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1.4: Federalism

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    In early 2020, as the novel coronavirus known as COVID-19 overwhelmed the world, the United States did not fight back as a single cohesive unit. President Donald Trump did convene a White House Coronavirus Task Force to coordinate a national plan of action, and Americans did become well-acquainted with the personal hygiene recommendations of one of its lead members, Dr. Anthony Fauci. Yet many crucial decisions — on mask mandates, business closures, remote schooling, and other matters — were left up to America’s governors, who have long borne the responsibility for managing public health policy in their respective states.

    Photograph of a member of the Nevada National Guard administering a COVID test
    A member of the Nevada National Guard administers a drive-thru COVID-19 test as part of her state’s response to the coronavirus pandemic in 2020.

    On the one hand, this piecemeal approach undermined America’s pandemic response. U.S. states have no legal or practical ability to close their borders, meaning that an outbreak in any state could easily spread to others. Even if a state effectively managed its infection rate, it could still suffer the consequences of its neighbors’ inability to do so. A virus doesn’t care where the lines are drawn on a map.

    On the other hand, decentralization gave America flexibility. The challenges of densely populated Massachusetts were not the same as those of sparsely populated Montana; elderly Florida faced different threats than youthful Utah. Governors’ authority to determine their states’ pandemic responses allowed them to tailor policies to fit their states’ unique needs. It also helped contain the damage from policy mistakes. For example, New York’s decision to admit COVID-19 patients to nursing homes resulted in the deaths of many elderly New Yorkers. Had a similar policy been instituted nationwide, the impact would have been far more devastating.

    The COVID-19 pandemic demonstrated both the strengths and the weaknesses of American federalism, the delicate balance of power between national and state governments. From the outset, the Founders crafted the Constitution so as to unite the states enough to respond to national crises while giving them the freedom to manage their own affairs as they saw fit. That balance has shifted dramatically over the centuries, as have Americans’ beliefs about what it should be. At the heart of many contemporary issue debates in American politics — abortion, the death penalty, education, the environment, healthcare, immigration, marijuana, policing — lies this fundamental question about the proper roles of state and nation.

    Systems of Government

    Most countries are composed of multiple subnational regions. In America, these regions are called states; in other countries, they may be called provinces, cantons, departments, prefectures, parishes, or oblasts. Subdividing a country in this way has many advantages, but it also raises the question of how and to what extent the subdivisions should be integrated into the country’s political system.

    The most common system of government in the world today is a unitary system, in which power is concentrated at the national level and most decisions are made by a strong national government. Subnational governments may exist, but usually they are much weaker and have far fewer responsibilities than the national government. Countries with unitary systems benefit from uniform, centralized decision-making but tend to enact “one-size-fits-all” policies that allow for little regional variation. Because of this, unitary systems are best suited to countries that are small and culturally homogeneous. Chile, France, and Japan are some examples of countries with unitary systems.

    The opposite of a highly centralized unitary system is a highly decentralized confederal system, in which power is concentrated at the subnational level and the national government is comparably weak. The United States under the Articles of Confederation had a confederal structure, as did the Confederate States of America during the Civil War: although both had national governments, their subnational governments wielded most of the power. Confederal systems give considerable leeway to their regions at the expense of national unity. No modern country operates under a truly confederal system, but some international organizations (such as the United Nations and the European Union) are confederal in nature, with countries acting as the “subnational” units within the larger overall structure.

    Falling between unitary and confederal systems, a federal system is one in which power is divided roughly evenly between national and subnational governments. Although the abilities and responsibilities assigned to national and subnational governments in federal systems are different, the two levels are approximately equal to each other in terms of power. The modern United States has a federal structure, as do other countries such as Brazil and Germany.

    These systems are not “pure” types, such that each country fits neatly into one of three categories. Rather, they exist on a spectrum of centralization, with unitary systems at one end, confederal systems at the other end, and federal systems in the middle. The world’s countries can be arranged at different points along this spectrum. For example, the United States and Canada both have federal systems, but the United States’ is less centralized than Canada’s. Countries can also centralize or decentralize over time. The United States has gradually become more centralized since its founding, although it has remained a federal system since the Constitution was ratified.

    In the United States, the term federal is often used to mean “national.” When someone says “the federal government” or “federal law,” they usually mean national government and national law, as contrasted with state government and state law.

    Federalism in America

    The delegates to the Constitutional Convention faced the difficult challenge of designing a government that would avoid both the oppressiveness of the British monarchy and the fecklessness of the Articles of Confederation. Most delegates recognized that America’s national government needed more power to maintain the fractious union. Yet they understood equally the danger of a government with too much power, which could easily fall into the hands of a tyrant.

    At the time of the Constitutional Convention, it was not obvious that the United States could be governed democratically. Most democratic governments in history, Greece and Rome among them, had either devolved to nondemocratic forms to deal with the strain of administering a large territory or collapsed when they refused to do so. A few long-term, stable democracies existed, such as the merchant republics of Florence and Venice, but these were generally very small. Even with just 13 states, America was already much larger than every successful democracy in history up to that point, and its descent into either tyranny or anarchy seemed a very real possibility. As John Adams would later write, “There never was a Democracy yet, that did not commit suicide.”

    Federalism was the solution proposed by the Founders to prevent history from repeating itself. The Constitution would empower the national government to act in areas where nationwide consistency was necessary, such as diplomatic and monetary policy, but it would allow the states to handle everything else. Ideally, the individual states would emulate the successful small republics of the past in managing their own affairs, while the national government would have enough power to keep the states together without completely dominating them.

    Under America’s federal system, the national government has certain enumerated powers which the state governments do not have. These powers are listed (enumerated) in the Constitution and deal with national concerns, such as raising armies, coining money, and declaring war. The state governments have reserved powers which the national government lacks, such as the powers to conduct elections, issue licenses, and provide public education. Most of these powers are not mentioned in the Constitution and are therefore reserved for the states according to the Tenth Amendment. The remaining powers can be exercised by both the national government and the state governments, and are therefore considered concurrent powers. For example, both the national government and the state government can establish courts, make laws, and impose taxes on their citizens, although the jurisdictions in which they can do these things differ. (See Figure 4.1 below for a summary of which powers fall into each category.)

    Chart showing the enumerated, reserved, and concurrent powers of the U.S. national and state governments according to the Constitution
    Figure 4.1: Enumerated, reserved, and concurrent powers in the United States

    The relationship between the national and state governments in the United States is similar in some ways to the relationships between state and local governments. An important difference is that local governments lack the sovereign status of state governments. This means states have much more power over localities — including the power to create, abolish, divide, or merge them — than the national government has over states.

    Limits to Federalism

    There are many advantages to a federal system of government. Giving states the freedom to make their own laws turns them into what former Supreme Court Justice Louis Brandeis called “laboratories of democracy.” Each state can experiment with different policies to find which ones work best. Sometimes this leads to states learning from one another’s successes and failures: Wisconsin might adopt an education program that seems to be working well in Minnesota, or Tennessee might steer clear of a tax system that backfires in Kentucky. But federalism also enables states to craft laws specifically suited to their wants and needs. The ideal tourism policy for Florida is probably very different from the ideal tourism policies for Nevada and Alaska.

    Federalism gives states flexibility to govern themselves as they wish. However, as the Articles of Confederation proved, too much flexibility is disadvantageous. The “patchwork of laws” produced by federalism — in which laws vary from state to state — can cause confusion and conflict if one state’s laws negatively impact another state in some way.

    To reduce the likelihood of such conflict, the Constitution imposes several limits on how much states can customize their laws. One of these limits is the full faith and credit clause in Article IV, which stipulates that states must respect one another’s laws. This clause is what enables Pennsylvanians to drive across the New Jersey border without breaking the law: their driver’s licenses are valid nationwide. Likewise, marriage licenses, adoption certificates, and court judgments issued by one state are valid in all other states. The full faith and credit clause also prevents Americans from moving to a state to avoid paying alimony, child support, or credit card debts owed in another state.

    Photograph of a political cartoon commissioned by Benjamin Franklin showing a snake cut into eight pieces, advising the U.S. colonies to join or die
    The first political cartoon ever printed in America, commissioned by Benjamin Franklin and published in the Pennsylvania Gazette in 1754, makes the case for a union of the American colonies.

    Another limit on federalism specified in Article IV is the privileges and immunities clause, which prohibits states from denying basic rights to citizens of other states. This clause protects Arizonans living in New Mexico from losing their property rights, access to courts, or welfare benefits. The privileges and immunities clause does not ban all unequal treatment of citizens and non-citizens, only that which infringes upon basic rights. Thus, public universities can charge more for out-of-state tuition than they do for in-state tuition without violating the privileges and immunities clause (in part because in-state students already support those universities with their tax dollars).

    A third limit on federalism outlined in Article VI is the supremacy clause, which establishes that national law is superior to state law whenever the two contradict. This clause prevents states from passing laws that violate the Constitution or statutes passed by Congress, ensuring that national laws are truly national. The supremacy clause prevents Louisiana from legalizing dogfighting, which was banned nationwide by Congress in 2007, because the national ban supersedes state law.

    Evolving Federalism

    The ratification of the Constitution in 1788 began the process of adjusting the United States from a confederal system to a federal one. From the very beginning, the Supreme Court was frequently called upon to interpret the Founders’ language in situations where its meaning was unclear. Several of the Court’s earliest decisions in matters pertaining to federalism reinforced the preeminence of the national government. These decisions included McCulloch v. Maryland in 1819, which established that states could not impose taxes on the national bank, and Gibbons v. Ogden in 1824, which struck down a steamboat monopoly on the Hudson River that inhibited the national government’s ability to regulate interstate commerce.

    Although these early decisions solidified the supremacy of the national government, the Supreme Court generally abided by a philosophy of dual federalism. This approach sharply divided the domains in which national and state governments could exercise their powers and gave states broad authority to manage their own affairs without national interference.

    One rationale for dual federalism had to do with slavery, an issue on which the Founders had struck a tenuous bargain in order to ratify the Constitution. In theory, giving states the power to set their own policies on slavery without the national government stepping in would preserve the fragile harmony between free states and slave states. In practice, such harmony proved impossible to maintain. The Fugitive Slave Act of 1850 forced free states to return escaped slaves to their owners if captured, and the Supreme Court’s 1857 ruling in Dred Scott v. Sandford affirmed that slaveowners could bring their slaves with them into parts of the country where slavery was illegal while still maintaining ownership of them. Free states bristled at the fact that national law forced them to be complicit in an abhorrent act which they themselves had made illegal but which some of their neighbors had not.

    The unworkable patchwork of laws pertaining to slavery was eventually torn apart and stitched back together by the Civil War. In the half-century that followed, five constitutional amendments shifted power from the state level to the national level. The Thirteenth Amendment abolished slavery nationwide, the Fourteenth Amendment guaranteed equal protection of the law for citizens in all states, the Fifteenth Amendment extended the right to vote to citizens of all races, the Sixteenth Amendment granted Congress the authority to impose a national income tax, and the Seventeenth Amendment removed the power to elect U.S. senators from the state legislatures and gave it to the citizens instead.

    America’s federal balance tilted further toward the national government and away from the states in the 1930s. The Great Depression brought severe hardships to the United States, leading the national government to take unprecedented actions to rebuild the American economy. President Franklin D. Roosevelt’s New Deal expanded the national government in both size and scope, enabling it to take on challenges of reducing unemployment, building infrastructure, regulating the financial system, and providing pensions in the form of Social Security. Although some initiatives were blocked by the Supreme Court as unconstitutional power grabs, the Court ultimately relented and allowed most of the New Deal to go into effect. The 1960s brought additional expansion of the national government’s role. President Lyndon B. Johnson’s Great Society policies led to the creation of Medicare (to lower healthcare costs for the elderly) and Medicaid (to do the same for the poor), as well as other programs aimed at eradicating poverty, promoting education, and ending racial discrimination. By this point, the United States had moved from dual federalism to cooperative federalism, with national and state governments working in tandem to solve problems.

    Federalism Today

    Modern American federalism continues to be cooperative rather than dual. States still play an important role in governing themselves, but increasingly they operate with direction and assistance from the national government on matters which they were previously expected to handle on their own. Today, many national-level organizations — among them the Department of Education, the Environmental Protection Agency, and the Federal Emergency Management Agency, — administer policies and programs that Americans in prior centuries never expected would fall under the purview of the national government.

    Much of this national-state cooperation involves grants of money authorized by Congress and distributed to the states for them to spend. These grants can be either categorical or block. A categorical grant is an amount of money issued to a state by Congress to spend for some specific purpose according to specific guidelines. A block grant is similar to a categorical grant but comes with fewer strings attached, giving the state more leeway to decide how to spend it. Categorical and block grants fall in and out of fashion over time in Washington: categorical grants tend to be more popular when Congress is controlled by the Democratic Party (which generally favors national-level policymaking), whereas block grants tend to be more popular when the Republican Party (which generally favors state-level policymaking) is in power.

    Sometimes the national government uses grants to indirectly influence states to adopt certain policies. For example, in 1984, Congress wanted states to raise their drinking ages to 21, but a national mandate could have prompted a protracted legal battle with the states and might have been ruled unconstitutional.

    Instead of forcing states to change their alcohol consumption laws, Congress passed a law that would withhold 10% of a state’s highway funding if it did not raise its drinking age to 21. Within 11 years, all 50 states and the District of Columbia had brought their laws in line with the new national standard rather than suffer the loss of funding.

    The mere fact that the term cooperative federalism contains the word cooperative does not mean that the national and state governments always cooperate. Federalism, like many aspects of American government, is laid out in the Constitution vaguely enough to obscure what precisely the Founders intended. States regularly spar with the national government over competing interpretations of constitutional or statutory law that would afford one or the other more power, often resulting in the Supreme Court deciding which interpretation is correct.

    One perennial battleground in the fight over American federalism is immigration. In 2010, Arizona passed a law to allow its state police officers to check the legal status of suspected illegal immigrants. President Barack Obama’s administration objected that immigration control was the domain of the national government; Arizona countered that the national government’s unwillingness to secure the border compelled the state to take matters into its own hands. (Some parts of Arizona’s law were eventually struck down by the U.S. Supreme Court in Arizona v. United States in 2012.) When Obama was succeeded by President Donald Trump — who had made border security a centerpiece of his presidential campaign — California and other states made a point of limiting their cooperation with U.S. Immigration and Customs Enforcement (ICE) efforts to identify and deport illegal immigrants. Under President Joe Biden, national immigration policies were again relaxed. Frustrated, Texas Governor Greg Abbott began sending buses of illegal immigrants to Washington, D.C., to draw attention to what he considered to be a dereliction of duty on the part of the president.

    Perhaps the most paradoxical federalism-related dispute concerns drug laws. Since the passage of the Controlled Substances Act in 1970, marijuana has been classified as a Schedule I drug, alongside much harder drugs such as ecstasy, heroin, and LSD. This classification effectively makes marijuana not just an illegal drug but one of the most illegal drugs in the United States. Despite this, 38 states have passed laws legalizing marijuana for medical or recreational use since 1996, in defiance of national law. (See Figure 4.2 below for a map of marijuana laws by states.) The supremacy clause clearly indicates that the Controlled Substances Act supersedes these state laws, but the national government has largely refrained from prosecuting marijuana users and dealers, except in the context of gang-related matters or major trafficking operations. Attempts by some members of Congress to “reschedule” marijuana to a less restricted category have thus far failed, leaving this contradiction in national and state policies unaddressed for the time being.

    Map showing the legal status of marijuana according to state laws as of 2023, according to Business Insider
    Figure 4.2: Legal status of marijuana according to state laws, 2023 (Source: Business Insider)

    Many of the most contentious issues in American politics today are fundamentally about federalism. As the national government has become more involved in policy areas previously handled by states, new debates have arisen about the proper way to divide power between the two levels. These debates involve both constitutional interpretation of the Founders’ intent as well as practical considerations about whether national or state government is better equipped to deal with the issues in question.

    E Pluribus Unum?

    One of the peculiarities of America is its grammar. The word United States looks like a plural noun but is treated as singular in contemporary American English: we say the United States is rather than the United States are. This wasn’t always the case: up until the early 20th century, it was much more common to refer to the United States plurally, as a union of distinct states rather than as a cohesive nation.

    This singular-plural quirk reflects the United States’ complicated history of national integration. It began as a collection of states uniting together under a common government, first to secure their independence from Great Britain and later to manage their peaceful coexistence on the continent. The unofficial motto of the United States, E pluribus unum — Latin for “Out of many, one” — expresses the Founders’ hope that the states would stand strong together while retaining their own political institutions and cultural identities.

    Just as the word United States has become less plural and more singular over time, the country itself has gradually become more integrated, with power becoming less diffuse and more centralized. No doubt the Founders would be surprised (and perhaps dismayed) at the extent to which power has shifted from the state level to the national level. Yet the individual states persist — and with them, the unique challenges of maintaining a country that is simultaneously one thing and 50.

    Federalism has done its job of holding the country together under a democratic system of government, but it hasn’t always been easy. At times the diversity of the states has made them seem nigh ungovernable. The Civil War strained the bonds of union almost to their breaking point. The Great Depression brought a mighty nation to its knees and prompted major changes to its governmental structure. The COVID-19 pandemic forced the United States to battle a devastating disease within the confines of a federal system. The next great test of American federalism might instigate a new evolution of the relationship between state and nation — or it might finally vindicate the doubters who believed large-scale democracies would inevitably either decay into dictatorship or crumble into anarchy.

    Like most complex machines, America consists of many interlocking parts. Properly assembled and tuned, it can be a powerful and versatile tool for democratic governance. But keeping it in working condition is a delicate task. Tighten the parts too much and the machine might jam up; loosen them too much and the machine might fall apart. Finding that sweet spot in between too tight and too loose is a perennial challenge of American politics.

    This page titled 1.4: Federalism is shared under a CC BY-NC 4.0 license and was authored, remixed, and/or curated by Benjamin R. Kantack (Tekakwitha Press) via source content that was edited to the style and standards of the LibreTexts platform.

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