Federalism in the United States
Federalism is the division of governmental power between a national (federal) government and subnational (state) governments. The United States pioneered modern federalism — creating a system where both levels of government have direct authority over citizens, rather than states being mere subordinates of the federal government.
The Constitutional Foundation
Enumerated vs. Reserved Powers
The Constitution grants the federal government enumerated (express) powers — specifically listed powers like coining money, declaring war, regulating interstate commerce, and establishing post offices.
The 10th Amendment reserves all remaining powers to the states or the people:
"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."
This creates a dual sovereignty — both the federal government and state governments derive their authority directly from the Constitution, not from each other.
The Supremacy Clause (Article VI)
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
When federal and state law conflict, federal law wins — this is the foundational rule of American federalism. But federal law must itself be constitutional; states retain authority where the Constitution is silent.
The Commerce Clause — The Big Expander
Article I, Section 8 grants Congress the power to "regulate Commerce with foreign Nations, and among the several States." This seemingly narrow clause has become the constitutional basis for enormous federal regulatory power:
| Case | Year | Holding |
|---|---|---|
| Gibbons v. Ogden | 1824 | "Commerce" includes navigation; Congress has broad power over interstate commerce |
| Wickard v. Filburn | 1942 | Even purely local economic activity (wheat grown for personal use) can be regulated if it in the aggregate affects interstate commerce |
| Heart of Atlanta Motel v. US | 1964 | Civil Rights Act's public accommodations provisions justified under Commerce Clause |
| United States v. Lopez | 1995 | First time since 1937 the Court limited the Commerce Clause — Gun-Free School Zones Act was not a regulation of economic activity |
| NFIB v. Sebelius | 2012 | ACA's individual mandate could not be justified under Commerce Clause (upheld as a tax) |
Powers of the Federal Government
Exclusive federal powers — states cannot exercise these:
- Coin money and regulate its value
- Establish post offices
- Declare war
- Raise an army and navy
- Negotiate treaties with foreign nations
- Regulate immigration and naturalization
- Govern U.S. territories
Federal powers over interstate commerce (very broad after 1937):
- Environmental regulation (EPA)
- Labor law (NLRA, FLSA)
- Civil rights in employment and public accommodations
- Securities regulation (SEC)
- Food and drug safety (FDA)
Powers of State Governments
The 10th Amendment reserves substantial power to states — what is sometimes called the "police powers": broad authority to legislate for the public health, safety, welfare, and morals of state residents.
Areas primarily governed by states:
- Criminal law (most crimes are state offenses)
- Education (K-12 and public higher education)
- Marriage and divorce
- Professional licensing (doctors, lawyers, contractors)
- Property law
- Corporations and business law (Delaware dominates)
- Elections administration (voter registration, polling, etc.)
- Zoning and land use
- Traffic laws
Concurrent Powers
Some powers are shared by both federal and state governments:
- Taxation (both federal income tax + state income tax)
- Criminal law (federal crimes + state crimes often overlap — drug trafficking, bank robbery, etc.)
- Environmental regulation (federal EPA sets floors; states can regulate more strictly)
- Immigration enforcement (states can assist; cannot have conflicting policies)
Preemption
When Congress acts in an area, it can preempt (displace) state law. There are three types:
- Express preemption: The federal statute explicitly states it preempts state law (e.g., ERISA preempts state employee benefit laws)
- Implied preemption — field preemption: Federal regulatory scheme is so pervasive it implies Congress intended to "occupy the field" (e.g., immigration law)
- Implied preemption — conflict preemption: State law makes it impossible to comply with both federal and state law, or state law "stands as an obstacle" to federal purposes
Key example: Arizona's SB 1070 (2010) immigration enforcement law was mostly preempted by federal immigration law (Arizona v. United States, 2012) — because immigration is primarily a federal domain.
The Evolution of Federalism
Dual Federalism ("Layer Cake") — 1789 to 1937
Federal and state governments operate in separate, distinct spheres with minimal overlap. The Commerce Clause is interpreted narrowly. States are the primary regulators of daily life. This model collapsed during the New Deal.
Cooperative Federalism ("Marble Cake") — 1937 to 1990s
After FDR's New Deal programs, federal and state governments cooperate extensively through grants-in-aid:
- Categorical grants: Federal money given for specific purposes with conditions (e.g., highway funds tied to 55 mph speed limit)
- Block grants: More flexible federal money for broad purposes (e.g., CDBG for community development)
The federal government can attach conditions to federal funds as a way to regulate state behavior — South Dakota v. Dole (1987): Congress can withhold highway funding if states don't set drinking age at 21; the Court upheld this condition. NFIB v. Sebelius (2012): ACA's Medicaid expansion went too far — threatening to withdraw all existing Medicaid funding was unconstitutionally coercive.
New Federalism — 1990s to Present
The Rehnquist and Roberts Courts have revived some limits on federal power:
- United States v. Lopez (1995): Commerce Clause limits
- Printz v. United States (1997): Anti-Commandeering Doctrine — Congress cannot compel state officers to implement federal law (struck down Brady Act's requirement that state sheriffs conduct background checks)
- New York v. United States (1992): Federal government cannot "commandeer" state legislatures
Current Federalism Controversies
Marijuana: Federal law (Controlled Substances Act) classifies marijuana as Schedule I; 24+ states have legalised recreational marijuana. Federal law technically preempts, but the federal government has largely declined to enforce — creating a unique federalism grey zone.
Immigration sanctuary cities/states: Some cities and states decline to cooperate with federal immigration enforcement. Courts have held that cities/states cannot be compelled to enforce federal immigration law (anti-commandeering), but may be denied certain federal grants.
Abortion post-Dobbs: Since Dobbs v. Jackson (2022) returned abortion regulation to states, states have diverged dramatically — from near-total bans to protected rights.
Environmental standards: California has long received waivers to set stricter vehicle emissions standards than EPA minimums; other states can adopt the federal standard or California's standard.
Study Snapshot
Federalism — enumerated powers (federal) vs. reserved powers (states, 10th Amendment), Supremacy Clause (federal law wins conflicts), Commerce Clause (broad federal regulatory power since 1937), preemption types, anti-commandeering doctrine, and cooperative federalism (grants-in-aid).
Concept Flow
Check Your Understanding
- What does the 10th Amendment say, and why is it central to the federalism debate?
- Why did the Supreme Court's Wickard v. Filburn (1942) decision dramatically expand federal power?
- What is the anti-commandeering doctrine, and what does it mean for states that don't want to enforce federal law?
- How do categorical grants differ from block grants, and how does the federal government use them to influence state policy?