Federalism

OVERVIEW

Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for the federal governance, governing the issues that affect the entire country, while the smaller subdivisions, states, and cities, govern the issues of local concern. Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other. The United States has a federal system of governance consisting of the national or federal government, and the government of the individual states.  In the United States, the Constitution has established a system of “dual sovereignty,” under which the States have surrendered many of their powers to the Federal Government, but also retained a “residuary and inviolable sovereignty.”  See Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); See Lane Cty v. Oregon, 74 U.S. 71, 76 (1869).

Much of the current U.S. Federalism has been developed as a reaction to the failures of the Articles of Confederation, which persuaded the Framers that using States as instruments of national governance was ineffectual and provocative of conflict between the states and national government.  See Printz v. U.S., 521 U.S. 898, 920 (1997).  The Framers rejected the concept of a central government that would act upon and through the States, and instead, designed a system of dual governance and dual sovereignty, in which the States and the Federal Government would exercise concurrent authority over the people.  While the Constitution limits the powers of the Congress and the powers of the States by placing substantive due process and procedural due process restrictions on both governments, the Constitution gives Congress not the power to regulate states, but only individuals. See New York v. United States, 505 U.S. 144 (1992). 

The U.S. Constitution grants the federal government with power over issues of national concern, while the state governments, generally, have jurisdiction over issues of domestic concern. While the federal government can enact laws governing the entire country, its powers are enumerated, or limited; it only has the specific powers allotted to it in the Constitution. For example, Article I, Section 8 of the Constitution grants Congress the power to levy taxes, mint money, declare war, establish post offices, and punish piracies on the high seas. Any action by the federal government must fall within one of the powers enumerated in the Constitution. For example, the federal government can regulate interstate commerce pursuant to the Commerce Clause of the Constitution but has no power to regulate commerce that occurs only within a single state.  The commerce clause has been interpreted very broadly by the Supreme Court, see e.g. Gonzales v. Raich, 545 U.S. 1 (2005) (upholding federal regulation of intrastate marijuana production under grounds that even the intrastate production of a good could affect interstate commercial scheme) and has been thought as one of the broadest base of Congressional powers.  The second broadest base of congressional powers is its power to tax and subsidize.  By giving grants or subsidies to state governments with conditions for the grant, the federal government can often induce the state government to cooperate with federal agenda. 

The amount of power exercised by the federal government is dependent upon how the various provisions of the Constitution are interpreted. For example, the U.S. Supreme Court expanded the powers of the federal government when it construed federal powers to include those “necessary and proper” to affect the legislation passed by Congress. McCulloch v. Maryland, 17 U.S. 316 (1819). This construction allows the federal government to exercise power ancillary to those specifically listed in the Constitution, provided the exercise of those powers does not conflict with another Constitutional provision.

In contrast, state power is not limited to express grants of power. Instead, under the Tenth Amendment of the Constitution, States have all powers that are not specifically granted to the federal government, or forbidden to them under the Constitution. For example, although the Constitution grants the federal government the power to tax, state governments are also able to levy taxes to support themselves, because that power is not forbidden to them by the Constitution. State governments manage matters of local concern, such as child protective services, public schools, and road maintenance and repair.

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Last Edited by Jonathan Kim, June 2017