Chapter 3 US Gov

Introduction Federalism may be defined as a political system in which power is divided between a central government and multiple constituent, provincial, or state governments. While the U.S. Constitution never expressly states anything like “the United States will have a federal system,” various provisions in the document confer or deny powers to the national government while others reserve or withhold powers for the fifty state governments. In this way, a federal system was created for America. This system has evolved and changed over time and continues to do so today, as a kind of tension has grown to exist between the central and the state governments over which will exercise power. Understanding this system and its nuances is requisite to fully grasping American government, since federalism is at the heart of how government is organized in the United States. Why Federalism? For the framers, federalism was a kind of middle ground between two other systems of government that had proven to be unsatisfactory for Americans. In one such system (called a unitary system by political scientists), a centralized, national government retained virtually all governmental power, as in the case of the British monarchy. Many colonists believed they had been subjected to tyrannical oppression at the hands of the king, and so were wary of conferring too much power on what they feared would become a distant and unfamiliar national government. However, the opposite extreme of government was equally undesirable. While the confederal system created by the Articles of Confederation did create a national government, the Articles gave relatively little power to that central government and instead reserved most governing power for the several states. While this provided for a great deal of local autonomy, the result was a puny national government. Indeed, this national government was too weak and ill-equipped to respond to even internal crises such as Shays’ Rebellion (a minor uprising of Massachusetts farmers angered over an ailing economy), let alone external threats from powerful neighbors. A federal system empowered to some extent both the state and national governments, thereby combining the benefits of both. Creating a Federal System Empowering a National Government Four items contained in the U.S. Constitution serve to confer the lion’s share of power on the national government: the “enumerated powers,” the “implied Federalism – 27 – powers,” the “Supremacy Clause,” and the power to tax. To enumerate something simply means to count it off, one by one, as in a list. Hence, the enumerated powers are essentially contained in list form in the U.S. Constitution, specifically in Article I, Section 8. This text gives “Congress,” which should be taken to mean the national government, the power to do many specific things, including coining money, establishing post offices, and maintaining a navy, among others. While the enumerated powers specify many things that the federal government can do, the framers knew that they could never create an exhaustive list of powers for the Congress. After all, times change, and much would doubtlessly occur in the future that they could not even anticipate, let alone write about. Consequently, the framers included language in Article I, Section 8 which has come to be known as the Elastic Clause, so-called because it lets the federal government expand and stretch its power under certain circumstances. The Elastic Clause provides that Congress shall have the power to make all laws which are “necessary and proper” for executing any of its enumerated powers (The Elastic Clause is sometimes referred to as the “Necessary and Proper Clause” because of this language). The result is that, providing Congress can demonstrate that a law it likes is both necessary and proper, it may be able to do something that might, at first glance, seem beyond the scope of its enumerated powers. Of course, determining exactly how “necessary” and “proper” should be defined in any given circumstance is often a matter of fierce debate in government, and anyone who does not like the law in question will certainly argue that it is unnecessary and improper. Political scientists refer to powers the national government derives from the Elastic Clause and the enumerated powers as implied powers since, while they are not overtly stated, such powers may be fairly construed to exist. Article VI of the U.S. Constitution contains what is referred to as the Supremacy Clause. Occasionally, both the federal government and one or more state governments might each claim some power to do something—for example, the power to regulate the issuance of monopolies on steamboat ferry transportation across the Hudson Bay (see the Supreme Court case of Gibbons v. Ogden later in the chapter). The Supremacy Clause states that in these conflicts, the federal government shall be presumed to win out over the state government(s). Chief Justice John Marshall put it more eloquently in the judicial opinion he wrote in 1819 for the U.S. Supreme Court case of McCulloch v. Maryland. Marshall declared, “the Constitution and the laws made in pursuance thereof are supreme…they control the constitution and laws of the respective States, and cannot be controlled by them.” The framers included this provision because they The Basics of American Government – 28 – had seen first-hand under the Articles of Confederation how the nation could suffer under an impotent national government. Finally, the national government derives much of its power from the ability to tax. To avoid the myriad problems of inadequate revenue that surfaced under the Articles of Confederation, the framers empowered the federal government with the ability to levy charges against such things as activities, products, and, with the Sixteenth Amendment, income. The power to tax can be a powerful tool to shape public policy. Consider, for example, consumption or “sin” taxes imposed by government on everything from alcohol to tobacco products to “gas guzzling” vehicles. Proponents of such taxes hope tacking on additional expenses to the cost of taxed products will discourage people from acquiring them and, eventually, make the products so unattractive to consumers that they disappear from the market. Empowering State Governments Like the federal government, state governments derive power from the U.S. Constitution. Regarding state power, Supreme Court Justice Hugo Black once wrote that federalism meant, “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways” (Younger v. Harris, 44). Indeed, having lived for a decade with the Articles of Confederation under which states maintained virtually all governmental power, it would have gone without saying for many of the framers that states would retain power under the U.S. Constitution. Consequently, relatively little is stated outright regarding state power in the Constitution’s articles. However, Anti-Federalist concerns over the national government usurping too much power eventually led to the inclusion of the Tenth Amendment in the U.S. Constitution. It states, “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.” Political scientists refer to this bit of text as the Reserved Powers Clause and these powers as “reserved powers” or, alternatively, “police powers.” While the latter term might conjure up images of men and women in blue brandishing pistols and handcuffs, think of it more broadly. Besides being a noun, “police” can also be a verb. To “police” something essentially means to keep something maintained in good order. In the context of federalism, a state’s “police powers” let it exclusively regulate within its borders things like law and order, health, safety, and morality as it sees fit and prohibits Federalism – 29 – the federal government from interfering with state interests in these areas. This explains why some states may permit some practices (such as same-sex marriage or capital punishment), while others do not. Each state is exercising its reserved powers autonomously. Powers Shared Between (and Denied to) the Federal and State Governments We have seen how the U.S. Constitution confers power onto the national government and onto state governments to create America’s federal system. However, to completely grasp how federalism functions, we must also understand the concepts of concurrent powers (or shared powers) and prohibited powers (or denied powers). Concurrent powers are powers that are held by both the federal and the state governments. For example, both the federal government and the several state governments have the power to establish a court system. This is why the United States has a federal Supreme Court, just as each state has its own state supreme court of last resort for cases moving through the state judicial system. Another example of a shared power would be the power to tax. If you have not already begun doing so, every year around mid-April, you will submit your Federal Income Tax Return, probably the (in)famous I.R.S. Form 1040. In most states, such as Georgia, you will also submit an income tax return to the state you live in around this time as well. Some states, such as Florida, Nevada, and New Hampshire, do not have a state income tax. As the name implies, concurrent powers may be exercised by the states and the national government simultaneously. However, note that states may exercise these shared powers only up to the point that they do not violate or conflict with national law. For example, while the state of Georgia does have the power to tax, the state could not begin taxing goods slated to be exported to other countries through its shipping ports. This is because the U.S. Constitution contains a clause that prohibits export taxes from being used (note that Georgia and other states can tax imported goods— providing they obtain approval from Congress to do so). The prohibition on export taxes is a good example of a “prohibited power.” As the name implies, a prohibited power is one that is denied to either the federal government, the state governments, or, at times, denied to both governments. For example, the Constitution contains a clause that reads, “No Title of Nobility shall be granted by the United States.” Hence, as nifty as they might sound, there will never be a “John Jones, Duke of Dahlonega” or “Susan Smith, Duchess of Dawsonville”—at least not officially, anyway. Another example of a prohibited power relates to what are called ex post facto laws. “Ex post facto” is Latin for The Basics of American Government – 30 – “after the fact.” An ex post facto law is one that would criminalize some action for the purpose of prosecuting it after someone had already performed the action at a time when it was legal to do so. Vengeful politicians in neither the federal government nor any state government can enact such laws. Examples of powers prohibited to only state governments would include the power to make treaties or to coin money. Examples of powers prohibited to only the federal government could include things like establishing a drinking age or setting the age of consent for marriage, since these would be considered state police powers protected from federal government intrusion thanks to the Tenth Amendment. “Horizontal Federalism” and Relations between the States The foregoing material describes how the U.S. Constitution allocates (or does not allocate) powers to the national and state governments. Some political scientists qualify this as vertical federalism since it describes a dynamic occurring between government on two different levels, federal and state. Just as important, however, is how power is shared between the several different governments that all inhabit the state level. To many people, part of what makes the United States a remarkable country is the heterogeneity of its fifty states. The size, population, resources, natural environment, and political culture of no two states are exactly alike. What is it that keeps big California with its population of around 40 million people and vast resources from trying to throw its weight around against other, smaller states? In fact, several provisions of the Constitution serve to put all the states on one level (i.e., horizontal) playing field. Four of the most significant of these provisions of horizontal federalism are the Full Faith and Credit Clause, the Privileges and Immunities Clause, and the Interstate Rendition (a.k.a. Extradition) Clause, which are all contained in Article IV, and interstate compacts. The Full Faith and Credit Clause requires each state to respect “the public Acts, Records, and judicial Proceedings of every other State.” Practically speaking, this statement means that contracts and judicial orders arising out of one state will continue to be binding in other states, mostly because it better facilitates national commerce. It is the reason a couple can drive cross-country all night, get married at a 24-hour wedding chapel in Las Vegas, and then return home, still married, even though their ceremony occurred several states away. Assuming the marriage contract was valid in Nevada, the Full Faith and Credit Clause requires that other states recognize it as well. But what if something permitted by a minority of states happens to be a thing that a majority of other states would rather prohibit? Could the Full Faith Federalism – 31 – and Credit clause compel that majority of states to kowtow to the policy of the minority?  A scenario rather along these lines emerged in the U.S. beginning around the 1990s.  A handful of states (including Hawaii, Vermont, and Massachusetts) began legalizing either civil unions for same-sex couples or samesex marriage. For a variety of reasons, many other states and many lawmakers in the Federal government bristled at this. In 1996, the federal congress passed and President Clinton signed into law the “Defense of Marriage Act” (DOMA) which, among other things, essentially defined marriage as being a union between one man and one woman.  As well, by around 2006, more than a dozen states had amended their own constitutions to deny recognition and acknowledgment within their borders of what became popularly termed “gay marriages” that had been performed in other jurisdictions. The next decade saw much litigation over the constitutionality of DOMA and state-authored gay marriage bans. Court battles culminated in June of 2015, when a closely-divided U.S. Supreme Court ruled in the case of Obergefell v. Hodges (2015) that same-sex marriage bans were unconstitutional. Interestingly, though, the Court did not rely at all upon the Constitution’s Full Faith and Credit clause to inform its ruling that essentially legalized gay marriage in the U.S. Rather, the Court struck down the bans because, in its view, they violated Fourteenth Amendment guarantees of equal protection under the law to all citizens, including homosexuals. Does this leave unanswered the question of whether or not the Full Faith and Credit Clause can subordinate a majority of states to the will of a minority of states? Not entirely. In another case decided in 1988, the Supreme Court noted that the Full Faith and Credit clause “does not compel a State to substitute the statutes of other States for its own statues dealing with a subject matter concerning which it is competent to legislate” (Franchise Tax Bd. of Cal. v. Hyatt, 2003, citing Sun Oil Co. v. Wortman, 1988). Language such as this has been interpreted by some legal observers as giving states the prerogative to claim what is termed a “public policy exception” to the Full Faith and Credit clause. Though there is not a great deal of case law providing much nuance about the exception, states can presumably invoke it in at least some instances to avoid having to embrace some unwanted policy adopted by a sister state. Whether it would be the public policy exception or the rule (i.e., the Full Faith and Credit clause) that would control in any given situation is, of course, something that the judiciary would determine. Like the Full Faith and Credit Clause, the Privileges and Immunities Clause also serves to equalize power distribution between states. This clause guarantees that citizens of one state shall be deemed to possess the same fundamental rights as citizens The Basics of American Government – 32 – of all other states. It is occasionally referred to as the ‘‘Comity Clause’’ because it prevents any state from discriminating against visiting citizens from another state in certain respects, which would tend to preserve harmony as people travel between states (‘‘comity’’ means a friendly social atmosphere, which probably would better come about if everyone thought they were on equal footing with everyone else). Note that this clause applies only to basic constitutional rights such as those discussed in Chapter 11. So, for example, a state might legally charge residents one price to enter a state museum but charge non-state-residents a higher price since museum-going is not a fundamental right protected by the U.S. Constitution. Interstate Rendition (or perhaps more commonly, if not entirely correctly, referred to as “extradition”) occurs when a fugitive apprehended in one state is handed over to the authorities of another state for prosecution for crimes committed in that latter state. To preserve interstate comity, when rendition occurs, it typically does so without much incident. However, occasions have arisen when one state may not want to turn over a fugitive to another state. Perhaps the most celebrated instance of this in recent years came in the legal case of Puerto Rico v. Branstad. In this case, an Iowa governor declined to extradite a man charged with homicide in Puerto Rico who had fled to Iowa while released on bail. The man (who was white) stood accused of killing a Hispanic woman, and the governor did not believe he could get a fair trial owing to racial circumstances. The case eventually reached the U.S. Supreme Court, which ruled that federal courts have the power to force states to hand over fugitives thanks to the Extradition Clause in Article IV, Section 2, Clause 2. (See Puerto Rico v. Branstad, 1987). Interstate compacts are discussed in Article I, Section 10 of the U.S. Constitution and also serve to harmonize relationships between states. These compacts are legally binding agreements between two or more states to do something that must be approved by Congress before taking effect. They can be on any subject, but often revolve around natural resources (such as lakes and rivers) that touch or flow through multiple states. Signatories to these compacts agree to share power and resources to maintain the common natural resource and prevent any one state from polluting or overusing the resource. Ultimately, these several provisions of the U.S. Constitution do much to help the fifty states get along. Except for one unfortunate period from 1861 to 1865, horizontal federalism has worked for over two hundred years. This track record should argue powerfully that horizontal federalism is just as important as federalism in the vertical sense when it comes to American government. Federalism – 33 – The Evolution of Federalism Early Years: The “Supremacy” Period Our present understanding of federalism and the manner in which power is allocated between the state governments and the national government did not spring into being overnight. Rather, this understanding has changed over the last two hundred-plus years. This process began with the writing of the U.S. Constitution. The framers meant for that text to communicate much about how power would be distributed; hence, we have the enumerated powers, the implied powers, the reserved powers, etc., discussed earlier. At the same time, the framers meant for their words to be interpreted by future generations. They understood that times would change and that phrases such as “necessary and proper” and words like “supremacy” would have to be qualified in the future to be meaningful in light of those changes. The job of qualifying this constitutional language typically falls to the United States Supreme Court. How that language has been qualified over time by the Court in response to changing times is the evolutionary process of federalism. This evolution of federalism really commenced in the early 1800s when Chief Justice John Marshall, a very talented jurist, headed the U.S. Supreme Court. In 1819, the Marshall Court heard a case called McCulloch v. Maryland, which is often referred to as “the bank case” for reasons soon to become apparent. In a simplified version, things began when Congress chartered a national bank and located a branch office of this bank in Baltimore. Maryland’s state legislature, which doubtlessly disliked the idea of added competition for state-owned banks within its borders, responded by levying a steep tax on all banks operating in the state that had not been chartered by Maryland. When James McCulloch, the head of the Baltimore branch of the federal bank, received the tax notice, he refused to pay. The state of Maryland sued McCulloch in state court and, unsurprisingly perhaps, won. McCulloch appealed to the U.S. Supreme Court. There were two central issues in the case that the Supreme Court was asked to decide, and both related to federalism. The first was, “Did Congress have the authority to charter a bank?” Maryland pointed out that the U.S. Constitution never mentioned such a power; indeed, the word ‘‘bank’’ never even appeared in the document. However, the Supreme Court sided with the federal government’s argument on this issue. That argument asserted that it was reasonable to imply that Congress should have the power to charter a bank thanks to the Elastic Clause. After all, the Constitution did expressly give Congress the power to issue currency, collect taxes, and to borrow money in the enumerated powers. A bank The Basics of American Government – 34 – could assist with doing these things—indeed, the U.S. government claimed it was necessary to have a bank to do them efficiently. Also, a national bank was not some arcane, complicated contraption that Congress conjured up out of nowhere. Many countries had national banks of one form or another even back then. Hence, one could say that having a national bank was proper as well as necessary for a nation like the United States to thrive. The Supreme Court decided that the federal government had made its case that the national bank was “necessary and proper” to the exercise of Congress’s enumerated powers involving revenue and currency. And, according to the Elastic Clause, if something Congress wants to do can be deemed “necessary and proper,” then that something is a constitutionally permissible exercise of federal government power. The second question presented for resolution in McCulloch v. Maryland related to taxation. Maryland argued that, assuming the national bank could exist, nothing should stop the state from taxing it. After all, the bank was on Maryland soil and so was potentially a burden to the state, albeit a minor one. The tax would compensate the state for its trouble. The Supreme Court did not buy it. Chief Justice Marshall, who wrote the majority opinion in the case, invoked the Constitution’s Supremacy Clause and held that a state law taxing the bank must be trumped by a federal law permitting the bank to operate freely. McCulloch v. Maryland is an important case in the evolution of federalism because of how the Supreme Court interpreted the Elastic Clause and the Supremacy Clause. In both instances, the Court read the U.S. Constitution in such a way that opened the door for the expansion of the federal government’s power. Consider that the Court could have qualified “necessary and proper” in such a way that would have made it very difficult for the federal government to characterize anything as either necessary and/or proper. It did not. Rather, the Court put the entire country on notice that satisfying the parameters of the Elastic Clause was something doable. Likewise, the Court could have adopted a more limited definition of “supremacy.” Again, it chose not to, sending in the process a clear signal to states that their laws would fare poorly in competition with federal statutes (See McCulloch v. Maryland, 17 U.S. 316 [1819]). Another landmark case affecting federalism came before the Marshall Court only a few years after McCulloch. In 1824, the Court heard Gibbons v. Ogden, which has come to be known as the “steamboat case”—again for reasons that will soon become apparent. Though the case eventually turned out to be somewhat complicated on several levels, the main issues in dispute were actually fairly simple. Aaron Ogden, who had ties to Robert Fulton, the inventor of the steamboat, had secured exclusive rights from the New York State legislature to Federalism – 35 – operate a steamboat passenger ferry service on the Hudson River between New York and New Jersey. About the same time, Thomas Gibbons, a former business partner of Ogden’s, also secured exclusive rights to do roughly the same thing— but his license came from Congress, not a state legislature. Ogden sued to protect his monopoly. Before the Court, the case turned chiefly on how the Interstate Commerce Clause of the Constitution would be interpreted. This clause states that Congress, not the states, shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” No one much disputed that the two steamboat services were operating “among” states. However, the parties to the lawsuit differed over how the word “commerce” in the clause should be defined. Ogden argued that commerce should amount to what people probably typically think of when they think of commerce—namely, exchanging money for goods. Since Ogden’s steamboat ferry provided a service, not goods, in exchange for money, he argued that what he did fell outside of the definition of commerce. And, if what he did was not commerce, then the Interstate Commerce Clause could not apply to give Congress the power to issue anything. The Supreme Court demurred. Justice Marshall wrote that commerce should be broadly defined to include “intercourse, all its branches.” So, you would be engaging in commerce if you swapped money for goods, money for services, services for goods, goods for goods, etc. Hence, the Congressional license granted to Gibbons was the valid one since the national government and not the state of New York was constitutionally empowered to regulate commercial activities that involved more than one state, which the steamboat ferry service did. This broad interpretation of what constituted commerce would let Congress use the Interstate Commerce Clause as a rationale to regulate many things over the next two centuries, much to the chagrin of many states. While during this time period the Court would occasionally reformulate its ruling on the matter (sometimes contracting when the clause could apply only to re-expand it at a later time), the clause has still always remained a powerful resource for the federal government (see Gibbons v. Ogden, 1824). The final truly significant Supreme Court case that qualified federalism during its age of supremacy was that of John Barron v. The Mayor and City Council of Baltimore, which was decided in 1833. Barron owned part of a lucrative wharf in the Baltimore harbor. He sued Baltimore for damages, claiming that when the city had diverted the flow of several streams to facilitate road work, the diversion caused sand and silt to collect around his wharf. Barron asserted that this hurt his business by making the water around the wharf too shallow to accommodate The Basics of American Government – 36 – many big vessels that sought to dock and unload their cargos there. Barron won the suit in the lower court, but Baltimore appealed the ruling, eventually all the way up to the Supreme Court. The key issue in the case was whether or not state government takings of private property for public use (known in the law as “eminent domain,” which, essentially, this was) required just compensation to individuals deprived of property. The Court held that while the Fifth Amendment of the U.S. Constitution did require this, the requirement only applied to the federal government and not the several state governments. Importantly, the Court essentially ruled that the freedoms guaranteed by the Bill of Rights did not restrict the state governments but, rather, applied only to the federal government. This qualifier was important in the development of federalism because it furthered a divide between federal and state governments (see Barron v. Mayor of Baltimore, 1833). The Era of “Dual Federalism” While the Supreme Court’s rulings in both McCulloch and Gibbons interpreted constitutional language in such a way that favored the federal government over the states, this would not always be the outcome. Over the next several decades following these decisions, the Court would be asked many times to decide just how far federal government power extended. The justices occasionally ruled against the federal government, thereby firming up the power of state governments. Perhaps the most (in)famous instance of this occurred in the 1857 case of Dred Scott v. Sandford. In this dispute, an African American slave sued for his freedom after moving with his owners from the slave-holding South to a free state in the North, believing his residence on free soil had ended his slave status. In an extremely controversial opinion, the Court held that Scott and other slaves should be “regarded as beings of an inferior order” not considered citizens of the United States, and so prohibited from filing suit in federal court. From a federalism standpoint, the case is significant because the Court declared that Congress lacked the power to ban slavery in the western territories such as Kansas and Nebraska, something it had attempted to do with the Missouri Compromise of 1820. States, then, and their citizens, would determine the fate of the “peculiar institution” (as slavery was sometimes euphemistically called) within their borders, not the federal government (see Dred Scott v. Sandford, 1856). Supreme Court rulings like that in Dred Scott that conferred power on state governments or rulings like those in McCulloch and Gibbons that conferred power on the national government collectively created what political scientists refer to as dual federalism. Under this scheme, the federal government and the state Federalism – 37 – governments are viewed as each having their own “sphere of influence” in which each exercises power and into which the other may not encroach. The national government derives its power to control everything in its sphere largely from the expressed and implied powers of the U.S. Constitution. The state governments control their spheres and keep the federal government out of their business largely thanks to the Reserved Powers Clause in the Tenth Amendment. A time-honored model used by American government students to visualize the arrangement of dual federalism is a two-layer-cake. Think of the federal government as being the top layer and the state governments as being the bottom layer. Each otherwise identical layer of cake is analogous to a sphere of influence and each is separated from the other by a thick layer of gooey icing, an insulating confection whipped together by the U.S. Constitution. The basic belief in dual federalism controlled American constitutional jurisprudence until the 1930s. Despite the notion of duality, the federal government’s overall power as compared to the states arguably, if gradually, increased during this interval. Perhaps the biggest factor for this increase was the Civil War. Ironically, this conflict that started out to increase the power of state governments ended up augmenting the national government’s power in many ways. For example, the federal income tax came into being. This taxation gave the national government a revenue source it had not possessed before. The tax would eventually become a permanent fixture in American life with the ratification of the Sixteenth Amendment and provide the federal government with vast capital resources (see U.S. Department of the Treasury, 2010). Also out of the Civil War came the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution. These so-called “Civil War Amendments” all dealt with race and sought to uplift free-blacks in whatever state they lived. However, judicial rulings like Plessy v. Ferguson (discussed in detail in Chapter 11) often thwarted this aim by returning power to states to make their own civil rights laws. Some years after the war, another kind of fight would increase the federal government’s power. Congress enacted the Sherman Antitrust Act in 1890 to combat the growth of corporate monopolies in America. This act permitted the federal government, not the states, to regulate many aspects of business and commerce in the name of protecting consumers from anti-competitive practices. While the Civil War Amendments and the Sherman Act empowered the federal government, not everything during the era of dual federalism was a loss for state governments. Supreme Court rulings in some cases, like Plessy, empowered The Basics of American Government – 38 – states. For example, states enjoyed relative autonomy to legislate in the areas of voting and civil rights within their own separate spheres. The Era of “Cooperative Federalism” Dual federalism became old news in 1933 with the advent of the New Deal. “New Deal” was the name given to a collection of radical government programs championed by President Franklin Roosevelt to get the United States out of the economic quagmire that was the Great Depression. Almost any problem one could think of (unemployment, crime, etc.) loomed large in America during this age. About the only entity anyone believed was sizable enough to even stand a chance at combating these ills was the federal government. Congress enacted law after law, creating new federal agencies geared toward promoting some aspect of economic recovery. These agencies had names like the Civilian Conservation Corps or the Tennessee Valley Authority, but were more often known by their initials. Collectively, history knows the CCC, the TVA, and others somewhat jokingly as the “Alphabet Soup Agencies.” The laws that created them demanded cooperation from multiple levels of government. The laws associated with the New Deal demanded that multiple levels of government (federal, state, and, now for the first time, often municipal governments) work together on implementation. For example, the federal government might do something like provide funds to a state that would then hire some of its unemployed citizens to, in turn, complete a roadwork project for a city. Because of the governmental interconnectedness inherent in this arrangement, political scientists refer to this as cooperative federalism. Recall that under dual federalism, the different levels of government operated autonomously within their separate spheres of influence—little cooperation there, to be sure. With the advent of this new kind of federalism, the lines between governmental spheres blurred and became more fluid. Of course, this changing federalism requires a change of metaphor as well since a slice of layer cake will always reveal two distinct parts separated from each other by frosting. Think of cooperative federalism as being illustrated by a piece of marble cake instead. A slice of that confection—when viewed from the side—reveals a swirling, intermixing of light and dark cake. Just as it is difficult to discern precisely where one cake starts and the other stops in a marble cake, cooperative federalism accepts that the boundaries of power for federal, state, and local governments are no longer fixed and distinct. You will probably have surmised that the shift from dual federalism to cooperative federalism was a radical one. Many people feared this unprecedented Federalism – 39 – growth of the federal bureaucracy and some filed legal challenges to New Deal legislation that made it all the way to the Supreme Court. Initially, the Court overturned much of the legislation. The justices often agreed with challengers that aspects of the New Deal conferred too much power on the national government. President Roosevelt fumed. In private, he derisively referred to the justices as the “nine old men.” Publicly, he proposed a plan that would essentially have given him and a sympathetic Congress the power to expand the Supreme Court from nine to fifteen justices. Of course, the additional jurists he would install would be New Deal supporters. Roosevelt’s court-packing plan, as it came to be known, proved to be largely unpopular with the American people, who resented his effort to tamper with the judiciary. However, merely proffering the plan may have had the effect FDR desired. Perhaps a bit spooked by the court-packing threat, the high court began ruling in favor of much New Deal legislation starting around 1935. These rulings cleared the way for Congress to increase its sway over states (see Leuchtenburg, 1969). Since the New Deal era, the primary tool employed by the federal government to induce states and municipalities to do their share of the cooperating in cooperative federalism was something called a categorical grant. A grant is simply an assignment of funds—usually a lot of funds when it is a federal program in question. The federal government had provided a few grant programs to states over the years prior to the Great Depression (such as the Morrill Land Grant Act of 1862, which gave states federal land to establish public colleges), but these were nothing compared to New Deal grant programs in either size or scope. The term “categorical” is meant to describe how Congress doles out federal dollars to states to accomplish distinct things in some particular area—as opposed to giving states money to spend however they might wish. Using categorical grants, Congress can, for all intents and purposes, regulate just about anything. Indeed, even though the Tenth Amendment reserves some powers to states, Congress can often tempt states with grants to induce them to police something in a way desired by the federal government. For example, there was a period of time during the 1970s where many oil-rich Arab countries instituted an oil embargo against the United States, mostly to punish Americans for historical support of Israel. Gasoline prices spiked, hours-long lines at pumps were common, and many places ran out of gas entirely as refinery oil supplies dwindled. The federal government wanted the nation to drive slower to conserve fuel. However, setting speed limits is a classic police power and lowering them is something only individual states could do thanks to the Tenth Amendment. Still, The Basics of American Government – 40 – the federal government would get its way. It offered states large grants of highway improvement money if they would only lower their interstate speed limits to 55 mph. Hungry for those highway funds, virtually all did so in a relatively short time. Hence, the national government accomplished its goal almost just as if it had regulated things directly (see Weiner, 1992). Beginning in the 1960s, the tone of cooperation between the states and the federal government began to change. Prior to that decade, most states had been generally content to work with the federal government under the terms of categorical grants, believing as they did that the two levels of government shared common aims. However, as the federal government advanced programs to combat poverty and discrimination under the Kennedy and Johnson administrations, many states—particularly in the South—abandoned this view. This occurred largely because the national government found ways to bypass state legislatures en route to achieving national objectives. Local governments and even community organizations received much federal funding, since Congress believed they would be more likely than several staunchly conservative states to spend money in ways benefitting African Americans and other marginalized groups. From many states’ points of view, the cooperation in federalism had disappeared. Equally vexing for states was the fact that many of the federal government programs that did emerge in the 1960s and 1970s contained what are known as unfunded federal mandates. Put simply, this term means that the federal government enacted some regulation that states were required to abide by but gave no money to states to spend for this purpose. For example, in 1974, Congress passed the Safe Drinking Water Act. Essentially, this act stated that public water sources had to meet Environmental Protection Agency standards of purity within a given time frame. While everyone will agree that clean drinking water is a good thing, Congress left to the states and local governments the responsibility and expense of getting water supplies tested and of removing pollutants and impurities if any were found. Governments that did not comply with the act faced stiff federal penalties and, in extreme circumstances, could be forced to find some other water supply—however inconvenient or expensive doing so might be. State and local governments, already short of time and money, bristled at what they saw as unreasonable burdens imposed by SDWA. This and other unfunded federal mandates would eventually be amended or repealed so as to lessen the burden on state and local governments; however while they were in effect, relations between these governments and the federal government were strained. Federalism – 41 – “New Federalism” and Beyond Ronald Reagan assumed the presidency in 1981 with an eye toward vastly curbing federal government power that had increased thanks to the growth of unfunded mandates and the deterioration of cooperative federalism. Reagan, a conservative political thinker dubious of big government, served as governor of the state of California from 1967 to 1975. He had experienced first-hand the frustration visited upon states by the federal government and unfunded mandates. Reagan sought to shrink federal government power and return more autonomy to the states by greatly reducing unfunded mandates and by changing how federal grants operated. In doing so, he built upon the groundwork laid by another Republican president, Richard Nixon, who had initiated a practice of revenue sharing in 1972 in an effort to shift some power and responsibility back to state and local government through a federal assistance program. Political scientists refer to what Reagan ushered in as New Federalism because of its novelty. It had several key features. Soon after assuming office, President Reagan rallied public opinion to urge Congress to make drastic cuts in both federal domestic programs and income tax rates. This action created an environment in which the federal government took in less revenue and had fewer programs to disburse back to the states the revenue it did collect. Consequently, state and local governments had to become more self-sufficient, which lessened the power the federal government had over them. But things did not stop there. Another key feature of New Federalism was a heavy reliance on block grants. Recall that in cooperative federalism, the federal government offered states and municipalities categorical grants. These grants came with many strings attached and required states to spend any federal dollars they received doing very specific things. Block grants are very unlike categorical grants because states and local governments receive sums of money along with better flexibility in determining how the funding can be spent. Additionally, federal government oversight or monitoring of block grant funds is relatively light. All of these actions had the effect of reducing the influence of the federal government over state and local governments since the power of the purse is effectively transferred to the latter. While block grants had been around in one form or another since the 1960s or so, New Federalism employed them with a gusto not yet seen in the United States to give states increased agency in governing areas ranging from healthcare to education to transportation, etc. The trends of New Federalism and the downsizing of the federal government generally continued to some extent for many years after President Reagan left office in 1989. For example, in the 1990s, the Clinton administration encouraged The Basics of American Government – 42 – states to explore new ideas and options for policymaking. However, they had no trouble imposing federal solutions on problems that states failed to solve. Republicans gained a majority in Congress in the 1994 elections by promoting their “Contract with America.” Much of this “contract” was devoted to decreasing the size of the federal government. Some provisions became law; many did not. While it may be debated as to just how much the Contract succeeded in curtailing the size and power of the federal government, that was certainly its aim. While President George W. Bush campaigned on a platform of continuing to return power to state and local governments in 2000, the events of September 11, 2001, made doing so largely infeasible. Rather, the federal bureaucracy and the power wielded by it swelled as America fought enemies foreign and domestic and, later, grappled with natural disasters and economic crises. The direction federalism took under the administration of President Barack Obama is not entirely settled. Obama championed a major expansion of federal policy, including an historic health care bill, a huge overhaul of financial regulation, a bail-out of America’s automotive industry, the “race to the top” educational grants, sweeping immigration and gun control reforms, and heavy investment in “green” technologies. While critics asserted that these could only lead to bigger national government, states may not be out of the picture. Political scientist Peter Harkness (2012) observed that Obama pursued a, “unique mixture of collaborative and coercive strategies in dealing with states and localities, making it hard to define just what kind of federalism we’re seeing”. Harkness and others see a “nuanced federalism” combining both incentive grants and mandates (carrots and sticks, if you will) to gain state compliance with presidential designs. The Trump administration’s view of federalism is difficult to pin down. Since President Trump identities as a conservative, many thought he would favor curtailing federal power.  Trump administration officials initially did express interest in curbing federal power in some areas, such as education policy. However, Trump also seemed to spurn state authority at times. For instance, he publicly criticized states supportive of “Sanctuary Cities” (cities electing not to aggressively enforce federal immigration policy) and encouraged more federal anti-narcotics policing in states moving to legalize recreational use of marijuana.  Even the COVID-19 pandemic saw mixed messages from Trump regarding federal and state power. With states issuing shelter-at-home orders to combat the virus in the spring of 2020, Trump tweeted that it is “the decision of the President” as to when states would reopen (Forgey & Gerstein, 2020). However, when states asked the federal government for medical supplies, Trump said that this is a task “for Federalism – 43 – the local governments, governors and people in the state” (Forgey, 2020). Yet that summer, Trump dispatched federal law-enforcement agents to Portland, Oregon, to quell protests. Given these examples, President Trump’s views on federalism remain unclear. Federalism and the Modern Supreme Court: A (Slow) Return to States’ Rights? For most of the twentieth century, the U.S. Supreme Court generally sided with the federal government when adjudicating legal questions of federalism. Consequently, the power of the national government expanded just as that of the various states contracted. This judicial trend would shift somewhat beginning in the 1980s. As part and parcel of New Federalism, President Reagan appointed jurists who attempted to return some power to states through their legal opinions. On topics ranging from gun control to abortion to gambling on Indian reservations to physician assisted suicide, the Supreme Court handed down decisions that restricted Congress’s power and rendered the states somewhat more sovereign. The Court’s recent shift toward favoring state governments has not been absolute, however. For example, in a pair of cases decided in 2004 and 2006, the justices ruled that under the Americans with Disabilities Act, Congress could require states to make their courthouses and prison facilities reasonably accessible to handicapped individuals. Also, in 2012 in the case of Arizona v. U.S., the Court struck down parts of a state law that essentially would have given local law enforcement officers the authority to enforce immigration law on the grounds that federal law preempted state involvement in such matters. That same year, the Court upheld Congress’ power to enact most provisions of the Patient Protection and Affordable Care Act (ACA), commonly called Obamacare, which riled some state governments. Whether these holdings herald a return for the Court to old habits or are merely aberrations along a path toward recognizing greater state sovereignty remains to be seen. Civic Engagement and Federalism The sheer size and scope of the United States government has doubtlessly prompted more than one person to ask, “What difference can a single individual possibly make in governing?” Indeed, unless that one person happens to be the president of the United States, a Supreme Court justice, or the like, it will probably be difficult to directly influence national policy to any great degree. However, thanks to federalism, other opportunities for civic engagement actually exist for The Basics of American Government – 44 – just about anyone. Federalism encourages democratic participation by dividing government powers and responsibilities between different levels of government— and some of those levels are very accessible. The trick is to know what level of government to approach about any given issue. Given the overlapping complexity of government, discerning the layers can oftentimes be difficult. Nevertheless, with diligence and an understanding of how federalism operates, one can tease out the correct federal, state, or local entity to approach about virtually any problem. The Internet can be a citizen’s best friend in accomplishing this task. While the mechanics of federalism are still fresh in your mind, make it a point to visit the websites of your local, state, and federal governments. As you browse those pages, you will begin to get a sense of what agencies and departments deal with what and, just as importantly, how you can contact them. Do this and you will be doing some good, since, as Thomas Jefferson observed, “Whenever the people are well-informed, they can be trusted with their own government.”