How American Federalism Divides Powers between the National and State Government
39 min readBy Simon Deng Kuol Deng, New York, USA
June 6, 2017 (SSB) — The Constitutional structure of American federalism distributes authority and powers between the national and state governments. These powers distribute to the national and state government are involved the exclusive powers and other powers, which must be shared by the national and state governments. This paper focuses on analyzing the definition of American federalism; powers divide and share by the national and state governments; advantages and disadvantages of American federalism; role of the national courts in defining the divisions of the powers, which include the concurrent shared powers between the national and state governments; and national budget as a tool of federalism for delegating authority to the states.
Introduction
As it has often been the case in American history, federalism system is once again a major focus of political debate (LaCroix, 2010) of how the national and state government could have the relationship to serve the Americans accordingly to the powers that the Constitution of the United States and states have provided. The relationship of the national government to the states has been the subject of intense debate since the founding (Magleby et la., 2014) of American federalism. Alison LaCroix’s new book traces the modem debate over federalism back to its 18th-century origins.
In her view, 18th century Americans developed a new federal ideology characterized by the core belief that multiple independent levels of government could legitimately exist within a single polity (Benton, 1985) and that such an arrangement was not a defect to be lamented but a virtue to be celebrated (Benton, 1985). The debates of the 1760s through the 1780s culminated in a new constitutionalization of federalism, a process that was continued into the 1800s.
The federalism of the late eighteenth and early nineteenth-century, the United States was specifically designed to avoid the ancient problem of imperium in imperial or dominion within a dominion that had so troubled the British Atlantic political world for decades (LaCroix, 2011). The significant innovation of the American federal idea was to authorize the division of sovereignty and to create viable legal categories that could contain multiple sources of governmental powers within one overarching system.
The intellectual energy of American political and legal thinkers between 1780 and 1800 was thus devoted to a project of translation between political debates and constitutional structure. This constitutional structure would, they believed, not simply conform to orthodox imperial legal theory, however, would instead reshape some basic premises of that orthodoxy by rejecting unitary sovereignty in favor of a deep-seated commitment to multiple sources of sovereignty (LaCroix, 2011). In this project of translation, the federal theorists such as John Dickinson, John Adams, James Madison, James Wilson, Alexander Hamilton, John Marshall, and others joined experience and theory into a new constellation of operative legal categories. The new constitutional structure celebrated its multiplicity with the text of the Constitution beating an insistent refrain of overlap, duality, and tension between the state and the national governments (LaCroix, 2011). The founding document, which both ratified and created the new frame of government, outlined a novel scheme of authority in which the subject of the governmental action, not only the actor itself but was the relevant focus for determining legality (LaCroix, 2011). Hence the attention to specific categories of subject matter for governmental action were: commerce, taxation, treaties, alliances, and confederations, etc. The new Republic would escape the Imperium in the imperial trap by apportioning the powers of government and the subject matters of jurisdiction between the state and national governments (LaCroix, 2011). The Framers reframed the debate around an ideological commitment to a federal structure, the principal mission of which was to draw the line between the regulatory power of the states, and that of the national government (LaCroix, 2011) while endorsing the importance of each as a distinct sphere of authority.
In 1797, the members of what would become the Federalist Party defended the creation of a strong national government; while their rivals, the anti-federalists warned that a strong national government would overshadow the states (Magleby et la., 2014). The Federalists had advocated for the federalism that restricts the states from entering into any treaty, alliance, grant letters of marque and reprisal, coin money, pass any bill of attainder, or law impairing the obligation of contracts, or grant any title of nobility. Their prohibition against the treaties, alliances, and confederations makes a part of the existing articles of Union, which was also copied into the Constitution of the United State (Madison, 1788). While the prohibition of letters of marque is the old system, but it was altered; this alteration is justified by the advantage of uniformity in all points which relate to foreign powers. Federalists had favored the right of the United State Congress to coin the money as well as regulate the alloy and value. Also, they had advocated for the federalism that restricts the states from passing the bill of attainder or ex-post facto Law, laws impairing the obligation of contracts, and titles of nobility (Madison, 1788). They advocated for the federalism system with a strong Constitution to restrict the states from entering into treaties because treaties must be considered under national government; thus, states’ constitutions or laws should not contrary to the national Constitution. Federalists existed that the State governments will have the advantage of the Federal government, whether Americans compare them in respect to the immediate dependence of the one on the other (Madison, 1788); to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government, but they must operate and organize under the federal system, not the former system of Confederation (Madison, 1788).
Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, which is much more likely to beget a disposition too obsequious than too overbearing towards them (Madison, 1788). The operations of the federal government will be most extensive and important in times of war and danger; while, those of the state governments in times of peace and security. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular states (Madison, 1788). The federal and state governments are in fact but different agents and trustees of the people constituted with different powers and designed for different purposes. This paper focuses on analyzing the definition of American federalism; powers, which the Constitutional structure of the American federalism provides to the national and state governments; advantages and disadvantages of federalism; role of the national courts in defining the divisions of the powers, which include the concurrent shared powers between the national and state governments; and national budget as a tool of federalism for delegating authority to the states.
The Definition of American federalism
Federalism, as researchers define it in nonpartisan terms, is a form of government in which a constitution distributes authority and powers between a central government and smaller regional government-usually called states or provinces-giving to both the national and the state government substantial responsibilities and powers, including the power to collect taxes and to pass and enforce law regarding the conduct of individuals (P.26). The term “federalism” or “federal system” use it refers to the system of national and state government; but the term “federal government” use, it refers to the Congress, the presidency, and judiciary created under the U.S. Constitution (Magleby et la., 2014). The mere existence of both national and state governments does not make a system federal, nevertheless, what makes a system federal is the Constitution that divides governmental powers between the national and state governments (Magleby et la., 2014) with the clear define functions to each. Constitutionally, the federal system of the United States consists of only the national government and the 50 states, while, the cities are not, the Supreme Court reminded us sovereign entities. There are several different ways that power can be shared in the federal system, and political scientists have devised terms to explain these various, sometimes overlapping kinds of federalism (Magleby et la., 2014). The system of American federalism has shared power based on each of these interpretations as the following.
First is a dual or layer cake federalism, which is defined as a strict separation of powers between the national and state governments in which each layer of has its own responsibilities and reigns supreme within its constitutional realm (Magleby et la., 2014). Dual or layer cake federalism was leading from the 1790s until the 1930s. However, Reagan interpretation in the 1980s holds that the states were to be the senior partners in the state-local area, given the unitary relationship existing between the two (Benton, 1985). When considered in its totality, the Reagan perception of the framers’ intent bears a striking resemblance to the notion of dual federalism. Also, Morton Grodzins (1966) noted that American federalism does not resemble a layer cake, with specific governmental functions assigned to particular levels of government, but rather a marble cake, with governmental responsibilities intertwined among the national government and states (Volden, 2005). The second is a cooperative or marble-cake federalism, which was leading from the 1930s until the 1970s is defined as a flexible relationship between the national and state governments in which both work together on a variety of issues and programs (Magleby et la., 2014). For example, many major policy areas, the less efficient level of government provides the goods or services jointly with the more efficient level; this joint involvement can be cooperative or competitive in nature. This system of intergovernmental political competition produces more desirable outcomes than either strict national provision or strict state-level provision when two conditions are both met: (1) when the national government is a more efficient provider and (Volden, 2005) (2) when there is substantial heterogeneity across the states (Volden, 2005). Thus, for a broad range of policy decisions, the American federal system is quite appropriately designed.
The third is a competitive federalism, which is defined as a way to improve government performance by encouraging state and local government to compete against each other for residents, businesses, investment, and national funding (Magleby et la., 2014). Frequently the more efficient level of government takes the leading role in providing the goods and services it is best able to supply, such as with the federal government providing national defense and the states and localities providing education. Under the efficiency umbrella, scholars have characterized many distinct concepts, including the heterogeneity of preferences across states, economies of scale, externalities or spillovers, and competition across states (Volden, 2005). Peterson (1995, 64-75) has made the case that the federal government’s redistributive role is substantial and increasing, while the states and localities are increasing their developmental role because these levels of government are respectively better able to handle policies in these areas. The fourth is a permissive federalism, which is defined as a strong national government that only allows, or permits the state to act when it decides to do so (Magleby et la., 2014). The proponents of permissive federalism, which was dominant on specific issues such as civil rights since the 1960s have argued that the power to share belongs to the national government, and national government alone (Magleby et la., 2014), although federalism generally assumes that the national and state governments will share power.
The fifth is a coercive federalism, which is defined as a strong national government that exerts tight control of the states through orders or mandates as its proponent believe that the states, which want federal grants must follow the mandates (Magleby et la., 2014). Coercive Federalism, which was dominant on specific issues such as public education and the environment since the 1960s is sometimes called centralized federalism, which focuses on the national government’s strong voice in shaping what states do. Finally, or sixth is a new federalism, which is defined as recent effort to reduce the national government’s power by returning, or devolving responsibilities to the states; it is sometimes characterized as part of the devolution the powers (Magleby et la., 2014). The new federalism has seen as a modern form of dual federalism based on the Tenth Amendment and was first introduced by President Richard Nixon in 1960s. The U.S. Constitution, in Article I, Section 8, in the Tenth Amendment, and elsewhere, lends some specificity to powers of the national government and the states (Volden, 2005). Yet, subject to interpretations by the courts over time, constitutional arrangements allow joint federal-state activities in numerous policy areas (Volden, 2005). For instance, the major policy functions, which are ranged from environmental cleanup and natural resource protection to homeland security, are left open to cooperation or competition between the federal government and the states.
Powers Divide and Share by the National and State Governments
The divisions of powers and responsibilities between the national and state governments have resulted in thousands of court decisions, as well as hundreds of books and endless speeches to explain them and even then, the division lacks practice definition (Magleby et la., 2014). The national government has only those powers that have delegated to it by the Constitution with the important exception of the inherent power over foreign affairs. Within the scope of American federalism’s operations, the national government is supreme, while the state governments have all of the powers not delegated to the central government except those denied to them by the Constitution and their state constitutions (Magleby et la., 2014). Some powers are specifically denied to both, the national and state governments, while others are specifically denied only to the states or to the national government. The constitutional based on the implied powers stipulated in Article 1, sections 8 of the U.S. Constitution has given Congress the rights to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested in the government of the United States (P.32). The national government relies on four constitutional pillars for its ultimate authority over the state.
The first pillar is the supremacy clause, which is the provision in the Article Six, Clause 2 of the United State Constitution directs (Magleby et la., 2014) that: “this Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties 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” (P.33). The Supremacy Clause mandates that federal law takes precedence over state law, was another measure adopted to constrain states without resorting to a federal negative (LaCroix, 2010). The second pillar is the power of war, which it is vested to the national government in order to protect the nation from aggression, whether from other nations or from international terrorism (Magleby et la., 2014). The third pillar is the commerce clause, which is the provision in the article 1, section 8, clause 1 of the United States Constitution, which it packs a tremendous constitutional punch by giving Congress the power to regulate commerce with foreign nations and among the several states and with the Indian Tribes (P.33). In these few words, the national government has found constitutional justification for regulating a wide range of human activity because few aspects of our economy today affect commerce in only one state (Magleby et la., 2014). The four pillar is the power to tax and spend for the general welfare. Congress lacks constitutional authority to pass laws solely on the grounds that they will promote the general welfare but it may raise taxes and spend money for this purpose (Magleby et la., 2014). For example, even when the national government lacks the power to regulate education or agriculture directly, it still has the power to appropriate money to support education or to pay farm subsidies.
On the other hand, the Constitution reserves to the states all powers not granted to the national government, subject only to the limitation of the Constitution (Magleby et la., 2014). For example, the states have reserve powers to create schools and local governments since both powers are not given exclusively to the national government, therefore states can exercise them as they do not conflict with the national law. However, Reagan’s perspective on federalism holds that, while the federal government is sovereign within its delegated powers, the founding fathers intended for the states to be equally powerful and to have considerable latitude in the exercise of their reserved powers (Benton, 1985). Likewise, the state governments share concurrent powers with the national government include the power to levy taxes and regulate commerce internal to each state. However, where the national government has not asserted its supremacy, states may regulate interstate businesses, provided these regulations do not cover matter requiring uniform national treatment or unduly burden interstate commerce (Magleby et la., 2014). Congress is the one that responsible to decide which matters require uniform national treatment, or what actions might place an undue burden on interstate commerce, but Congress does it through president’s signature and final review by the Supreme Court (Magleby et la., 2014). Moreover, to ensure that federalism works, the Constitution of the United States imposes restraints on both the national and the state governments. For instance, states are prohibited from making treaties with foreign government; authorizing private citizens or organizations to interfere with the shipping and commerce of other nations; coining money, issuing bills of credit, or making anything like gold and silver coin legal tender in payment of debts; taxing imports or exports; taxing foreign ships; keeping troops or ships of war in time of peace; and engaging in war (P.35). In turn, the Constitution require the national government to refrain from exercising its powers, especially its powers to tax and to regulate interstate commerce in such a way as to interfere substantially with the states’ abilities to perform their responsibilities (Magleby et la., 2014). Equally, the Constitution obligates the national government to protect states against domestic insurrection as Congress has given the power to delegate to the president the authority to dispatch troops to put down any insurrection when the proper state authorities request them.
Furthermore, the relationships of the interstate are stipulated in the three clauses in the U.S. Constitution requires states to give full faith and credit to each other’s delegated to the public acts, records, and judicial proceedings; to extend to each other’s citizens the privileges and immunities of their own citizens; and to return persons who are fleeing from justice (P.37). The full faith and credit clause, Article 5, Section 1 of the United States Constitution, requires state courts to enforce the civil judgments of the courts of other states and accept their public records and acts as valid (Magleby et la., 2014). The Article 5, Section 2 of the United States Constitution also requires the individual states to give citizens of all other states the privileges and immunities they grant to their own citizens (Magleby et la., 2014), including the protection of the law, the right to engage in peaceful occupations, access to the courts, and freedom from discriminatory taxes. In Article 5, Section 2, the Constitution asserts that, when individuals charged with crimes have fled from one state to another (Magleby et la., 2014), the state to which they have fled is to deliver them to the proper officials on demand of the executive authority of the state from which they fled. The process is called extradition and its objective of its clause is that the courts have claimed that no state should become a safe haven for the fugitives from a sister state’s criminal justice system. The Constitution also requires states to settle disputes with one another without the use of force, or they may carry their legal disputes to the Supreme Court, or negotiate interstate compacts. Interstate compacts often establish interstate agencies to handle problems affecting an entire region (Magleby et la., 2014). In 1787, federalism was a compromise between centrists, who supported a strong national government and those who favored decentralization. Many scholars think that federalism is ideally suited to the needs of a diverse people spread throughout a large continent, suspicious of concentrating power and desiring unity but not uniformity (Magleby et la., 2014). Definitely, federalism offers a number of advantages over other forms of government, but no system is perfect; it offers disadvantages too.
The Advantages of American Federalism.
American federalism checks the growth of tyranny as Americans today tend to associate it with freedom (Magleby et la., 2014). For example, when one political party loses control of the national government, it is still likely to hold office in a number of states and continue to challenge the party in power at the national level. In addition to that, American federalism is still coming to terms with the magnificent growth in federal state collaborations over the last forty years, a trend that has only accelerated in the twenty-first century, which has borne forms (Fahey, 2015) and magnitudes of intergovernmental partnership. As participants in national projects, states enable racial minorities and dissenters to rule, serve as staging grounds for national debates, spur the development of national consensus, safeguard the separation of powers, negotiate inter-jurisdictional gray area, and administer a far-reaching array (Fahey, 2015) of federal programs. American federalism allows unity without uniformity, which is a reason, national politicians and parties do not have to iron out every difference on every issue that divides Americans, whether the issue is abortion, same-sex marriage, capital punishment, welfare financing, or assisted suicide. Also, American federalism encourages experimentation as Justice Louis Brandeis once has argued that the state can be laboratories of democracy (Magleby et la., 2014). If states adopt programs that fail, the negative effects are limited; if programs succeed, they can be adopted by other states and by the national government. Equally, American federalism provides a training ground for state and local politicians to gain experience before moving to the national stage (Magleby et la., 2014). On the other hand, American federalism provides many opportunities for Americans to participate in the process of government and helps keep government closer to the people by providing numerous arenas for decision making.
The Disadvantages of American Federalism.
Dividing power makes it much more difficult for the government to respond quickly to national problems (Magleby et la., 2014). For example, there was a great demand for stronger and more effective homeland security after the September 11, 2001, terrorist attacks, and national government created a new Department of Homeland Security in response. However, the department quickly discovered that there would be great difficulty coordinating its efforts with 50 state governments and thousands of local governments already providing fire, police, transportation, immigration, and other government services (Magleby et la., 2014). Also, the division of power makes it difficult for voters to hold elected officials accountable; for instance, if something goes well, who should voters reward or If something goes wrong, who should they punish? These problems made President Reagan believed that the framers or founder fathers have sought to create a form of government that would maximize the degree of accountability, efficiency, and response flexibility (Benton, 1985). Reagan believed that one of the basic tenets of a democracy is that government officials, whether elected or appointed, should be accountable in some manner to the public. The Reagan perspective holds that the founding fathers foresaw that it was easier to hold officials accountable if they were closer to home (Benton, 1985). He interpreted the framers’ actions and purposes as being mindful of the distinct possibility that if the national government does more, then the public is less likely to feel that it can hold its officials sufficiently accountable.
Secondly, Reagan viewed of the framers’ actions were strengthened by his belief that they wanted to satisfy the public expectation of maximizing program benefits at the lowest possible cost; that is, they sought efficiency in the provision and performance (Benton, 1985) of government services and functions. Citizens want to believe that they are not paying the corruption and it is the point of the Reagan interpretation that the framers believed smaller units of government; for example, state and local governments were less likely to possess these undesirable traits. Thirdly, Reagan’s thought about the designs of the founding fathers also includes the view that they desired to create a system which allowed for as much flexibility as possible when it came to governmental response to citizen and societal problems (Benton, 1985). Reagan (1980) has pointed out that Americans live at the local level and it is at the local level that problems occur. His interpretation of federalism holds that decentralization of the governmental system; for example, devolving as many powers as possible to state and local governments was essential for the framers’ goal to maximize the level of accountability, efficiency, and response flexibility (Benton, 1985). Also, the lack of uniformity can lead to conflict as the states often disagree on issues such as health care, school reform, and crime control. For example, in January 2008, California joined 15 other states in suing the national government over a ruling issued by national Environmental Protection Agency (EPA) (Magleby et la., 2014). Variation in policies creates redundancies, inefficiencies, and inequalities; for example, labor laws, teacher certification rules, gun ownership laws, and even the licensing requirements for optometrists vary throughout the 50 states, and this is on top of many national regulations. Companies seeking to do business across state lines must learn and abide by many different sets of laws, while individuals in licensed professions must consider whether they face recertification if they choose to relocate to another state (Magleby et la., 2014).
The Role of the National Courts in Defining the Divisions of the Powers between the National and State Governments
Although the political process ultimately decides how power will be divided between the national and the state government, the national court system is often called on to umpire the ongoing debate about which level of government should do what, for whom, and to whom (P.38). The national highest court claimed this role in the celebrated case of McCulloch v. Maryland (Magleby et la., 2014) and claimed another role of defining its relationship with the states and the United States Congress. Firstly, in McCulloch v. Maryland (1819), the Supreme Court had the first of many chances to define the divisions of powers between the national and state governments (Magleby et la., 2014). For example, Congress established the Bank of the United States, but Maryland opposed any national bank and levied a $ 10,000 tax on any bank not incorporated in the state (Magleby et la., 2014). Nevertheless, James William McCulloch, the cashier of the bank, refused to pay on the ground that a state could not tax an instrument of the national government (Magleby et la., 2014). Maryland was represented before the court by some of the country’s most distinguished lawyers, including Luther Martin, who had been a delegate to the Constitutional Convention, while the national government was represented by equally distinguished lawyers, most notably, Daniel Webster. Martin said the Constitution did not expressly delegate to the national government the power to create a bank; in fact, Webster had conceded that the power to create a bank was not one of the express powers of the national government (Magleby et la., 2014). However, Webster said that the power to pass law necessary and proper to carry out the congress’s express power is specifically delegated to the Congress (Magleby et la., 2014). Having established the presence of implied national powers, Chief Justice John Marshall, spoke for a unanimous Court in which he had rejected every one of Maryland contentions and then outlined the concept of national supremacy (Magleby et la., 2014).
Chief Justice, John Marshall said that no state can use its taxing powers to tax a national instrument (Magleby et la., 2014). He stated that “the power to tax involves the power to destroy, if the right of the state to tax the means employed by the general government be conceded, the declaration that the Constitution and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning” (P.39). Consequently, Chief Justice, John Marshall’s ruling was based on the Constitution’s supremacy clause (Magleby et la., 2014). The federal courts since that time up to present seem to assume a long, unbroken historical consensus that nationally chartered banks ought to be governed by the federal government to the exclusion of state regulation (Hills, 2013). Since the Supreme Court handed down McCulloch v. Maryland, judges and scholars have commonly declared that history has called for the centralized law governing nationally chartered banks. That history is one of interpreting grants of both enumerated and incidental powers to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law (Hills, 2013). This history, according to Justice Breyer, requires the presumption that normally Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress explicitly granted (Hills, 2013). If a bank is authorized by federal law to do something, then that bank’s authorization preempts any state law that interferes with a banking power that Congress explicitly granted (Hills, 2013), even if the state law in question is neutral and does not discriminate against national banks.
Secondly, when it comes to the relationship between the national court and states, the authority of national judges is more often reviewed the activities of state and local governments, which has expanded dramatically in recent decades because of modern judicial interpretations of the Fourteenth Amendment, which forbids states to deprive any person of life, liberty, or property without due process of the law (P.39). Almost every action by state and local officials is now subject to challenge before a national judge as a violation of the Constitution or of national law. Preemption occurs when a national or regulation takes precedence over a state or local law or regulation Magleby et la., 2014). Traditional preemption doctrine distinguishes between express and implied preemption and between two kinds of implied preemption, the federal occupation of the field and conflict preemption (Levy & Glicksman, 2009). Under this traditional analysis, implied occupation of the field arises when federal regulation is so pervasive and federal interests are so dominant that state law is completely preempted in the entire field. State and local laws are preempted not only when they conflict directly with national laws and regulations, but also when touching on a field in which the federal interest is so dominant that federal system will be assumed to preclude enforcement of state laws on the same subject (P.39). Conflict preemption arises either when it is impossible to comply with both federal and state law, and when the state law stands as an obstacle to the accomplishment of the object and purpose of the federal law.
Direct conflict preemption applies not only when it is impossible to comply with both federal and state law, but also when the state law, on its face, creates a direct and clear conflict with federal law (Levy & Glicksman, 2009). For example, if a state permit allowed the dumping of toxic waste in violation of federal law, there would be a direct conflict and federal law would preempt the permit (Levy & Glicksman, 2009), which could not serve as a defense to an enforcement action based on the federal violation, absent an express savings provision. A national preemption, for example, includes laws regulating hazardous substances, water quality, clean air standards, and many civil rights acts, especially the Civil Rights Act of 1964 and the Voting Rights Act of 1965 (Magleby et la., 2014). Displacement of state authority operates more broadly to prevent the state from exercising its authority in a particular regulatory area or manner (Levy & Glicksman, 2009) and includes not only traditional field preemption, but also the broad application of the strand of conflict preemption based on an obstacle to the accomplishment of federal purposes or objectives. For example, if federal law strikes a careful balance between regulatory burdens and health benefits, state laws imposing more stringent regulations might stand as an obstacle to the purpose of striking this balance (Levy & Glicksman, 2009), even if the requirements for the federal occupation of the field are not met. In such a case, state regulatory authority is displaced broadly. When there is a direct conflict between federal and state law, the superiority of federal law follows directly from the Supremacy Clause, whether or not it is possible to comply with both.
A second distinction that informs the approach is the distinction between “floor” and “ceiling” preemption, which, has borrowed by Levy, E. R. & Glicksman, L. R. (2009) from William Buzbee. As the terms suggest, floor preemption occurs when federal law sets a minimum standard of regulation or protection, establishing a floor that state laws cannot lower, but leaving states the option of providing more stringent protections. Floor preemption would not impose any restrictions, however, on state remedies that offer greater protection than those provided by federal law (Levy & Glicksman, 2009). Ceiling preemption, on the other hand, precludes states from adopting more stringent or protective regulations. The essential argument for remedial preemption is that state remedies are a form of regulation that effectively imposes higher regulatory standards than those imposed by federal law (Levy & Glicksman, 2009). The Supreme Court has often stated that there is a presumption against preemption, although it has also indicated that the presumption may not apply in some areas of dominant federal concern and it has not consistently accorded the presumption the same weight. Whatever the general scope and force of the presumption, it should have special weight as applied to remedial preemption of state judicial remedies because the federalism and institutional concerns that justify the presumption are particularly powerful in this context (Levy & Glicksman, 2009).
The primary justification for the presumption against preemption is respect for the sovereign authority of states. This respect is especially justified in the area of tort remedies, which have traditionally been a matter of state law (Levy & Glicksman, 2009). Given the importance attached to the states to provide such remedies (Levy & Glicksman, 2009); Congress should be especially cautious about displacing state authority to provide them and courts should be especially cautious about inferring the intent to do so in the absence of explicit statutory language. The presumption against preemption of state judicial remedies can be understood both as a principle of legislative draftsmanship and as a quasi-constitutional clear statement principle (Levy & Glicksman, 2009). As a principle of legislative draftsmanship, the presumption reasons that insofar as Congress may expressly provide for preemption of state remedies, the failure to do so raises an inference that remedial preemption was not intended (Levy & Glicksman, 2009). As a quasi-constitutional clear statement principle, the presumption against preemption implements federalism principles by prompting courts to read ambiguous statutes to avoid unnecessary intrusions on state authority to provide common law remedies (Levy & Glicksman, 2009). Taken together, these principles also suggest a political process rationale for the presumption by requiring Congress to address the preemptive effect of statutes explicitly, the presumption reinforces the political safeguards of federalism.
Thirdly, when it comes to the national court and the role of Congress. Then, we should also understand from the records of the 1930s until 1990s that, the Supreme Court essentially removed national courts from what had been the role of protecting states from acts of Congress (Magleby et la., 2014). The Supreme Court broadly interpreted the commerce clause to allow Congress to do whatever Congress thought necessary and proper to promote the common good, even if national laws and regulations infringed in the activities of state and local governments. In the almost two decades, the Supreme Court has signaled that national courts should be more active in resolving federalism issue (Magleby et la., 2014). The Court declared that a state could not impose term limits on its members of Congress, but it did so by only a 5-to-4 votes (Magleby et la., 2014). When writing for the majority, Justice John Paul built his argument on the concept of the federal union as espoused by the great Chief Justice John Marshall, as a compact among the people with the national government serving as the people’s agent (P.39).
Supreme Court has consistently interpreted “necessary and proper” as a whole with hundreds of judicial decisions following the Supreme Court’s interpretation of the phrase in McCulloch v. Maryland, for a period of nearly 200 years (Phipps, 2016). Later Supreme Court decisions, as well as other lower court rulings, have routinely held necessary and proper to be a means-ends analysis, where the means must be appropriate, plainly adapted, and consistent with the letter and spirit of the law (Phipps, 2016) or document granting the power to effectuate an enumerated end. The Necessary and Proper Clause of the United States Constitution provides Congress with 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 United States, or in any Department or Officer thereof” (Phipps, 2016). Almost, if not every, statement of constitutional power that Congress attaches to a proposed bill will cite the Necessary and Proper Clause as an enumerated power authorizing the enactment of the legislation.
The National Budget as a Tool of Federalism for Delegating Authority to the States
Congress authorizes programs, establishes general rules for how the programs will operate and decide whether room should be left for state or local discretions and how much (Magleby et la., 2014). National grants, which serve these purposes to supply state and local governments with revenue; to establish minimum national standards for such things as highways and clean air; to equalize resources among the states by taking money from people with high incomes through national taxes and spending it through grants in states where the poor live; and to attack national problems, but minimize the growth of national agencies are one of Congress’s most potent tools for influencing policy at the state and local levels (P.42). National, or federal, grants can be classified on two separate dimensions: (1) how much discretion the national government uses in making the grant decision and (2) what kinds of requirements the national government puts on how the funding can be spent (Magleby et la., 2014). Cooperative federalism programs and conditional spending grants are like contracts between the states and federal government. There are the federal offer and a state acceptance; there are terms and conditions, obligations and penalties. And there is a meeting of the minds, the moment when the state’s consent to a federal offer and the deal is done (Fahey, 2015). But because the states are not monolithic actors and many officials, acting through many different political processes, could conceivably speak for the state the federal government embeds, which has called by Fahey, A. B. (2015) as consent procedures in cooperative federalism statutes and regulations that dictate which state actor gets to accept the federal offer and how.
According to the federal statute and regulations, states can agree to establish a program only at such time and in such manner as a line federal agency may prescribe (Fahey, 2015). Any federal agency, in turn, requires states to consent by submitting a technical document called a Blueprint Application along with a Declaration Letter signed by the state’s governor (Fahey, 2015). In every program and for every grant that relies on the states’ voluntary participation, the federal government can decide how the states volunteer (Fahey, 2015), which official or institution gets to speak for the state, how the decision is presented to that speaker, what process the speaker must use to communicate the state’s decision, and the timeline on which the decision must be made. In Professors Richard Thaler and Cass Sunstein’s popular framing, Congress and federal agencies control the “choice architecture” within which states make the decision to join or reject cooperative programs. Some consent procedures are deferential, they require, for instance, that a state’s indication of consent be submitted by the State agency that is eligible to submit the plan (Fahey, 2015). Others are highly intrusive, such as, for instance, procedures that require federally designated state officials to follow federally designated state-level processes as a predicate to expressing the state’s consent. Medicaid’s original consent procedure, which is also used for the frequent amendments to state programs, is one example (Fahey, 2015). It requires a state’s Medicaid agency to prepare an application or an amendment to its original application, invites comments on that application from the state’s governor, then finally send it to the federal agency (Fahey, 2015). Likewise, the Clean Water Act’s section-404 permit program is another example.
The program allows the Environmental Protection Agency (EPA) to transfer federal permitting authority over certain water areas to the states (Fahey, 2015). The program’s consent procedure requires not only a letter from the state’s governor expressing the state’s interest in the 404 programs but also a statement from the state’s attorney general (Fahey, 2015), containing a legal analysis of the effect of state eminent domain law on the successful implementation of the program, which cites specific statutes and administrative regulations. The federal government’s ability to set consent procedures is a consequential aspect of twenty-first-century federalism, and it is becoming more so with each legislative session (Fahey, 2015). As federal-state collaboration increasingly becomes the regulatory model of choice for policy initiatives big and small, these procedures will play an outsized role in mediating the power and influence of state and federal political actors (Fahey, 2015). They let the federal government intervene in state politics and decision-making in the novel and unexpected ways. They allow the federal government to enhance its bargaining power when dealing with the states in situations that are commonly considered by courts and scholars to be negotiations between equal actors (Fahey, 2015). And they present new opportunities to test the rules established by the Supreme Court that mediate the relationship between the states and the federal government. American federalism is still coming to terms with the magnificent growth in federal state collaborations over the last forty years, a trend that has only accelerated in the twenty-first century, which has borne forms and magnitudes of intergovernmental partnership (Fahey, 2015) through providing the project grants, formula grants, categorical grants, and block grants, sometimes called flexible grants to the states.
The national government supports states through project grants for specific activities, such as scientific research, homeland security, and some education programs (Magleby et la., 2014). Project grants are generally restricted to a fixed amount of time and can only be spent within tight guidelines. While formula grants are distributed to the states based on procedures set out in the granting legislation; for example, the population is a formula, each recipient government receives a certain number of dollars for each person who lives in the jurisdiction (Magleby et la., 2014). Other formulas do not involve people at all, but specific measures of a problem such as the number of boarded-up houses in a state. Though categorical grants are made for specific purposes, hence, the term them categorical grants because they specific purposes, such as Medicaid health care for the poor are tightly monitored to ensure that the money is spent exactly as directed (Magleby et la., 2014). Categorical grants involve the largest amount of federal support, but often require the states to match some percentage of each national dollar. Finally, block grants are made for more generalized government functions such as public assistance, health services, child care, or community development (Magleby et la., 2014). States have great flexibility in deciding how to spend block grant dollar, but unlike programs such as national unemployment insurance that are guaranteed for everyone who qualifies for them, block grants are limited to specific amounts set by the national government (P.45).
Block grants lead to greater programmatic decentralization and also aim at restoring the federal government to a position of influencing over the functional specialists and interest groups that tend to dominate narrow purpose categorical programs (Benton, 1985). In that regard, block grants tend to promote a greater degree of political accountability; also, they well suited to decentralize significant decision-making authority over the use of grant funds because they allow recipient jurisdictions greater discretion and flexibility (Benton, 1985) in setting program priorities. It is in this area that block grants have been most successful, for these grants place greater responsibility on and give more flexibility to state and local governments to tailor federal assistance to meet special local needs. On the other hand, the block grants make the federal seems that it shared the powers for the purposes of providing the better public programs and services to the people. Shared state-federal governance has a long tradition in the American welfare state, particularly in the implementation of health care programs (Haeder & Weimer, 2015). Shared emerge from the long history of cooperation between the federal government and states in the provision of health care that spans the past century. Programs vary widely across states even when states agree to participate actively in joint programs, shared implementation and shared governance almost inevitably create large disparities and inequities across the country (Haeder & Weimer, 2015).
These discrepancies are particularly evident with regard to different benefit structures, spending, and eligibility levels for the major health programs that have been a mainstay of the American welfare state (Haeder & Weimer, 2015). For example, adult programs first established under the Social Security Act of 1935 differed widely in terms of the dispersal of free drugs to indigents in many states. The federal government has usually shown great deference to states with regard to jointly implementing health care programs by allowing significant variation and adjustments to match local circumstances and political conditions (Haeder & Weimer, 2015). Two of the most common accommodations are increases in funding and the expansion of target populations. In fact, in all programs, which are presented in the states, the federal government bears a significant amount, if not the majority, of the financial burden (Haeder & Weimer, 2015). States are more likely loath to create distributive programs on their own; instead, they may prefer to wait for some federal inducement that encourages other states to create programs and that reduces overall state costs. The federal government rarely imposes direct requirements on states without providing some form of incentive (Haeder & Weimer, 2015). Usually, the incentive is a matching grant that often elicits state participation, but states are not required to implement many of these programs. In anticipation of state opposition, many programs also include a federal fallback option to ensure a degree of access nationwide (Haeder & Weimer, 2015). Programs for maternal and child health offer particularly interesting lessons because they were established, terminated, and then reestablished at the federal level.
Not all eligible individuals enroll even with full cooperation from the states, take-up rates will be incomplete and not all individuals eligible for programs eventually sign up (Haeder & Weimer, 2015). Sometimes, state governments seek to minimize the number of enrollees to contain costs and stabilize state budgets through burdensome certification and recertification requirements as, for example, under the Deficit Reduction Act of 2005 (Haeder & Weimer, 2015). States may also shy away from outreach programs, which often require significant investments to reach and enroll all potentially eligible beneficiaries. Even when individuals are made aware of their eligibility, programs may also still be unaffordable for many. The previous shared state-federal programs often serve as stepping stones for future coverage expansions (Haeder & Weimer, 2015). Program structures, matching formulas, and benefit design, for example, are often rather similar in successive programs, differing only incrementally. Moreover, programs also often contain within them the seeds for further, evolutionary expansions, offering a broader set of benefits to a broader set of beneficiaries over time (Haeder & Weimer, 2015). For example, FERA, in particular, proved to be pivotal in the enlargement of the welfare state because it set the precedent for increased federal participation in medical care. Similarly, the maternal and child health programs under the Social Security Act are clear expansions of the Sheppard-Towner programs; Medicaid and Medicare are enlarged versions of Kerr-Mills (Haeder & Weimer, 2015). Additionally, programs under the Social Security Act, particularly Medicaid, have seen steady growth in benefits and eligible populations.
Inclusion
The noteworthy innovation of the American federal idea was to authorize the divisions of sovereignty and to create viable legal categories that could contain multiple sources of governmental powers within one overarching system (LaCroix, 2011).The founding document, which both ratified and created the new frame of government, outlined a novel scheme of authority in which the subject of the governmental action, not only the actor itself but was the relevant focus for determining legality (LaCroix, 2011). The Framers reframed their deliberation around an ideological commitment to a federal structure, the principal mission of which was to draw the line between the regulatory power of the states, and that of the national government (LaCroix, 2011) while endorsing the importance of each as a distinct sphere of authority. Definitely, the Framers adopted the Constitution structure of American federalism that distributes authority and powers between a central government and state governments. The Framers believed that the Constitutional structure of American federalism that divides governmental powers between the national and state governments is what makes the federal system a federal.
This system of the American federalism has divided exclusive and shared powers based on each of these, dual or layer cake federalism, cooperative or marble-cake federalism, competitive federalism, permissive federalism, and coercive federalism. Dual or layer cake federalism of the 1790s until the 1930s offers a strict separation of powers between the national and state governments in which each layer of has its own responsibilities and reigns supreme within its constitutional realm (P.27). While cooperative or marble-cake federalism, which was leading from the 1930s until the 1970s inspires the flexible relationship between the national and state governments in which both work together on a variety of issues and programs (Magleby et la., 2014). Moreover, competitive federalism enhancements the techniques that improve government performance by encouraging state and local government to compete against each other for residents, businesses, investment, and national funding (Magleby et la., 2014). Furthermore, permissive federalism promotes a strong national government that only allows, or permits the state to act when it decides to do so. Likewise, coercive federalism endorses a strong national government that exerts tight control of the states through orders or mandates as its proponent believe that the states, which want federal grants must follow the mandates (Magleby et la., 2014). Equally, a new federalism upholds a recent effort to reduce the national government’s power by returning, or devolving responsibilities to the states (Magleby et la., 2014).
The divisions of powers between the national and state governments have resulted in thousands of court decisions, as well as hundreds of books and endless speeches to explain them and even then, the division lacks practice definition (Magleby et la., 2014). Within the scope of American federalism’s operations, the national government is recognized as a supreme, while the state governments have all of the powers not delegated to the central government except those denied to them by the Constitution and their state constitutions (Magleby et la., 2014). The Constitution reserves to the states all powers not granted to the national government, subject only to the limitation of the Constitution. At the same time, the state governments share concurrent powers with the national government include the power to levy taxes and regulate commerce internal to each state. Although the American federalism offers an advantage over other forms of government and it also offers disadvantage. The American federalism’s advantage is that it checks the growth of tyranny as Americans today tend to associate it with freedom, while encourages state experimentation, which is known as the laboratories of democracy. If states adopt programs that fail, the negative effects are limited; if programs succeed, they can be adopted by other states and by the national government. However, American federalism’s disadvantage has been described that the divisions of powers make it much more difficult for the government to respond quickly to national problems, or for the voters to hold elected officials accountable (Magleby et la., 2014).
Although the national court system is often called on to umpire the ongoing debate about which level of government should do what, for whom, and to whom (Magleby et la., 2014). The national highest court’s decision in the case of McCulloch v. Maryland (Magleby et la., 2014) has paved its way to claiming the role of defining its relationship with the states and the United States Congress. The authority of national judges is more often reviewed the activities of state and local governments because of the modern judicial interpretations of the Fourteenth Amendment, which forbids states to deprive any person of life, liberty, or property without due process of the law (P.39). The Supreme Court broadly interpreted the commerce clause to allow Congress to do whatever Congress thought necessary and proper to promote the common good, even if national laws and regulations infringed in the activities of state and local governments. On the other hand, Congress authorizes programs, establishes general rules for how the programs will operate and decide whether room should be left for state or local discretions and how much.
The national grants, which serve the purposes to supply state and local governments with revenue remain the Congress’s most potent tools for influencing policy at the state and local levels. The national grants can be classified on two separate dimensions: (1) how much discretion the national government uses in making the grant decision and (2) what kinds of requirements the national government puts on how the funding can be spent (Magleby et la., 2014). Thus, the American federalism is still coming to terms with the magnificent growth in federal state collaborations over the last forty years, a trend that has only accelerated in the twenty-first century, which has borne forms and magnitudes of intergovernmental partnership (Fahey, 2015) through providing the project grants, formula grants, categorical grants, and block grants, sometimes called flexible grants to the states.
About Author: Mr. Simon Deng Kuol Deng is SPLM Former Secretary General in New York-USA. Mr. Deng is currently a graduate student for the Master’s Degree of Science in Political Science, SNHU, U.S.A. He holds the Degree of Bachelor of Arts in Political Science, general concentration in the three Subfields: The American Politics and Governments; Comparative Politics and Comparative Governments; and International Relations, from the State University of New York at Buffalo (UB) USA. He also holds the Degree of Associate in Applied Science in Office Management and Administration from the State College of New York at Buffalo, Erie Community College (ECC) USA. He Attended Training for Rapid Impact Public Finance Management Project, sponsored by World Bank, School of Management Science, University of Juba and KCA University, Kenya and obtained a post Certificate in Procurement in 2011.He can be reached by smndeng@yahoo.com or simondeng.deng@snhu.edu
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