Table of Contents

Table of Contents

Introduction…………………………………………………………………………………………...3

Chapter I4

1.1Federalism as a concept4

1.2 Evolution of 5

          1.3 Types of Federalism…………….…………………………………………………………..5

Chapter II9

2.1 Division of powers9

2.2 Checks and balances11

           2.3 ……………………………………………………….………….…………………….…13

Conclusion……………………………………………………………………………………………17

Bibliography……………………………………………..…………………………………………..18

 

                                           Introduction 

The subject under discussion is Federalism in the USA. The topic is chosen to give answers to its debatable questions. The aim of this paper is to find out whether federal government indeed limits the powers of national government and whether dual federalism defines the US federal structure. One more point of discussion is the interaction between federal government and the states.

The paper consists of an introduction, two chapters, conclusion and bibliography.

Introduction helps to understand the purpose of the paper and what will be discussed in it. It suggests two important points for discussion.

Chapter I gives the definition, advantages, evolution and types of federalism.

Chapter II is about the division of powers between national government and the states, the system of checks and balances, and the interaction between federal government and the states. In this chapter you can find powers both given and denied to the two levels of government, the powers of each of the three branches over the other two and you will find the answer to the question whether or not the states are given freedom.  

Conclusion sums up the two chapters and gives the answer to the debatable questions arisen in the introduction.

Bibliography gives the list of books and internet resources that were used during the writing of the paper.

 

                                                  Chapter I

1. Federalism as a concept

The delegates who met in Philadelphia in 1787, were supposed to repair the weaknesses in Articles of Confederation. Instead, they made something even more drastic: they wrote a new constitution and invented something that didn’t exist before – Federal government- that was a mix of a confederacy with features of unitary government.

The authors of the Constitution made their proposals for a new system of government for the United States on the concept of federalism, as they favored the concept of limited government. In 1787, federalism was a compromise between centrists, who supported a strong national government, and those who favored decentralization.¹

There are various definitions of federalism. Let’s take two of them.

• A Federal system of government is one in which a written constitution divides the powers of government on a territorial basis. The division is made between central or national government and several regional or local governments.²
• Federalism can be defined as a form of government in which a constitution distributes authority and powers between a central government and subdivisional governments – usually called states, provinces or republics – giving to both national and states governments substantial responsibilities and powers, including power to collect taxes and to pass and enforce laws regulating the conduct of individuals.³

From these definitions it becomes clear that federalism produces a dual system of government, where each level has its own spheres of authority. Constitutionally, the federal system of the United States consists of the national government and the 50 states. It is also important to mention that US was the first nation to adopt federalism as its governing framework. Among other federal nations are Germany, Brazil, Spain, Switzerland, etc.

One of the reasons so many countries choose the federal system is that federalism offers many advantages. Here are some of them:

• Federalism keeps government closer to people. When people are involved in government and have knowledge of what needs to be done, they are likely to be more responsive to the problems.
• Federalism provides training grounds. State and local politicians are provided training grounds to gain experience before moving to the national stage.
• Federalism encourages experimentations. Georgia, for example was the first state to permit 18-year-olds to vote, Oregon and Hawaii created new systems for providing health care.⁴
• Federalism allows and encourages local choice and provides for the strength that comes from union. For example, when a flood, drought, winter storm, or other catastrophe hits some state, the resources of the national government and all of the other states can be mobilized to aid the stricken area.⁵

1.2 Evolution of Federalism

In the course of time federalism has undergone many changes. In order to better understand the evolution of federalism we’ll need to draw a brief scheme.

• 1789-1930s Dual federalism: The functions of the national government are very specifically enumerated. States do much of the fundamental governing that affects citizens’ day-to-day life. There is tension between the two levels of government, and the power of the national government begins to increase.
• 1930-1970s Cooperative federalism: The national government uses grants-in-aid to encourage states and localities to pursue nationally defined goals.
• 1970s-       Regulated federalism: The national government sets conditions that the states and localities must meet in order to keep grants. It also sets national standards in areas without providing funding to meet them.

                   New federalism: The national government attempts to return more power to the states through block grants.⁶ 

Above were mentioned several types of federalism. Now we are going to discuss each of them separately

2. Types of federalism

There are a lot of different metaphors to describe American Federalism. Below are given four types, but later we’ll focus on two of them: dual and cooperative.

Dual federalism. Federalism remained dual for nearly two thirds of its history. This is a two layered system in which governmental powers are shared between the federal and state governments. Of primary importance in dual federalism are states’ rights.

This can be well illustrated in the following scheme.⁷

 

It’s obvious that the powers of national government are much fewer. This is because the Constitution delegated a list of specific powers to the national government and reserved all the rest to the states.

From this we can say that dual federalism is composed of four essential parts:

1. The national government rules by enumerated powers only.
2. The national government has a limited set of constitutional purposes.
3. Each government unit — nation and state — is sovereign within its sphere.
4. The relationship between nation and states is best characterized by tension rather than cooperation.

Cooperative federalism: Beginning from 1937, dual federalism was replaced by cooperative federalism. This system refers to supportive relations between national and state governments. It comes in the form of federal subsidization of special state and local activities, which is called grants-in-aid. This means that Congress gives money to state governments, but with the condition that the money will be spent for a particular purpose designed by Congress. For example, in the late 1930s, Congress set national goals such as public housing and assistance to the unemployed and provided grants-in-aid to meet these goals.⁸

The most important scholar of the history of federalism, Morton Grodzins, characterized this as a move from “layer cake federalism” to “marble cake federalism” in which intergovernmental cooperation and sharing have blurred the line between where the national government ends and the state and local governments begin.⁹

Regulated federalism: In some areas national government regulates the states by threatening to withhold grant money unless state governments conform to national standards. The instances of this regulation are in the areas of civil rights, poverty programs, environmental protection. The national government provides grant-in-aid financing but sets conditions the states must meet in order to keep the grants. The national government refers to these policies as “setting national standards”. However, there are a number of programs in which the national government engages in regulated federalism by imposing obligations on the states without providing any funding at all. These have come to be called unfunded mandates, but states’ complaints set forth an act to limit them. It was called Unfunded Mandate Reform Act (UMRA), under which, a point of order raised on the House or Senate floor can stop any mandate with an uncompensated state and local cost estimated at greater than $50 million a year as determined by the Congressional Budget Office (CBO). This was called a “stop, look and listen” requirement, forcing Congress to take positive action to own up to the mandate and its potential costs. During its first full year of operation, only eleven bills included mandates that exceeded the $50 million threshold, among which were parity for mental health and health insurance, mandated use of Social Security numbers on drivers’ licenses, extension of Federal Occupation Safety and Health to state and local employees.¹⁰

UMRA doesn’t prevent congressional members from passing unfunded mandates; it only makes them think twice before they do.

New federalism: Presidents Nixon and Reagan tried to return more power to the states and called it new federalism. Reagan offered block grants, which allow states considerable discretion in how the funds should be spent.

Although some national standards remain, the place of the states in the national welfare system has been virtually revolutionized through devolution, the strategy of delegating to the states more and more authority over a range of policies that had been under national government authority, plus providing the states with a substantial portion of these programs. One argument in favor of devolution is that states can act as “laboratories of democracy” by experimenting with many different approaches to find one that best meets the needs of their citizens.¹¹ 
 

                                       

                                                Chapter II

2.1 Division of powers

Constitution divides powers between the national government and the states.

Powers of the national government: National government has only those powers delegated to it in the Constitution. There are three types of delegated powers: the expressed, the implied, the inherent. Expressed powers include legislative, executive and judicial powers. Among them are: the power to lay and collect taxes, to coin money, to declare war, to grant patents and copyrights, etc. The implied powers are those not expressly stated in the Constitution (as expressed powers), but reasonably implied by those powers that are. The basis for these powers is the necessary and proper clause (Article I, Section 8), which is sometimes called the Elastic clause. The inherent powers are those that belong to the national government because it is the national government of a sovereign state in the world community. These powers are few in number. The chief ones include the power to regulate immigration, to deport aliens, to protect the nation against rebellion.

Powers denied to the national government: Although Constitution delegates certain powers to the national government, it also denies certain powers to it. This is done in three ways.

1. Some powers are denied to the national government in so many words by the Constitution. Among them are: the power to deny freedom of religion, speech, press; to deny to any person accused of crime a speedy and public trial.
2. Some powers are denied to the national government because the Constitution says nothing about that. Among them are: the power to create a public school system for the nation, to set up units of local governments, etc.
3. Some powers are denied to the national government because of the nature of the federal system, i.e. national government can’t be allowed to do those things that would threaten the exercise of the system. For example, in the exercise of its power to tax, Congress can’t tax any of the states or their local units in carrying out of their governmental functions. If it could, it would have the power to destroy one or more states.¹²

Powers of the states: The states have those powers not given to the national government. These are called reserved powers.

Powers denied to the states: Like the national government, the states also face some restrictions. Some powers are denied to the states in so many words by the Constitution and, also, because of the existence of the federal system. Among the powers denied to the states are: the power to print or coin money, to deprive any person of life, liberty or property without due process of law, to enter into a treaty, alliance or confederation, etc.

Concurrent powers: Besides the separate powers granted to the national government and the states, there are also concurrent powers that belong to and can be exercised by both levels of government. Among them are: the power to lay and collect taxes, to condemn private property for public use, etc. Here is a table to better understand the division of powers.

 
 

A Delegated Powers of National Government

B Reserved Powers of the States

C Concurrent Powers

D Powers denied the National Government

E Powers denied the States

2.2 Obligations and interstate relations

The Constitution places several obligations on the national government for the benefit of the states. The national government is required to:

• Guarantee to each of the States a republican form of government
• Protect states against invasion and domestic violence
• Respect the territorial integrity

The Constitution also creates obligations among the states.

• According to Article I, Section 10, the states may enter into interstate compacts among themselves and with foreign states, with the consent of Congress.
• According to Article IV, Section 1, each state is expected to honor the public acts, records, and judicial proceedings that take place in any other state. The clause is called “Full Faith and Credit”.
• According to Article IV, Section 2, a person charged in any state with crime, who shall flee from justice to another state, shall be delivered up, to be removed to the state from which he fled. This is called extradition.
• According to Article IV, Section 2, the citizens of each state shall be given all privileges and immunities of citizens of several states, i.e. a resident of one state will not be discriminated against unreasonably by another state. Among the privileges and immunities are: the right to pass through any state for the purpose of trade, agriculture, the right to use the courts, to marry, to buy, own, rent, sell property.