Federalism is a form of Government in which power is divided between the national government and other, smaller governmental units. It attempts to strike a balance between a unitary government such as a monarchy, in which the central authority holds exclusive power, and a confederation, in which the smaller units, such as states, hold the most power.

Influenced by the Federalist Party, the framers of the U.S. Constitution created a strong national government to resolve the problems arising from the Articles of Confederation, which allowed the states far too much power. While the Constitution specifically lists the broad set of enumerated and implied powers of the national government, it emphasizes what the states cannot do.

Powers specifically granted to the states are limited to establishing voter qualifications and setting up the mechanics of elections. This apparent imbalance of power is corrected by the Tenth Amendment, which reserves to the states all powers either not specifically granted to the national government or specifically denied to the states. Since the rather vague language of the Tenth Amendment allows for widely different interpretations, it is not surprising that different varieties of federalism have evolved over the years.

Dual Federalism

Dual federalism is a system in which the national and state governments operate separately. Power is divided between the federal and state governments in a way that maintains a balance between the two. Much as the framers of the Constitution intended, the states are allowed to exercise the limited powers granted to them with little or no interference from the federal government. Political scientists often refer to dual federalism as “layer-cake federalism” due to its clear division of powers between federal and state governments.

As America’s first application of federalism, dual federalism arose from dissatisfaction with the Articles of Confederation. Ratified in 1781, the Articles created an extremely weak federal government with powers limited to declaring war, making foreign treaties, and maintaining an army. Fueled by Shays’ Rebellion in 1786 and the federal government’s inability to raise the money needed to pay the nation’s debt from the American Revolution, the Federalists succeeded in convincing the delegates to the Constitutional Convention of 1787 to create a Constitution providing a strong central government.

The extent of the federal government’s power under the early system of dual federalism was clarified by the U.S. Supreme Court in several seminal cases. In the 1819 case of McCulloch v. Maryland, for example, the Supreme Court ruled that the Constitution’s Necessary and Proper Clause gave Congress the right to create national banks that could not be taxed by the states.

In the 1824 case of Gibbons v. Ogden, the Court held that the Commerce Clause of the Constitution gave Congress the power to regulate interstate commerce, including the commercial use of navigable waterways. While the constitutionality of some aspects of these decisions remained vague, leaving the exact meaning of the Necessary and Proper and Commerce Clauses in question, they reaffirmed the supremacy of federal law and diminished the powers of the states.

Dual federalism remained the predominant form of government until the 1930s when it was replaced by cooperative federalism, or “marble-cake federalism,” in which the federal and state governments work together in creating and administering public policy.

Cooperative Federalism

Cooperative federalism is a model of intergovernmental relations that recognizes the need for federal and state governments to share power equally to solve shared, often momentous, problems collectively. Within this approach, the lines between the two governments’ powers are blurred. Instead of finding themselves at odds as was often the case under dual federalism, bureaucratic agencies at the national and state level typically carry out governmental programs cooperatively.

Though the term “cooperative federalism” was not used until the 1930s its basic concept of federal and state cooperation dates back to the administration of President Thomas Jefferson. During the 1800s, federal government land grants were used to help implement a variety of state government programs such as college education, veterans’ benefits, and transportation infrastructure. Under the Swamp Lands Acts of 1849, 1850, and 1860, for example, millions of acres of federally-owned wetlands were ceded to 15 interior and coastal states. The states drained and sold the land, using the profits to fund flood control projects. Similarly, the Morrill Act of 1862 gave land grants to several states for the establishment of state colleges.

The model of cooperative federalism was expanded in the 1930s as the sweeping state-federal cooperative programs of President Franklin Roosevelt’s New Deal initiative brought the nation out of the Great Depression. Cooperative federalism remained the norm throughout World War II, the Cold War, and up until the 1960s, when the Great Society initiatives of President Lyndon B. Johnson declared America’s “War on Poverty.”

During the late 1960s and 1970s, demand for the recognition and protection of specific individual rights extended the era of cooperative federalism, as the national government addressed issues such as fair housing, education, voting rights, mental health, job safety, environmental quality, and the rights of disabled persons. As the federal government created new policies to address these issues, it looked to the states to implement a wide array of federally enforced mandates. Since the late 1970s, federal mandates requiring state participation have become more exacting and binding. The federal government now commonly imposes deadlines for implementation and threatens to withhold federal funding from states that fail to meet them.

Several political scientists argue that the European Union (EU) is evolving into a system of cooperative federalism. Similar to the United States, the countries of the EU function like a federation of sovereign states standing on a “middle ground” between international and national law. Since its founding in 1958, the EU has experienced a decline in the constitutional and legislative exclusivity on the part of the individual member states. Today, the EU and its member states operate in an atmosphere of shared powers. Due to the decline in legislative exclusivity, legislative policies of the EU and its states increasingly complement each other to solve social problems—the key characteristic of cooperative federalism.

New Federalism

New federalism refers to the gradual return of power to the states initiated by President Ronald Reagan with his “Devolution Revolution” in the 1980s. The intent of new federalism is the restoration of some of the power and autonomy lost by the states during the late 1930s as a result of President Roosevelt’s New Deal programs.

Similar to cooperative federalism, new federalism typically involves the federal government providing block grant funds to the states to resolve social issues, such as affordable housing, law enforcement, public health, and community development. While the federal government monitors the outcomes, the states are allowed far greater discretion for how the programs are implemented than they were under cooperative federalism. Advocates of this approach cite Supreme Court Justice Louis Brandeis who wrote in his dissent in the 1932 case of New State Ice Co. v. Liebmann, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

As fiscal conservatives, President Reagan and his successor, George W. Bush, believed that the new federalism’s devolution of power represented a way to cut government spending by shifting much of the responsibility—and the cost—of administering federal programs to the states. From the late 1980s through the mid-1990s, the Devolution Revolution gave states tremendous power to rewrite the rules of their social welfare programs. However, some economists and social scientists argue that the actual intent of the Devolution Revolution was the large-scale withdrawal of federal support for social welfare, no matter how well-conceived. Deprived of federal matching funds, the states were forced to reduce spending, often by depriving their dependent populations of help.

From Dual to New Federalism

Until the rise of new federalism, the powers of the states had been greatly limited by the Supreme Court’s interpretations of the Commerce Clause of the Constitution. As contained in Article I, Section 8, the Commerce Clause grants the federal government to power to regulate interstate commerce, which is defined as the sale, purchase, or exchange of commodities or the transportation of people, money, or goods between different states. Congress has often used the Commerce Clause to justify laws—such as gun control laws—restricting the activities of states and their citizens. Often spurring controversy regarding the balance of power between the federal government and the states, the Commerce Clause has historically been viewed as both a grant of congressional authority and as an attack on states’ rights.

From 1937 to 1995, the main period of state-restrictive dual federalism, the Supreme Court refused to overturn a single federal law for overstepping Congress’s power under the Commerce Clause. Instead, the consistently ruled that any action on the part of the states or their citizens that that could conceivably have even a slight impact on commerce across state line was subject to strict federal regulation.

In 1995 and again in 2000, it was considered a slight victory for new federalism when the Supreme Court, under William Rehnquist—who had been elevated to Chief Justice by President Reagan—reined in federal regulatory power in the cases of United States v. Lopez and United States v. Morrison. In United States v. Lopez, the Court ruled 5-4 the Gun-Free School Zones Act of 1990 unconstitutional, finding that the lawmaking power of Congress under the Commerce Clause was limited, and did not extend so far as to authorize the regulation of the carrying of handguns. In United States v. Morrison, the Court ruled 5-4 that a key section of the Violence Against Women Act of 1994 giving women harmed by gender-based violence the right to sue their assailants in civil court was unconstitutional because it exceeded the powers granted to the US Congress under the Commerce Clause and the Fourteenth Amendment’s Equal Protection Clause.

In 2005, however, the Supreme Court took a slight turn back towards dual federalism in the case of Gonzales v. Raich, ruling that the federal government could outlaw the use of marijuana for medical purposes under the Commerce Clause even if the marijuana had never been bought or sold, and never crossed state lines.

Sources

http://www.on-federalism.eu/attachments/169_download.pdf.

http://peped.org/politicalinvestigations/article-1-us-federalism-past-present-future/.

https://crsreports.congress.gov/product/pdf/RL/RL30772/2.

https://www.brookings.edu/book/from-new-federalism-to-devolution/

https://www.thoughtco.com/types-of-federalism-definition-and-examples-5194793

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