federalism
Federalism: Concepts, Powers, and Case Studies
The lecture starts with reflection on audience questions about how federalism works and notes that there are other federal systems in the world.
Federalism is described as a rare system for dividing state power between the national government and state governments.
The unitary system concentrates power at the national level; the confederation concentrates power at the state level; federalism sits somewhere in between with powers split or shared.
The question of who has more power depends on the topic or policy area.
Examples of other federal systems mentioned:
Our neighbors to the north and south are federal systems; Germany and Russia are examples of federal systems as well.
The United States is unique in how it assigns powers to the states.
Constitutional foundations: where do states derive their powers?
The powers of states come from the first 10 amendments collectively known as the Bill of Rights; the focus is on the Tenth Amendment.
Tenth Amendment (paraphrase): any power not delegated to the national government by the Constitution, nor prohibited to the states, is reserved to the states or the people. In short, "anything not listed here is a state power"—reserve powers for the states.
This framework gives states substantial authority and makes the U.S. federal system notably ambiguous and flexible.
Legal systems and their influence on federalism:
Common law: emphasizes precedence and judicial decision-making; originates from the UK. The US and many former British colonies operate under common law.
Civil law: highly codified, with detailed statutes and less emphasis on judges’ interpretations of precedent; developed in continental Europe, notably by Napoleon's influence.
In federal systems, some countries (like Germany) use a civil law approach with explicit state and national powers and significant overlap; the U.S. uses a more open-ended approach (less overlap in common law style) where what is not listed is reserved for the states.
How federal systems allocate powers in practice:
The United States does not have a national police force; police powers are largely at the state level (police powers).
National vs state powers are not fixed; there are reserved powers for states, shared or concurrent powers, and explicit/implicit powers for the national government.
The federal system is not simply about what the national government can do; it’s also about what states can do and the limits of both.
Analogy to describe federalism: an unhappy marriage (dark romance)
The national and state governments are constantly in tension over who controls which areas.
There is ongoing conflict and negotiation about who has power over various situations.
The ‘makeup stage’ involves negotiations and compromises where one side asks for concessions.
The analogy captures the persistent friction, power struggles, and occasional reconciliation in federalism.
Current-events tensions illustrate the power tug-of-war:
Immigration policy is a classic federalism conflict: federal government generally handles immigration, but states have varying responses and enforcement decisions, leading to conflict.
Abortion policy as a current example: Roe v. Wade was overturned, shifting power to the states; this exemplifies how federal power and state power can be reshuffled by Supreme Court decisions.
Checks and balances: federalism is another layer of checks on federal power, in addition to the presidential system’s checks and balances among branches.
In practice, many areas involve shared, overlapping, or cross-cutting authority, with state implementation leading to 50 different approaches in some policy areas.
The “makeup stage” of federalism in current events: marijuana policy as a case study
Context: In many states, marijuana is legalized; federally, it remains illegal in most circumstances.
Key players in the discussion: industry actors, legal scholars, and policymakers.
Preemption vs. commandeering: two federalism doctrines relevant here.
Preemption: federal law displaces state law when they conflict (Article VI says federal law is the supreme law of the land).
The Tenth Amendment and the doctrine of commandeering: the federal government cannot require states to enforce federal law or to pass particular laws; the federal government can enforce its own laws but cannot force states to enforce them against their own citizens.
The video’s core example: cannabis policy shows how states legalizing marijuana can coexist with federal illegality, and why preemption is not the sole factor in this dynamic.
The federal government could, in theory, enforce marijuana laws nationwide, but practical limitations (resources, enforcement priorities) and the Tenth Amendment’s commandeering doctrine reduce the likelihood of uniform federal enforcement.
Historical context: the Controlled Substances Act (CSA) of categorized drugs into schedules by abuse potential and medicinal value, with marijuana placed on Schedule I (the most dangerous/least accepted for medical use).
Nixon and the War on Drugs: despite a Shaeffer Commission report questioning marijuana’s danger, the administration maintained aggressive enforcement.
State responses to the CSA:
Numerous states decriminalized or legalized marijuana (Oregon decriminalized; California legalized medical marijuana in ; Colorado and Washington legalized recreational use in ).
State laws can operate around federal preemption if it’s possible to comply with both state and federal laws; however, in cannabis, full compliance with both laws is often not possible, hence complexities with preemption.
Practical implications for cannabis businesses:
Banking: most banks are federally regulated; risk of federal enforcement makes banks reluctant to serve cannabis businesses, pushing many to operate on cash.
Tax: federal tax code § forbids deducting ordinary business expenses for drug-related activities, limiting deductions for cannabis businesses beyond the cost of goods sold.
Bankruptcy, trademarks, and immigration: cannabis businesses face challenges in bankruptcy law, trademark protection, and H-1B visa-related hiring because these legal areas operate under federal law.
The industry’s growth persists despite legal tension, and there are calls to address banking access, taxation parity, and restorative justice considerations (e.g., expungement for past marijuana-related offenses).
The video predicts potential federal changes that could reclassify marijuana and shift policy, but acknowledges the timetable is uncertain and heavily dependent on future administration priorities and public opinion shifts.
Why the federal government gains power over time (expansion of federal authority)
Express powers vs. implied powers:
Express powers are explicitly listed in the Constitution (e.g., the power to coin money and to tax).
Implied powers arise from the Necessary and Proper Clause, allowing Congress to do what is necessary and proper to execute its explicit powers.
A classic example: creation of a national bank (not explicitly listed in the Constitution but implied as a means to regulate money and economic policy).
The federal government’s expansion also occurs through shared or concurrent powers and through programs that require nationwide action and funding.
The supremacy clause ensures that when a federal law and state law conflict in areas where the federal government has power, the federal law prevails, but only within the scope of those powers.
Core constitutional clauses and concepts to remember
Supremacy Clause: in any conflict between federal and state law, federal law prevails if the federal government is acting within its constitutional powers.
Commerce Clause: a key basis for federal power, often used to justify federal regulation of economic activities that cross state lines or affect interstate commerce; has been used to underpin civil rights legislation and other nationwide policies.
Full Faith and Credit Clause: requires states to recognize and honor the public acts, records, and judicial proceedings of other states (relevant to inter-state legal coherence).
Tenth Amendment: reserves powers not delegated to the federal government for the states and the people, enabling significant state autonomy and sometimes creating ambiguity about where federal power ends and state power begins.
Necessary and Proper Clause: allows the federal government to enact laws necessary to execute its express powers, enabling implied powers and federal growth over time.
Layer cake federalism (dual federalism): early view of federalism in which national and state governments operate in distinct and non-overlapping spheres; each layer has its own clearly defined powers.
Historical arc: from layered to overlapping federalism
Early years characterized by a more limited, clearly separated set of powers (layer cake).
Growing tension and expansion of national power especially after the Great Depression and the New Deal (the crisis and the s onward).
The New Deal era: federal government gained resources (nationwide tax base, program funding) to tackle large-scale problems; examples include public works programs and infrastructure investment (e.g., schools, dams), which required national funding and broad policy authority.
A notable mechanism for national power expansion: providing funds with conditions to states (e.g., raising the drinking age to in exchange for highway funds).
COVID-19 highlighted issues where nationwide coordination was necessary to address a pandemic, which state-by-state responses could not fully manage.
Water conflicts (e.g., Nebraska, Colorado, Kansas) show cross-border disputes requiring federal or Supreme Court intervention when states cannot resolve disputes on their own.
Homelessness policy shows federal funding and policy shaping state approaches (e.g., Housing First) and potential shifts through executive actions.
Practical takeaways for analyzing federalism in policy and law
Some issues are national in scope and require federal action; others are better handled at the state level