Federalism:
The sharing of power between national, state and local governments. The power sharing arrangement has evolved, and in some cases devolved over time.
The National Government
Article VI of the Constitution declares that the Constitution and any laws passed under it are the “supreme Law of the Land” - The Supremacy Clause. Thereby making state law and state action subordinate to national law, in many cases.
The Constitution fashioned several different kinds of national powers and prohibits the national government from taking certain actions. The Constitution created four major types of power: enumerated, implied, inherent, and prohibited.
THE NATIONAL GOVERNMENT’S POWERSType / Key Clause / Explanation / Examples
Enumerated (expressed) / Article I, Section 8 Congress only / Powers specifically granted to Congress / Declare war, coin money, levy taxes, regulate interstate commerce, west weights and measures, pursue sciences
Implied / Necessary and proper (Article I, Section 8) Congress only / Powers that Congress has assumed in order to better do its job / Regulate telecommunications, build interstate highways, draft
Inherent / Preamble / Powers inherent to a sovereign nation / Defend itself from foreign and domestic enemies, promote
Prohibited / Article I, Section 9 Congress only / Powers prohibited to the national government / Suspend the writ of habeas corpus, tax exports, grant titles of nobility
Ø Enumerated Powers
In Article I, Section 8, the Constitution specifically grants Congress a number of different powers, known as the enumerated powers, (fancy word for written). The enumerated powers include, but are not limited to, the ability the power to tax and spend, declare war, coin money, and regulate interstate commerce. Political scientists sometimes also refer to them as expressed powers.
Ø Implied Powers
At the end of Article I, Section 8, the Constitution also grants Congress the power to do anything “necessary and proper”, aka, the elastic clause, to carry out its duties. The powers given by this clause are implied rather than stated. This clause has become a catch all for activities the Congress finds necessary. The ACA, Obamacare, was created using this clause and defended on the taxation authority of the Congress. Drafting people to serve in the military is not a power specifically granted to the Congress. Congress instituted a draft as part of the implied power to raise and support armies.
Ø Inherent Powers
Preamble to the US Constitution
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
The preamble to the Constitution lays out the basic purposes of the United States government: to provide for the welfare of its citizens and to defend against external enemies. Because the federal government is sovereign, it also has certain powers called inherent powers, which are necessary to protect its citizens and defend its right to exist.
Ø Prohibited Powers
Congress cannot tax exports or tell states how to choose electors for the Electoral College.
Concurrent Powers
All powers not granted in the Constitution to the national government are reserved for the states. States, however, may hold some of the same powers that the national government has, unless they have been given exclusively to the national government, either by provision of the Constitution or by judicial interpretation. Concurrent powers are those that both national and state governments hold. Examples are the concurrent powers of levying taxes and establishing and maintaining separate court systems. Even so, federalism limits state powers in that states cannot "unduly burden" their citizens with taxes. Neither can they interfere with a function of the national government, nor abridge the terms of a treaty of the United States government.
State Power
The Constitution also allows state governments some key powers:
Ø The right to choose the manner delegates to the Electoral College are selected.
Ø States also have a great deal of flexibility to write their own constitutions and pass their own laws.
Ø All state governments have three branches identical to the national, how the power is distributed varies state to state.
Ø Some state governors have a great deal of power, whereas in others, his or her power is severely limited. The Line Item Veto allows some state governors the ability to “line out” elements he/she does not like. While it is a state power, not all state allow it, and it is unconstitutional at the national level, Clinton v. NYC 1997.
Ø Judicial appointments/elections vary state to state.
Ø Reserved Powers
The Tenth Amendment states that the powers not granted to the national government, and not prohibited to state governments, are “reserved to the States.” The powers granted by the 10th Amendment have been a serious point of contention throughout American history. The Nullification crisis and the Civil War are 10th Amendment related. Recently, immigration, gun laws, and refusal to implement healthcare changes are argued on 10th Amendment grounds.
Ø The Full Faith and Credit Clause
The full faith and credit clause, FFC, (found in Article IV of the Constitution) both establishes and limits state powers. State governments must respect the laws and decisions of other state governments, such as driver licenses and marriage certificates issued by other states. Depending on the view, either the FFC expands or diminishes individual state power. A state’s decision is binding on other states. At the same time, the clause limits state power by forcing the states to honor one another’s laws. Consider the current same sex marriage debate or medicinal marijuana, or personal use arguments.
Ø Local Governments
The Constitution places local governments entirely in the purview of the state government
Types of Local Government
There are approximately 84,000 local governments in the United States. Each state has the power to define local government in any way it wants, allocating different types and degrees of power and responsibility. All local governments must be granted a charter by the state, defining its powers and responsibilities.
Some local governments ask for autonomy known as home rule: a promise by the state government to refrain from interfering in local issues. State governments give up this power because local governments with substantial autonomy can often manage local affairs better than the state government could. Ultimately, however, the state can still take power away from local governments, even those with home rule.
There are a myriad number of local government forms. Local governments exist with town governments, villages, townships, counties, and cities all having different powers. The most common—and probably the least known—type of local government is called a special district, a local government created focused on a single issue or problem. Some special districts have elected leadership, whereas others have leaders appointed by the governor or legislature.
Example: Special districts are the most numerous type of government in the United States—totaling nearly 40,000 across the country. In some states, boards of education are special districts. Most states also have very specialized districts, such as water reclamation/treatment districts, oversight of public universities and public transportation, libraries, and economic development districts. In all instances, while the special district may act independently, local or state elected officials retain some oversight.
Evolving or devolving: Federalism history
Dual Federalism (1789–1930)
Dual federalism: Until the Depression about 1930, the national government dealt with national defense, foreign policy, and fostering commerce, whereas the states dealt with local matters, economic regulation, and criminal law. This type of federalism is also called layer-cake federalism because, like a layer cake, the states’ and the national governments each had their own distinct areas of responsibility, and the different levels rarely overlapped.
Although the national and state spheres were largely separate, the Supreme Court established national supremacy in 2 important cases:
McCullough v. Maryland
Gibbons v. Ogden - look them up.
THE "COMMERCE CLAUSE"
Gibbons vs. Ogden 1824.
Ø Aaron Ogden had been given exclusive license by the state of New York to operate steam-powered ferryboats between New York and New Jersey. Thomas Gibbons obtained a license from the U.S. government to operate boats in the same area, and when he decided to compete with Ogden, Ogden sued, and the case went to the Supreme Court. Several issues were at stake in defining federalism:
· The definition of commerce - When New York’s highest court ruled against Gibbons, defined commerce narrowly as only the shipment of goods, not navigation or the transport of people.
· National government’s powers over intrastate commerce – Does the national government have the right to control any commerce within a state’s boundaries?
· State government’s powers over interstate commerce – Is interstate commerce a concurrent power that states may share with the national government?
Marshall’s broad interpretation: John Marshall wrote the majority opinion in the case, an expansive interpretation of the commerce clause that increased the national government’s authority over all areas of economic affairs. Marshall defined commerce as all business dealings, not just the transfer of goods, and he ruled that the national government could regulate within states’ jurisdiction. On the other hand, interstate commerce is solely the right of the national government, and so the New York court had no right to prohibit Gibbons’ trade.
Commerce Clause: At what point does interstate commerce begin and end?
With the booming Industrial Revolution of the late 1800s, the debate over the balance of power between state and national government focused on the interpretation of the commerce clause, which gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." At first, the Court tried to distinguish between interstate commerce, which Congress could regulate, and intrastate commerce, which only the states could control. Because most companies participate in both types of commerce, the Court had a great deal of trouble distinguishing between the two. If a doughnut maker who sells donuts in Pa. and ships some to Ohio and New York have different rules for production and transportation?
Over the years this clause has been interpreted more and more broadly, so that today, the national government regulates a wide range of commercial activities, including transportation, agriculture, labor relations, finance, and manufacturing. Almost no type of commerce is controlled exclusively by the states.
The Commerce Clause and Civil Rights
The Commerce clause also has been used to sustain legislation outside of commercial matters. In 1964 the Supreme Court upheld the 1964 Civil Rights Act forbidding discrimination based on race in public accommodations because
"Congress's action in removing the disruptive effect which it found racial
discrimination has on interstate travel is not invalidated because Congress
was also legislating against what it considers to be moral wrongs."
Discrimination affects interstate commerce, so Congress constitutionally could legislate against discrimination. Again, many years later, Hamilton's loose interpretation of the Constitution insured that the principle of national supremacy prevailed over that of states rights.
Reining in the Commerce Power
Since the 1990s the Supreme Court has been limiting the national government’s power under the commerce clause. In United States vs. Lopez (1995) the Court ruled that Congress had exceeded its authority when it banned possession of guns within one thousand feet of any school. The law was declared unconstitutional because it had “nothing to do with commerce.” In 2000, the Court held that the 1994 Violence against Women Act also overstepped the Constitution with the statement that violence against women had an adverse effect on interstate commerce.
The Civil War and the Fourteenth Amendment (1861–1868)
States Rights v. National Supremacy – Prior to the Civil War Amendments were written in a way to restrict national power: “Congress shall make no law…” After the Civil War, The language was dramatically different: Beginning with the 13th Amendment: “Congress shall have the power to enforce…”
The Fourteenth Amendment, ratified a few years after the Civil War in 1868, includes three key clauses, which limit state power and protect the basic rights of citizens:
The 14th Amendment is considered the most significant in its inclusiveness scope. The 14th is used quite frequently in civil rights legislation. The current immigration debate and same sex marriage debate hinge on the equal protection clause. States claim 10th Amendment immunities while proponents of same sex marriage hold to the 14th Amendment, privileges and equal protection clauses.
1. The privileges and immunities clause declares that no state can deny any citizen the privileges and immunities of American citizenship.
2. The due process clause limits states’ abilities to deprive citizens of their legal rights.
3. The equal protection clause declares that all people get the equal protection of the laws
Cooperative Federalism (1930–Present) Hands off to hands on government
o Laissez Faire v. Government action and more regulation
The Great Depression, brought about by the crash of the stock market in 1929, was one of the most severe economic downturns in American history. Many businesses failed, roughly one-third of the population was out of work, and poverty was widespread. FDR implemented the New Deal. Programs and policies that attempted to revive the economy and prevent further depression.
Since the Depression the national government has become integrated with the state and local governments, making it difficult to tell where one type of government begins and the other types end. State and local governments administer many federal programs, for example, and states depend heavily on federal funds to support their own programs. This type of federalism is called cooperative federalism, or marble-cake federalism.
Cooperative Federalism in recent years has expanded to include cities and local government. Creative Federalism: The national government has made opportunities available to local governments to apply for or compete for federal money for projects. President Obama’s stimulus package, The American Recovery and Reinvestment Act of 2009, provided opportunities for local governments to gain federal money for much needed projects.