Describe how the Constitution structures the relationships among the national, state, and local governments
Federalism is a system of government in which power is divided between a central government and regional governments. Federalism contrasts with a unitary system, in which lower levels of government have little independent power and primarily just implement decisions made by the central government. As we saw in Chapter 2, federalism was a central element of America’s Constitution of 1787, which assigned specific powers to the national government and left others to the states.
The United States was the first nation to adopt federalism as its governing framework. By granting “expressed powers” to the national government and reserving the rest to the states, the original Constitution recognized two authorities: state governments and the federal government.
The nations most likely to have federalism are those with diverse ethnic, language, or regional groupings, such as Switzerland and Canada and certainly the United States. At the time of America’s Founding, the new nation consisted of diverse economic and political interests. Federalism was a way of assuring these interests, particularly southern plantation owners, most if not all of whom owned enslaved Black people, that their views would not be submerged in the new nation. The multiple governments at the national, state, and local levels present many opportunities for citizens to express their preferences, promising to maximize democratic participation. Because states and even localities have their own taxing, spending, and policy-making powers (especially in the United States), policy experimentation and innovation is another feature, as is the tailoring of policy to local preferences. And competition among states and localities to attract individuals and businesses promises to maximize the efficiency of government services.2 But federalism can produce problems as well. Slavery and segregation hid behind the banner of federalism, and, today, opponents of measures that might mitigate the Covid-19 pandemic have seized upon the rhetoric of local control and states’ rights.
In the American version of federalism, state and local governments have even more policy-making responsibilities than in most federal systems. The result is wide variation in policies and a centuries-long tug-of-war between the national and state governments, and between state and local governments. The federal structure’s division of labor across the levels of government makes intergovernmental relations—the processes by which those levels of government negotiate and compromise over policy responsibility—one of the most characteristic aspects of American government.
Political Ramifications of Federalism
American federalism not only affects political power; it has significant implications for policy outcomes as well. Because of the policy variation made possible by the sovereignty of state and local governments, where you live determines the age at which you can get a license to drive or get married, the amount you pay for public college tuition, the licensing requirements to work as a barber or accountant or athletic trainer, and, if you were out of work, whether you would get unemployment benefits and how much. But federalism has important effects on American politics as well.
Political preferences arising from federalism are not set in stone. Although conservatives typically support a smaller federal government or a return of power to the states, once in power they find at times that federal power can be used to advance conservative policy goals. For President George W. Bush, for example, the importance of a strong federal government became apparent after the terrorist attacks in 2001. Aware that the American public was looking to Washington for protection, Bush worked with Congress to pass the USA PATRIOT Act, which greatly increased the surveillance powers of the federal government. A year later he created the enormous new federal Department of Homeland Security. Bush also increased federal control and spending in policy areas far removed from security. The 2001 No Child Left Behind Act (NCLB) introduced unprecedented federal intervention in public education, traditionally a state and local responsibility, through detailed new requirements for states’ testing of students and treatment of failing schools.
Democratic presidents, too, have sometimes made decisions about national–state responsibilities that defy the usual ideological expectations. As president, Obama released the states from the federal NCLB mandates, and in 2015 he sponsored a new law called Every Student Succeeds that returned power to the states to evaluate schools—a move that might have been expected more from a conservative president. A second important political implication of federalism concerns individuals’ democratic participation and the accountability of government to the people. The multiple layers of government provide many opportunities for ordinary citizens to vote, contact elected officials, and engage in “venue shopping”—seeking policy change at a different level of government if stymied at first. But federalism can also demobilize individuals. The overlapping policy responsibilities facilitated by federalism make it difficult for individuals to figure out which government is responsible for the problem that concerns them, and they may give up; it is difficult for individuals to demand answers from government if they can’t determine which government is in charge.3
The Powers of the National Government
As we saw in Chapter 2, the expressed powers granted to the national government are found in Article I, Section 8, of the Constitution. These 17 powers include the power to collect taxes, coin money, declare war, and regulate commerce. Article I, Section 8, also contains another important source of power for the national government: the implied powers that enable Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Not until several decades after the Founding did the Supreme Court allow Congress to exercise the power implied in this necessary and proper clause. But as we shall see later in this chapter, this power allowed the national government to expand considerably—if slowly—the scope of its authority. In addition to these expressed and implied powers, the Constitution affirmed the power of the national government in the supremacy clause (Article VI), which made all national laws and treaties “the supreme Law of the Land.”
The Powers of State Government
One way in which the framers preserved a strong role for the states in the federal system was through the Tenth Amendment to the Constitution, which says that the powers the Constitution does not delegate to the national government or prohibit to the states are “reserved to the States respectively, or to the people.” The Antifederalists, who feared that a strong central government would encroach on individual liberty, repeatedly pressed for such a “reserved powers amendment.”
States also share with the national government concurrent powers to regulate commerce and the economy—for example, they can charter banks, grant or deny charters for corporations, grant or deny licenses to engage in a business or practice a trade, regulate the quality of products or the conditions of labor, and levy taxes. Wherever there is a direct conflict of laws between the federal and state levels, the issue will most likely be resolved in favor of national supremacy.
A very important power of the states is control of voting rights and the process of elections. States, for example, draw congressional district boundaries, establish voter registration requirements, decide whether absentee voting is allowed, and organize the casting and counting of ballots. The struggle over voting rights, to be discussed in Chapter 5, has been an effort to loosen restrictive state requirements that tend to reduce participation on the part of poor people and people from racial and ethnic minority groups. Today, Republicans control a majority of state governments. Accordingly, congressional Democrats support legislation that would reduce the states’ power over voting rules while congressional Republicans support the status quo.
AMERICA |SIDE BY SIDE
Federal and Unitary Countries
Worldwide, unitary systems of government are much more common than federal systems. Geographically they may appear to be roughly even on this map, but that is because larger countries such as the United States and Russia often use federal systems. In fact, fewer than 15 percent of the world’s countries use federal systems. Each type of system brings its own strengths and drawbacks: unitary systems can be more efficient, but federal systems can allow for more regional autonomy and policy innovation.
What explains why a country might use a federal or a unitary system? Why would a country with a large amount of territory to govern, such as Canada or Brazil, prefer a federal arrangement? Are there any geographic or regional patterns that you see? What might lead to countries on a continent being more likely to have similar government arrangements?
What are some of the other advantages to having a unitary system? In what ways might a federal system be more responsive? If you were designing your own country, which would you prefer and why?
SOURCE: A. Griffiths, R. Chattopadhyay, J. Light, and C. Stieren, “The Forum of Federations Handbook of Federal Countries 2020,” Wikipedia, https://en.wikipedia.org/wiki/Unitary_state (accessed 10/5/21).
The Police Power
America’s federal system leaves a great deal of power in the hands of the individual states. The most fundamental power that the states retain is that of coercion—the power to develop and enforce criminal codes, administer health and safety rules, and regulate the family through marriage and divorce laws. States also have the power to regulate individuals’ livelihoods; physicians, attorneys, plumbers, hairdressers, and those wishing to practice a host of other occupations must obtain licenses from their state. Even more fundamental, the states have the power to define private property. Private property exists because state laws against trespass and theft define who is and who is not entitled to use a piece of property. Ownership of a house or piece of land, for example, means that the state will enforce the owner’s possession by prohibiting others from occupying the property without the consent of its owner. At the same time, under its power of eminent domain (see Chapter 4), the state may seize private property for anything it deems to be a public purpose. If the state, however, does seize such property, it is required by its own constitution and the federal constitution to compensate the owners for their loss. The decision to take the property, though, is well within the states’ recognized powers.
As businesses like this bakery in Arizona pushed the limits of stay-at-home orders during the coronavirus pandemic, police officers stepped in to enforce the state’s authority to regulate the public health and safety of citizens.
A state’s authority to regulate these fundamental matters, commonly referred to as the police power, encompasses its power to regulate the health, safety, welfare, and morals of its citizens. Policing is what states do: they coerce individuals in the name of the community in order to maintain public order. When an individual is issued a traffic ticket, or taken into custody for most other crimes, the state is exercising its police power, often through the agency of a county or city police officer. (Counties and cities are effectively agencies of their states.)
Though Americans tend to look to the federal government for help in times of crisis, the states, and especially their governors and executive departments, are the actual primary responders when Americans are threatened by natural or human-made disasters. Every year, the states deal with floods, hurricanes, fires, shootings, and public-health problems.
States’ Obligations to One Another
The Constitution also creates obligations among the states, spelled out in Article IV. By requiring the states to recognize or uphold governmental actions and decisions in other states, the framers aimed to make the states less like independent countries and more like components of a unified nation. Article IV, Section 1, calls for “Full Faith and Credit” among states, meaning that each state is normally expected to honor the “Public Acts, Records, and Judicial Proceedings” of the other states. So, for example, if a restraining order is placed on a stalker in one state, other states are required to enforce that order as if they had issued it.
Nevertheless, some courts have found exceptions to the full faith and credit clause: if one state’s law is against the “strong public policy” of another state, that state may not be obligated to recognize it.4 The history of interracial marriage policy shows how much leeway states once had about recognizing marriages performed in other states. In 1952, 30 states prohibited interracial marriage, and many of these also refused to recognize such marriages performed in other states.5 For example, in the 1967 Supreme Court case of Loving v. Virginia, which successfully challenged state bans on interracial marriage, Mildred and Richard Loving, a Black woman and a White man, were married in the District of Columbia. However, when they returned to their home state of Virginia, it refused to recognize them as a married couple.6
Until recently, same-sex marriage was in a similar position to interracial marriage. Thirty-five states had passed “Defense of Marriage” acts, defining marriage as a union between one man and one woman, or had adopted constitutional amendments to this effect. In 1996, Congress passed a federal Defense of Marriage Act, which declared that states were not required to recognize a same-sex marriage from another state and that the federal government did not recognize same-sex marriage even if it was legal under state law.
In 2015, however, the Supreme Court ruled that the Fourteenth Amendment guaranteed a fundamental right to same-sex marriage. The case, Obergefell v. Hodges, challenged four home states’ refusals to grant same-sex marriage licenses or recognize same-sex marriages performed out of state.7 The Court’s decision meant that all states must now offer marriage licenses to two people of the same sex and recognize same-sex marriages licensed by other states. In one stroke, same-sex marriage turned from a state-level policy choice to a nationally recognized right.
Article IV, Section 2, known as the “comity clause,” also seeks to promote national unity, by providing that citizens enjoying the “privileges and immunities” of one state should be entitled to similar treatment in other states. This has come to mean that a state cannot discriminate against someone from another state or give special privileges to its own residents. For example, in the 1970s the Supreme Court struck down as unconstitutional an Alaska law that gave Alaska residents preference over nonresidents for jobs on the state’s oil and gas pipelines.8 The comity clause also regulates criminal justice among the states by requiring states to return fugitives to the states from which they have fled.
Local Government and the Constitution
Local government occupies a peculiar but very important place in the American system. It has no status in the U.S. Constitution. Instead, state constitutions define local government structures and responsibilities. Thus, local governments are subject to ultimate control by the states.
This imbalance of power means that state governments could legally dissolve local governments or force multiple local governments to consolidate into one. Most states have amended their constitutions to give their larger cities home rule—a guarantee of noninterference in various areas of local affairs.9 In recent years, however, as discussed later in the chapter, some local governments have passed laws making policy on matters from minimum wage to public broadband, only to have state legislatures preempt, or remove, that authority.
HOW TO
Make Your Voice Heard at a Local Meeting
Domingo Morel, cofounder of the Rhode Island Latino Policy Institute and assistant professor at Rutgers University–Newark
How can you change policy in your community? There are over 90,000 local governments in the United States, including school boards, city councils, county boards, and special districts for public transportation, utilities, libraries, parks, police, fire, water, and more. Domingo shared his advice for making your voice heard in local government:
1
Figure out which governmental entity has jurisdiction over your issue and get on its agenda. Most school boards, city councils, and other local government entities have an online sign-up to speak at their meetings.
2
Do research on your issue. Local governments often do not have staffs to do research. Many local officeholders have day jobs. You can be an effective advocate and partner by supplying the research they can’t do. Young people would be surprised to learn how far that can get them.
3
Prepare your statement. Your time will be limited, so lay out your issue concern and suggested solution succinctly. The most effective statements don’t just articulate an argument but also attach a personal narrative about why this issue is important and convey that to the people who are in power.
4
Follow up. Email the members of the board or council. Broadcast your issue concern and proposals on social media. Monitor the agenda and attend sub sequent meetings. Build relationships with local officials.
5
Consider that collective action may be even more powerful. I recall a mother who attended Newark school board meetings for four months, urging, without success, that Muslim holidays be added to the school calendar. In the fifth month she said, “Today I brought my community. Can all of the Muslims in attendance please stand up?” Seeing an auditorium full, the school board changed the policy. I advise bringing friends, finding out what groups may already work on your concerns, or creating your own group if needed (see How to Start an Advocacy Group on p. 250).
6
Work across the generations. Seek the advice of elders and community leaders who worked on such issues in the past. In turn, recruit younger people to keep the effort going, giving them information so they don’t have to start over. It’s not easy getting engaged, it’s not easy to go out there and be an activist on the individual or collective level, but once you get to that place, it’s important to ensure you’re recruiting others.
7
Work the federal system. Many issues are addressed at multiple levels of government. Strategize about the best level for addressing your particular concern. And if you make no headway at one level, target another. Federalism brings its challenges but also has its advantages.
powers derived from the necessary and proper clause of Article I, Section 8, of the Constitution; such powers are not specifically expressed but are implied through the expansive interpretation of delegated powers
Article I, Section 8, of the Constitution, which provides Congress with the authority to make all laws “necessary and proper” to carry out its expressed powers
provision from Article IV, Section 1, of the Constitution requiring that the states normally honor the public acts and judicial decisions that take place in another state
provision, from Article IV, Section 2, of the Constitution, that a state cannot discriminate against someone from another state or give its own residents special privileges
power delegated by the state to a local unit of government to manage its own affairs
Endnotes
Pietro S. Nivola, “Why Federalism Matters,” Brookings Institution Policy Brief #146, October 2005, www.brookings.edu/wp-content/uploads/2016/06/pb146.pdf (accessed 7/15/19). Return to reference 2
Lisa L. Miller, “The Representational Biases of Federalism: Scope and Bias in the Political Process, Revisited,” Perspectives on Politics 50, no. 2 (June 2007): 305–21. Return to reference 3
The public policy exception stems from developments in case law tracing back to the 1930s. In Section 283 of the Restatement (Second) of Conflict of Laws (1971) a group of judges and academics codified existing case law related to marriage: “A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.” However, in Baker v. General Motors Corp., 522 U.S. 222 (1998), the Supreme Court explicitly stated that its decision “creates no general exception to the full faith and credit command.”
Adam Liptak, “Bans on Interracial Unions Offer Perspective on Gay Ones,” New York Times, March 17, 2004, A22, www.nytimes.com/2004/03/17/us/bans-on-interracial-unions-offer-perspective-on-gay-ones.html.Return to reference 5
Loving v. Virginia, 388 U.S. 1 (1967). The Lovings were charged with violating Virginia’s miscegenation laws and were sentenced to one year in jail, which would be suspended if they left the state for 25 years. Five years later, with the assistance of the American Civil Liberties Union, the Lovings filed a motion to vacate their conviction. The Supreme Court heard the case and overturned the Lovings’ conviction, finding Virginia’s miscegenation law unconstitutional under the due process clause and equal protection clause of the Fourteenth Amendment.
A good discussion of the constitutional position of local governments is in Richard Briffault, “Our Localism: Part I, the Structure of Local Government Law,” Columbia Law Review 90, no. 1 (January 1990): 1–115. For more on the structure and theory of federalism, see Larry N. Gerston, American Federalism: A Concise Introduction (Armonk, NY: M. E. Sharpe, 2007), and Martha Derthick, “Up-to-Date in Kansas City: Reflections on American Federalism” (1992 John Gaus Lecture), PS: Political Science and Politics 25 (December 1992): 671–75.
