GOVT 2301

Federalism

Federalism is the third constitutional principle we cover in

this class. As with the others, it involves the division of power

within government.

Officially this refers to the division of government into two levels: the national and the state. Unofficially, it also includes a third level, local government, which can be a city,

county or a single purpose government.

Remember that local governments are not mentioned in the U.S. Constitution. States, as part of

their reserved powers, have the authority to pass laws allowing

groups of individuals to pass laws regulating their interrelations.

American government is actually composed of thousands of distinct governments layered one upon the other. Here’s a list based on 2007

figures.

National – 1State – 50

Counties – 3034Municipalities – 19,429

Township – 16, 504 School Districts – 13, 506Special Districts – 35,052

What is a nation anyway?

The concept of a nation is not that old. The Treaty of Westphalia

(1648) Created the modern nation state with sovereign authority

within its borders.

Wikipedia: Country

Federalism is an Accidental Principle

The American Federal system grants sovereignty to two levels of

government.

This was not an anticipated outcome of the Constitutional

Convention.

The division between the national and state level was the result of

the compromise in the constitutional convention dubbed

“The Great Compromise.”

You might want to look through a couple of web resources: First, Wikipedia’s: Federalism in the

United States.

The second link is to Wikipedia’s category page on Federalism Case

Law. This takes you to various other pages with information

about major court cases which have ruled on disputes associated

with federalism.

A federal system is different than a unitary or confederated. In the former sovereignty rests fully in

the upper level, in the latter it is in the lower level.

Unitary, Federal, and Confederated Systems

Unitary: The national government dominates and the states exist as

administrative units only.

This is the relationship that exists between the state of Texas and the

254 counties. They have little independent authority and

implement state laws.

Confederacy: The states possess sole sovereign authority and a

weak central authority exists to mediate disputes between them. They have no real authority over

the states.

The Articles of ConfederationThe Southern Confederacy

Two components of the Articles of Confederation make this explicit:

The Articles of Confederation

Article II. Each state retains its sovereignty, freedom, and

independence, and every power, jurisdiction, and right, which is not

by this Confederation expressly delegated to the United States, in

Congress assembled.

The Articles of Confederation

Article III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty,

trade, or any other pretense whatever.

The theoretical idea behind federalism is that each level of government can best perform

certain functions and that responsibility for these functions should be divided accordingly.

Recall that the Constitutional Convention was called by those who were concerned that the states, under the Articles of

Confederation, were unable to adequate provide for their

commercial and security needs. These had to be provided

uniformly across the states.

Broad – national – interests (as defined by the federalists) were to

be provided by the national government. These are listed in

Section Eight of Article One of the Constitution – this will be covered

more thoroughly below.

Here’s a succinct graphic that outlines the powers of the state

and national governments. Notice that some powers are shared by

each.

Some terminology would be helpful here:

Delegated (Enumerated) Powers: Power specifically give to the national

government.Reserved Powers: Powers (unstated)

granted to the states.Concurrent Powers: shared by each

level of government.

Here is a more exhaustive list of the powers held by each level of

government.

National Power

Internal improvementsSubsidies

TariffsDisposal of public lands

Immigration lawCentralized National Defense

Foreign policyCopyrights

PatentsCurrency

State Power

Property lawEstate and inheritance law

Commerce laws of ownership and exchangeBanking and credit laws

Labor and union lawsInsurance laws

Family lawsMorals laws

Occupations and professions laws

State Power (continued)

Public health and quarantine lawsPublic works laws, including eminent domain

Building codesCorporations law

Land use lawsWater and mineral resource laws

Judiciary and criminal procedure lawsElectoral laws, including parties

Local government lawsCivil service laws

Local Governments

Variances (adaptation of state law to local conditions)

Public worksContracts for public works

Licensing of public accommodationsAssessable improvements

Basic public services

A general term used to describe the powers granted to the states

and by extension local government is “police powers.”

police power is the government to regulate behavior and enforce

order within their territory for the betterment of the general welfare, morals, health, and safety of their

inhabitants.

Its generally stated that local governments perform “house

keeping” functions for communities.

They keep things neat, tidy and safe: Sewage, drainage, street

repair, stuff like that.

Local governments can take a variety of forms: City, county, multi

purpose, single purpose.

Federalism also involves regional governments as well

In Texas these are called Area Councils of Government, they

attempt to coordinate activities within the governing entities in a

particular area.

The local region is located in the Houston-Galveston Area Council

A dispute:

What should the balance be between national power sand

state power?

Centralism

vs

Decentralism

What are the advantages and disadvantages of centralized

control and coordination?

What are the advantages and disadvantages of de-centralized

control and coordination?

States:

The Laboratories of DemocracyAEI: Laboratories of Democracy.

States can experiment with different ways to solve problems. Some will succeed, some will fail. Each will provide lessons about what to do and not do in order address a given policy problem:

education for example, or prison policy.

A brief note:

The nation and the states are political units primarily. They possess sovereign power, traced to the people of course.

Local governments are primarily economic units.

A city begins as an economic enterprise first, and achieves

political status afterwards.

This is not true for counties.

A county is the administrative arm of the state. It is responsible for

basic services to non-city residents and for the provision of certain

state functions.

In Texas counties are responsible for:

- issuing state automobile licenses, among other licenses issued by the state- voter registration- conduction of elections- property tax assessment and collection- maintaining vital records: birth and death certificates- conducting health and welfare programs

Controversy: What is the legal status of cities, since that is not established in the Constitution?

There are tow conflicting theories about the status of cities. One is

Dillon’s Rule, the other is the Cooley Doctrine.

Dillon’s Rule

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

Cooley Doctrine

Local government is a matter of absolute right; and the state

cannot take it away. The argument was made in a concurring decision

in a court case, which does not make it binding.

Dillon’s Rule predominates. A city is subject to control by the state, although solvent, powerful cities are generally autonomous for all

practical purposes.

Non-solvent cities can be taken over by states, though critics argue that it undermines democratic self

determination.

City governments need charters issued by the states in order to

govern. There two general types:

General LawHome Rule

General Law

General law cities are smaller cities whose powers are limited; they operate according to specific state statutes that define their powers

and duties. They are restricted to doing what the state directs or permits them to do. If a general

law city has not been granted the express or implied power by the state to initiate a particular action, none may be taken.

Home Rule

Home rule cities are cities with populations of more than 5,000 in which citizens have adopted home rule charters. A charter is a document that

establishes the city’s governmental structure and provides for the distribution of powers and

duties among the various branches of government. In order to be implemented, the charter must be approved by the people at an election. Likewise, changes in the charter must

be approved by a vote of the people.

The legal position of home rule cities is the reverse of general law cities. Rather than looking to state law to determine what they may do, as general law cities must, home rule cities look to

the state constitution and state statutes to determine what they may not do. Thus, if a

proposed home rule city action has not been prohibited or pre-empted by the state, the city

generally can proceed.

Controversy exists over how precisely the divisions between

national and state powers ought to be can be drawn, or whether these

powers are shared to some degree.

Madison and Hamilton presented plans which would have

established unitary systems.

Hamilton’s PlanMadison’s Plan

Both proposed a national government far stronger than the states. The national government

could appoint state governors and veto state laws.

They were unsuccessful in doing so. The plans were

rejected.

A sufficient number of delegates supported state power to force a

compromise.

The Great Compromise

Establishes the principle of dual sovereignty

The people are sovereign and are directly connected to the national

government, but so are the states.

The state and national governments therefore are equal.

This is a very tricky relationship that inevitably lead to conflict.

Among the questions raised:

What role should each level play in governing? Was there a clear

intent established by the authors of the Constitution that must be

maintained? Or is the relationship meant to be dynamic?

The Civil War was fought, in many ways, to resolve questions over the

relative power of each level of government.

Several Federalist Papers focused on this question. Lets review parts

of them.

From Federalist #41

That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into

different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3.

Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain

injurious acts; 6. Provisions for giving due efficacy to all these powers.

Federalists 42, 43, and 44 go into detail about each of these

functions.

Which leads to the following conclusion in Federalist 45.

From Federalist #45:

The powers delegated by the proposed Constitution to the federal government, are few and defined.

Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign

commerce . . . The powers reserved to the several States will extend to all the objects which, in the

ordinary course of affairs, concern the lives, liberties, and properties of the people, and the

internal order, improvement, and prosperity of the State.

What does this mean?

Few and Defined:

The powers delegated to the national government in Section

Eight of Article One and implied in the General Welfare, Commerce,

and Necessary and Proper Clauses.

Numerous and Indefinite:

The states have the reserved powers, meaning in essence

everything else.

The Constitution has since been judged to contain several types of

powers.

DelegatedInherentImplied

Reserved

There is also a category called concurrent powers where each level of government has some

jurisdiction over the power.

The Delegated Powers

The Delegated Powers -- also called the enumerated or the expressed powers -- are those

clearly written, and listed, in the Constitution and granted to

Congress.

Its what Congress has the authority to write laws about.

Article One, Section Eight

This is the part of the Constitution where those powers are listed.

Note: I expect you to open up this link and read through the specific

powers granted to the national government.

Generally these powers fall into two broad categories: commercial and

military. Whatever is clearly listed is considered to be a delegated power.

The Constitution places few clearly defined restrictions on the powers of the national government. These

are found in

Article One, Section Nine

The Implied Powers

The Implied Powers are the powers the are considered

necessary in order to carry out the delegated powers.

These tend to be based on what are called the “elastic” clauses.

These include:

The General Welfare ClauseThe Commerce Clause

The Necessary and Proper Clause

The expansion of national power over the course of time has been

driven by expanded reinterpretations of these parts of

the Constitution.

Example: The Social Security Act was found Constitution in

Helvering v Davis based on the General Welfare Clause.

- the full story from SSA Online.

The Necessary and Proper Clause:

“The Congress shall have Power To . . . make all Laws which shall be necessary and proper for carrying into Execution

the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States,

or in any Department or Officer thereof.”

Critical Dispute:

What does “necessary and proper” mean?

Does it refer to any power that is useful to government’s ability to

carry out a delegated power?

Or does it only refer to those powers that are essential to it?

The Debate over a National Bank

It was argued by Hamilton to fall under the clause because the bank

would help the national government carry out its

commercial and currency powers.

Hamilton’s position would be accepted in McCulloch v.

Maryland.

For a fuller discussion of cases involving the necessary and proper

clause, click here for a link to findlaw.com.

But decades later Jackson would argue that these powers could be

carried out by the Treasury Department without a National

Bank. The bank was not essential.

The Commerce Clause:

“The Congress shall have Power To . . . regulate Commerce with

foreign Nations, and among the several States, and with the Indian

Tribes;”

Links regarding the Commerce Clause

Legal Information InstituteWikipediaFindLaw

Exploring Constitutional Conflicts

Key Dispute:

Does “commerce” mean trade in finished products, or does it also mean the manufacturing and labor involved

in creating those products?

The Commerce Clause became a vehicle for further expansions of

national power.

Since the relationship between the national and state governments is

due to interpretations of the Constitution, the Supreme Court is

responsible for determining the nature of federalism.

Gibbon v Ogden (1824)

A state could not prevent an individual licensed by the national

government from engaging in interstate commerce.

Licensing for interstate commerce must be a national function in

order to ensure that licenses, and commercial rules in general, are consistent across the country.

During the bulk of the 19th Century, the powers of the national and

state government were distinct, but as technology improved,

commercial relations between the state began to increase and

expand.

Over the past century the size of the national government, and the scope of its powers, has increased significantly. This has required a rethinking of the proper role of

each level of government and the reinterpretation of constitutional

language justifying it.

It has also been highly controversial. States tend to not like federal encroachments on

what they see as their sovereign power, but minorities in state

citizens often feel undeserved by the state government and seek redress on the national level.

Beginning in the 1880s, Interstate Commerce Act of 1887, national institutions had been established that began interfering with state

sovereignty.

Some laws were found unconstitutional, but not all of

them.

An example of unconstitutional legislation:

The Keating-Owen Act of 1916, which outlawed child labor, was

found unconstitutional in Hammer v. Dagenhart.

“In our view the necessary effect of this act is, by means of a

prohibition against the movement in interstate commerce of ordinary

commercial commodities to regulate the hours of labor of

children in factories and mines within the states, a purely state

authority.”

The New Deal

The “New Deal” is the term given to a series of laws passed in the

wake of the Great Depression that granted addition powers to the

national government on the premise that states were not able

to effectively handle the emergency.

Also important:

The Progressive EraThe Great Society

The New Deal necessitated a reinterpretation of constitutional

language, notable the definition of the word: “commerce”

During FDR’s first term, the Supreme Court did not find New Deal legislation constitutional.

They held a rigid view of commerce.

Found unconstitutional:

National Industrial Recovery Act

in

Schechter Poultry Corp. v. United States

Found unconstitutional:

Agricultural Adjustment Act

in

United States v. Butler

This led to a conflict between the executive and judicial branches that came to a head in the court

packing scheme.

In order to resist the effort to add new members to the court, the

court began reversing its opinions of certain New Deal policies.

The key switch was by Justice Owen Roberts.

The two most consequential cases:

National Labor Relations Board v. Jones & Laughlin Steel

1937 - The Wagner Act, which authorized the national government to force corporations to recognize labor

unions was found constitutional because labor was included in the

definition of commerce.

Wickard v. Filburn

1942 - The concept of interstate commerce was expanded to allow

for national regulation of intrastate activity if intrastate activity affects

interstate activity.

For almost 60 years no major piece of legislation regarding the

commerce clause that allowed for an expansion of national power

was found unconstitutional.

This was due at least in part to Democratic successes in presidential elections.

Many of these policies placed the national government in a

cooperative relationship with the states and local governments.

The national government would establish an objective and

encourage the states to go along.

Often these are implemented with matching grants.

The national government would encourage the states to engage in

certain endeavors by matching state dollars with federal dollars.

One of the first area projects funded with matching federal

dollars was the dredging of the Port of Houston.

Other Examples of Such Policies:

WelfareEducation

TransportationHealth Care

Some researchers have called this era: Cooperative Federalism.

Whereas the relationship between the national and state

governments previously had resembled a layer cake, they

suddenly resembled a marble cake.

Interstate Highway System

primarily built with a mix of 90% FHWA funds from the Highway

Trust Fund and 10% matching state DOT funds.

MedicareMedicaid

More recently (beginning in the mid – 1990s) court cases have

ruled against further uses of the Commerce Clause to expand

national power.

There have been efforts to halt, or possibly roll back the expansion of

the national government, by reinterpreting constitutional

language as it had been prior to the New Deal.

The Constitution in Exile movement.

The first indication that a shift might be underway:

United States v. Lopez

1995 - The Supreme Court rejected the argument that the national government could pass a law based on the commerce

clause. They rejected the idea that the federal government could outlaw gun

possession near school zones because it had a suppressing effect on commercial

activity.

Gun Free School Zones Act was judge to be unconstitutional

because it did not directly impact economic behavior – it only

indirectly did so. In addition, the activity was judged to be local in

nature.

“The Lopez court stated that Congress may regulate (1) use of

the channels of interstate commerce, (2) the

"instrumentalities" (for example, vehicles) used in interstate

commerce, and (3) activities that substantially affect interstate

commerce.”

A second:

United States v. Morrison

2000- The Supreme Court rejected the argument that a national law

allowing women to sue those who physically attack them was justified since such activity interfered with

economic activity.

It focused on the civil rights remedy of Violence Against

Women Act.

These and other cases indicated an effort to roll back the scope of

national power under the commerce clause, but the decision in Gonzales v. Raich complicated

this.

Gonzales v. Raich

2005 – the Supreme Court reaffirmed the constitutionality of the national Controlled Substances

Act and its supremacy over California’s Compassionate Use

Act.

“This activity was the result of the belief that federal law preempted that of California. The government argued that if a single exception were made to the

Controlled Substances Act, it would become unenforceable in practice. The government also contended that consuming one's locally grown

marijuana for medical purposes affects the interstate market of marijuana, and hence that the federal government may regulate—and prohibit—such

consumption. “

- click here for a summary of the various decisions.

Current questions involve the potential constitutionality of the

Health Care Law.

Are challenges to the Health Care Law offering an opportunity to roll

back the commerce clause?

The Reserved Powers

It also places few clearly defined limitations on the powers of the

states. These are found in:

Article One, Section Ten

The last part of the Bill of Rights established the reserved powers of

the states.

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.

The reserved powers generally are called the “Police Powers.”

These are defined as laws regulating the health, safety, welfare, and

morals of a community.

These laws include

Criminal LawHealth

EducationProfessional Accreditation

Licensingetc ….

Some reserved powers are kept at the state level, some are passed down to the local governments.

The functions of local government tend to be more “housekeeping” in

nature such as water, drainage, sewage, street and road repair,

building permits, etc…

Inherent powers

These are the controversial, un specified powers claimed by

presidents during times of conflict.

The Inherent Powers can include anything a commander in chief

thinks is necessary to successfully fight a war. Often these can

involve the suspensions of civil liberties and the allowance of

unreasonable searches and seizures and detention without

due process.

There is debate regarding how extensive this power should be, especially when the nature of a conflict is somewhat unclear.

The War on Terror

The relationship between the national government and the

states was greatly affected by the 14th Amendment.

The 14th Amendment nationalized citizenship and denied states the

ability to deny their privileges and immunities.

This text will later allow the national government the

opportunity to allow those who feel they have been discriminated

against the ability to challenge that discrimination in a federal court.

Relevant Text: “Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of

the United States . . .”

The application of the Bill of the Rights to the states has happened

piece by piece. The process has been called the Selective

Incorporation of the Bill of Rights to the States

Prior to the 14th Amendment, the restrictions on legislative powers

spelled out in the First Amendment – such as the free exercise of

religion – only limited national power, not state power.

This changed gradually after the 14th Amendment when various

cases were brought to court ultimately forcing the Supreme

Court to consider whether limits on the national government

applied to state governments as well.

An early case that raised this question was United States v.

Cruikshank,

"We have in our political system a government of the United States and a government of each

of the several States. Each one of these governments is distinct from the others, and

each has citizens of its own who owe it allegiance, and whose rights, within its

jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of

citizenship under one of these governments will be different from those he has under the other."

The court has yet to decide the meaning of the privileges and immunities clause of the 14th

Amendment.

A later example: the guarantee of freedom of speech was

incorporated against the states in the case of Gitlow v. New York

Study Guide

- What are the delegated, reserved and implied powers? Give examples? Where do they come from? What controversies exist about them? - Be familiar with the various issues associated with the commerce clause.- How does federalism impact sovereignty in the United States? What other relationships can exist between state and national governments? - What is the difference between a nation, a state and a city?- What Supreme Court cases have affected the relationship between the national and state government? Be familiar with that impact.

- What impact did the 14th Amendment have on the relationship between the national and state governments? - What is the Constitution in Exile movement?- What is an inherent power and why are these controversial?- What are the types of powers that are explicitly granted to the national government?- What limits are placed on the powers of the state?- What factors led to the division of government in the United States to the nation and the states?

-What is the source of the powers of cities and local governments?- What is the consequence of loose and strict interpretations of the Constitution? Which parts of the Constitution are most subject to loose interpretations and what have been the consequences of this?- What early disputes existed over the scope of national powers? What court cases helped resolve these issues? - What different – separate - functions do national, state and local governments generally serve?