Federalism and Shared Powers

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federalism and separation of powers are the two principal techniques in America for dividing political power. Federalism allocates power between the national government and the states; separation of powers distributes power among three branches of the national government and within each of the state governments. Although these divisions of power characterize national and state government, many essential functions of government are shared. Justice robert h. jackson deftly noted in youngstown sheet & tube co. v. sawyer (1952), "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Jackson directed his observation to the doctrine of separation of powers, but it applies equally well to federalism.

Independence from England in 1776 left the thirteen American states without a central government. Under the articles of confederation, drafted in 1777 but not ratified until 1781, each state retained "its sovereignty, freedom and independence," with the exception of a few powers expressly delegated to the national government. Various attempts were made over the years to bring a measure of effectiveness to the Confederation, but it was finally agreed after the annapolis convention in 1786 to meet in Philadelphia the following year "to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union."

The delegates at Philadelphia rejected montesquieu's theory that republican government could function only in small countries. He had argued that as a country increased in size, popular control must be surrendered, requiring aristocracies for moderate-sized countries and monarchies for large countries. james madison, in the federalist #10, made precisely the opposite argument: that republican government was more likely the larger the territory. In a small territory, a dominant faction could gain control. "Extend the sphere," Madison reasoned, "and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens."

Critics of the 1787 Constitution claimed that it promoted a national or consolidated form of government instead of preserving the independence of the states. An exceptionally blunt challenge came from the Virginia ratification convention, where patrick henry attacked the opening words of the Constitution: "What right had they to say, We, the people? … Who authorized them to speak the language of, We, the people, instead of, We, the states?" Madison answered these critiques in Federalist #39, pointing out that the Constitution contained features of a national character but also vested some power directly in the states. The proposed Constitution, he said, "is, in strictness, neither a national nor a federal Constitution, but a composition of both." By "federal" Madison meant con federal: a confederation of sovereign states, such as existed under the Articles of Confederation.

The Philadelphia Convention wrestled with two rival proposals. The virginia plan called for a strong central government, while the new jersey plan advocated a confederation with few national powers. The latter attracted little support. The great compromise, promoted by oliver ellsworth of Connecticut, combined two antagonistic ideas: representation by population in the house of representatives and equal voting power for each state in the senate. He explained to the Convention on June 29, "We were partly national; partly federal. The proportional representation in the first branch [the House] was conformable to the national principle & would secure the large States agst. the small. An equality of voices [in the Senate] was conformable to the federal principle and was necessary to secure the Small States agst. the large. He trusted that on this middle ground a compromise would take place."

The compromise gave the central government the power to collect taxes, regulate commerce, and declare war, along with other express functions, including the necessary and proper clause to carry into effect the enumerated powers. National powers are reinforced by the supremacy clause in Article VI, section 2: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Article I, section 9, prohibits the national government from taxing articles exported from any state or preferring the ports of one state over another, while Article I, section 10, prohibits a number of state actions, including entering into any treaty, alliance, or confederation; coining money; passing any bill of attainder or ex post facto law; impairing the obligation of contracts; or laying any imposts or duties on imports or exports without the consent of Congress, except what is "absolutely necessary" to execute its inspection laws.

The tenth amendment provides that 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." The Articles of Confederation gave greater protection to the states, which retained all powers, except those "expressly delegated" to the national government. When it was proposed in 1789 that the same phrase be inserted in the Tenth Amendment, Madison objected to the word "expressly" because it was impossible to delineate every function and responsibility of the federal government. There had to be, he said, room for implied powers "unless the Constitution descended to recount every minutiae." On the force of his argument, the word "expressly" was eliminated from the Tenth Amendment. In mcculloch v. maryland (1819), Chief Justice john marshall relied on Madison's argument in upholding the power of Congress to establish a national bank, even though that power is not expressly included in the Constitution.

The suggestion that the Tenth Amendment contains substantive powers for states, even to the point of reinserting the word "expressly," has been made in such cases as Lane County v. Oregon (1868) and hammer v. dagenhart (1918). In missouri v. holland (1920), however, the Supreme Court denied that the treaty power was restricted in any way "by some invisible radiation from the general terms of the Tenth Amendment," and Justice harlan f. stone, in united states v. darby lumber company (1941), dismissed the Tenth Amendment as a "truism," meaning only "that all is retained which has not been surrendered." Nevertheless, the decisions in Fry v. United States (1975) and national league of cities v. usery (1976) demonstrate that the Tenth Amendment retains vitality.

Many of the turf battles between the national government and the states have been fought over the scope of the commerce clause. Commercial friction among the states after 1776 was a principal reason for discarding the Articles of Confederation and adopting a government with greater national powers. The enumerated powers given to Congress in Article I include the power to "regulate commerce with foreign nations, and among the several States, and with the Indian tribes." In gibbons v. ogden (1824), Chief Justice Marshall advanced a broad interpretation of the power of Congress to regulate commerce, but over the years, the Court employed other doctrines to distinguish between national and state powers. At times the two levels of government could exercise concurrent powers. States were able to regulate commerce within their borders unless preempted by Congress. The Court also created the doctrine of exclusive jurisdictions, promoting the theory of dual federalism, under which the states and the national government exercised mutually exclusive powers.

These doctrines appeared to be increasingly artificial with the rapid nationalization of the American economy. Traditional boundaries between intrastate commerce and interstate commerce were swept aside when the operations of railroads, agriculture, and livestock acquired national structures. The Court even held that Congress could regulate actions inside a state that were simply related to interstate commerce. During World War I and World War II commercial and economic activities that normally fell within the jurisdiction of the states were controlled by the federal government.

During the period of substantive due process, which lasted from the 1890s to 1937, the Supreme Court struck down a number of regulatory efforts by Congress and state legislatures on the theory that the statutes interfered with the "liberty of contract," a fiction created by the judiciary to limit governmental power. Statutes enacted to establish minimum wages and maximum hours, to protect children from harsh labor practices, or to create better working conditions were regularly invalidated by state and federal courts.

Those judicial doctrines were eventually cast aside during the new deal revolution, especially after the court-packing plan in 1937. Although at one period the Court struck down congressional statutes because they invaded "local" activities within the control of state governments or because "manufacturing" was considered by the judiciary as local and thus beyond congressional control, these barriers to national action were eventually removed. A series of rulings, such as NLRB v. Jones & Laughlin Steel Corp. (1937) and United States v. Darby Lumber Company (1941), gave solid support to Congress's interpretations of its powers under the commerce clause. In prudential insurance company v. benjamin (1946), a chastened Court offered this revealing assessment: "The history of judicial limitation of congressional power over commerce, when exercised affirmatively, has been more largely one of retreat than of ultimate victory."

In National League of Cities v. Usery (1976), the Supreme Court appeared to resuscitate state sovereignty and the Tenth Amendment. The case involved the decision of Congress to extend federal hours-and-wages standards to state employees. In Maryland v. Wirtz (1968), the Court had upheld the extension of federal minimum wages and overtime pay to state-operated hospitals and schools. It even upheld, in Fry v. United States (1975), the short-term power of the President to stabilize wages and salaries for state employees. Nevertheless, National League refused to permit federal minimum-wage and maximum-hour provisions to displace state powers in such "traditional governmental functions" as fire prevention, police protection, sanitation, public health, and parks and recreation. This 5–4 decision overruled Wirtz on the ground that the congressional statute threatened the independent existence of states. In his dissent, Justice william j. brennan objected that the Court had delivered "a catastrophic judicial body blow at Congress' power under the Commerce Clause."

The Court's bifurcation between "traditional" and "nontraditional" governmental functions spawned confusion in the lower courts. Many of the efforts of federal district courts to apply the standard in National League were rejected by the Supreme Court. Finally, in Garcia v. San Antonio Metropolitan Transit Authority (1985), Justice harry a. blackmun, whose concurrence had provided the fifth vote in National League, swung in the other direction to join with the four dissenters in overruling National League. He called attention to the frustrating struggle in federal and state courts to distinguish between traditional and nontraditional functions. He called the criteria in National League "unworkable," "inconsistent with established principles of federalism," and "both impracticable and doctrinally barren." Because of this decision, the protection of federalism has been left largely to the political process of Congress. The tone of the four dissents, however, suggests that Garcia might be living on borrowed time, reflecting the position of older members of the Court: Blackmun, Brennan, thurgood marshall, byron r. white, and john paul stevens. william h. rehnquist, the author of National League, offered this advice in his Garcia dissent: "I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court."

Although the position of the Court on National League and Garcia might be in a state of flux and easily reversible, the judgment of antonin scalia during his nomination hearings in 1986 to be Associate Justice seems well grounded in history: "The primary defender of the constitutional balance, the Federal Government versus the states, … the primary institution to strike the right balance is the Congress.… The court's struggles to prescribe what is the proper role of the Federal Government vis-à-vis the State have essentially been abandoned for quite a while."

Louis Fisher


Advisory Commission on Intergovernmental Relations 1988 State Constitutional Law: Cases and Materials. Washington, D.C.: U.S. Government Printing Office.

Anton, Thomas J. 1989 American Federalism and Public Policy. Philadelphia: Temple University Press.

Conlan, Timothy 1988 New Federalism: Intergovernmental Reform from Nixon to Reagan. Washington, D.C.: Brookings Institution.

O'B rien, David M. 1989 Federalism as a Metaphor in the Constitutional Politics of Public Administration. Public Administration Review 49, no. 5:411–419.

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Federalism and Shared Powers