Criminal actions can be defined by state law, by national law, or by both. Thus a criminal can be prosecuted in the state court system, or in the federal court system, or both.
Numerous programs are funded by the national government but administered by state and local governments.
Understanding federalism and how it differs from other forms of government is important in understanding the American political system.
There are three ways of ordering relations between central governments and local units: (1) a unitary system, (2) a Confederal system, and (3) a federal system.
Unitary systems allow ultimate governmental authority to rest in the hands of the national or central government. In France, the decisions of the governments of the departments and municipalities can be overruled by the national government.
A confederation is the opposite of a unitary system. It is a league of independent states in which a central government or administration handles only those matters of common concern expressly delegated to it by the member states. The central government unit has no ability to make laws directly applicable to individuals unless the member states explicitly support such laws.
The federal system lies between the unitary and Confederal forms of government. In a federal system, authority is divided between a central government and regional, or sub-divisional governments. Within each government’s sphere of authority, each is supreme, in theory.
The supporters of the new constitution were political pragmatists – they realized that without a federal arrangement, there would be no ratification of the new Constitution. The appeal of federalism was that it retained state traditions and local power while establishing a strong national government capable of handling common problems.
Federalism allows many functions to be “farmed out” by the central government to the states or provinces. The lower levels of government, accepting these responsibilities, thereby can become the focus of political dissatisfaction rather than the national authorities.
The sheer geographic or population size of some nations makes it impractical to locate all political authority in one place.
Federalism brings government closer to the people. It allows more direct access to, and influence on, government agencies and policies, rather than leaving the population restive and dissatisfied with a remote, faceless, all-powerful central authority.
One of the benefits of federalism is that citizens have access to government at all levels – local, state, and national.
State governments long have been a training ground for future national leaders -- some presidents made their political mark as state governors
The states themselves have been testing grounds for new government initiatives – “Laboratories”
Arguments Against Federalism:
Some see it as a way for powerful state and local interests to block progress and impede national plans.
Others see dangers in the expansion of national powers at the expense of the states.
Smaller political units are more likely to be dominated by a single political group.
Constitutional Basis For American Federalism
The Constitution sets out different types of powers. These powers can be classified as:
Powers of the National Government – most of the powers expressly (expressed powers) delegated to the national government are found in Article I, Section 8, of the Constitution (enumerated powers). The implied powers of the national government are also based on Article I, Section 8, which states that Congress shall have the power “to make all laws which shall be necessary and proper for carrying” out the laws (necessary and proper clause or elastic clause – because it provides flexibility to our constitutional system).
McCulloch v. Maryland – the elastic clause was first used in this Supreme Court case to develop the concept of implied powers. Through this concept, the national government has succeeded in strengthening the scope of its authority to meet the numerous problems that the framers of the Constitution did not, could not, anticipate.
The inherent powers of the national government derive from the fact that the United States is a sovereign power among nations, and as such, its national government must be the only government that deals with other nations.
Powers of the State Governments – the 10th Amendment states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people. These are the reserved powers that the national government cannot deny to the states.
The ambiguity of the 10th Amendment has allowed the reserved powers of the states to be defined differently at different times in our history.
When there is widespread support for increased regulation by the national government, the 10th amendment tends to recede into the background.
When the tide turns the other way, the 10th amendment is resurrected to justify arguments supporting increased states’ rights.
Concurrent Powers – the states share powers with the national government – most are not specifically stated in the Constitution; they are only implied. Concurrent powers are normally limited to the geographic area of the state and to those functions not delegated by the Constitution exclusively to the national government.
Prohibited Powers – any power not delegated expressly or implicitly to the federal government by the Constitution is prohibited to it. The states are also denied certain powers.
The Supremacy Clause (Article VI, Clause 2) makes the Constitution the Supreme Law of the Land. **States cannot use their reserved or concurrent powers to thwart national policies.
National government legislation in a concurrent area is said to preempt (take precedence over) conflicting state or local laws or regulations in that area.
One of the ways in which the national government has extended its powers, particularly during the 20th century, is through the preemption of state and local laws by national legislation.
Vertical Checks and Balances: Government is divided between three branches of government: legislative, judicial, and executive. There are also checks and balances to keep one branch from becoming too powerful. These are sometimes called “vertical” checks and balances because they involve relationships between the states and the national government.
The Constitution cannot be changed without the states’ consent.
National programs and policies are administered by the states, which gives the states considerable control over the ultimate shape of those programs and policies.
The national government, in turn, can check state policies by exercising its constitutional powers under the clauses (supremacy, elastic, and commerce).
The national government can influence state policies indirectly through federal grants.
Horizontal Federalism: the states have numerous commercial, social, and other dealings among themselves. These interstate activities, problems, and policies make up what can be called horizontal federalism.
Three important clauses related to horizontal federalism in the Constitution (all taken from the Articles of Confederation) require each state to do the following:
Give full faith and credit to every other states’ public acts, records, and judicial proceedings (Article IV, Section1)
Extend to every other states’ citizens the privileges and immunities of its own citizens (Article IV, Section 2)
Agree to return persons who are fleeing from justice in another state back to their home state when requested to do so (Article IV, Section 2)
States may enter into agreements called interstate compacts if consented to by Congress.
Defining Constitutional Powers – The Early Years
Disputes over the boundaries of national versus state powers have characterized this nation from the beginning.
In the early 1800s the most significant disputes arose over differing interpretations of the implied powers of the national government under the necessary and proper clause and the respective powers of the national government and the states in regard to commerce.
Ultimately it is the Supreme Court that casts the final vote for settling these disputes.
From 1801-1835, the Supreme Court was headed by Chief Justice John Marshall, a Federalist who advocated a strong central government. The following Supreme Court cases are considered milestones on the movement toward national government supremacy:
McCulloch v. Maryland (1819) – The government of Maryland imposed a tax on the Second Bank of the United States (a national bank) in Baltimore in an attempt to put that branch out of business. The bank’s cashier, James William McCulloch refused to pay the tax. When Maryland took McCulloch to its state court, the state of Maryland won. The national government appealed the case to the Supreme Court.
Constitutional Question: Does the national government have the implied power under the necessary and proper clause to charter a bank and contribute capital to it?
John Marshall’s Court held that if establishing a national bank aided the national government in the exercise of its designated powers, then the authority to set up such a bank could be implied.
Constitutional Question: If the bank was constitutional, could a state tax it (made invalid under the supremacy clause)?
Marshall states that no state could use its taxing power to tax an arm of the national government. If it could, “the declaration that the Constitution … shall be the supreme law of the land, is [an] empty and unmeaning [statement]. ** The Marshall Court established the doctrine of national supremacy with this court case.
Gibbons v. Ogden (1824) – Robert Fulton and Robert Livingston secured a monopoly on steam navigation on the waters in New York state from the NY legislature in 1803. They contracted with Aaron Ogden to operate a steam-powered ferry between New York and New Jersey. Thomas Gibbons decided to compete with Ogden and was given a license from the U.S. government, but he did so without permission from New York. Ogden sued Gibbons and the New York state courts granted an injunction prohibiting Gibbons from operating in New York waters. Gibbons appealed to the Supreme Court.
Constitutional Question: had to do with how the term commerce should be defined.
Marshall defined commerce as all commercial intercourse – all business dealings – including navigation and the transport of people.
Constitutional Question: whether the national government’s power to regulate interstate commerce extended to commerce within a state (intrastate commerce) or was limited strictly to commerce among the states (interstate commerce).
Marshall held that the commerce power of the national government could be exercised in state jurisdictions, even though it cannot reach solely intrastate commerce.
Constitutional Question: Whether the power to regulate interstate commerce was a concurrent power or an exclusive national power.
Marshall emphasized that the power to regulate interstate coerce was an exclusive national power.
Marshall’s expansive interpretation of the commerce clause allowed the national government to exercise increasing authority over all areas of economic affairs throughout the land.
In the 1930s and subsequent decades, however, the commerce clause became the primary constitutional basis for national government regulation.
States’ Rights and the Resort to Civil War – at the heart of the controversy that led to the Civil War was the issue of national government supremacy versus the rights of the separate states.
During the Jacksonian era (1829-1837) a shift back to states’ rights began.
Nullification Crisis – Congress passed a tariff in 1828, the state of South Carolina attempted to nullify the tariff, claiming that in cases of conflict between a state and the national government, the state should have the ultimate authority over its citizens.
Ironically, the Civil War brought about in large part because of the South’s desire for increased states’ rights resulted in the opposite; an increase in the political power of the national government.
The debate over the division of powers in our federal system can be viewed as progressing through at least 3 stages since the Civil War:
Dual Federalism: a doctrine that emphasizes a distinction between federal and state spheres of government authority. Is commonly depicted as a layercake, because the state governments and the national government are viewed as separate entities, like separate layers in a cake.
The Courts tended to support the states’ rights to exercise their police powers and concurrent powers in regard to the regulation of intrastate activities.
Cooperative Federalism: the states and the national government cooperate in solving complex common problems.
The Great Depression in the 1930s saw the doctrine of dual federalism recede.
The pattern of national-state relationships during these years gave rise to a new metaphor for federalism – that of a marblecake.
Picket-fence federalism – the horizontal boards in the fence represent the different levels of government (national, state, and local) while the vertical pickets represent the various programs and policies in which each level of government is involved. Officials at each level of government work together to promote and develop the policy represented by each picket.
Federal Grants-in Aid: the national government gives back to the states (and local) governments a significant amount of tax dollars it collects.
Federal grants have taken the form of categorical grants-in-aid, which are grants to state and local governments designated for very specific programs or projects.
By attaching conditions to federal grants, the national government has been able to exercise substantial control over matters that traditionally have fallen under the purview of state governments. If a state does not comply with the particular requirements, the national government may withhold federal funds for other programs.
Cooperative Federalism and the Supreme Court:
The full effect of Chief Justice John Marshall’s broad interpretation of the commerce clause has only been realized since the 1930s. In the years since then, the commerce clause has been used to justify national regulation of virtually any activity, even what would appear to be a purely local activity.
The commerce clause has also been used to validate congressional legislation in what would seem to be social and moral matters – concerns traditionally regulated by the states.
New Federalism – was labeled by President Nixon (1969-1974) – its goal is to restore to the states some of the powers that have been exercised by the national government since the 1930s. The word devolution – which means the transfer of powers to political subunits – is often used in connection with this approach to federalism (devolutionary federalism).
Block Grants – one of the major tools of the new federalism – place fewer restrictions on grants-in-aid given to state and local governments by grouping a number of categorical grants under one broad purpose.
Governors and mayors generally prefer block grants because they give the states more flexibility in how the money is spent.
Congress prefers categorical grants so that the expenditures are targeted according to congressional priorities.
Federal Mandates – (a major obstacle faced by those who favor returning power to the states) – requirements in federal legislation that force states and municipalities to comply with certain rules. Some of these mandates are very costly to the state and local governments.
The Supreme Court and the New Federalism – One of the rallying cries of the new federalism has been that the national government has gone too far in the direction of exercising powers that rightfully belong to the states under the Constitution. To a significant extent, the federal courts have agreed with this contention.
10th Amendment Issues: the federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.
Reining in the Commerce Power: United States v. Lopez (1995) the Supreme Court held that Congress had exceeded its constitutional authority under the commerce clause when it passed the Gun-Free School Zones Act in 1990.
This marked the first time in 60 years that the Supreme Curt had placed a limit on the national government’s authority under the commerce clause.
State Sovereignty and the 11th Amendment – in the 1999-200 term, the Supreme Curt issued a series of decisions that bolstered the authority of state governments under the 11th amendment. As interpreted by the Court, the amendment precludes lawsuits against state governments for violations of rights established by federal laws unless the states consent to be sued.