2.2 Federalism

Federalism divides power between the federal government and states, balancing authority and allowing local control. The Constitution outlines specific powers for each level, with federal law generally taking precedence over state law when conflicts arise.

The system includes federal powers like regulating interstate commerce, state powers like issuing licenses, and shared powers like taxation. Key amendments and clauses shape federalism's application, influencing government actions and individual rights.

Federalism overview

• Federalism is a system of government in which power is divided between a central government and smaller regional governments, such as states or provinces
• In the United States, power is divided between the federal government and the state governments, with the Constitution outlining the specific powers granted to each level of government
• Federalism allows for a balance of power, preventing any one level of government from becoming too powerful, while also allowing for local control and experimentation

Division of power

Federal government powers

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• The federal government has specific enumerated powers granted to it by the Constitution, such as the power to regulate interstate commerce, declare war, and coin money
• These powers are often referred to as the "delegated powers" because they are delegated to the federal government by the Constitution
• The federal government also has implied powers, which are powers that are not explicitly stated in the Constitution but are necessary for the federal government to carry out its enumerated powers

State government powers

• State governments have powers that are not granted to the federal government by the Constitution, often referred to as the "reserved powers"
• These powers include the power to establish local governments, regulate intrastate commerce, and conduct elections
• States also have the power to pass laws that protect the health, safety, and welfare of their citizens, known as the "police power"

Concurrent powers

• Concurrent powers are powers that both the federal government and state governments share, such as the power to tax, borrow money, and establish courts
• In cases where both the federal government and state governments have concurrent powers, the federal law generally takes precedence over state law

Reserved powers

• Reserved powers are powers that are not granted to the federal government by the Constitution and are therefore reserved for the states
• The 10th Amendment to the Constitution specifically states that powers not delegated to the federal government are reserved to the states or to the people
• Examples of reserved powers include the power to issue licenses (driver's licenses, marriage licenses), regulate intrastate commerce, and establish local governments

Supremacy clause

Preemption of state law

• The Supremacy Clause of the Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws, and treaties are the "supreme law of the land"
• This means that when there is a conflict between federal law and state law, federal law takes precedence and preempts state law
• Preemption can be express (explicitly stated in the law) or implied (when a federal law is so comprehensive that it leaves no room for state regulation)

Commerce clause

Dormant commerce clause

• The Commerce Clause (Article I, Section 8, Clause 3) grants Congress the power to regulate commerce among the states
• The Dormant Commerce Clause is a legal doctrine that prohibits states from passing laws that discriminate against or excessively burden interstate commerce
• Even if Congress has not acted, the Dormant Commerce Clause prevents states from passing laws that would interfere with the free flow of trade between states

Necessary and proper clause

Expansion of federal power

• The Necessary and Proper Clause (Article I, Section 8, Clause 18) grants Congress the power to make all laws that are "necessary and proper" for carrying out its enumerated powers
• This clause has been interpreted broadly by the courts, allowing for an expansion of federal power beyond the specific enumerated powers listed in the Constitution
• For example, the Necessary and Proper Clause has been used to justify the creation of a national bank and the regulation of intrastate economic activities that have a substantial effect on interstate commerce

10th Amendment

Reservation of state powers

• The 10th Amendment states that powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people
• This amendment reinforces the principle of federalism and the division of power between the federal government and state governments
• The 10th Amendment has been used to challenge federal laws and regulations that are seen as infringing on state powers, such as unfunded mandates

11th Amendment

State sovereign immunity

• The 11th Amendment grants states sovereign immunity, which means that states cannot be sued in federal court by citizens of other states or by citizens of foreign countries
• This amendment was passed in response to a Supreme Court case (Chisholm v. Georgia) that allowed a citizen of South Carolina to sue the state of Georgia in federal court
• The 11th Amendment has been interpreted to also bar suits against states by their own citizens, although Congress can abrogate this immunity in certain circumstances

14th Amendment

Incorporation of Bill of Rights

• The 14th Amendment, ratified in 1868, has been used to apply the Bill of Rights (the first ten amendments) to the states through a process known as incorporation
• The Due Process Clause of the 14th Amendment has been interpreted to protect individuals from state actions that violate their fundamental rights
• Through selective incorporation, the Supreme Court has applied most of the protections in the Bill of Rights to the states, such as freedom of speech, freedom of religion, and the right to a fair trial

Equal protection clause

• The Equal Protection Clause of the 14th Amendment prohibits states from denying any person within its jurisdiction the equal protection of the laws
• This clause has been used to strike down state laws that discriminate on the basis of race, gender, national origin, and other protected characteristics
• The Equal Protection Clause has been central to many landmark Supreme Court cases, such as Brown v. Board of Education (school desegregation) and Obergefell v. Hodges (same-sex marriage)

Due process clause

• The Due Process Clause of the 14th Amendment prohibits states from depriving any person of life, liberty, or property without due process of law
• This clause has both procedural and substantive components
  • Procedural due process ensures that individuals receive fair procedures before their rights are taken away (notice, hearing, impartial decision-maker)
  • Substantive due process protects certain fundamental rights from government interference, such as the right to privacy and the right to marry

Federalism in action

Cooperative federalism

• Cooperative federalism involves the federal government and state governments working together to solve common problems
• In this model, the federal government often provides funding and guidelines for programs, while states have some flexibility in implementing them
• Examples of cooperative federalism include Medicaid (health insurance for low-income individuals) and the Clean Air Act (air pollution regulation)

Competitive federalism

• Competitive federalism involves states competing with each other to attract businesses and residents by offering favorable policies and regulations
• This competition can lead to experimentation and innovation, as states try different approaches to solve problems
• Examples of competitive federalism include states competing to attract businesses through tax incentives and states legalizing marijuana for medical or recreational use

Federalism controversies

Unfunded mandates

• Unfunded mandates are federal laws or regulations that require states to take certain actions or provide certain services without providing the necessary funding
• States often argue that unfunded mandates infringe on their powers and strain their budgets
• Examples of unfunded mandates include the Americans with Disabilities Act (requiring accommodations for individuals with disabilities) and the Real ID Act (requiring states to meet federal standards for driver's licenses)

States' rights debates

• States' rights debates involve conflicts between the federal government and state governments over the proper balance of power
• Supporters of states' rights argue that the federal government has exceeded its constitutional authority and infringed on state powers
• Examples of states' rights debates include conflicts over gun control laws, abortion regulations, and environmental regulations

Federalism and the courts

Judicial review of federalism

• The Supreme Court has the power of judicial review, which allows it to interpret the Constitution and determine whether federal and state laws are constitutional
• In federalism cases, the Supreme Court often has to balance the powers of the federal government and state governments and determine whether a particular law or action is within the scope of the government's authority
• The Supreme Court's interpretation of federalism has evolved, with different eras marked by different approaches (dual federalism, cooperative federalism, new federalism)

Major federalism cases

• McCulloch v. Maryland (1819): The Supreme Court upheld the power of the federal government to create a national bank and ruled that states could not tax federal instrumentalities
• Gibbons v. Ogden (1824): The Supreme Court ruled that the Commerce Clause granted Congress broad power to regulate interstate commerce, including navigation
• Hammer v. Dagenhart (1918): The Supreme Court struck down a federal law regulating child labor, holding that the production of goods was not interstate commerce and therefore beyond the power of Congress to regulate
• United States v. Lopez (1995): The Supreme Court struck down a federal law prohibiting the possession of firearms near schools, holding that the law exceeded Congress's power under the Commerce Clause
• Printz v. United States (1997): The Supreme Court ruled that the federal government could not compel state officials to enforce federal laws, such as conducting background checks for firearms purchases