1.   (2006 AP Question) The framers of the United States Constitution created a legislative system that is bicameral.  However, it is

                                       not just bicameral; the framers also established two houses of distinctly different character and authority.

(a)    Discuss two reasons why the framers created a bicameral legislature.

(b)    Identify one power unique to the House of Representatives and explain why the framers gave the House that power.

(c)    Identify one power unique to the Senate and explain why the framers gave the Senate that power.


2.   (2000 AP Question) The Constitution was an attempt to address problems of decentralization that were experienced under the

                                       Articles of Confederation. 

(a)  List three problems of decentralized power that existed under the Articles of

      Confederation.  For each problem you listed, identify one solution that the

      Constitution provided to address the problem.

(b) Some have argued that the tensions between decentralized and centralized power

      continue to exist.  Support this argument by explaining how one of the following

      illustrates the continuing tension.

-  Environmental policy

                                             -  Gun control

                                             -  Disability access


3.  (2001 AP Question)  The United States Constitution has endured for more than two centuries as the framework of government.

                   However, the meaning of the Constitution has been changed both by formal and informal methods.

                  (a) Identify two formal methods for adding amendments to the Constitution.

                                       (b) Describe two informal methods that have been used to change the meaning of

                                            the Constitution.  Provide one specific example for each informal method you describe.

                        (c) Explain why informal methods are used more often than the formal amendment process.


4.   (2004 AP Question) The power of the federal government relative to the power of the states has increased since the ratification of

                                        the Constitution. 

a.       Describe two of the following provisions of the Constitution and explain how each has been used over time to expand federal power.

·         The power to tax and spend

·         The “necessary and proper” or “elastic” clause

·         The commerce clause

b.       Explain how one of the following has increased the power of the federal government relative to the power of state governments.

·         Americans with Disabilities Act

·         Civil Rights Act of 1964

·         Clean Air Act


5.   (2007 AP Question) The framers of the United States Constitution created a federal system.

            (a)  Define federalism

            (b)  Select two of the following and explain how each has been used to increase the power of the federal

                    government relative to the states.

·         Categorical grants

·         Federal mandates

·         Selective incorporation

(c)  Select two of the following and explain how each has been used to increase the power of the states

       relative to the federal government.

·         Welfare Reform Act of 1996

·         Block grants

·         Tenth Amendment


6.   (2002 AP Question) Political institutions can present both obstacles and opportunities to racial minority groups in their efforts to gain

                                       political influence.

                  (a)    Identify one feature of one of the following and explain how that feature has presented obstacles to

                           racial minority groups in their efforts to achieve political goals.  (choose Federalism)

·         Federalism

·         The United States political party system

·         The United States electoral system

            (b)    Identify one feature of one of the following and explain how that feature might present opportunities                              

                    to racial minority groups in their efforts to achieve political goals.  (choose Federalism)

·         Federalism

·         The United States political party system

·         The United States electoral system


7.   Explain what is meant by the “Madisonian Model” and how it is incorporated within the Constitution.

      Provide specifics from class and your text to support your answer.


8.  Explain the major issues between the Federalists and the Anti-Federalists in the debates over ratification of

     the Constitution.  Provide specifics from class and your text to support your answer.


9.  Explain how dual federalism can be defined as a “layer cake” and how cooperative federalism can be defined

     as a “marble cake”.  Provide specifics from your text and class to support your answer.


10.  Article IV of the Constitution regulates relations among the states through the “full faith and credit clause, the

     privileges and immunities clause, and the interstate extradition clause.   Briefly explain how each of these

     regulates” relations among the states and the national government.  Provide an example for each.



Anti-Federalists: opposed the new Constitution, feared the new Constitution would erode fundamental liberties, and argued that the new Constitution was a classbased document serving the economic elite.

Articles of Confederation: the document which outlines the voluntary agreement between states and was adopted as the first plan for a permanent union of the

United States.

Bill of Rights: the first ten Amendments to the Constitution passed after ratification specifically protecting individual liberties to fulfill promises made by the

Federalists to the Anti-Federalists in return for their support.

Checks and balances: each branch required the consent of the others for many of its decisions.

Connecticut Compromise: the plan adopted at the Constitutional Convention to provide for two chambers in Congress, one representing states equally and the other representing states on the basis of their share of the population.

Consent of the governed: people must agree on who their rulers will be.

Constitution: a nation's basic law creating institutions, dividing power, and providing guarantees to citizens.

Declaration of Independence: the document used by the signers to announce and justify the revolutionary war and which was specifically designed to enlist the aid of foreign nations in the revolt.

Equal Rights Amendment: was first proposed in 1923, passed by Congress in 1972, but was not ratified by three-fourths of the states; this amendment mandated

equality of rights under the law regardless of gender.

Factions: groups of people, currently known as political parties or interest groups, who arise as a result of unequal distribution of wealth to seize the reins of

government in their own interest.

Federalist Papers: articles written to convince others to support the new constitution.

Federalists: argued for ratification of the Constitution by writing the Federalist Papers; included Madison, Hamilton, and Jay.

Judicial review: the courts have the power to decide whether the actions of the legislative and executive branches of state and national governments are in

accordance with the Constitution.

Limited government: clear restrictions on what rulers could do and which safeguard natural rights.

Marbury v. Madison: Judicial review was established in this 1803 Supreme Court case.

Natural rights: these are rights to which people are entitled by natural law, including life, liberty, and property.

New Jersey Plan: a plan by some of the delegates to the Constitutional Convention to provide each state with equal representation in Congress.

Republic: a system based on the consent of the governed where power is exercised by representatives of the public.

Separation of powers: each branch of government would be independent of the other.

Shays' Rebellion: a series of armed attacks on courthouses to prevent judges from foreclosing on farms.

U.S. Constitution: the document where the foundations of U.S. government are written, providing for national institutions to each have separate but not absolute


Virginia Plan: a plan by some of the delegates to the Constitutional Convention to provide each state with a share of Congressional seats based on its share of the


Writ of habeas corpus: this enables people who are detained by authorities to secure an immediate inquiry and reasons why they have been detained.

Block grants: broad program grants given more or less automatically to states and communities, which exercise discretion in how the money is spent.

Categorical grants: grants that can be used only for specific purposes or categories of state and local spending.

Cooperative federalism: where state and the national government responsibilities are mingled and blurred like a marble cake, powers and policies are shared.

Dual federalism: where states and the national government each remain supreme within their own spheres of power, much like a layer cake.

Elastic clause: the statement in the Constitution which says that Congress has the power to make all laws necessary and proper for carrying out its duties.

Enumerated powers: powers of Congress found in Article 1, Section 8 of the Constitution.

Extradition: the Constitution requires each state to return a person charged with a crime in another state to that state for trial or imprisonment.

Federalism: a system of shared power between two or more levels of government.

Fiscal federalism: the pattern of spending, taxing, and providing grants in the federal system.

Formula grants: a type of categorical grant where states and local governments do not apply for a grant but are given funds on the basis of a formula.

Full faith and credit: Article IV of the Constitution requires states to provide reciprocity toward other states' public acts, records, and civil judicial proceedings.

Gibbons v. Ogden: the 1824 Supreme Court case which further expanded Congress' power to regulate interstate and international commerce by defining commerce very broadly to incorporate every form of commercial activity.

Implied powers: powers beyond Congress' enumerated powers which ensure that it can carry out its duties.

Intergovernmental relations: the term used to describe the entire set of interactions among national, state, and local governments.

McCulloch v. Maryland: the 1819 Supreme Court case which established the supremacy of the national government over the states included both enumerated and implied powers of Congress.

Privileges and immunities: the Constitution prohibits states from discriminating against citizens of other states.

Project grant: categorical grants awarded on the basis of competitive applications.

Supremacy clause: Article VI of the Constitution states that the supreme law of the land is the Constitution, the laws of the national government, and treaties.

Tenth Amendment: specifies that powers not delegated to the national government are reserved for the state government or the people.

Unitary government: a system where all power resides in the central government.

City manager: official appointed by an elected city council and given the responsibility of implementing policy decisions.

Council of governments: association of officials from various localities that facilitates discussion of mutual problems and planning joint, cooperative activities.

Dillon’s rule: initially enunciated by Judy John Dillon, states that local governments have only those powers that are explicitly given to them by the states.

Direct democracy: a method of policymaking in the U.S. unique to sub-national governments where voters participate directly in policymaking.

Home rule: power of cities to write their own charters and to change them without permission from the state legislature.

Initiative: direct democracy technique that allows proposed constitutional amendments to be placed on a statewide ballot when enough signatures are obtained.

Lieutenant governor: an executive officer of state government, often elected by voters; typically presides over the state senate.

Line-Item veto: power of governors to veto only certain parts of a bill while allowing the rest to pass into law.

Local charter: an organizational statement and grant of authority from the state to a local government.

Merit Plan: judicial selection process whereby the governor appoints the state’s judges from a list of persons recommended by the state bar or a committee of jurists and other officials.

Recall: direct democracy technique that allows voters to remove an official from office prior to completion of an elected term.

Referendum: direct democracy technique that allows citizens to pass a bill originally proposed and approved in the state legislature.

Sub-national governments: state and local governments.

Town meeting: a form of direct democracy where all voting-age adults in a community gather annually to make public policy.



Federalism and the Courts

The law plays a defining role in federalism. The Constitution expressly grants certain powers to the federal government, states that it may enact any laws that are "necessary and proper" to exercising these powers, and then (in the tenth amendment) asserts that all powers not expressly granted to the national government are retained by the states. In practice, these are not clear lines. The Supreme Court has had to determine when state activities trespass on areas that have explicitly been preempted by the federal government and when federal acts encroach on states' reserved powers. Over the course of U.S. history, judicial decisions have punctuated the changing relations between states and the national government.

FindLaw: U.S. Constitution: Tenth Amendment 
gives an annotated discussion of the amendment with links to relevant cases. 

Most of the rulings that distinguish between federal and state domains have hinged on interpretation of the commerce clause. Decisions on cases that fall in the overlap between state police power and federal authority under the commerce clause continue to evolve. Indeed, after decades in which federal authority over virtually everything prevailed on commerce clause grounds, one of the most recent Supreme Court decisions in this area overturned a federal law related to guns near school property in part on the grounds that it strayed into state police powers. The fourteenth amendment has also been an area where courts have actively defined the federal-state relationship. The guarantees of equal access and equal protection in that portion of the law have been particularly significant in affecting how states may deal with federal grants-in-aid.

FindLaw:U.S. Constitution: Fourteenth Amendment
with annotations and links to related cases. 

The courts serve as the referees between governments, interpreting and expanding on the relationship originally delineated by the Constitution.   This interpretation has been in the hands of men (and, recently, women) with very different temperaments and views of the proper roles of the different levels of government and of the courts. Judicial conservatives (not necessarily the same as political conservatives) tend to seek to identify the intent of framers of laws, rather than to reinterpret them in light of changing civic contexts. Conversely, judicial activists (who may be politically conservative as well as liberal) are more willing to develop law in new directions in response to changing circumstances rather than waiting for legislators to act to clarify areas that are obscure or where past laws and rulings are silent. Even when the court includes activists, however, judicial decision-making is inherently conservative in the sense that it depends, above all, on precedent. In order for laws to be justly administered, there is a need for consistency and predictability. Hence the doctrine of stare decisis --letting past decisions stand.

Because judicial decision-making is intentionally less volatile than political action, the courts often seem out of sync with the political tenor of an era. In theory, the Supreme Court is protected from political winds by lifetime appointments. At least once, however, the court changed its tune as a result of a credible political threat. Franklin Delano Roosevelt, angered at repeated overturning of New Deal legislation by a court that was protective of state and commercial interests, decided the best way to accelerate his policies would be to appoint his own justices to the court. To accomplish this, he proposed increasing the size of the Supreme Court. Although this was never done, his effort seems to have been effective in making the court more amenable to his agenda.

Depending on how you interpret the activities of courts, the decisions may be seen in several ways:

  • they allow a static constitution to evolve as the world changes while keeping true to the spirit of the original drafters;
  • they reflect changing economic and social norms;
  • they clarify the intent of Congress, which has the last say in what is allowed;
  • they reflect prevalent political agendas and the interests of power elites.

History of U.S. Federalism

This section presents descriptions of the evolution of the relationship between the states and the national government. It includes a chronology of critical points in the evolution of U.S. federalism, with particular focus on the second half of the twentieth century. Finally, it offers some useful links for further exploration. The emphasis in this page is on the narrative that describes the changing relationship. If you are hungry, be warned: for some reason, historians of federalism have a penchant for metaphorical gateaux.


Descriptions: cakes and controversy

Laurence J. O'Toole (1993:29) points out that "history and theory have …been closely linked" in intergovernmental relations. Although there is some controversy over the degree to which the levels of government were truly separate in their actions during the first century of the republic, there is general agreement that there has been a progression in the shift in power since the founding of the country, away from the states and towards the national government.

Analysts and historians of federalism consider the changing nature of authority and flow of resources between national and state governments. Most analysts begin with characterizations of the federal system as either dual or unitary.

Models of Intergovernmental Relations (Wright, 1988, Hamilton & Wells, 1990)

In a dual, or coordinate system, the separate levels of government have distinct, autonomous spheres of authority.

Compound systems include overlapping, interdependent governments and are characterized by bargaining. They may be cooperative or competitive.

In unitary, centralized or national systems, states are subordinate to the national government and the relationship is hierarchical.


More Divisions of Power (Diamond, 1974)

Confederal : states retain sovereign power, national government is dependent on their will.

Federal: states retain powers within a certain sphere and national government has power in a different sphere

Unitary or national government retains all power, with states dependent on its will.


Evolving Divisions of Power (Walker, 1995)

Dual Federalism of the Rural Republic (1789-1861)
enumerated powers, sovereign and equal spheres

Dual Federalism Serving Commerce (1861-1930): "to perfect the free economy". 
Growing government at both levels, with states as senior partners in police powers and providing services, federal government in regulating commerce.

Cooperative Federalism (1930-1960): Shared functions, focus on providing services, broadly collaborative patterns.

CreativeFederalism, Picket-Fence Federalism (1960-1980): 
Overloaded cooperation, intergovernmental fiscal transfers, crosscutting regulation and states as implementers of federal mandates, devolutionary revenue sharing.

Cooptive Federalism and the Reaction (1981-) Devolution, deregulation, proposed swaps, supply-side reductions, deficit dominates.


According to Diamond (1974:47), Madison had to define federalism so that the delegates at the constitutional convention believed that they "could have their cake and eat it too." But what kind of a cake was it? The dual system has been described as a "layer cake", with distinct, and separated powers exercised by the different levels of government, but (Joseph McLean--Walker:93) Morton Grodzins argues that a marble cake, swirled and intermixed, is a better description of the intertwined policy-making and administrative functions of state and national government.  David Walker proposes that the plums (or porky suet?) that characterize shared programs under fiscal federalism suggest a fruit cake (1995:132),and Wildavsky (1998) adds the image of  a birthdaycake to the metaphorical menu. 


Here is a timeline of important periods in the evolution of federalism, with some discussion of the characteristics of these periods.

Chronology of U.S. Federalism


Founding to Civil War


Post-Bellum Expansion and Progressive Era

1930s- 1960

New Deal and World War II, Postwar Prosperity


Great Society and Viet Nam War


New Federalisms


Founding to Civil War
Federalism in the first century of U.S. history is often described as dual, with clear distinctions between the spheres of activity of state and national government. Competition between the two levels was chiefly over economic development and regulation. Critiquing the notion that this period was marked by competing or separated federal and state powers, Grodzins and Elazar have pointed out that even in this early period federal relationships were marked by partnership and cooperation. While there were few intergovernmental grants before the Civil War, the governments cooperated in establishing new territories and the transportation needed to open and exploit the new lands. At the same time, financial transfers betweens governments--so much a part of contemporary federalism--were virtually nonexistent. While some land grants were provided to the states, they were quite limited.

Image: caption follows

Declaration of Independence, Articles of Confederation

Commerce clause
Tax and spend, general welfare

Hamilton and his colleagues, the original Federalists, believed only a strong central government could provide the new nation with the economic, political and military cohesiveness it would need to maintain its independence. The antifederalists saw such a government as the greatest threat to that new-found liberty, and feared that by creating a strong central government they were replacing one tyranny with another. For them, government of daily life was best carried out by groups that were closely bound by ties of kinship, belief and history--states and local governments. The national government would be the best locus for issues of diversity, with debate taking place among the states


Tenth amendment--reserve clause

Political parties formed initially around the two positions: federalists in support of a strong national government and the Democrat-Republican party opposing the centralizing tendencies. The first change of parties, Jefferson succeeding Adams, was fueled in part by reaction against just the sort of central government overreaching the drafters had feared. The Alien and Seditions Acts were being used by Adams to stifle political opposition. The Virginia and Kentucky legislatures passed resolutions nullifying the acts. The election of Thomas Jefferson--and his accession with only a hint of a threat from Virginia's troops, which were then stronger than the national army--was the young nation's first successful transition between the different philosophies of federalism (Peterson, 1995).



The victory of Jeffersonian ideals was short-lived. The new government was increasingly active in commerce with the establishment of a bank, and the controversy it engendered served to reframe the Constitution. In ruling on this and other matters, the Marshall Court defined the role of the Supreme Court as a coequal with the executive and legislative branches. Establishing the lines between state and national government authority through its interpretation of the supremacy, commerce and contract clauses of the constitution, it supported a relatively expansive interpretation of the national government's economic authority.


McCulloch v. Maryland-

construes "necessary and proper" to favor expansion of national authority

In its 1819 ruling, McCulloch v. Maryland, the Court upheld the creation of a national bank. The court was asked to interpret whether "necessary and proper" limited the national government, in accordance with Jefferson's narrow construction of the meaning of the clause. Chief Justice John Marshall took the broad construction, interpreted the constitution not as a compact among sovereign states but a national constitution established by the people of the United States. Thus construed, "necessary and proper" meant the national government could take actions that were appropriate to implementation of its prescribed powers, and not only those that were indispensable. (Beer, 1992 :6) 

"The government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it...is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist." Chief Justice John Marshall, McCulloch v. Maryland (1819) 


States clash over tariffs.

South Carolina declares right of state nullification of federal laws

The Jacksonians challenged the emerging economic dominance of central government and banking powers and sought to strengthen states and individual power. No simple restoration of an agrarian order was possible, however. In 1830, Northern and Southern states, always at economic odds, clashed over tariffs and, ultimately, slavery. Hamilton's fears that state factions would set aside property rights seemed to be confirmed by the Jacksonians, who opposed policies of the national government that favored strong commercial interests as antidemocratic, while equating states' economic control with personal liberty and economic decentralization. 

Although elected on a platform of states' rights, when a crisis of national unity threatened Andrew Jackson asserted the primary importance of maintaining a union. Opposing the tariffs, John C. Calhoun argued in support of the doctrine of nullification, warning that national majorities could override the liberty of minorities unless states had the right to nullify tyrannical laws. (Peterson, 1995). This "trial of sectionalism" as Beer calls it (1993) ultimately culminated in the Civil War.


Doctrine of dormant commerce clause articulated in Cooley v. Board of Wardens

The notion of a "negative" or "dormant" Commerce Clause was articulated in Cooley v. Board of Wardens, giving states limited authority over local aspects of interstate commerce, absent conflicting federal legislation and provided it was otherwise within state authority. The ruling left final decisions to the Court, which would judge whether the matter under consideration was nationwide in scope, in which case state laws could not have jurisdiction (Benson:35). In the absence of Congressional action related to commerce (according to Lund, Congress did not legislate affirmatively in regards to the commerce clause until 1887), the Supreme Court could and did define the boundaries of state and national action. 


Pierce vetoes land grant for mentally handicapped

"If Congress is to make provision for [paupers], the fountains of charity will be dried up at home, and the several States, instead of bestowing their own means on the social wants of their people, may themselves through the strong temptations, which appear to the States as individuals, become humble suppliants for the bounty of the Federal Government, reversing their true relation to this Union." (Congressional Globe, 33d Congress, 1st session (May 1854) pp. 1061-63, cited in Vasey, 1958: 270-271)


Morrill Act-land grant colleges 

The Morrill Act of 1862 providing for land grants to states to support public institutions of higher education,was the first time the national government participated financially in a program of state welfare. 


Civil war

slave narratives

Doctrine of nullification laid to rest by force of arms.

The most important national-state interactions in the first century revolved around slavery and its consequences. From the start, slavery embodied a fundamental contradiction between economic and personal liberty: humans treated as property. The issue repeatedly set South and North in opposition to one another: over how slaves should be counted; whether new territories could choose to permit slavery; and how they were to be treated when passing through non-slave states. The Civil War cast the national government as the protector of civil liberty against state incursions, with the fourteenth amendment the conduit through which national standards of personal rights were eventually funneled to the states. For the defeated South, however, these actions were seen as an absolute violation of personal and property rights by the national government. Conservative courts support states' unwillingness to act on civil rights. 


Post-Bellum Expansion and Progressive Era
Following the Civil War, diversity among states was no longer seen as a source of liberty. While individual states might lead with their progressive reforms, only the national government could take that agenda to all states. The national government became a more active regulator and reformer in the economic system, while state reforms focused on traditional areas of police power and services--hospitals, sanitation and public welfare. By the last two decades of the nineteenth century, the national government became the keeper of economic development, greatly expanding its role in supporting and regulating commerce. This growth of national authority, ostensibly controlling industries, was more often protective of the large commercial interests.

Cutting across all levels of government, progressive political reforms included a movement towards more direct democratic devices such as secret ballots and initiatives, managerial reforms at all levels of government, a merit system, antitrust legislation, and an income tax. Like the antifederalists and Jacksonians before them, the Progressives sought to correct an imbalance between economic growth and personal liberty. 

Industrialization, urbanization and immigration created new problems that existing institutions were ill-suited to solve. State and local governments were absorbed with these problems, which seemed to be exacerbated by corruption and collusion between corporations and the national government. Progressive responses to the problems of modernization often began at local and state levels, in the governments that were struggling to cope with the consequences of the economic changes. Unlike earlier reactions to economic centralization, however, the reform agenda was then taken to the national level. 



First affirmative commerce clause actions by Congress after court rejects state laws on railroads, food, common carriers, utility regulation

Interstate Commerce Act

As statute law replaced common law in states attempting to deal with the social and economic changes, efforts to develop uniform legal doctrines across the states were finally abandoned as unconstitutional (MacMahon:37). National regulation started in late 19th century, with such measures as the 1884 animal industry act for control of disease in cattle. State laws were often the stimulus for these national regulations. State actions to regulate railroads, rejected by the Supreme Court in 1886, led to the interstate commerce act in 1887. Similarly, late 1890 and early 1900 laws related to food, common carriers and utility regulation all led to national laws in the face of the Court's continued rejection of state actions.

"Instances have not been wanting where the concept of interstate commerce has been broadened to exclude state action, and narrowed to exclude Congressional action." Felix Frankfurter, The Commerce Clause 76 (1937)


The first program of cash rather than land grants

A program creating agricultural experiment stations included oversight that is a prototype for modern grants-in-aid: state accountability through audits and a requirement that the Secretary of the Interior certify state eligibility for the program and withold grants if conditions were not met (Hale and Palley, 1981:7-8).


Sherman Antitrust Act

State railroad commissions, antitrust laws and lottery laws preempted

1894 income tax overturned 

The Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890 were part of the expansion of federal authority over commerce that took place during that period, often at the expense of states. Thirty state railroad commissions, for example, were replaced by a federal authority, as were existing state antitrust and lottery laws. (Collins, 1983). 

Although an income tax had been levied during the Civil War, the Supreme Court overturned an 1894 income tax provision as unconstitutional because it was not proportional.


"Stream of commerce" doctrine developed in price fixing ruling

Mann Act

child labor laws 

A 1905 case involving price fixing by meat packers served to establish the doctrine of "stream of commerce", which applied national laws to any part of an activity if the whole took place among the states. Emboldened by these precedents, Congress enacted the Pure Food and Drug act in 1906. This was a dramatic movement into an area of traditional public health that had generally been under police powers of the states. The courts sustained such "federal police powers" (Shuman: 40) expansion into that area in the teens and twenties, upholding the Mann act and the pure food and drug act of 1906.


16th amendment--income tax

The sixteenth amendment, adopted in 1913, stands as a watershed for modern federalism. The size of the tax was extremely modest by today's standards, but it created the foundation for twentieth century federalism, with its emphasis on intergovernmental transfers and the use of taxing and spending powers to further national policies. 


tax incentives adopted, upheld--narcotics tax

Despite uncertainty as to the constitutionality of such a course, the national power to tax was quickly used to affect policy whether through incentives or prohibitions. In doing this the national government soon acted in areas once considered the domain of state police powers, as with a narcotics tax that was upheld in 1919 (Lund, 1963). 


Court rules that commerce disregards state lines .

By 1922, the Court ruled that commerce as a unit disregards state lines and national control of commerce--even intrastate--is not an invasion of state authority (p.115) However, state laws affecting health tended to be upheld in face of this. (Wright:116)



11 grant-in-aid programs 

Court rules that federal grants in aid are voluntary so it has no jurisdiction.

As the country moved from a primarily rural, agrarian society to an urban industrial one, large-scale social institutions developed to cushion some of the worst social dislocations caused by the changes. These were primarily private or local government --or party--activity. Even with the capacity to levy progressive income taxes, national efforts at social welfare programs were highly tentative at first. Nonetheless, by 1920 there were eleven grants-in-aid programs. 

Challenges to the legality of such grants were rejected by the court on the grounds that participation in the programs was voluntary on the part of the states and thus did not violate separation of powers. (O'Toole, 1993:7) The earliest such program in health, the 1921 Sheppard-Towner Act maternity and infancy health program aroused much opposition from state and professional groups, and was allowed to die in 1929. (Walker 1981) 


New Deal and World War II 
Hamilton had argued that a strong national government was needed to respond to external enemies and to protect commerce. His theory was vindicated as a global depression and two World Wars led to the most powerful national government in the history of the United States. Although the New Deal was the most centralizing period of Federalism, the shift was well under way before FDR's election. The national government's greater flexibility in raising revenues following the adoption of the 16th amendment led to revenue sharing, with a pattern of federalism that continues today: advanced approval of state plans, formula funding or distribution, requirements to provide matching funds, and detailed reporting.

Postwar Prosperity The national government played such a dominant role in the New Deal and World War II that some students of federalism have declared an end to federalism as the founders intended. However, state governments tended to keep pace with the national growth, and growth in national governmental power was shared to some extent with the states. From the New Deal onward, state-national relationships were closer than they had been in the first half of the nation's history, with different levels of government working together towards common objectives. Grodzin describes the intermingling of governmental responsibility as a "marble cake" in contrast to dual federalism's "layer cake."



New Deal: centralized response to national crisis

Nationally-based welfare state 

Although the courts initially rejected FDR's New Deal programs, his threat to add judges to the court until it voted his way shifted the balance and the court ultimately reversed itself, giving its approval to the crisis-driven centralization under way. The New Deal put forward a doctrine that a centralized response was needed to the national economic crisis. The national government assumed authority over areas of economic regulation and development that had been the states' domain, including labor relations and agriculture. It established a nationally based welfare state.


Court gives control over commerce to Congress.

U.S. v. Darby

After a series of four to five decisions, only a single vote needed to shift to change the outcome. Beginning with a 1937 decision that upheld the National Labor Relations Act, the Court finally gave up on defining the national role in Commerce in the face of conflicting Congressional action. 

"The motive and purpose of a regulation of interstate commerce are matter for the legislative judgement upon the exercise of which the Constitution places no restriction and over which the courts are given no control." United Sates v. Darby, 312 U.S. 100 at 113 and 115 (1941) (McMahon 1972:47)


Marble cake federalism era

Many social support programs remained under state control, albeit within guidelines set nationally. State police powers even expanded as the states carried out the national programs (Walker, 1995). 

"The accretion of federal power has been piecemeal, much contested, often much agonized over, and legislatively qualified, and normally the outcome of emergency, or of powerful public pressure to stave off international or domestic disasters...Extensions of federal power since the New Deal have been remarkable for their assiduous respect for federalism". (Collins 1983: xviii):


McCarran act delegates regulation of banking and insurance to states

The McCarran Act of 1944 confirmed that Congress' authority over commerce was broad, in this case extending to taxation and regulation of insurance. (Black, 1963:37)) 


21 new grant-in-aid programs 1946-1961

economic development--highway spending

Commission on intergovernmental relations unsuccessfully seeks to return programs to states

States' rights--"interposition" asserted in opposition to civil rights

Eisenhower attempted to reverse the centralizing trend in the national government's involvement in domestic policy, and established the Commission on Intergovernmental Relations to identify activities to return to the states. However, the commission found few such programs, and in the end no changes were implemented. (O'Toole, 1993)

In the post World War II period, the courts for the first time asserted national authority in regards to civil rights under the equal protection clause of the fourteenth amendment. The confrontation pitted southern states as deniers rather than protectors of liberty against the national government. Nullification was revived as "interposition" as states sought to defy federal orders to integrate schools in the wake of Brown v. Board of Education. State legislators revived the theory that the Constitution represented a compact and passed resolutions calling for the use of the theory as a basis for challenging the Court. (Bennett, 1964: 196-221)


Great Society and Viet Nam War
Another period of national government activism began in 1964 with Lyndon B. Johnson's election. Elected with a strong mandate and large Democratic majorities in both houses, LBJ greatly expanded the national commitment to addressing social problems that beset society.

The courts uphold crosscutting grants, coercive taxes and outright mandates in the face of growing challenges by states. Black asks the poignant question:

"Is there an implied limitation on the federal powers, to the effect that they shall not be used to deal with some matters which lie within state authority? The prevalent modern answer is negative. But if that is right, the grave corollary is that federalism has no basis in firm constitutional law." (Black, 1963: 25)



Great society--"creative federalism"

Grants to many levels of government; projects and grants

Cross-cutting conditions on grants

The "Creative Federalism" of that period was marked by an explosion of grants that reached beyond the states to establish intergovernmental links at all levels, often bypassing states entirely. Programs were aimed at both racial and economic injustice. 

Most of the new programs were funded through categorical and project grants, aimed at specific problems or groups and often bypassing states.

Civil Rights Acts attached cross-cutting provisions on all grants.


1965--Highway beautification Act: cross-over sanction

environmental and other regulation through partial preemption and substitution

The 1965 Highway Beautification Act was a nearly example of a cross-over sanction, in which aid for one activity was tied to performance of a different one.

Water Quality Act (1965), Wholesome Meat Act (1967), Wholesome Poultry Act (1968) were examples of partial preemption. For example, the Wholesome Meat Act allowed the central government to take over in any state that had not adopted standards at least equal to the federal ones in three years.


growing conflict between states and national regulators

national price controls

The growth of national government programs seeded a reaction. Programs overlapped and conflicted with one another. State administrators, growing increasingly capable in part as a result of the interaction around the grants, sought greater control over the programs. 

The War in Viet Nam, the oil crisis and the 1970's recession drained off the economic growth that had allowed the new programs to be set in place without disrupting taxpayers. Public reaction against the war eroded confidence in the national government. Relationships between state and national administrators, although often cooperative, became increasingly conflict-laden.


New Federalisms
Beginning with Richard M. Nixon's administration there has been a series of efforts to reduce national control over the grants-in-aid programs and revise the character of federal involvement in general welfare spending. 

As the size of the federal budget has become a limiting factor in policy making, Congress has been increasingly willing to use mandates and coercive grants to achieve policy objectives during the 1970s and 1980s. This has further fueled a reaction against this regulatory federalism.



Nixon--new federalism

General Revenue Sharing

Arrange of administrative reforms with a devolutionary objective were carried out under Nixon, including decentralization of national programs to field regions, streamlining of services, and redirectionof funds towards general levels of government.

Block grants and revenue sharing, enacted under Nixon, Carter and Reagan, reduce federal requirements, giving state grantees greater freedom while setting the stage for withdrawal of federal fiscal support. The attempts at retrenchment on federal grants have not marked a period of returning state power, however. 


New Federalism II

Revenue cuts without matching spending cuts eventually produced a fiscally-driven impasse in government. A devolutionary agenda was promoted, but not carried out. 

13 new block grant programs enacted.

Court upholds the use of cross-over sanctions in tying highway funds to minimum drinking age.


Garcia decision

In a ruling that eliminated virtually all barriers to federal regulation of state functions, the Supreme Court ruled that limits on the federal government's power to interfere with state functions rests with the political process


Contract with America Unfunded Mandates Reform Act 

Health Insurance Portability and Accountability Act

Welfare Reform,
Balanced Budget Act,

The 104th Congress enacted insurance reform, modeled in part on state insurance market reform laws. Implementation was carefully tailored so as not to preempt current state practices that exceeded the federal rules. While a pseudo-dual framework was retained, with states above all responsible for geographically defined elements such as defining pools of risk, this solicitude towards the states serves to underline the extent to which their authority ceded by Congress and revocable at will.

Welfare block grants ostensibly devolved the program to states but also included major new restrictions on how the moneys could be spent. 


Lopez decision

Recently the Supreme Court (having reached a nadir in federalism with the Garcia decision which effectively overturned the tenth amendment in favor of states' lobbying Congress) has shown signs of defining and separating areas of state and national authority. It decided that the national government has reached into what should be state police powers in the matter of guns near schools. 




Those Unfunded Mandates

By David S. Broder

Thursday, March 17, 2005; Page A25

Ten years ago this week, Congress was in the final stage of a truly bitter battle. A Senate debate that began on Jan. 12 stretched over 15 days and forced 44 roll-call votes. The House debated the companion bill for eight days in February and had to dispose of more than 30 amendments before reaching final passage. It took five more weeks of difficult negotiations to get agreement on a final version, signed into law by President Bill Clinton on March 22, 1995.

And what was this highly controversial piece of legislation? It has the sexless title of the Unfunded Mandates Reform Act of 1995, or UMRA.

Basically, it was no more than a requirement that committees of Congress, when writing a bill that would impose new duties on states, local governments or private companies, obtain an estimate of the additional costs they would entail and make those parts of their report on the legislation.

Under the newly approved procedure, any mandate that would cost state or local governments more than $50 million a year, or private business $100 million, would be subject to a point of order during debate -- and legislators would have to vote specifically that the benefit was worth the cost.

This modest nod to the interests of the other levels of government was bitterly resisted by Washington-knows-best legislators. Democrats, whose 40-year grip on the House of Representatives had just been shattered by the Republican revolution of 1994, were overwhelmingly opposed.

Dirk Kempthorne, then a freshman Republican senator, recalled this week that he could find only two co-sponsors for his UMRA bill when he first introduced it in 1993 and was dressed down by the powerful West Virginia Democrat Robert C. Byrd for even offering such legislation. But Kempthorne, who had served previously as mayor of Boise and now is governor of Idaho, wooed other Democrats and mobilized state and local officials to put pressure on their congressional delegations to support the change.

So how has it worked? Kempthorne told the National League of Cities convention Monday that it has been a success, that "it fundamentally changed the relationship" between Washington and the other levels of government. He cited a recent Congressional Budget Office report that found only five new mandates had been passed in the past decade. In a later interview he told me, "It has changed the culture on Capitol Hill" by making Congress far more sensitive to the fiscal impact of its decisions.

Others are not so certain. The CBO testimony cited by Kempthorne said that while UMRA drove Congress "to either eliminate mandates or lower their costs" in several pieces of legislation, exemptions and restrictions that were part of the law have meant that "some federal requirements that state and local officials view as burdensome to their jurisdictions are not considered unfunded mandates under UMRA." These big programs include the No Child Left Behind school reform act, the legislation guaranteeing special-education benefits for disabled children, the Medicaid program and the post-2000-election law mandating improved voting equipment -- no small matters.

A similar study by the Government Accountability Office reached a similar conclusion, noting that expensive conditions placed on such programs as No Child Left Behind are beyond the reach of UMRA, because states can theoretically decline to participate.

Republican Sen. Lamar Alexander, who followed Kempthorne to the League of Cities podium, painted a much bleaker picture. Alexander, a former governor of Tennessee, called UMRA "a tremendous accomplishment" but one that "hasn't done nearly as much as we might have hoped."

He noted that the National Conference of State Legislatures "has identified $29 billion in federal cost shifts to states in transportation, health care, education, environment, homeland security, election laws and in other areas." The ability of elected officials to manage their own budgets has been further narrowed by the proliferation of federal court consent decrees, which, he said, now dictate how "to run Medicaid in Tennessee, to run foster care in Utah, to run transportation in Los Angeles and to decide how to teach English to children in New York City."

Alexander has a package of changes he says would shift the power balance back toward the states and cities. The problem, he says, is that "Democrats, still stuck in the New Deal, are reflexively searching for national solutions to local problems [and] Republicans, having found ourselves in charge, have decided it is more blessed to impose our views, rather than to liberate Americans from Washington."

It may take another grass-roots rebellion to shake up Washington.

© 2005 The Washington Post Company



Connolly Attacks Unfunded Mandates
Fairfax Board Chief Testifies to Effects On Local Taxpayers

By Lisa Rein
Washington Post Staff Writer
Wednesday, March 9, 2005; Page B01

Fairfax Board of Supervisors Chairman Gerald E. Connolly called on Congress yesterday to relieve the burden on his county and other local governments of billions of dollars a year in unreimbursed federal costs.

The leader of Virginia's largest local government testified before a congressional committee that Fairfax spent $543 million last fiscal year complying with federal mandates to provide cleaner water and air, collect and dispose of solid and hazardous waste, incarcerate illegal immigrants, provide health care for the uninsured, implement new voting rules and pay for No Child Left Behind, President Bush's signature education law. But the government reimbursed the county for just $148 million, leaving taxpayers to shoulder the rest.

"You're asking local taxpayers to bear the burden of your good intentions," Connolly (D), also president of the Virginia Association of Counties, told members of the House Committee on Government Reform. "Anything you make us do that you don't fully fund is an unfunded mandate."

The committee is reviewing the effects of a 10-year-old federal law, the Unfunded Mandates Reform Act of 1995, which attempted to limit the fiscal burden of federal laws and regulations on local and state governments. The law set cost thresholds for complying in an effort to reduce the strain.

But it has many exemptions and loopholes, some officials and lawmakers said, and few state and local governments have gotten much of a break. Instead, many federal mandates are increasing, stretching budgets and jeopardizing property tax relief in a hot real estate market.

"We don't have a choice. We have to meet the mandates," Connolly said. "But we have to offset them by cutting other services or increasing taxes, neither of which is very palatable." Fairfax and several other Washington area local governments are considering cuts to their property tax rates this spring to soften the blow of soaring real estate assessments.

Maryland Del. John A. Hurson (D-Montgomery), president of the National Conference of State Legislatures, also testified that the law does little to protect states from increasing costs shifted from the federal government. He cited the Bush administration's proposed cuts to the Medicaid program, particularly for nursing home care, as his chief concern.

"Medicaid is eating away at state budgets," Hurson told the committee. "People act like it's a partnership people can choose to participate in. But it's not. It's a required expense."

Rep. Thomas M. Davis III (R-Va.), the committee chairman and a former chairman of the Fairfax board, said the law on unfunded mandates needs tweaking.

"We're looking at revisiting it to give state and local governments more protections," he said.

At Davis's request, the National Association of Counties released a study yesterday showing a snapshot of costly federal mandates across the country. To implement the Clean Air Act, Arlington County spent $13.1 million in 2003 and $20.6 million in 2004. This year, the county will spend $48.6 million more, the study showed.

Montgomery County will spend $1 million this year to comply with the Resource Conservation and Recovery Act, which regulates solid and hazardous waste and affects landfills and underground storage tanks.

Davis was sympathetic to the complaints from local and state officials, asking Connolly what the $395 million Fairfax spent to comply with federal mandates cost homeowners in property taxes, the only source of revenue that the county sets on its own.

"That would be 20 cents on the tax rate," Connolly replied, noting that additional mandates from Richmond take up hundreds of millions of dollars more in the local budget. Fairfax has proposed a property tax cut of at least 10 cents, to $1.03 per $100 of assessed value.

"That does bring it home," Davis said. "This makes you basically a tax collector."

© 2005 The Washington Post Company