Table of Contents. 2

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.

2.3 Checks and balances

Within the national government there is no neat decision-making hierarchy, as each of the branches of government exercises power over the other two. This is due to the system of checks and balances. These are mechanisms through which each branch of government is able to participate in and influence the activities of the other branches. Major examples include the presidential veto power over congressional legislation, the power of the Senate to approve presidential appointments, and judicial review of congressional enactments¹³.

To make it clear, let’s see the table.

Legislative over Executive

• Congress can override presidential veto
• Congress can remove the president through impeachment
• Senate can reject president’s appointments and refuse to ratify treaties
• Congress can conduct investigations into president’s actions
• Congress can refuse to pass laws or provide funding that president requests

Legislative over Judicial

• Congress can change size of federal court system and number of Supreme Court justices
• Congress can propose constitutional amendments
• Congress can reject Supreme Court nominees
• Congress can impeach and remove federal judges
• Congress can amend court jurisdictions
• Congress controls appropriations 

Executive over Legislative

• President can veto acts of Congress
• President can call special sessions of Congress
• President carries out, and thereby interprets, laws passed by  Congress
• Vice president casts tie-breaking vote in the Senate

Executive over Judicial

• President appoints Supreme Court justices
• President nominates federal judges
• President can pardon those convicted in federal court
• President can refuse to enforce the court’s decisions

Judicial over Executive

• Judges, once appointed for life, are free from controls from the executive branch
• Court can declare executive actions unconstitutional
• Court has the power to issue warrants
• Chief Justice presides over impeachment of president

Judicial over Legislative

• Court can declare laws unconstitutional.
• Chief Justice presides over Senate during hearing to impeach the president¹⁴

As you can see there are many ways that the Constitution balances power. There are many examples of checks and balances at work.

• After the Civil War Congress overrode over 20 Presidential vetoes.
• In 1935 and 1936 the Supreme Court declared the NIRA (National Industrial Recovery Act) and then the AAA (Agricultural Adjustment Administration) (two New Deal programs passed during the Roosevelt administration) unconstitutional.
• In 1918 Congress refused to ratify the Treaty of Versailles, a peace treaty ending World War I that President Wilson had worked very hard on.¹⁵

Now that we have understood what federalism is, it is time for us to pass to the main points of discussion. First let’s analyse the interaction between the states and federal government, which is a bit complicated. One can't say that federal government limits the powers of the states, because there are cases when states are much powerful, on the other hand there were times when states really faced some restrictions. Here are examples of both cases.

• President Johnson’s Voting Rights Act of 1965: African Americans in the South faced overwhelming obstacles to voting. Despite the Fifteenth and Nineteenth Amendments to the U.S. Constitution, which had enfranchised black men and women, southern voter registration boards used poll taxes, literacy tests, and other bureaucratic impediments to deny African Americans their legal rights. Southern blacks also risked harassment, intimidation, economic reprisals, and physical violence when they tried to register or vote.¹⁶
• Separate but equal was a legal doctrine in United States constitutional law that justified systems of segregation. Under this doctrine, services, facilities and public accommodations were allowed to be separated by race, on the condition that each group's public facilities was to remain equal. The American Civil War (1861–1865) policy yielded the cessation of legal slavery in the U.S., however not the intent of a different class of citizens. Before the end of the war, the Morrill Land-Grant Colleges Act (Morrill Act of 1862) was passed to provide for federal funding of higher education by each state with the details left to the state legislatures. Following the war, the Fourteenth Amendment to the United States Constitution guaranteed equal protection under the law to all citizens, and Congress established the Freedmen's Bureau to assist the integration of former slaves into Southern society. After the end of Reconstruction in 1877, states enacted various laws to undermine the equal treatment of African Americans, although the 14th Amendment as well as federal Civil Rights laws enacted during reconstruction were meant to guarantee it. However, Southern states contended that the requirement of equality could be met in a manner that kept the races separate. After the end of Reconstruction, the federal government adopted a general policy of leaving racial segregation up to the individual states.¹⁷
• Traditionally, the federal government didn’t have its own definition of marriage. When the Defense of Marriage Act was passed in 1996, a marriage was defined as a union of a man and a woman. So, no act of the federal government recognized same-sex marriage. Though Federal Marriage Amendment should have prohibited the recognition of same-sex marriages, it was approved in 2006 in several states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire) through legislation.
• The United States presidential election of 2000 was a contest between Republican candidate George W. Bush and Democratic candidate Al Gore. Bush narrowly won the November 7 election, with 271 electoral votes to Gore's 266.

The election was noteworthy for a controversy over the awarding of Florida's 25 electoral votes, the subsequent recount process in that state, and the unusual event of the winning candidate having received fewer popular votes (50,456,002) than the runner-up (50,999,897). It was the closest election since 1876 and only the fourth election in which the electoral vote did not reflect the popular vote.¹⁸

• McCulloch v. Maryland: In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.

The case presented two questions: 1) Does Congress have the power under the Constitution to   incorporate a bank, even though that power is not specifically enumerated within the Constitution? 2) Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution?

In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.¹⁹

• In October of 2000, President Clinton signed federal legislation (the 0.08 Blood Alcohol Concentration Bill) requiring states to set 0.08 BAC as the legal limit while driving. States were given until October 1, 2003 to pass 0.08 BAC legislation or lose 2% of their federal highway construction funds. Specifically, failure to pass such a law resulted in a 2% reduction in federal highway appropriations in 2004. Each subsequent year of non-compliance carried an additional 2% reduction in highway funds, culminating in an 8% reduction in funds by 2007. However, any state that adopted the 0.08 BAC threshold by 2007 would receive the highway funds that it had lost between 2004 and 2007. At the time that the federal legislation was passed, 18 states and the District of Columbia had enacted 0.08 BAC legislation²⁰.

From examples it becomes clear that in some cases states have enough power to act freely, while in other cases there are strong conditions and limitations on the powers of the states.

Let’s pass to the next point and see whether federalism limits the powers of national government or not.

In the American federal system, there are limitations on national government's ability to carry out its policies through executive branch of state governments. For example, in Printz v. United States, 521 U.S. 898 (1997) the Court held that the national government could not directly require state law enforcement officers to conduct background checks under the Brady firearms legislation. And yet, there are significant advantages in a federal system to obtain state assistance in the local implementation of federal programs. Implementing such programs through national employees would significantly increase the size and intrusiveness of the national government. Moreover, local implementation may assure that these programs are implemented in ways that take local conditions into account²¹.

For this reason, Congress has often avoided adoption of completely nationalized programs by one of two devices. In the first, Congress creates a delivery system for federal programs in which the national government encourages local implementation of it by providing significant matching funds. Example of this is the Aid to Families with Dependent Children (AFDC) program financed largely by the Federal Government.

In the second form, the Congress states that it will take over the regulation of an activity at the national level, unless the State itself implements its own program of regulation meeting minimum federal standards.

It is obvious that national government faces some restrictions, but this is done for the sake of the country. All these limitations, division of powers, checks and balances are to control the country, so that there would not be a dominant government or a dominant branch.

One more point for discussion is whether dual federalism defines the US federal structure. The answer may be both yes and no, because it depends on many factors: who the president is, from which party, as conservative party supports dual federalism, while republican party is for cooperative, etc.

As we have already seen in the chapter I, dual federalism was longer in action than other types. From this one may say that it was a good one and it defines the US federal structure. However, there were cases when dual federalism couldn't solve a problem, as the interference of national government was needed, and cooperative federalism came to help. The example of this is the Great depression. The Great Depression of the 1930s and the programs of the New Deal eventually brought the dual federalism theory to an end. The states were helpless to solve the terrible economic crisis facing the American people as a whole. Since the theory of dual federalism acted to limit national power, either it or the New Deal would have to go. In the end, President Franklin D. Roosevelt ensured that his New Deal's policies would triumph. Under the New Deal he enacted various emergency relief programs designed to stimulate economic activity. So, through the regulation the national government extended its power and control over the states. This example shows one of the advantages of cooperative federalism.

The best and correct answer, however, will be found if we analyse today’s situation, i.e. dual or cooperative federalism is supported by today’s president Barack Obama? 

In 2009 NYT contained an enlightening article on the Obama administration's view of federalism.   The Times described the approach as "progressive federalism" or "cooperative federalism."  As support, the Times offered Obama's pledge to allow states to create emissions standards that were more stringent than those imposed by the federal government.   The Obama administration is signaling that state regulations may very well complement federal regulations, and they can both work together to achieve important goals.²²

This means that the US federal structure today is likely to be defined by cooperative rather than dual federalism. 

                                                         Conclusion

Summing up the paper we’ll mention the most important points.

In the first chapter we learned what federalism is: it is the relationship between the states and the federal government, how it was evolved and which are the main types of it: dual, cooperative, regulated, new. We also spoke about the advantages of federalism, which were: keeping government close to people, providing training grounds, encouraging experimentations, etc.

In the second chapter we spoke about the division of powers, the system of checks and balances and saw how the country is governed. Under the division of powers we distinguished between powers delegated to national government (expressed, implied, inherent), powers of the states (reserved), powers denied to national government, powers denied to the states, and concurrent powers. Speaking about checks and balances we listed the powers of each branch over the other two and gave examples of the system in action.

The rest of the second chapter was dedicated to the analysis and examples of federalism. We discussed three debatable questions the answers to which could not be simply yes or no. When we spoke about the interaction between national government and the states, the question was whether powers of the states are limited by national government. We gave examples that proved the controversial core of the matter. In several examples we saw that states are obliged to act in way national government tells, while in other examples they were powerful and free in their actions.

As we discussed the question concerning the limitation of national government’s power by federalism, we saw that, yes, there were limits placed on national government, but in favour of the country, like in case with the division of powers and checks and balances.  

Finally, we were to understand whether dual federalism defines the US federal structure. Taking into account the long period of dual federalism in action, we could say yes, but analysing today’s situation we saw that the US federal structure is more likely to be cooperative, as the president interferes in states’ government.  
 

                                Bibliography

Books:

1. Benjamin Ginsberg, American Government: Power and Purpose – Brief 10^th ed. (USA, W.W.Norton & Company, Inc., 2008)
2. David B. Magleby, Government by the people (USA, New Jersey, 2008)
3. George T. Kurian, A Historical Guide to the US Government (New York: Oxford University Press, 1998)
4. Joseph F. Zimmerman, Contemporary American Federalism (State University of New York Press, Albany, 2008)
5. Peter Woll, American Government readings and cases (Toronto, 1987)
6. Robert A. Heineman, American Government (USA, McGraw-Hill, Inc., 1995)
7. ?

Internet resources:

1. http://www.rockinst.org/pdf/federalism/2010-05-07-federalism_during_obama_administration.pdf

2. http://alcalc.oxfordjournals.org/content/41/2/193.full

3. http://lawprofessors.typepad.com/conlaw/2009/01/obama-and-feder.html
4. http://americanhistory.about.com/od/usconstitution/a/checks_balances.htm
5. http://www.as.ysu.edu/~polisci/sracic_pap/states%20rights%20and%20federalism%20%28from%20The%20Constitution%20and%20its%20Ammendments,%20Macmillan,%201999%29.pdf
6. http://www.google.am/images?hl=hy&biw=1680&bih=798&tbs=isch%3A1&sa=1&q=checks+and+balances&btnG=%D5%88%D6%80%D5%B8%D5%B6%D5%A5%D5%AC
7. http://www.america.gov/st/usg-english/2007/January/20071128094357abretnuH0.8318903.html
8. http://wps.prenhall.com/hss_berman_democracy_4/7/1857/475505.cw/index.html
9. http://www.america.gov/st/usg-english/2007/January/20071128094357abretnuH0.8318903.html
10. http://quimbee.com/quimbee/case_detail/Bush%20%20v.%20%20%20Gore/707051
11. http://www.cals.ncsu.edu/agexed/aee501/1890law.html
12. http://americanhistory.about.com/od/civilwarmenu/a/cause_civil_war.htm
13. http://www.lawnix.com/cases/mcculloch-maryland.html
14. http://politicalscience.studentreader.com/dual-federalism-cooperative-federalism
15. http://books.google.com/books?id=x3kViV5h-O0C&pg=PA52&dq=commandeering+printz&ei=tmc8Sra9O4GEzQSQ0PCFDw#v=onepage&q=commandeering%20printz&f=false 
16. http://www.core-online.org/History/voting_rights.htm
17. http://www.socialstudieshelp.com/Lesson_13_Notes.htm
18. http://www.fas.org/sgp/crs/misc/RL30315.pdf