American

Federalism
Seeming Paradoxes?
John Kincaid

Lafayette College
Easton, Pennsylvania

Biblical Root of Federalism

Federalism
From the Latin
Meaning

foedus

Covenant

 The first federal political

ideas articulated in North
America were those of the
Puritans Reformed Protestant

Covenant Theology

Federal Theology

Articles of Confederation,
1781
Whereas the Delegates of the
United States of America, in
Congress assembled, did agree
to certain articles of Confederation
and perpetual Union between the
States
of
Newhampshire,
Massachusetts-bay,
Rhodeisland
and Providence Plantations .
Preamble

Powers of Confederal
Government

War, peace, treaties, and alliances

Appoint all U.S. land and naval officers
Build and equip a navy
Send and receive ambassadors
Decide rules for capture on land or water
Grant letters of marque and reprisal
Try piracies and felonies committed on the high seas
Settle inter-state boundary disputes
Regulate value of coinage
Fix standard of weights and measures
Regulate trade with Indians outside states
Establish post offices and postal rates
Borrow money or emit bills of credit on U.S.

Articles of Confederation,
1781
Each state retains its sovereignty,
freedom, and independence, and
every Power, Jurisdiction and right,
which is not by this confederation
expressly delegated to the United
States, in Congress assembled.
Article I

U.S. Federal Constitution,

1788
We the People of the United States, in
Order to form a more perfect Union,
establish Justice, insure domestic Tranquility,
provide for the common defence, promote
the general Welfare, and secure the
Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this
Constitution for the United States of
America.
Preamble

Principal Federal Powers

Commerce

Foreign affairs and defense

Federal Commerce Powers

Borrow money
Regulate interstate, foreign, and Indian
commerce
Enact uniform naturalization laws
Enact uniform bankruptcy laws
Coin money and regulate its value
Fix national weights and measures standards
Punish counterfeiting of securities and coin
Establish post offices and post roads
Grant patents and copyrights
Create courts inferior to the Supreme Court

Federal Foreign Affairs & Defense

Powers
Define and punish piracies and felonies on
high seas and offenses against law of nations
Declare war
Grant letters of marque and reprisal
Make rules for captures on high seas
Raise and support armies
Provide and maintain a navy
Govern land and naval forces
Call up militia to execute federal laws,
suppress insurrections, and repel invasions
Organize, arm, and discipline militia
Govern D.C. and territories

James Madison
The powers delegated by the
proposed Constitution to the
Federal Government, are few
and defined. Those which are to
remain in the State Governments
are numerous and indefinite.
Federalist 45

Tenth Amendment
The powers not delegated to
the United States by the
Constitution, nor prohibited by
it to the States, are reserved to
the States respectively, or to
the people.

Common View of Federal System as Levels

Federal
a.k.a.
National
Government

State
Governments

Local Governments

Federal System as Matrix of

Governments
Commerce
States

Social
Welfare

Local
Govts

Defense and Foreign Affairs

Civil
Rights

Expansive Federal Power

Clauses
Necessary and proper
clause (Article I, Section 8) a.k.a
elastic clause, implied powers
clause, sweeping clause

Supremacy clause (Article VI)

Dual Federalism, 17891932

Federal and state governments occupy
separate spheres of sovereign power and
should not interfere with each other
U.S. Constitution does not grant federal
government authority to fund state internal
improvements (i.e., infrastructure)
national government is one of enumerated
powers only; Also, the purposes which it may
constitutionally promote are few; Within their
respective spheres the two centers of
government are sovereign and hence
equal; and The relation of the two centers
with each other is one of tension rather than
collaboration. Edward S. Corwin

Debate Over Nature of the

Union
Federal Constitution as
Compact among the States
Federal Constitution as
Covenant of the People

Civil War
War Between the States
War of Northern Aggression

1861-1865
620,000 Deaths

Fourteenth Amendment,
1868
No State shall abridge the
privileges or immunities of citizens
of the United States; deprive any
person of life, liberty, or property,
without due process of law; nor deny
to any person within its jurisdiction
the equal protection of the laws.
Section 1

Texas v. White, 1869

The Constitution, in all its
provisions,
looks
to
an
indestructible
Union,
composed of indestructible
States.

Dawning of Federal Power

Interstate Commerce Commission Act, 1887

Sherman Anti-Trust Act, 1890
Federal Bankruptcy Act, 1898
Pure Food and Drug Act, 1906
Meat Inspection Act, 1906
Theodore Roosevelts New Nationalism, 1910
Federal Reserve Act, 1913
Woodrow Wilsons New Freedom, 1913
Clayton Anti-Trust Act, 1914

Power-Booster
Amendments
Sixteenth Amendment, 1913
authorized federal income tax

Seventeenth Amendment,
1913 provided for election of U.S.
senators by voters in each state

Creeping Cooperative
Federalism
Morrill Act, 1862 (land grants for colleges)
Weeks Act, 1911 (forest-fire prevention)
Smith-Lever Act, 1914 (agricultural extension)
Federal-Aid Road Act, 1916 (highway
construction)
Smith-Hughes Act, 1917 (teachers salaries for
vocational education)
Fess-Kenyon Act, 1920 (vocational rehabilitation
for disabled veterans)
Sheppard-Towner Act, 1921 (expectant mothers
and infants)

FDRs New Deal Era

Vast expansion of federal power into
private-sector economy
Rise of social welfare as federal
responsibility
Few intrusions into traditional
prerogatives of state and local
governments

New Deal
Cooperation
Increased federal aid
Little federal supervision
Maintenance of dual regulation and taxation
of banking, securities, communications,
public utilities, and others
Continuance of state regulation of insurance
Federal-law exceptions for state and local
governments (e.g., Social Security Act of
1935 and Fair Labor Standards Act of 1938)

Historic Reversals
Reversal of fiscal fortunes: federal
spending as percent of all own-source
government spending increased from
25% in 1929 to 51% by 1939 and 70%
by 1959; local share dropped from 54%
in 1929 to 28% in 1939 and 16% in
1959; state share was 21% in both
1929 and 1939 but only 14% by 1959.
Tenth Amendment states but a truism
United States v. Darby, 1940

Cooperative Federalism, 19321968

Virtually all public functions are shared, not divided,
federal-state-local responsibilities
Power is distributed in a non-centralized (rather than
decentralized) manner, making it nearly impossible to
identify a single locus of decision-making power
Federalism is not a zero-sum game; increased federal
power does not necessarily decrease state powers
Chaotic non-centralized political parties mediate conflict
and facilitate systemic IGR consent
IGR bargaining and negotiation produce systemic
cooperation and collaboration that minimizes IGR coercion
Federal, state, and local officials are colleagues, not
adversaries
the American system is one government serving one
people.

Coercive Federalism
Contemporary era of federalism
(1968 - present) in which the major
political, fiscal, statutory,
regulatory, and judicial practices
entail centralization, state and local
cooptation, and the imposition of
many federal dictates on state and
local governments.

Rise of Coercive Federalism During

the Late 1960s
Civil Rights Movement, 1954-1968
Nationalization of U.S. Bill of Rights,
1961-1969
Rise of national television by 1960s
Supreme Courts one person, one
vote reapportionment decisions, 1964
Triumph of primary elections over
smoke-filled rooms after 1968
Democratic National Convention, 1968
Collapse of traditional confederated
party system, 1964 - 1970

Rise of Coercive Federalism

During Late 1960s
Rise of social movements demanding
nationwide equality and national policies
to remedy spillovers
Rise of institutional lobbying in
Washington, D.C.
Rise of state and local public employee
unions and associations
Interstate mobility and massive migrations
Collapse of bicommunal federalism, 1964 1970

Confederate States of America

States under CSA control

States and territories claimed by CSA without formal secession
and/or control
Source: http://en.wikipedia.org/wiki/Confederate_States_of_America, accessed
July 1, 2008.

Official Support for Coercive

Federalism
Democrats and Republicans in
Congress and the White House
Democrats and Republicans in state
legislatures, governors mansions,
county courthouses, city and town
halls, and school boards

Characteristics of Coercive
Federalism
Federal Aid
Shift of federal aid from places to
persons

Summary Comparison of Total Outlays for Grants to State and

Local Governments, 1940-2015

*2010-2015 are estimated.

Source: Executive Office of the President, The Budget for Fiscal Year 2011,
Historical Tables (Washington, DC: U.S. Government Printing Office, 2010), pp.
249-250.

Federal Grants-in-Aid to State and Local Governments for

Persons and Places as Percentages of Total Grants, 1940-2015

*2010-2015 are estimated.

Source: Executive Office of the President, The Budget for Fiscal Year 2011,
Historical Tables (Washington, DC: U.S. Government Printing Office, 2010), pp.
249-250.

Consequences of Federal Aid

Shift from Places to Persons
Place-based aid for infrastructure,
economic development, education,
criminal justice, government
administration, etc. has declined steeply
State budgets have been locked into
programs involving rising federal
regulation and escalating state
matching costs (e.g., Medicaid)
Federal aid to local governments has
declined significantly

Characteristics of Coercive
Federalism
Federal Aid
Shift of federal aid from places to
persons
Intrusive conditions of aid (i.e., crossover
and crosscutting conditions)
Increased earmarking

Characteristics of Coercive
Federalism

Preemption
Under the supremacy clause
of the U.S. Constitution
(Article VI, Para 2), a federal
law prevails over any
conflicting state laws.

Types of Preemption
1. Explicit/Express: Congress states explicitly

in a statute that it intends to preempt

incompatible state laws.

2. Implied: The courts or federal agencies

assume preemption if [a] a federal law

and a state law are in direct conflict or
[b] a state law hinders the achievement of
a federal-law objective.

Degrees of Preemption
1. Total (or Occupy-the-Field)

Preemption prohibits state action in

the field occupied by federal law.

2. Partial Preemption allows state

action, usually equal to or greater

than the regulatory standard set by
federal law.

120
100
80
60
40
20
0
<1900

19001909

19101919

19201929

19301939

Banking, Finance, and Taxation

Commerce and Natural Resources

19401949

19501959

19601969

19701979

19801989

Civil Rights and Other

Health & Safety

Source: U.S. Advisory Commission on Intergovernmental Relations, Federal Statutory Preemption of State and
Local Authority: History, Inventory, and Issues. Washington, DC: ACIR, September 1992.

120
100
80
60
40
20
0

Source: U.S. Advisory Commission on Intergovernmental Relations, Federal Statutory Preemption of State and Local
Authority: History, Inventory, and Issues. Washington, DC: ACIR, September 1992 and National Academy of Public
Administration, Beyond Preemption. Washington, DC: NAPA, May 2006.

Characteristics of
Coercive Federalism
Mandates
Direct federal orders requiring
state or local governments to
execute federal policy rules
under pain of possible civil or
criminal penalties.

Growth of Mandates

1
1
0
9
29
27

enacted
enacted
enacted
enacted
enacted
enacted

in 1931
in 1940
1941-1963
1964-1969
1970-1979
1980-1989

Mandate Relief
Unfunded Mandates Reform Act,
1995
Eleven mandates exceeding UMRA
threshold enacted since 1995
UMRA does not apply to some
policies such as civil rights

Conditional Mandates
REAL ID Act, 2005
State participation is voluntary and
federal aid is provided
But, if a state does not participate, its
residents drivers licenses will be
invalid for any federal-government
purpose, such as boarding an airplane,
riding Amtrak, applying for federal
benefits (e.g., Medicaid and Medicare),
opening a bank account, buying a
firearm, and entering a federal building.

Federal Rules Affecting State and Local Governments, 19942007

Source: Clyde Wayne Crews, Jr., Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory
State (Competitive Enterprise Institute, 2008), p. 24. Accessed July 18, 2008,
http://cei.org/cei_files/fm/active/0/10KC_2008_FINAL_WEB.pdf. Data compiled from The Regulatory Plan and Unified
Agenda of Federal Regulatory and Deregulatory Actions, Federal Register, various years editions; and from online
edition at http://reginfo.gov.

Characteristics of Coercive
Federalism
Taxation
Tax Reform Act of 1986: elimination of
state sales tax deduction and limits on
tax-exempt private-activity bonds
Quill Corp v. North Dakota, 1992
Internet Tax Non-Discrimination Act, 2007
Lack of concern about federal tax-code
changes on state and local taxes
Presumption that Congress has
constitutional authority to levy a sales tax
or VAT

Characteristics of Coercive
Federalism
Demise of Federal IGR Institutions
Dismantling of OMB IGR Office in early
1980s
Decline of U.S. Senate and House IGR
committees
Dismantling of IGR unit in GAO in early
1990s
Death of U.S. Advisory Commission on
Intergovernmental Relations (1959-1996)
Politicization of agency IGR offices

Characteristics of Coercive
Federalism

Decline of Political IGR Cooperation

Decline of willingness of elected and politically
appointed federal officials to cooperate
regularly with elected state and local officials
as co-equal representatives of the people
Washington, D.C., view of state and local
governments as merely lobbyists
NGA is just another liberal lobbying group
(Americans for Tax Reform)
Senator Carl Levin (D-MI): There is no political
capital in intergovernmental relations 1989.

Characteristics of Coercive
Federalism
Federalization of Criminal Law

Crimes in the U.S.

Constitution
the Constitution of the United States
delegated to Congress a power to
punish [1] treason, [2] counterfeiting
the securities and current coin of the
United States, [3] piracies and felonies
committed on the high seas, and [4]
offenses against the laws of nations .
Thomas Jefferson, Kentucky Resolutions,
1798

4450
4000
3000

3300

Source: John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes,
Legal Memorandum 26 (Washington, DC: Heritage Foundation, June 16, 2008): 1-8.

Table 1A Is your state/province treated with the respect it deserves in the federal system of government?
Yes
2002 2007 2009

All Canadian Respondents

All U.S. Respondents

Canadian Regions

45.4%48.0%43.1%
61.1 56.8 52.7

No
2002 2007 2009
47.9%46.7%50.3%
27.3 34.7 37.9

Table 1B Is your state/province treated with the respect it deserves in the federal system of government?
Yes
No
2002 2007 2009
2002 2007 2009

All Canadian Respondents

45.4%
48.0%
43.1%
47.9%
46.7%
50.3%
All U.S. Respondents
61.1 56.8 52.7
27.3 34.7 37.9

U.S. Regions

New England
Mid-Atlantic
East North Central
West North Central
South Atlantic
East South Central
West South Central
Mountain
Pacific

79.5
60.3
60.9
62.5
60.5 59.6
50.8
64.8
72.9 50.0
54.3

69.0
54.4
51.7
65.0
51.6
46.7
51.4
53.9
63.1

60.8
60.9
47.0
44.3

18.2
24.0
23.2
26.3
30.3 31.6
42.0
31.1
60.0
25.0
22.0 37.5
54.0
36.0

28.6
36.1
40.0
27.5
41.3
45.0
42.3
40.4
27.5

23.5
27.8
45.7
40.0
49.3
32.9
34.3

Sources: Author Reference Deleted 2002; Author Reference Deleted 2005; Author Reference Deleted
2008; and authors 2009 survey.
Note: Percents exclude Dont know and No Answer responses

Table 2 Trust and confidence in the various orders of government, 2002-2009

Canada
2002
2004

United States
2004

2007

2009

Mexico

2002

2004

2007

2009

2009

Federal Government

Great Deal/
Fair
46.5% 37.0% 51.5%
48.9%
42.6%
38.3%

Little/None
54.1
62.0
45.0
48.2
60.2

State/Provincial Governments

Great Deal/
Fair
50.8
45.0
53.6
58.0
37.4

Little/None
47.0
53.0
42.8
37.7
61.2

Local Governments

Great Deal/
Fair
64.1
69.0
55.6
60.0
33.3

Little/None
32.2
29.0
40.3
36.0
64.2

68.0%
30.0

31.8

66.4%
44.5

53.1%
47.4

50.0%
57.4

64.8

68.3

66.0

54.6

43.7

32.4

29.5

31.6

43.9

56.3

67.3

73.4

68.0

62.3

52.0

30.3

24.5

30.0

36.5

48.0

Table 3 From which level of government do you feel you get the most/least for your money?

Most for Money

Canada
United States
2002
2004
2009
2002
2004
2009
21.7%
19.0%
23.8%
32.0%
32.6%
29.0%
29.0
32.0
31.1
24.0
21.4
26.0
20.8
34.0
19.6
25.0
35.8
31.0
17.9
----7.0
--- --10.6
15.0
25.5
12.0
9.5
14.0

Federal
Province/State
Local
None
DK/NA

Note: In 2004 and 2009 none and Dont know responses were combined.

Least for Money

Canada
United States
Mexico
2003
2007
2003
2007
2003
Federal
42.8
41.0
29.8
40.8
34.9
Province/State
25.1
23.4
23.4
26.0
17.7
Local
18.0
18.9
19.5
23.5
22.9
All of the Above
7.6
--9.7
--12.0
None
1.9
13.8
6.6
1.0
4.8
DK/NA
4.5
2.9
11.1
8.7
7.8

Note: all of the above was not a response option in 2007

Mexico
2004
38.0%
25.0
23.0
--14.0

Table 4 Which level of government has too much power / needs more power today?

Canada
2003
Has Too Much Power
Federal
Province/State
Local
All of the Above
None of the Above
Dont Know/NA

56.2%

2009

47.7%

50.6%

51.7%

66.1%

2009

Mexico
2003

60.1%

65.4%

28.3
18.8
18.9
15.8
14.5
22.4
13.1
4.7
5.7
6.5
5.9
14.7
6.3
6.1
3.7 11.2
4.7
8.6
4.5
3.7
6.4
2.4
4.0
7.1
7.1
8.9
3.8
4.8
2.5
3.0
9.7
12.2
9.2
6.4
2.7
6.7
4.3
Canada
2003

Needs More Power

Federal
Province/State
Local
All of the Above
None of the Above
Dont Know/NA

2007

United States
2003
2007

2007

14.0% 10.5%
31.5
27.8
45.4
39.6
0.8
4.7
5.7
10.6
2.6
6.9

United States
2003
2007
10.9%

8.2%
19.6%
22.7
35.9
36.1
38.3
1.5
0.9
7.7
21.1 12.1
7.7
4.5
6.3

2009
54.9%
24.1
9.2
5.0

Mexico
2003

42.9
17.1
6.6

Sources: Author Reference Deleted et al. 2003; Author Reference Deleted 2008; and authors 2009 survey.

Table 5A Responses to the federalism culture questions and scale of federal culture
Canada
2004 2009

Mexico
2004 2009

United States
2004 2009

1. A federal form of government is preferable.

Strongly Agree
28.0%
24.7%
18.0%
16.6%
43.3% 27.2%
Somewhat Agree
47.0 44.7
40.0 42.0
32.7 46.2
Somewhat Disagree
14.0 15.0
25.0 24.8
12.0 14.2
Strongly Disagree
7.0
6.1
17.0 12.7
5.8
7.1
DK/NA
5.0
9.5
3.8
6.2
5.3
Totals
1500 1000
1200 1216
1000 1000
Sig=.000; cc=.275
2. A country in which everyone speaks the same language is preferable.
Strongly Agree
11.0 15.8
20.0 18.7
16.9 14.1
Somewhat Agree
20.0 21.7
40.0 35.1
20.6 24.6
Somewhat Disagree
25.0 18.2
25.0 24.6
20.0 22.0
Strongly Disagree
43.0 38.7
15.0 17.2
35.9 34.4
DK/NA
2.0
5.7
4.5
6.7 4.8
Totals
1500 1000
1200 1216
1000 1000
Sig=.000; cc=.283
3. Having a strong leader in government is preferable.
Strongly Agree
23.0
11.0
29.6
Somewhat Agree
32.0
58.0
31.6
Somewhat Disagree
23.0
22.0
15.5
Strongly Disagree
20.0
7.0
`16.8
DK/NA
3.0
6.6
Totals
1500
1200
1000
Sig=.000; cc=.217

Table 5B Responses to the federalism culture questions and scale of federal culture
Canada
Mexico
United States
2004
2009
2004 2009 2004 2009
4. When making decisions, government
Strongly Agree
10.0
Somewhat Agree
25.4
Somewhat Disagree
19.6
Strongly Disagree
40.6 26.8
DK/NA
4.4
Totals
1000 12161000

is better off limiting discussion.

11.8
10.6
25.9
22.9
31.0 17.7
45.5
4.5
3.2

5. Scale of Federalism Attitudes based on strong or somewhat pro-federalism responses to the three
attitudinal questions asked above each year.
0 (least pro-federal)
4.6%
5.1%
10.8%
6.3%
5.1%
6.5%
1 27.7
25.2
36.5
37.3
36.2 23.7
2 40.2
32.8
38.5 42.1
40.5 31.8
3 (most pro-federal)
27.5
36.9
14.3 14.2
18.2 38.0
Mean Score
1.91
2.02
1.56 1.64
1.72
2.01
Sig=.000; cc=.126