federal outlays for domestic programs. Excludes national defense, international affairs, and net interest. *** As percent of Gross National Product.
Source: Executive Office of the President, Office of Management and Budget, Budget of the United States Government, Fiscal Year 2012 drawn from Historical tables 12.1 and 3.1 downloaded from http://www.gpoaccess.gov/usbudget/fy12/index.html (http://www.gpoaccess.gov/usbudget/fy12/index.html) .
New Federalism I, 1972–1980
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President Richard M. Nixon introduced New Federalism. In it, cities applying for federal categorical grants receive monies in a lump sum to allocate to their communities as they see fit.
In response to the growth in grants‐in‐aid, the administration of President Richard Nixon introduced a new phase of federalism. The stated objective of what came to be known as New Federalism was to restore the traditional balance between the states and the national government in the federal system. The real objective was to cut many of the social programs that had been connected to President Johnson's War on Poverty and Great Society programs that had been enacted during the 1960s under Creative Federalism.
Initially, the Nixon administration sought to consolidate categorical grants into block grants. But Nixon's New Federalism took the concept of block grants a step further. The national government introduced general revenue sharing and a plan to allocate something along the lines of $5 billion from the U.S. Treasury to the states. Nixon reasoned that this would be a politically feasible way of cutting social spending. Instead of cities applying directly to the national government for categorical grants to do certain things, they would get a lump sum to allocate to cities and suburbs. Suburban areas with larger populations than central cities often received more. Nixon was a member of the Republican Party, and most suburban residents tended to vote for Republican candidates. Residents of central cities, however, tended to vote for Democratic candidates. Nixon thus saw this as an opportunity for Republican Party spending priorities, which at the time focused primarily on law and order, to win out over Democratic social programs.
New Federalism II, 1982–Present
New Federalism I was only the beginning. Although states had more discretion under general revenue sharing, the balance of power still tended to favor the national government. The national government still provided the states with money, and the states came to expect that funding would continue. Governors around the nation complained that the traditional balance of power between the states and the national government was distorted because the states were not really able to determine their own spending priorities.
Entering office in 1981, the administration of President Ronald Reagan promised to end the era of big government, cut domestic spending, and restore the traditional balance of power between the states and the national government. As with Nixon before him, Reagan confronted Democratic Party majorities in Congress who were not eager to cut social programs. (In fact, as shown in the next chapter, Congress generally is not eager to cut any programs, regardless of which political party controls it, because it is through programs that it engages in distributive politics and keeps voters
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President Ronald Reagan outlined his version of New Federalism in his 1982 State of the Union speech.
happy.
The Great Swap and the Super Trust Fund
The mechanism for reforming this system was to be New Federalism II. This newer version of New Federalism featured two key ideas: the Great Swap and the Super Trust Fund.
With the Great Swap, the national government proposed trading responsibilities with the states. The national government would maintain responsibility for Medicare —a government health insurance program for the elderly—while states would have responsibility for Medicaid —a government health insurance program for the poor and people with certain disabilities. Until this point, Medicaid was jointly funded by both the national government and the states.
Moreover, the national government would provide temporary funding for the states' new responsibilities
through a Super Trust Fund. The idea was that the Super Trust Fund would be established with around $28 billion, but after 4 years it would cease to exist (Figure 3.2). After the funds ran out, states could either discontinue their programs or run them with their own money. Politically, this would allow Reagan to cut social spending without appearing to be a scrooge.
Reagan reasoned that most states would be forced to eliminate programs like Medicaid because they had restrictions on the types of taxes they could impose, and prohibitions on running deficits, written into their state constitutions. Without national funding, governors would have no choice but to cut the programs. The people adversely affected would first blame the governor who cut the program, not the president who returned discretionary authority back to the states. Governors initially liked the idea because they would have full discretion over their programs and budgets. No longer could the national government tell them what to do.
Figure 3.2: State and Federal Costs of Medicaid
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With the Great Swap and the Super Trust Fund, President Ronald Reagan switched primary responsibility for Medicaid from the national to the state governments.
New Federalism II, however, never really got off the ground in the same way that New Federalism I did. States did assume responsibility for Medicaid while the national government maintained responsibility for Medicare. A trust fund was set up, but it wasn't easily phased out because a big recession set in during the early 1980s and the governors resisted losing national funds. If anything, the recession proved that restoring Dual Federalism was not that simple. As the industrial economy failed to provide sufficient opportunity for individuals to support themselves, the unemployed turned to their government for relief. The states became increasingly dependent on the national government to provide this. As the economic downturn led to greater dislocations, states were without the resources to meet the needs of people.
Unfunded Mandates
Arguably, New Federalism paved the way toward yet another phase, which has come to be referred to as the era of unfunded mandates. An unfunded mandate works very similarly to Creative Federalism. The national government decides it wants to create a program and then expects the states to comply, but in this case it does not provide the states with the needed funding. The states are then forced to pay for nationally mandated programs on their own.
As an example, those who lose their jobs often apply for unemployment insurance (UI). Each state
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provides UI and finances it from their respective state unemployment insurance trust funds, into which employers have paid premiums. Most states only provide UI for twenty‐six weeks, but during severe recessions when it is even more difficult to find new employment, the federal government often extends benefits, sometimes for thirteen weeks, and sometimes for even more. When Congress votes to extend benefits, it appropriates money for the additional coverage, but not enough to cover the entire cost. The federal government usually pays half the costs of extended benefits, leaving it up to the states to pay the other half. The portion that is left to the states to pay is an example of an unfunded mandate.
This has become the chief source of tension between states and the national government since the 1990s. Many states in recent years have run huge deficits, claimed that they are on the verge of bankruptcy, and sought to obtain relief from the national government. In California in 2009, the budget crisis at one point was so bad that the state paid vendors, and even state tax refunds, with IOUs. Meanwhile, as the national government seeks to meet people's needs with programs like extended UI benefits, and others in the name of distributive politics (as discussed in Chapter 1), it often does so through the use of unfunded mandates. Either it mandates services for which it offers no money, or it offers only a portion of the funds that are actually needed.
An Expanding Federal Role in Domestic Policy
Another example of an unfunded mandate is No Child Left Behind, a law passed by Congress in 2002 that requires schools to meet certain educational outcomes, as usually demonstrated through standardized tests. The law expanded the federal government's role in education, which had traditionally been a state function. The law also requires states to demonstrate academic progress in their schools; provide the federal government with a range of information (a report card) on things like student achievement and performance by school districts; ensure that teachers meet minimum qualifications; and annually test students in grades three through eight in English and mathematics (with other subjects to be added later). The law does provide some federal allotments that offer states flexibility, but states are expected to provide more money to poorer school districts. Federal funds are available for meeting the other requirements, but again, federal funds only cover a portion of the costs, thereby leaving the states and local school districts to absorb the rest of them.
The issue of unfunded mandates has been a contentious one. Critics claim that it forces states to spend money they do not have. They also claim that it forces them to pursue policies they do not necessarily agree with or at least do not consider a priority. To this extent, it distorts their priorities, very much in the way Creative Federalism does. Critics also claim that the requirements come from the federal government without input from the states. With Cooperative Federalism, the delivery of a public program was a shared function between the states and the national government. With unfunded mandates, the federal government dictates certain things that the states must do.
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Defenders of unfunded mandates, such as No Child Left Behind, maintain that the mandates force states to meet a minimum uniform set of standards; otherwise there are great disparities between the states. As the public has come to expect more from the national government in terms of meeting its needs, the national government has new obligations to its citizens, and it cannot shirk those responsibilities by leaving them solely to the states.
Federalism Timeline
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3.5 The Meaning of Federalism Today More recently we have come to think of federalism in terms of intergovernmental relations where the lines that divide national and state sovereignty are no longer so clear. This has led some political scientists to suggest a couple of images for how we ought to think of the contemporary American federal system.
Marble Cake Theory of Federalism
Morton Grodzins suggests that because of the constant interaction between the states and the national government, the federal system can be thought of as a marble cake rather than a layer cake (Figure 3.3). In a marble cake, the flavors are integrated and blend into each other. No one flavor can stand on its own.
Figure 3.3: Marble Cake Versus Layer Cake
In the Marble Cake theory of federalism, the federal system of government can be thought of as similar to a marble cake, because the levels (flavors) are interwoven and interdependent. The layer cake better describes Dual Federalism, because each layer is clearly separate and independent from every other layer.
So, too, with the federal system. If we think of the different flavors as representative of the different strands of sovereignty and authority, it becomes clear that states cannot function without the national government and the national government cannot function without the states. This was certainly true in the era of Cooperative Federalism. To meet the needs of their citizens, the states needed the assistance of the national government. But to deliver goods and services to the people, the national government needed the assistance of the states. Public policy in the form of public programs became a joint effort.
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The marble cake theory was exemplified in the aftermath of Hurricane Katrina, when the state of Louisiana didn't have enough
In contemporary federalism, formal divisions between national and state governments do not explain much. Consider the following examples: With clear divisions, somebody who committed a state crime such as murder would be tried in a state court. The crime would most likely have been investigated by the local police. Meanwhile, if the same person had committed a federal crime, such as kidnapping, the crime would have been investigated by the Federal Bureau of Investigation and tried in a federal court. There is a clear distinction here between levels of government, like layers on a layer cake.
With the marble cake, however, it is not always clear who is responsible for what. When terrorists attacked the World Trade Center in New York City on September 11, 2001, there were questions as to who was responsible for the ensuing investigation. Because the attack occurred in New York City, it would normally fall under the jurisdiction of the New York City Police Department. But given the high‐profile target and the great loss of life and destruction, the city needed additional resources; so the New York State police were called in. The fact that the attack was also an act of terrorism made it a matter of concern for the FBI and the Central Intelligence Agency.
One might hope that all levels of government would work together, and if they did we might say that both the uncertainty over issues of jurisdiction and the requirement of cooperation speaks to the marble cake nature of the federal system. In most cases, however, there tends to be great confusion. In other cases, there are too few resources for states to address emergency situations. For instance, when Hurricane Katrina wiped out most of New Orleans in 2005, the State of Louisiana did not have the resources to address the problem. Local and state officials, including the Louisiana National Guard, were needed to evacuate some people, rescue others, and prevent looting. The federal government, through the Federal Emergency Management Agency (FEMA), was needed to provide relief and assistance to residents who were displaced from their homes.
States as Laboratories of Democracy
Federalism today is often understood as a tug‐of‐war between those seeking more uniform national standards and those seeking more flexibility for the states. The question often asked is whether the notion of state sovereignty in the twenty‐first century has any real meaning when the states increasingly rely on the national government to provide them with financial assistance. In other words, why talk about states at all? Why not think in terms of a unitary system with a central authority that delegates authority and power to administrative subdivisions? And yet, states still
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resources to deal with the emergency. The Federal Emergency Management Agency (FEMA) stepped in to assist residents who were displaced from their homes.
The federal welfare reform that took place in the 1990s was modeled on a program that had been implemented in Wisconsin. This was an example of using the state as a laboratory of democracy.
have a vital role to play. Supreme Court Justice Louis Brandeis famously observed that states in our federal system were laboratories of democracy, which means that they are places to experiment with policy before trying it out on the nation as a whole.
As an example, the most famous experiment in welfare reform was Wisconsin's 1990s welfare‐to‐ work program. The program required all people who received public assistance benefits to work at least 20 hours a week. Those needing training received it. Those who needed childcare so that they could participate also received it. Participants could continue to receive Medicaid. The idea was to transition people from lives of dependency on welfare to lives of independence in the labor force. As the number of families on welfare declined, federal officials and policy planners wondered if the success of the Wisconsin program could be duplicated at the national level.
In 1996, following Wisconsin's example, President Clinton signed a sweeping reform law that required welfare recipients to work in exchange for their benefits. As part of the reform, the national government established a new program called Temporary Assistance for Needy Families (TANF). States received TANF funds in the form of block grants and could distribute money as they saw fit, but all recipients needed to work in exchange for their temporary assistance. At the heart of the reform were the welfare‐to‐work programs that each state would create. Some states might provide little help in finding employment while others might provide lots of help in areas such as resume writing, interview training, and general skills training. States that wanted to reduce
their welfare rolls, which was also a requirement of the law, could find ways to disqualify recipients, thereby forcing them to go into the labor market and accept whatever jobs existed. This is what Justice Brandeis meant by states as laboratories of democracy. Welfare reform was democratic because it was based on grass‐roots experimentation.
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3.6 The Future of Federalism Questions concerning the future of federalism are often about whether federalism as we have known it is really viable. As we ask the national government to do more, there would appear, at least on the surface, to be less of a need for the traditional division of power and authority between the states and the national government. History, particularly when it came to civil rights, has shown that we cannot rely on the states to protect their citizens. The argument for national authority is that it is necessary in order to achieve uniformity of standards. If left up to the states, each will do things differently.
Consider the example of the federal minimum wage. As of July 2009, the federal minimum wage, which is the minimum hourly amount that workers need to be paid, is $7.25. Without the national uniform standard, one state might have a minimum of $1.25, another of $9.50, and a third might have none at all. Uniformity of standards requires a strong centralized authority at the national level, as well as states that will comply with that authority.
But there is still a rationale for maintaining the basis of the federal system. During the late 1800s, Lord James Bryce offered an argument that is still applicable more than 100 years later. Bryce argued that federalism prevents the rise of despotic governments that would absorb other powers and threaten the private liberties of citizens. It does this precisely because power and authority are spread out.
Federalism also provides the best means of developing a vast country, principally because it allows for experimentation. The forms of self‐government that occur within smaller units of governance may stimulate the interest of the people in the affairs of their neighborhood. This is because government is closer to home and as a result has more relevance to them. As an example, most people are more concerned with their community's decision to build a local sports stadium than a remote debate in Congress over whether the government should try terrorists in civilian courts or military tribunals. Giving the citizens of each locality due means to oversee the conduct of their business helps secure the competent administration of local affairs. Because it is closer to them they can keep more of a watchful eye on what is going on. Additionally, when governance is spread out widely, something that goes wrong in one place will not adversely affect the rest of the nation. Finally, by creating many local legislatures with broad powers, federalism relieves the national legislature of functions and responsibilities that may prove too burdensome.
This was the argument that Madison made in Federalist No. 10, where he suggested an expansive republic would both dilute the power of states and make them the centers of local political activity. All of this may be true, but we must also remember that the future shape of the federal system is whatever we the people want it to look like.
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Summary and Application Federalism is the formal division of authority and power between states and the national government. In the American federal system, the states and the national government are assumed to be equal in sovereignty. The American federal system has evolved through several phases. The first phase was Dual Federalism, which implied dual spheres of sovereignty within the national and state governments' respective domains. For the most part, the national government was limited to foreign affairs and the states were responsible for domestic functions. As the states found themselves unable to meet the needs of their citizens during the Great Depression in the 1930s, the national government assumed more responsibility for domestic public policy and programs. What emerged was Cooperative Federalism, whereby the states and national government worked together to deliver public goods and services to the people. With the advent of Cooperative Federalism, the relationship between the states and the national government changed from one of formal division of power and authority to one of intergovernmental relations. They had to work together to get things done.
The third phase of federalism was Creative Federalism, in which the national government sought to create new programs and often felt that it could tell the states and localities what to do. It offered grants on two‐for‐one matching bases to create programs around the country. This transformed state and local spending priorities. In response to Creative Federalism, two separate phases of New Federalism occurred, whereby the national government sought to return power and authority to the states.
To a large extent, the evolution of federalism speaks to another unique feature in American politics. The five phases reflect different conceptions about what the nature of the relationship between the states and the national government ought to be. Much of American politics revolves around those competing conceptions. The politics of federalism is often about which unit of governance has greater authority, and which has jurisdiction in a particular policy matter. Ultimately, this makes for a dynamic federal system. Tensions between the two ultimately play out in our national politics.
Key Ideas to Remember
Federalism is understood to be the formal division of power and authority between the national government and the states. Both the national government and the states are understood to be sovereign entities, even though the ultimate source of sovereignty is the American people. Claims to both national authority and states' rights are rooted in the Constitution. Claims to national authority are based on the Supremacy, Treaty, and Interstate
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Commerce clauses, while claims to states' rights are based on the Tenth Amendment. The politics of federalism revolve around whether the national government has authority over the states, or whether the principle of states' rights effectively limits national authority. The federal relationship in the Constitution deals mainly with the relationship between the states and the national government; it does not deal with local governments like cities, townships, counties, and special districts. Rather, local governments fall under the purview of their respective states. At best they can be autonomous through a Home Rule Charter, but they can never be sovereign like the states. American federalism has evolved over time from Dual Federalism, whereby the states and the national government were each sovereign in their own spheres of authority, to a situation where the national government has greater authority and the states are, in effect, subordinate to it. This new relationship has been expressed in Cooperative and Creative Federalism and more recently finds expression in the principle of unfunded mandates. Although states are understood to be sovereign and cannot be forced to comply with national authority, the national government can encourage compliance through the tools of fiscal federalism: grants‐in‐aid and cross‐over sanctions. There are arguments both for and against federalism, but the principal arguments are that it preserves individual liberty by dividing power and preventing its centralization in one government, and that it allows the states to serve as laboratories of democracy— arenas for experimenting with policy before trying it out at the national level.
Questions to Consider
How would you define federalism? How has federalism changed over the years? Is a federal system still necessary, or has it outlived its usefulness? What are the benefits and detriments of having strong states' rights? Does Arizona have a right to enact a law that seeks to compensate for the failures of the national government? Or is Arizona infringing on national authority? Explain your answer. What is the constitutional basis for Arizona to assert the right to check immigrants' documentation? If Arizona is forced to provide services to illegal immigrants due to the failure of federal enforcement, is that an unfunded mandate?
Web Links
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The Federalist Society for Law and Public Policy Studies: http://www.fed‐soc.org/ (http://www.fed‐ soc.org/)
University of North Texas, Advisory Commission on Intergovernmental Relations (ACIR) Digital Library: http://www.library.unt.edu/govinfo/digital‐collections/acir/ (http://www.library.unt.edu/govinfo/digital‐ collections/acir/)
State of Connecticut Office of Policy and Management ACIR: http://www.ct.gov/opm/cwp/view.asp?a=2985&q=383064 (http://www.ct.gov/opm/cwp/view.asp? a=2985&q=383064)
Institute for Federalism and Intergovernmental Relations (University of Kentucky and Morehead State University): http://www.ifigr.org/ (http://www.ifigr.org/)
National Council for Science and the Environment, Summary of the Unfunded Mandate Reform Act: http://www.cnie.org/nle/crsreports/economics/econ‐15.cfm (http://www.cnie.org/nle/crsreports/economics/econ‐15.cfm)
Key Terms
Key Term Definition
block grants A type of grant‐in‐aid that comes in a general category and allows recipients to pick which programs in the category they want to spend money on.
categorical grants A grant‐in‐aid given for a specific purpose and that can only be spent on that purpose.
central government When authority and power are concentrated in one single government.
Cooperative Federalism Period that began during the Great Depression in which the federal government designed and funded programs that were then implemented by the states.
country Type of local government that is responsible for record keeping, administration of elections, local road maintenance, zoning and the administration of justice.
Creative Federalism A phase of federalism when the national government used grants in aid and cross‐over sanctions to encourage creative solutions and state compliance with national mandates.
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cross‐over sanction When the national government withholds funding in one program area to ensure compliance in another.
Dillon's Rule A judge's ruling that cities are creatures of their states.
domestic policy Laws and regulations that deal with internal issues, such as education, police, fire, or public assistance.
Dual Federalism A phase of federalism when both the states and national governments were sovereign in their respective spheres of influence.
eminent domain The idea that government can take one's property for a public purpose, but the owner needs to be compensated.
federalism/federal System
A governmental system whereby power and authority are shared by national and state governments, with ultimate authority derived from the people.
fiscal federalism Using the power of the purse to enforce compliance.
fungible In the context of government aid, the quality of being available for a range of uses.
general revenue sharing (GRS)
When the national government gives the states a portion of national revenue, which they can spend as they choose.
grant‐in‐aid Money given by the national government to the states for various uses.
Great Depression Period of catastrophic economic downturn in American history when millions of Americans were out of work.
Home‐Rule Charter A grant of authority by a state legislature or a state constitution for a city to govern itself.
intergovernmental relations
Relationships and regular dealings between different units of governance.
interposition When a state places its sovereignty between itself and a national action and says that the national action does not apply to it.
laboratories of democracy
The idea, first articulated by Justice Louis Brandeis, that states were useful places to experiment with policies before trying them out at the national level.
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Medicaid Government‐run medical insurance program for the poor and people with certain disabilities.
Medicare Government‐run medical insurance program for the elderly.
municipalities Incorporated cities, towns or villages within a country that have their own governing and taxing authority.
nullification When a state can effectively veto a national bill from Congress.
New Deal A series of economic programs that were enacted under President Franklin Roosevelt's administration to help people hurt by the Great Depression.
New Federalism A phase in federalism when the national government sought to restore the traditional balance of power and authority between states and national government.
segregationist Political platform that holds that people of different races should have separate services and facilities.
Social Security Federal program that provides pensions to senior citizens.
special districts A type of local government that acts independently of other local governments and is usually designed to serve a specific purpose.
Tenth Amendment The Tenth Amendment states that all powers not given to the federal government will be delegated to the states.
Treaty Clause Phrasing in the constitution that states that treaties ratified by the U.S. government are the supreme laws of the land.
unfunded mandates When the national government imposes a program or cost on a state or local government without also providing the requisite money.
unitary system A system of government in which federal power is concentrated in a single central authority.
urban renewal A program of neighborhood redevelopment that encouraged the rehabilitation of older neighborhoods that had fallen into disrepair and become slums.
Further Reading
Alston, L. J. & Ferrie, J. P. (1999). Southern paternalism and the American welfare state: Economics,
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politics, and institutions in the South, 1865–1965. Cambridge and New York: Cambridge University Press.
Anton, T. J. (1989). American federalism and public policy. Philadelphia: Temple University Press.
Beer, S. H. (Ed.). (1982). Federalism: Making the system work. Washington: Center for National Policy.
Beer, S. H. (1993). To make a nation: The rediscovery of American federalism. Cambridge, MA: Belknap Press.
Berman, D. R. (2003). Local government and the states: Autonomy, politics and policy. Armonk, NY: M.E. Sharpe.
Elazar, D. (1984). American federalism: A view from the states, (3rd ed). New York: Harper & Row.
Grodzins, M. (1974). The American system. Chicago: Rand McNally.
Kettl, D. (1987). The regulation of American federalism. Baltimore: The Johns Hopkins University Press.
Wright, D. S. (1982). Understanding intergovernmental relations. Monterey, CA: Brooks/Cole.