Federal v Unitary
By now, it should be obvious that in many areas of public policy, the federal government has responsibility for one piece of policy, and the state governments might have responsibility for the rest. For example, some of you probably are aware of a federal agency called OSHA (Occupational Safety and Health Administration), which makes rules that apply to all workplaces around the country (for example, you have to be a certain age to operate a meat slicer, you have to wear a safety harness if you’re working a certain number of feet above the ground, etc.). However, other workplace laws are established by the state governments: for example, there’s a federal minimum wage, but each state government can make it higher for workers in their state (Minnesota is one of the states that's done this; North Dakota has not). Each state has different rules for how old you have to be to work in certain industries (12 year olds can be paper carriers in most states, but not factory workers, for example); many states set rules on how many hours per week a teenager can work during the school year (and those laws vary from state to state).
This is the most basic illustration of federalism: in some cases, the federal government sets the rules; in others, the state governments are free to set their own rules; and in many cases, both the federal and state governments share the rule-making or law-setting responsibilities. The United States, along with Germany, Canada, Mexico, and Nigeria, is one of the few “federal” systems in the world (of the 193 members of the United Nations, only 28 are defined as “federal”). In most of the world, government is “unitary”, not federal. In England and France, for example, they have local governments called “Counties” or “Departments”, but the primary purpose of those governments is to carry out in practice the policies of the national government. For example, there’s an old story that floats around in upper-division Public Administration courses and bureaucratic circles: The French Education Minister supposedly has a guest in his office, and, to demonstrate the power that he had, looks at the clock on the wall, observes, “Oh, it’s 2:15pm, and it’s Wednesday, so therefore every 3rd year primary student in France is studying the shape of the rectangle and the square” (there’s different versions of the story: one mentions Turgot’s “Letter on Civil Tolerance”, another the Pythagorean Theorem, both of which are obviously more advanced than 3rd grade). Regardless of the details of the story, it shows the importance of the central government in France: the “Department” (regional) governments were given this policy by the national government, and then expected to carry it out. In our own country, of course, we don’t have this kind of centralized control (by contrast, we even have different instructors using different books for the same course in the same school, which you might have discovered the hard way when trying to sell your old books to your roommate). As I said above, most governments of the world are “unitary” – a single national entity has complete sovereignty.
Again, in our system, it’s the opposite: there are sub-national governments, the “states”, which have sovereign power over policies in certain areas. The source of this is the way that power is distributed by the federal (U.S.) Constitution: in particular, there are three types of powers that the feds or the states (or both) claim, based on what the Constitution says about federalism.
Three Types of Powers in the US Constitution
The most specific (and the clearest), are “Delegated Powers” (also called Enumerated Powers): these are the seventeen (17) things listed in Article I, Section 8 of the U.S. Constitution (under “Congress shall have Power to:”). Most of them we would recognize: “Congress shall have the power to Coin Money”, “to establish Post Offices and Post Roads”, “to declare War”, “to regulate Commerce with foreign states, and amongst the several states”, etc. These are very specific, and since there are only 17 of them, they are pretty limited.
If you read the Tenth Amendment to the Constitution literally (“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”), it sounds pretty clear that the state governments can do pretty much everything else that’s not covered by Congress in those 17 Delegated/Enumerated powers (there are a few things the states CAN’T do under the Constitution, like grant titles of nobility, and pass “ex post facto” [“after the fact”] laws; that’s why the Tenth Amendment includes that “nor prohibited by it to the States” line). We say that most powers, then, are “reserved” to the states (thus, the term “Reserved Powers”). This is why certain things, like public education, have long been considered the (almost) exclusive territory of state governments (the 17 delegated/enumerated powers of Article I, Section 8 say nothing about schools). However, some people haven’t read the Tenth Amendment literally, and that last clause (“or to the people”) is where some arguments come in. Some say that that means that the “people of each state” can claim certain powers only to themselves, and can tell the state AND federal governments to back off; others say that means that the “people of the United States” can claim certain powers only to themselves, and can re-align certain powers to Congress on behalf of all of people (and Congress, of course, being the representative body of the people, can then re-assign certain powers to itself – if this sounds like a circular argument, it is). This somewhat vague language in the Tenth Amendment has been SOME of the source of the confusion over where federal power stops and state power begins.
However, the REALLY BIG source of confusion has been a concept which we call “Implied Powers”. The source of these powers is that 18th clause of Article I, Section 8 (if you recall, the first 17 were very specific, along the lines of “Congress shall have the power to do –blank-“). The 18th clause says that Congress shall have the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the
For example, in the early 1800s, Congress created a national bank (the Bank of the
Another example has to do with the Interstate Highway System. When President Eisenhower proposed this in the early 1950s, there was quite some concern in Congress that the federal government didn’t have the authority to build national roads. One of the delegated powers in Article I authorizes “post offices and post roads”: this was the constitutional justification for the old National Highways in the 1800s (any of those roads with the black-and-white shield, like Highway 10, which runs from Moorhead to Detroit Lakes to Wadena [and beyond], 59 [Fergus Falls to Detroit Lakes], and 71 [Park Rapids to Wadena to Sauk Centre], are the successors to this old trail system). Those roads had long been built by 1950s, so it would have been difficult to constitutionally justify an interstate system on that basis. This was even more exacerbated by the fact that most of the mail, by this point, had long been moving by train, and, by the 1940s, increasingly by airplane.
So, Eisenhower had to come up with another justification. Back in 1919, when he was a Brevet Colonel, he had participated in a famous cross-country convoy of Army vehicles that was designed to promote national road-building. This convoy was plagued by breakdowns, mud, roads which collapsed in bad weather, unfinished bridges, and various other problems. Since Congress has the power to “raise armies” (one of the delegated powers), couldn’t it be implied that Congress has the power to come up with system by which to mobilize and transport the army internally within the borders of the United States? That was the constitutional logic that Eisenhower employed: in fact, the 1956 law which authorized the building of the Interstate Highway System is actually titled the “National Interstate and Defense Highways Act”.
Layer Cakes and Marble Cakes
Political scientists have long argued over how to represent, or view, this relationship of powers between the national and state governments. The traditional way of looking at this relationship is to represent it as a layered cake (thus, the term “layer cake federalism”). If we cut a piece of layer cake, we can very easily see where the frosting ends, and the cake begins. There are clear-cut borders between one layer and the next, and they are in a clear vertical arrangement (imagine that the top layer is the national government, then the next layer is the state government, then the next are the counties, etc.). However, in the 20th and 21st centuries, the relationship hasn’t been so clear-cut (no pun intended). In some areas, there’s federal involvement, but the state governments actually drive the policy decisions (education, up until very recently, is a great example of this: the feds gave money, but the states decided how to spend it). In other areas, the feds provide a lot of money, as well as a lot of guidance as to how it’s to be spent. Staying with the theme of desserts, some political scientists have said that federalism should really be represented more as a marbled cake (thus, “marble cake federalism”). Of course, in a marble cake, no one layer is ever always on top – they’re swirled together.
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Now, why these different ways of looking at federalism? Well, the biggest reason is that over the years, the federal government has had different ways of funding state and local programs, and the WAY in which that funding is distributed has contributed to the different ways in which the national and state governments work with each other.
Federal Aid, Conditions, and Mandates
Traditionally, the federal government distributed “Categorical Aid”. These were things like the old welfare program (AFDC), the land-grant colleges (like the University of Minnesota and NDSU), and the highway building and maintenance programs. Under categorical aid, the federal government lays aside a certain amount of money in a particular program and dedicates amounts within that fund for each state. So, for example, the feds might set aside $5 billion dollars for highway construction, and then say “
As you might expect, state governments have long had a problem with that type of approach, so in the 1970s and 80s, the Nixon and Reagan Administrations tried something new: the “Block Grant”. In this system, the feds still have a big pool of money, and they still distribute it state-by-state. However, instead of distinguishing between road construction and road maintenance, the feds might say to Minnesota, “Here’s $140 million – you have to use it on transportation generally, but it’s up to you on whether that means new roads, fixing up of old roads, building mass transit [subways and light rail]), or some combination of all three.” In this type of system, the federal government is letting the states take the initiative to try new things. The new welfare program (“welfare-to-work”) is a good example of this. Under the old program, the federal govt gave each state so much for payments to families, so much for food stamps, so much for child health insurance, so much for WIC, so much for day care, etc (in other words, it was a categorical aid program). Under the new system, the national government gives one big sum to each state and says “You have to spend it on family and child welfare, but how you do that is up to you.”
Another newer approach is the “Project Grant”. In these types of programs, the federal government puts aside a certain amount of money, and then asks states, local governments, and even private groups to submit applications for small grants from that pool of money. A good example of this is the USDA’s Rural Economic Development grants. The USDA has a pool of money (let’s say, for example’s sake, that it’s $150 million). The USDA then puts out a press release, saying something like “We have $150 million to grant for rural economic development.”) Perhaps the Becker County Economic Development Authority (which would be a semi-public, semi-private board) wants to do a site survey of some land east of Hawley which they think might be a good place to put wind energy turbines. Perhaps that land survey will cost $20,000. So, they apply for a grant, noting that the average job in Becker County pays X number of dollars per hour (or per week, or whatever) and that a wind farm would possibly generate Y number of jobs, paying Z numbers of dollars, so this $20,000 for a land survey would give us a good idea as to whether the site is a good one. Or, in another type of case, the Federal Department of Health and Human Services puts aside $235 million for Rural Health Care grants. The hospital in
However, even with the new Block Grant and Project Grant approaches, the federal government still likes to impose "conditions of aid" on the states. The easiest way to do this is to threaten to withhold money. If you grew up in the 1960s or 1970s (ask your parents; they might admit to actually doing this), you know that each state had its own drinking age. If you grew up in the Twin Cities, but wanted to drink at 18 or 19, you had a simple solution: go over to
An even broader power is the federal government's ability to impose "mandates" on the states (and regulations on private industry). This is when the federal government imposes a certain law (under it's "Supremacy Clause" power in Article VI), and the states have no authority to reject that (for example, the Clean Air Act and Clean Water Act, both of which are federal laws, impose minimum pollution standards that the states HAVE TO maintain). Along with regulations imposed on private industry, the federal government derives this authority from the “Commerce Clause” (Congress has the power to "regulate commerce with foreign powers, as well as among the several states", which is one of those 17 Delegated Powers). Over the years, the Courts have expanded this authority to include just about every economic (and even some non-economic) activity. For example, if you walk into the local Burger King, the federal government says that your transactions with that restaurant are “interstate commerce” because the bun might have come from wheat grown in South Dakota, and the beef came from a cow in Nebraska, and the lettuce from a grower in California, and so on (and the packaging might have come from a plastics plant in Taiwan, which even makes this “international commerce”). The Courts have generally accepted this argument, at least since the 1930s, and thus the federal government’s ability to regulate private business transactions has grown rapidly.
States, the Feds, and You
The Constitution also has a few other guidelines as how the states are supposed to interact with the federal government, and each other. There are three concepts that we need to address here briefly.
The first is “preemption”. This is very simple: Congress can, if it wants, claim that some of the 17 enumerated/delegated powers are exclusive to it. For example, only the federal government can coin money, or create post offices, or grant patents and trademarks. However, Congress HAS NOT claimed exclusive powers to tax (the power to tax is the very first delegated power listed in Article I, Section 8): the states and local governments can still impose some taxes (most states have an income tax, just like the national government, and most states have a sales tax as well). The power to raise armies is shared: only Congress can raise and fund national armies and navies, but the states have the right to maintain militias (the National Guard of today).
The other two concepts pertain to how states relate to each other, and each other’s citizens. The first is the “full faith and credit” clause “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” (Article IV, Section1) When I drive my car in Minnesota, I can’t be charged with driving without a license, since my North Dakota license is considered valid. Now, if I let my license expire, or I have it taken away for some violation, then I’d be breaking the law; however, as long as I maintain a legal drivers license in my home state, the other states must recognize my right to drive on their roads. This recognition extends to a lot more than just drivers’ licenses. States recognize all sorts of records and licenses issued by other states, such as marriages, divorces, wills, contracts, subpoenas, warrants, etc. This is why the recent debate over same-sex marriage is such a big deal. If Massachusetts grants a same-sex couple a marriage license (and then a Massachusetts judge performs a civil ceremony), we would expect that other states would have to recognize the validity of that license. However, in the late 1990s, the federal government passed a law called DOMA (Defense of Marriage Act), which allows states to NOT recognize marriages conducted in other states (read that language in the Constitution again – the second sentence clearly gives Congress the ability to decide WHEN those “acts and records” have to be complied with). There is some precedence for this: for example, some states allow 15 year olds to marry with a parents’ permission, or they allow first cousins to marry, but other states don’t allow marriages under these circumstances. The federal courts have generally recognized one state’s ability to NOT grant legal status to marriages conducted in other states which don’t conform to the new state’s laws. However, there is one way in which the Courts CAN invalidate these types of exceptions. If a State law (or State Constitutional amendment) violates the FEDERAL Constitution (such as the Bill of Rights), then it’s invalid. In the 2015 Obergefell v Hodges decision, what the Supreme Court was basically saying is that state limitations on marriage licenses to same-sex couples violate the 14th Amendment’s “Equal Protection” clause (the Court had used a similar argument to invalidate state restrictions on marriages between people of different races in a 1967 case, Loving v Virginia).
However, unless a state is found to be violating the federal Bill of Rights, it generally has the ability to selectively choose to accept certain types of legal records from other states (this is what the federal courts have generally called the “long standing public policy exemption” – it allows a state to impose limits on what records it will accept). For example, it is common practice for states to NOT permit younger drivers who have licenses in other states to drive on their roads (back when North Dakota was still giving drivers' licenses to 14-year olds, it still wasn't legal for that kid to drive in Minnesota, since the legal minimum age there was 15). The same principle has generally been recognized when dealing with professional licenses: an attorney in Wisconsin can’t practice law in the Twin Cities without being admitted to the Minnesota state bar (my wife, a Physical Therapist, has to maintain two licenses: one in North Dakota, and one in Minnesota, if she wishes to see patients in both states). So, while “full faith and credit” generally requires states to give credence to each other’s legal records and documents, there have historically been some exceptions, especially if a state claims authority based upon public safety concerns or the “long established public policy” exemption. However, the federal courts (and Congress) have generally been less likely to allow this for court judgements (bankruptcies, civil judgements, divorces and child custody/support, etc) than they have for licensing. In other words, if you end up with a court order against you in one state, don’t assume that if you move to another state, your new state is going to shield you from liability.
The other concept that we need to understand is “privileges and immunities”. States must give the same “privileges and immunities” to citizens from other states as they give to their own citizens (Article IV, Section 2). However, the Courts have placed some limits on this recognition. Minnesota, for example, can’t restrict my right to travel within the state, just because I’m from another state (in the 1868 case Corfield v Coryell, the Supreme Court explicitly recognized a “right to travel”). At the same time, Minnesota does have the right to tax any income that I earn within Minnesota’s borders (although ND and MN have signed an agreement, waiving income taxation on each other’s citizens). However, not all border states have this type of agreement, the best example being the fact that New York City imposes its local income tax on New Jersey residents who work in the City. Probably the best example of a local issue where this comes into play is out-of-state hunting restrictions. As you probably know,
As an interesting side note, there were several cases in the federal Courts back in the early 2000s, claiming that hunting is actually “interstate commerce”, and thus subject only to federal regulation. There was actually a Ninth Circuit (Federal Appeals) Court ruling in 2003 which agreed with this logic, but then, a year or so later, Congress passed a law giving up its “preemption” rights to regulating hunting as interstate commerce, and thus recognized each state’s ability to pass its own hunting laws. So, there’s an example of how the “Pre-emption” power, the “Privileges and Immunities” doctrine, and the “Implied Power” of interstate commerce are all important to a real, concrete question.