Federalism in USA: Dual, Cooperative, New Federalism

By | May 29, 2021
Federalism in USA: Dual, Cooperative, New Federalism

Last Updated on by Admin LB

The present article discusses the origins and evolution of the concept of federalism in USA, mainly from the ratification of the Constitution to the Great Depression. The article aims to identify the structure of federalism in the United States from the time of its evolution to its present form in the twenty-first century.

I. Introduction

Federalism is the system of governance in a country where its sovereignty is constitutionally divided between a central governing authority and its constituent units. The concept of federalism is based on democratic rules and institutions in which the governance power over the country is shared between its union and state governments, creating a federation. It essentially is a political concept in which a group of political members are bound together by a covenant, mainly a constitution with a governing representative head.

What is Federalism?

According to James Q. Wilson and John DiIulio, Jr.,

“it is a system of government in which sovereignty is shared [between two or more levels of government] so that on some matters the national government is supreme and on others the states, regions, or provincial governments are supreme.”[1]

There are three essential characteristics of a federal system of governance. They are as follows:

  1. There must be a provision for more than one level of government to act simultaneously on the same territory and on the same citizens.
  2. Each government must have its own authority and sphere of power, though they may overlap. When state and federal authority conflict, federal law is supreme under the Constitution.
  3. Neither level of government (federal or state governments) can abolish the other.

Since the ratification of the American Constitution, which established a union of states under a federal system of governance, two potential questions have posed a considerable debate on – what is the nature of the Union? And what powers, privileges, duties, and responsibilities does the U.S. Constitution grant to the union government and reserve to the states and the citizens? During the 208-year history of the U.S. Constitution, these questions have shaped and been shaped by the country’s economic, social, and political history.

Let us understand the origin and development of Federalism in the USA from Dual to Cooperative, and finally New Federalism.

II. Dual Federalism (1789–1945)

Dual Federalism represents the nature of federalism adopted for the first 150 years in the American republic, roughly through 1789, the World War II era. The U.S Constitution outlines provisions for two types of government in the United States of America, The National and the State.

For the most part, the National Government had the power to deal with matters concerning national relations and security like national defense, foreign policy, and fostering commerce, whereas the State Government dealt with local matters, economic regulation, and criminal law. This type of federalism is also called Layer-Cake Federalism because it is like a layer cake where the National Government and the states each had their own specified areas of powers and responsibility in respective matters, and the different governance levels rarely overlapped.

Layer cake federalism represents that programs and authority are clearly divided among the national, state, and local governments.

The initial framing and ratification of the U.S Constitution reflected the dual federalism theory. It advocates that the powers in the federal government should be made distinct and limited, with certain tasks enumerated in the Constitution for the National Government and the remaining tasks left to the State Governments. Because the theory leaves each level of government to exercise its governance powers within its own sphere of operations, it is also sometimes called dual sovereignty.

One more extreme outgrowth of the dual federalism theory is the idea of states’ rights, which holds that the National Government isn’t allowed to infringe on the jurisdiction left for state government governance and if they do so, it will be in contravention to the states’ constitutional rights (especially the Tenth Amendment, which specifically reserves non-delegated powers for the states). Federal government interference in the state’s jurisdiction represents an unlawful seizure of power by one level of government at the expense of another.

The problem with the theory of dual federalism is who has the authority to define where the one layer ends and the next layer starts. The U.S Supreme Court in this regard is vested with the power to resolve disputes within the federal structure, but since the Supreme Court is a national institution, it rarely favoured the states then.

III. Cooperative Federalism (1945–1969)

1945 onwards, the concept of a Federal system of governance closely resembles a marble cake rather than a layer cake since the Federal authority and the State authority have become intertwined. Marble cake federalism represents that programs and authority are mixed among the national, state, and local governments. For example, state and local governments administer several federal programs for which they heavily depend on the federal funds which support these programs. This type of federalism is known as Cooperative Federalism,

The concept of Cooperative federalism emerged during the New Deal when the power of the Federal Government grew in response to the Great Depression.

The National Government in this era integrated with the State and the Local Governments, which made it almost difficult to characterize where one type of Government begins and the other type ends. It generally leads to overlapping of functions and responsibilities of the Union and the State due to mixed authority. The notion of overlapping jurisdictions is expressed by the term marble-cake federalism. Cooperative federalism is a more accurate model that indicates how the federal system has worked over much of U.S. history.

IV. New Federalism (1969–present)

Since the 1970s, several political scholars and leaders of the New Federalism School of Thought have argued that the Union Government has been given too much power in comparison to the State Government, and now is the time that the power of the latter is given back.  Although the National Government remained in the extreme governance power, the State Government has regained some essential power in this era.

The first President who started supporting New Federalism School was Richard Nixon during his presidency (1969–1974), and every president since then has continued to support the general principle of giving some essential powers to the State and Local-level Governments.

The concept of New Federalism has taken concrete form in a variety of policy and decision-making processes. New Federalists have voiced specific limits on the Federal power as well as its devolution for giving the State and Local Government power and responsibility for state-level and local-level programs respectively.  For instance, the 1996 welfare reforms in the USA granted the states the ability to spend federal dollars as they deem fit. Supporters claim that local and state governments can be more effective because they understand the circumstances of the issue in their state. They argue that a one-size-fits-all program imposed by Washington cannot function as effectively.

Undoubtedly, the New Federalism concept appeals to many because of its balanced emphasis on state and local governments which is an effective solution against the unaccountability and intrusive nature of the Union on local issues governance.

V. The Supreme Court and New Federalism

The questions which concern the respective jurisdictional powers of the Federal and the State Government are of constitutional nature, and only the Judiciary has the power to address them.

The early era Supreme Court decisions in view of the separation of powers essentially reflected the views of Chief Justice John Marshall, who personally favoured a strong National Government. The scope of the national power of the Union Government as defined in 1824 in the landmark Supreme Court Judgment of Gibbons v. Ogden[2].

The court, in this case, had to interpret the commerce clause of Article I, Section 8; mainly, the court had to determine whether the federal government had the sole authority to regulate the licensing of steamboats operating between New York and New Jersey. In defining the commerce clause in the broadest possible terms John Marshall argued that Congress’s power to regulate interstate commerce could be “exercised to its utmost extent.”

However, in recent years from 1995 onwards, the Supreme Court has played a New Federalist role by favouring the state governments in a number of landmark decisions. One of the most well-known of these cases was the United States v. Lopez[3] in which the Supreme Court held that Congress had overstepped its jurisdictional authority as granted by the Constitution, in creating gun-free school zones.

More controversially, the Supreme Court in the 2000 United States v. Morrison[4] case struck down the offending parts in the Violence against Women Act (1994) for much the same reason that the Union has gone beyond its authority while enacting the provisions. In other cases, the court has ruled that the State Government can’t be sued for violating rights established by federal law. Notably, the U.S. Supreme Court in the 1990s overall reduced the power of the federal government in significant ways, particularly in relation to the commerce clause of Article I, Section 8.

Moreover, the Supreme Court through its decision in McCulloch v. Maryland[5] established the doctrine of implied powers, meaning the federal government can create policy instruments deemed necessary and appropriate to fulfil its constitutional responsibilities. The case also affirmed the principle of national supremacy embodied in Article VI of the Constitution, namely, that the Constitution and legitimate federal laws override state laws.

VI. Conclusion

From the above perusal, it is clear that Federalism in the USA has gone through several phases of development which has led to the varied form of relationship between the Federal and the State governments in each era.

During the era of dual federalism, the idea was that both the Federal and State level government will govern within their own jurisdictional sphere. In the era of cooperative federalism, the federal government was given more active powers to deal with policy areas which were previously under the jurisdiction of the state government. Finally, the 1970s era ushered in an era of new federalism aimed towards decentralizing policy management between the two levels of Government.

[1] Wilson, James Q. and John J. DiIulio, Jr. American Government Institutions and Policies. Lexington, D.C. Heath and Company, 1995. p. A-49.

[2] 22 U.S. 1 (1824).

[3] 514 U.S. 549 (1995).

[4] 529 U.S. 598 (2000).

[5] 17 U.S. 316 (1819).

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Author: Deepshikha

Deepshikha is a law student from National Law University, Odisha.

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