Federalism and the U.S. Constitution

In 1787, the Second Continental Congress appointed delegates from each state to revise the Articles of Confederation, which was the initial governing document of the United States.

The 55 delegates undertook the challenge of creating a system of government for their new country. This meeting in Philadelphia, the Constitutional Convention, resulted in the U.S. Constitution and the federal democratic republic system of government in place today. 

The Framers of the Constitution had first-hand experience with an all-powerful central government. The American Revolution was waged, in part, because the British imposed taxes on the colonists without offering them representation in government.

But in the years following their victory over the British, they learned that a weak federal government presented a different but equally flawed form of governance. The Articles of Confederation, the predecessor to the Constitution, gave most of the power to the states. The federal government had few powers to regulate the states or the national economy. America was in a crisis, and the Framers had to solve it. 

The Framers' solution was to create a written Constitution to act as the supreme law of the land. In doing so, they created a strong national government. The problem with a strong federal government, however, is the amount of power it has. 

The Framers proposed two distinct solutions to allocate the federal government's powers. One solution was to divide the national government into three separate branches, each endowed with its own roles and authorities. This separation of powers designated who had the power to act in different areas. It also allowed each branch of government to "check" the power of the other branches.

However, the Framers went beyond establishing a separation of powers. They also instituted a system of federalism, which delineates the division of authority between the federal and state governments. This fusion of federalism and the separation of powers resulted in a robust government that safeguarded the freedoms of its citizens.

This article provides an in-depth explanation of federalism. Specifically, it introduces federalism, its significance in the American political system, and how the Supreme Court has interpreted it.

What is Federalism?

Federalism refers to the balance of power between the different levels of government. The separation of powers divides power between the branches (executive, legislative, and judicial) "horizontally." Meanwhile, federalism divides power "vertically" between the national and individual state governments.

At its core, federalism divides the governance process in the United States between the federal and state governments. Generally, the federal government is in charge of things that affect the country as a whole, such as:

• Waging wars

• Foreign policy

• Controlling currency

• Managing interstate highways

State governments generally run everything within their borders, including the following:

• Issuing driver's licenses

• Emergency services, such as police departments and firefighters

• Infrastructure

• Hospitals

The governments also share some responsibilities, such as levying taxes.

The Framers devised the following power structure between the separate governments: 

• The Constitution of the United States is supreme over both the national and the state governments. 

• The Constitution sets out all of the federal government's powers.

• The Constitution reserves any powers that it does not give to the federal government to the states. 

Federalism succeeded in creating a strong federal government while reserving authority for the states to govern themselves.

The federal government does not have unlimited authority or power over the states. Instead, states can "check" the national government if it violates its enumerated powers. Additionally, where the Constitution is silent about a power, states may pass laws regarding it. 

Article VI of the Constitution makes clear that the Constitution is the supreme law of the land (the Supremacy Clause). This means that federal law is supreme over a conflicting state law. Additionally, every governmental action must pass Constitutional muster to be valid.  

Enumerated Powers of the Federal Government

As noted above, the federal government has limited powers. Articles I, II, and III of the Constitution list the powers of the legislative, executive, and judicial branches, respectively. 

Article I establishes that the legislature, i.e., Congress, has the lawmaking powers. Congress is made up of the Senate and the House of Representatives. Article I, Section 8 lists the legislative branch's powers, which include (among others):

• The power to regulate interstate commerce (the commerce clause)

• The power to lay and collect taxes

• The power to establish lower federal courts

• The power to raise and fund armies

• The power to make all laws necessary and proper to carry out the Constitution's enumerated powers (the necessary and proper clause)

Article II enumerates the president's powers, which include:

• The power to conduct war as the Commander in Chief

• The power to make treaties (if they get the Senate's approval)

• The power to veto bills

• The power to sign bills into law

Article III lists the judiciary's powers, including:

• The power to interpret state and federal laws

• The power to decide legal disputes

• The power to punish people or entities that violate criminal laws

• The power to decide civil and criminal cases

The first ten amendments to the Constitution, known as the Bill of Rights, originally only applied to the federal government. While state constitutions could provide rights to their citizens, citizens could not rely on the U.S. Constitution to challenge state actions. 

However, after the Civil War, the states ratified the Fourteenth Amendment. It provided for federal protection of individual rights against the states. The Fourteenth Amendment's due process clause incorporated some (but not all) of the Bill of Rights to the states, thereby protecting citizens from certain state actions. 

State Powers and the Tenth Amendment

Through federalism, the Framers planned to give states the authority to establish their own laws, and the federal government generally could not interfere with them. 

The states ratified the U.S. Constitution in 1788 and the Bill of Rights in 1791. The Bill of Rights consisted of several amendments to the Constitution. The last was the Tenth Amendment, which states:

"The powers not granted to the national government, nor prohibited to the states, are reserved to the states respectively, or to the people."

The Tenth Amendment codified the Framers' intent to allow states to establish their own laws without interference from the national government. It also reinforced that the federal government only has the powers the Constitution grants. Moreover, it specifies that the Constitution reserves any power it does not grant the federal government to the states or the people. 

Police Powers

The Tenth Amendment gives each state the implied power to create and enforce laws necessary to promote its citizens' public health, safety, and welfare. This power, known as the state police power, is a powerful tool in the United States' system of government. 

Contrary to what the term might suggest, 'police powers' do not pertain to individual police officers. Rather, they encompass the authority of state governments to regulate aspects of public safety, health, morality, and the maintenance of law and order.

The police power is unique to the states. Because the Tenth Amendment reserves all other powers to the states and people, states have the general police power to create and enforce laws within their borders. This power is broad and is generally only limited by the state's constitution, the federal government's enumerated powers, and the rights incorporated to the states through the Fourteenth Amendment. 

Mutual Checks on Power

Another key feature of federalism is that it allows the separate governments to check each other. As Alexander Hamilton wrote in The Federalist No. 28:

Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government . . . If their rights are invaded by either, they can make use of the other as the instrument of redress.

The national government has a duty to ensure that state governments do not violate the Constitution. Also, the federal government must guarantee that each state maintains a republican form of government.

What occurs if the federal government does not uphold the Constitution? Do states possess any rights or means of recourse against it? These questions arose a decade after the ratification of the Constitution by the states.

The states, through their officials, have a right and a duty to resist any unconstitutional acts the federal government takes. Like federal officials, state officials swear oaths to defend and uphold the U.S. Constitution. Therefore, states have an independent power to interpret the Constitution faithfully.

The Alien and Sedition Acts

President John Adams enacted the Alien and Sedition Acts in 1798. The series of federal laws granted the president the authority to deport individuals from enemy nations or any non-citizens deemed threats to national security. It also criminalized publishing "false, scandalous, and malicious" writings critical of the federal government. 

Critics argued that the Acts violated the First Amendment rights to freedom of speech and the press. However, all three branches of the federal government approved the Acts. 

The question arose, then, of who could check the national government if the independent branches did not check the others. In other words, is there any recourse if the federal government does not uphold the Constitution?

Enter Vice President Thomas Jefferson and the "Father of the Constitution," James Madison. Jefferson and Madison wrote resolutions for Kentucky and Virginia, respectively, declaring the Acts unconstitutional. Specifically, the resolutions argued that states had a right to independently interpret the Constitution. Moreover, they argued that states could refuse to enforce an unconstitutional law.

Madison and Jefferson correctly proposed that states had a right and duty to interpret the Constitution independently. Federalism allows state governments to check the federal government. 

The Supreme Court did not weigh in on the Alien and Sedition Acts at the time. Instead, the presidential election of 1800 acted as a referendum of sorts. Jefferson won the election, and the Sedition Act expired when he took office. He then pardoned everyone convicted under the Act, reasoning that it was unconstitutional. The Alien Enemies Act, however, remains a valid law today. 

Evolution of Federalism

Federalism has changed since the states ratified the Constitution in 1788. This section describes the different types of federalism throughout history. 

Dual Federalism

Dual federalism refers to the original type of federalism enshrined in the Constitution. It provided for a clear division of power between the federal and state governments, as described earlier. 

Two Supreme Court cases, McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), illustrate dual federalism in action.

McCulloch v. Maryland

In 1816, Congress chartered the Second National Bank to "help control the amount of unregulated currency issued by state banks." The state of Maryland argued that Congress did not have the constitutional authority to create a bank. Maryland's legislature passed a law imposing taxes on the bank. 

James McCulloch, a cashier at a Maryland bank branch, refused to pay the tax. Maryland sued McCulloch, arguing it had the right to tax any bank that states did not charter. 

The Supreme Court reviewed the case and determined the following:

1. Congress has the constitutional authority to charter a national bank under the "necessary and proper clause."

2. States cannot tax federal banks, and, more broadly, they cannot tax the federal government.

Chief Justice John Marshall wrote that the necessary and proper clause allows Congress to pass any "appropriate" and "legitimate" law to carry out objectives under its enumerated powers. Even though the Constitution did not explicitly grant Congress the authority to create banks, the necessary and proper clause allowed it to create a bank to pursue its objective of raising and distributing money. 

Marshall also concluded that states cannot tax the federal government. Therefore, Maryland could not tax the federal bank. He determined that states cannot interfere with federal powers that the Constitution enumerated. Although states can impose taxes, the Constitution and federal laws are supreme with regard to conflicting state laws. 

In other words, because the Court ruled that Congress legitimately chartered the bank, an individual state could not interfere with it via taxes or otherwise. McCulloch thereby stands for the idea that states cannot interfere with the federal government's actions so long as the government acts legitimately. It also means the federal government has broad powers, and federal laws triumph over conflicting state laws. 

Gibbons v. Ogden

In Gibbons, the Supreme Court held that the Constitution's commerce clause allowed the national government to regulate interstate commerce. The Court also continued the trend it set in McCulloch, holding that state governments could not pass laws interfering with the federal government.

The case involved a dispute between steamboat operators along the East Coast. A New York state law gave several steamboat operators a monopoly on navigating the Hudson River. Aaron Ogden received a license from the operators, allowing him to navigate the Hudson for trade. 

Thomas Gibbons, another operator, had a federal coastal license to conduct business on waterways between New York and New Jersey. He partnered with Ogden for a time. However, their partnership deteriorated after Gibbons began competing against Ogden, using the waterways protected by the New York state law. 

Ogden eventually obtained an injunction against Gibbons, ordering him to stop violating the state law. Gibbons appealed, arguing that his federal license trumped the state law. 

The case ultimately reached the Supreme Court. The court ruled that the commerce clause allowed the federal government to regulate interstate trade via navigable waters and that federal regulations were supreme over conflicting state laws. Although New York could enact such laws, this particular law was invalid because it interfered with the federal government's regulatory powers. The Court then dissolved the injunction against Gibbons.

Gibbons reinforced the Court's ruling in McCulloch regarding the Supremacy Clause and clarified that the federal government has the power to regulate interstate commerce.

Cooperative and Regulated Federalism

President Franklin D. Roosevelt's New Deal program significantly altered federalism. It introduced a series of programs that led to increased cooperation between the national government and states. In doing so, it reduced the independence the levels of government previously had. The programs marked a shift from dual federalism to what scholars refer to as "cooperative federalism."

Roosevelt began implementing the New Deal immediately upon taking office in 1933. It was his response to the Great Depression. Through it, he instituted many economic reforms throughout the United States.

One of his reforms was introducing "intergovernmental grants" for the states. In approximately 1937, Roosevelt introduced several "federal grant-in-aid programs" to stimulate the economy.

The federal government began providing grants-in-aid to states. The state governments generally had to use grants in specific ways to receive them. The federal government had objectives and awarded the grants to state governments that agreed to pursue those objectives.

This interaction between the federal government significantly changed federalism. The federal government could now:

• Monetarily incentivize states to pursue objectives that they may not have necessarily pursued on their own

• Refuse to provide funding if states chose not to pursue the national government's defined goals

Therefore, states generally had to pursue the federal government's specified objectives if they wanted to receive funding.

In addition to grants, the federal government also began engaging in "regulated federalism." In regulated federalism, the federal government establishes mandatory regulations and rules that states are required to follow.

Sometimes, the federal government provides money for the states to comply with the mandates. The Environmental Protection Agency's pollution regulations exemplify such a mandate.

Other times, the federal government creates "unfunded mandates." States must provide their own funds to comply with unfunded mandates. Occupational Safety and Health Administration regulations are an example of an unfunded mandate.

With the advent of cooperative and regulated federalism, the "dual federalism" model gave way to a mixing of federal policies and monetary incentives. Power was no longer cleanly divided between the national government and the states. Instead, it increased the national government's power over states by influencing state rules, regulations, and funding. 

New Federalism

In the 1970s, a change in political philosophy saw some powers return to the states, reversing course from cooperative federalism. President Richard Nixon began the New Federalism movement highlighted by the General Revenue Sharing program and block grants. Nixon's goal was to address domestic issues through a form of federalism "in 'which power, funds, and responsibility will flow from Washington to the States and to the people.'"

The General Revenue Sharing program provided funding to state and local governments for general purposes, including the following:

• State highway upkeep and improvements

• Emergency services (e.g., funding for police and firefighters)

• Construction and renovation of public buildings

As part of the shift, the federal government began offering block grants to states. Block grants generally give state governments discretion to use the grant as they see fit, instead of grants-in-aid. 

Although Nixon and President Ronald Reagan endorsed New Federalism as a shift away from cooperative federalism, the federal and state governments still commingle powers, especially compared to dual federalism. 

COVID-19 and Federalism

The COVID-19 pandemic provides a recent example of federalism in action and demonstrates the importance of individual state police powers. As two scholars note, COVID-19 represents the "federalism event of the century." 

The coronavirus led to intense friction between the federal and state governments. Competing levels of authority to act and the exercise of jurisdiction contributed to the friction. 

Some scholars suggest that federalism was to blame for the federal government's "poor performance" in responding to the coronavirus. Generally, those critical of the American response to the pandemic cite the following:

• The division of power between states and the federal government led to a fragmented response to the coronavirus

• Inconsistent policies between the states caused the coronavirus to spread faster compared to a potential national policy

• The federal government's failure to promulgate rules or policies in response to the coronavirus led to inconsistent implementation of state-created policies

When the coronavirus reached the U.S. in early 2020, President Donald Trump wrote, "The Federal Government is merely a back‐up for state governments." His general view was to allow the states to promulgate laws and regulations to deal with the pandemic. Critics argue that Trump did not "accept legal responsibility" for the pandemic by failing to implement "a coordinated and collaborative national response" to it.

Supporters of Trump's response to the coronavirus argue that state, county, and local governments were better positioned to respond to the pandemic. States could decide, for example, if and when to close schools or issue stay-at-home orders. 

The federal government does not have the authority to force school closures or issue lockdown orders. Instead, federalism allows individual states to rely on their police powers to pass such laws and regulations to promote public health. 

The president may, however, issue "guidelines" regarding public health, such as testing and isolation procedures. Additionally, government agencies like the Department of Health and Human Services (HHS) can declare national emergencies and provide financial aid to states.

HHS declared a public health emergency on January 31, 2020, resulting in states receiving financial aid and allowing states to waive certain health regulations. On March 13, 2020, Trump declared a national emergency related to the coronavirus. This suspended many rules and regulations related to the following (among others):

• Public health

• Criminal justice

• Trade

However, although the federal government may issue guidelines, states do not necessarily have to follow them. Therefore, responding to the pandemic ultimately fell to thousands of state and local health departments. Some states worked closely with the federal government in their response efforts, while others chose to work with other states. 

The Framers understood that state and local governments are generally in a better position to respond to immediate emergencies affecting their citizens than a central government is. The police powers allow states the flexibility to implement policies and laws based on their particular needs and circumstances. 

As Robert E. Moffit, PhD, notes, "This diversity of policy, reflecting genuine philosophical differences and the democratic diversity of the nation, is a feature, not a flaw, of the Founders' federalist design." He further notes that this allows citizens to hold their local governments accountable "for what they did or failed to do" in responding to an emergency.

The COVID-19 pandemic highlights the relevance of federalism in modern times. Federalism allowed the states to combat the coronavirus as they saw fit. Local governmental decisions led to heated debates and disputes at school board meetings and town halls nationwide. Although many policies adopted by state governments faced scrutiny, federalism worked as intended by allowing states to choose their methods of combating the coronavirus.