offering the states funding, called grants-in-aid, in exchange for their compli-

ance. These programs help overcome the limitations of federalism. Spending

on public works and other pork-barrel projects, a term used to describe federal
dollars that members of Congress bring home to their states and districts offers
yet another strategy for achieving policies by dispersing their benefits. Thus,
consistent with our discussion of the five principles of politics in Chapter 1,
America’s public policies are shaped by the institutional arrangements through
which individual efforts must flow.
However, institutions are not carved in stone. They are subject to modifica-
tion as competing forces seek new decision rules that will give them an advan-
tage, and as the leaders of institutions seek to strengthen their own power and
expand their own jurisdictions at the expense of other institutions. In recent
decades, the presidency has increased in power relative to Congress, and the
federal government has grown in jurisdiction relative to the states. Nevertheless,
these two core institutional features, federalism and the separation of powers,
remain at the heart of the American system of government. Let us examine
them and assess their consequences for American government.

WHO DOES WHAT? FEDERALISM AND

INSTITUTIONAL JURISDICTIONS

federalism Federalism can be defined as the division of powers and functions between the
national government and the state governments. Federalism limits national and
The system of government
state power by creating two levels of government—the national government and
in which a constitution
the state governments, each with significant sovereignty and thus the ability to
divides power between a
central government and
restrain the power of the other. As we saw in Chapter 2, the states existed as
regional governments individual colonies before independence, and for nearly 13 years they were virtu-
ally autonomous units under the Articles of Confederation. In effect, the states
had retained too much power relative to the national government, a problem
sovereignty that led directly to the Annapolis Convention in 1786 and to the Constitutional
Independent political
Convention in 1787. Under the Articles, disorder within states was beyond the
authority. A government reach of the national government (see Shays’s Rebellion, discussed in Chapter 2),
holding such authority is a and conflicts of interest between states were not manageable. For example, states
sovereign were making their own trade agreements with foreign countries and companies,
which could then play off one state against another for special advantages. Some
states adopted barriers to foreign commerce that were contrary to the interests
of other states.2 Tax and other barriers were also being erected.3 But even after

2 For a good treatment of these conflicts of interest between states, see Forrest McDonald,
E Pluribus Unum: The Formation of the American Republic, 1776–1790 (Boston: Houghton
Mifflin, 1965), chap. 7, esp. pp. 319–38.
3 See David M. O’Brien, Constitutional Law and Politics, 3rd ed. (New York: Norton, 1997),
I: 602–03.

74 Chapter 3: Federalism and the Separation of Powers

ratification of the Constitution, the states remained more important than the
national government. For nearly a century and a half, virtually all of the funda-
mental policies governing Americans’ lives were made by the state legislatures,
not by Congress.

Why Keep the States: The Importance of History. Many of the Con-
stitution’s framers, particularly Alexander Hamilton, had hoped to create something
close to a unitary national government and to circumscribe severely the power of
the individual states. The fact that the framers established a federal system in which
the states retained significant powers is an illustration of the importance of history.
Each state had well-established governmental institutions staffed by legislators,
judges, and executive officials who had no desire to see their power and autonomy
submerged in a new national government. At the same time, citizens identified
with their own states. The people of North America were not Americans. Instead,
they had already had several generations to become Virginians, New Yorkers,
Pennsylvanians, and so on. Well-established popular identification with the 13 states
was another reason that even the most nationalistic framers had to accept that the
states would continue as important entities. In a sense, the framers faced the same
historically given realities faced today by advocates of a stronger European Union
(EU). The nations of Europe have historically distinct identities, well-entrenched
governments, and loyal citizens. Given the force of history, uniting these nations is
no easy matter. Like America’s Founders, the architects of the EU, bowing to history,
have generally sought to erect the new regime on federal foundations. A federal sys-
tem also allows geographically concentrated groups to wield more power than they
could wield in a central system (see the Policy Principle section on p. 76).

Federalism in the Constitution: Who Decides What

American federalism recognized two sovereigns in the original Constitution and

reinforced the principle in the Bill of Rights by granting a few expressed powers
to the national government and reserving the rest to the states. Thus the Consti-
tution defined the jurisdiction of each level of government.

The Powers of the National Government. As we saw in Chapter 2,

the expressed powers granted to the national government are found in Article I,
Section 8, of the Constitution. These 17 powers include the powers to col-
lect taxes, coin money, declare war, and regulate commerce (which became a implied powers
very important power for the national government). Article I, Section 8, also
contains an important source of power for the national government: the Powers derived from
the necessary and
implied powers that enable Congress “to make all Laws which shall be neces-
proper clause (Article I,
sary and proper for carrying into Execution the foregoing Powers.” Not until
Section 8) of the
several decades after the Founding did the Supreme Court allow Congress to Constitution; such
exercise the power granted in this necessary and proper clause, but ultimately powers are not specifically
the doctrine allowed the national government to expand the scope of its author- expressed but are
ity. In addition to expressed and implied powers, the Constitution affirms the implied through the
national government’s power in the supremacy clause (Article VI), which makes expansive interpretation
all national laws and treaties “the supreme Law of the Land.” of delegated powers

Who Does What? Federalism and Institutional Jurisdictions 75

The Powers of State Governments. One way in which the framers
preserved a strong role for the states was through the Tenth Amendment. This
amendment presents a decision rule, or general principle governing decisions,
stating that the powers the Constitution does not delegate to the national gov-
ernment or deny to the states are “reserved to the States respectively, or to
the people.” The Antifederalists, who feared that a strong central government
would encroach on individual liberty, pressed for such an amendment as a way
of limiting national power. Federalists agreed to the amendment because they
did not think it would do much harm, given the powers the Constitution already
granted to the national government. The Tenth Amendment is also called the
reserved powers amendment because it aims to reserve powers to the states. reserved powers
The most fundamental power retained by the states is that of coercion—the
Powers, derived from the
power to develop and enforce criminal codes, administer health and safety rules,
Tenth Amendment to the
and regulate the family via marriage and divorce laws. The states have the power
Constitution, that are not
to regulate individuals’ livelihoods: if you’re a doctor or a lawyer or a plumber specifically delegated to
or a barber, you must be licensed by the state. Even more fundamental, the the national government
states have the power to define private property: private property exists because or denied to the states;
state laws against trespass define who is and who is not entitled to use a piece these powers are
of property. If you own a car, your ownership isn’t worth much unless the state reserved to the states
is willing to enforce your right to possession by making it a crime for anyone
else to drive your car without your permission. Similarly, your “ownership” of
eminent domain
a house or piece of land means that the state will enforce your possession by
prohibiting others from occupying the property against your will. At the same The right of the
time, however, under its power of eminent domain, the state may seize your government to take
property for anything it deems to be a public purpose. If the state does seize private property
your property, it is required by its own constitution and the federal Constitution for public use, with
to compensate you for your loss. The decision to take the property, though, is reasonable compensation
well within the states’ recognized powers. awarded for the property

A state’s authority to regulate these fundamental matters, commonly referred

to as the police power of the state, encompasses its power to regulate the health, police power
safety, welfare, and morals of its citizens. Policing is what states do—they coerce
you in the name of the community in order to maintain public order. And this The power reserved
was exactly the type of power the Founders intended the states to exercise. to the government to
regulate the health,
In some areas, the states share concurrent powers with the national govern-
safety, and morals of its
ment: they share some power to regulate commerce and affect the currency—
citizens
for example, by chartering banks, granting or denying corporate charters, and
regulating the quality of products or the conditions of labor. This issue of con-
current versus exclusive power has come up at times in our history, but wherever concurrent
there has been a direct conflict of laws between the federal and the state levels, powers
the issue has generally been resolved in favor of national supremacy. The authority possessed
by both state and
States’ Obligations to One Another. The Constitution also creates national governments,
obligations among the states. These obligations, spelled out in Article IV, were such as the power to levy
intended to promote national unity. By requiring the states to recognize actions taxes
taken in other states as legal and proper, the framers aimed to make the states
less like independent countries and more like parts of a single nation. Article IV,
Section 1, calls for “Full Faith and Credit” among states, meaning that each state

Who Does What? Federalism and Institutional Jurisdictions 77

 is expected to honor the “public Acts, Records, and Proceedings” that take
place in any other state. So, for example, if two people are married in Texas—
marriage being regulated by state law—Missouri must recognize that marriage
even though the couple was not married under Missouri state law.
full faith and

This full faith and credit clause recently became entangled in the contro-
credit clause versy over same-sex marriage. In 1996, Congress passed the federal Defense
of Marriage Act (DOMA), declaring that states would not have to recognize
The provision in Article IV,
a same-sex marriage legally contracted in another state. DOMA also barred
Section 1, of the
Constitution requiring
same-sex couples from receiving federal health, tax, social security, and other
that each state normally benefits available to heterosexual couples. In 2013, however, the Supreme Court
honors the public acts in Windsor v. the United States struck down the Defense of Marriage Act in part,
and judicial decisions requiring that same-sex married couples receive equal treatment on issues relat-
that take place in another ing to taxes, inheritance, and other federal laws.4 After Windsor, many state courts
state struck down the state bans on same-sex marriage. On the second anniversary of
the Windsor ruling, the Court extended this decision in Obergefell v. Hodges,  ruling
that states were required to issue marriage licenses to same-sex couples and to
recognize such marriages performed in other jurisdictions.5
comity clause Article IV, Section 2, known as the comity clause, also promotes national unity.
It provides that citizens enjoying the privileges and immunities of one state should
Article IV, Section 2 of be entitled to similar treatment in other states. Essentially, a state cannot discriminate
the Constitution, which
against someone from another state or give special privileges to its own residents.
prohibits states from
For example, in the 1970s, when Alaska passed a law that gave residents preference
enacting laws that treat
the citizens of other
over nonresidents in obtaining work on the state’s oil and gas pipelines, the Supreme
states in a discriminatory Court ruled the law illegal because it discriminated against citizens of other states.6
manner There are many exceptions to the comity clause. For example, states may charge out-
of-state students a higher tuition rate at state colleges and universities. The comity
clause also regulates criminal justice among the states by requiring states to return
fugitives to the states from which they have fled. Thus in 1952, when an inmate
escaped from an Alabama prison and sought to avoid being returned on the grounds
that he was subject to “cruel and unusual punishment” there, the Supreme Court
ruled that he must be returned, according to Article IV, Section 2.7 This example
highlights the difference between the obligations among states and those among dif-
ferent countries. Recently France refused to return an American fugitive because he
might be subject to the death penalty, which does not exist in France.8 The Constitu-
tion clearly forbids states from doing something similar.

Limitations on the States. Although most of the truly coercive pow-

ers of government are reserved to the states, the Constitution does impose

4 United States v. Windsor, 135 S.Ct. 2071 (2015).

5 Obergfell v. Hodges, 576 U.S. ____ (2015).
6 Hicklin v. Orbeck, 437 U.S. 518 (1978).
7 Sweeney v. Woodall, 344 U.S. 86 (1953).
8 Marlise Simons, “France Won’t Extradite American Convicted of Murder,” New York
Times, December 5, 1997, p. A9.

78 Chapter 3: Federalism and the Separation of Powers

some significant limitations. As discussed in the previous section, states cannot
discriminate against denizens of other states, and states must extradite alleged
criminals to the state with jurisdiction. Another potential limit on states is in a
clause in Article I, Section 10, that provides that “no State shall, without the
Consent of Congress, . . . enter into any Agreement or Compact with another
State.” Compacts are a way for two or more states to reach a legally binding
agreement about how to solve a problem that crosses state lines. In the early
years of the Republic, states turned to compacts primarily to settle border dis-
putes. Today with the support of the federal government they are used for a
wide range of issues but are especially important in regulating the distribution
of river water, addressing environmental concerns, and operating transporta-
tion systems that cross state lines.9 A well-known contemporary example is the
Port of New York Authority (now the Port Authority of New York and New
Jersey), a compact formed between New York and New Jersey in 1921. With-
out it, such public works as the bridge connecting Brooklyn and Staten Island,
the bridges connecting New Jersey and Staten Island, the Lincoln Tunnel, the
George Washington Bridge, and the expansion and integration of the three
major airports could not have been financed or completed.10
The federal government has occasionally blocked a proposed interstate
compact, thus limiting state action in certain spheres. In 1939, for example,
President Franklin Delano Roosevelt vetoed a bill that would have granted con-
sent in advance to states to enter into compacts relating to fishing in the Atlan-
tic Ocean. Roosevelt considered the advance authorization to be too vague. In
2001, Congress refused to allow the renewal of a compact among the several
New England states that regulated milk prices. The New England compact has
been opposed by Midwestern dairy farmers. More often than it prohibits com-
pacts, however, Congress attaches conditions to its approval of proposed inter-
state compacts. For example, when it approved the compact among Virginia,
Maryland, and the District of Columbia establishing the Washington Metropoli-
tan Transit Authority in 1960, Congress set a number of conditions, including
requiring the publication of specified data and information by the authority.11

Local Government and the Constitution. Local government, includ-

ing counties, cities, and towns, occupies a peculiar but very important place in
the American system. In fact, the status of American local government is prob-
ably unique in world experience. First, it must be pointed out that local govern-
ment has no status in the American Constitution. State legislatures created local

9 Patricia S. Florestano, “Past and Present Utilization of Interstate Compacts in the

United States,” Publius (fall 1994): 13–26.
10 A good discussion of the status of the New York Port Authority in politics is found in
Wallace Sayre and Herbert Kaufman, Governing New York City: Politics in the Metropolis
(New York: Russell Sage Foundation, 1960), chap. 9.
11 John R. Koza, Barry Fadem, Mark Grueskin, Michael Mandell, Robert Richie, and
Joseph Zimmerman, Every Vote Equal, 3rd ed. (Los Altos, CA: National Popular Vote
Press, 2011), chap. 5.

Who Does What? Federalism and Institutional Jurisdictions 79

 governments, and state constitutions and laws permit local governments to take
on some of the responsibilities of the state governments. Most states amended
home rule their own constitutions to give their larger cities home rule—a guarantee of
noninterference in various areas of local affairs. But local governments enjoy no
The power delegated by
such recognition in the Constitution. Local governments have always been mere
the state to a local unit of
conveniences of the states.12
government to manage
its own affairs
Local governments became administratively important early in the Republic
because the states possessed little administrative capability. They relied on cities and
counties to implement the state’s laws. Local government was an alternative to a
statewide bureaucracy. Today, local governments and state bureaucracies both com-
pete and cooperate with one another. Take, for example, the relationship between
state and county police forces, which usually involve a mix of collegiality and rivalry.

The Slow Growth of the National

Government’s Power

dual federalism Before the 1930s, America’s federal system was essentially one of dual federalism,
a two-layered system—national and state—in which the states and their local
The system of
principalities did most of the governing. That is, the jurisdiction of the states
government that
was greater than that of the federal government. We call it the traditional system
prevailed in the United
States from 1789 to 1937
because almost nothing about it changed during two-thirds of America’s his-
in which fundamental tory (with the exception of the Civil War years, after which we returned to the
governmental powers traditional system).
were shared between But there was more to dual federalism than merely the two tiers. They were
the federal and state functionally quite different from each other, and every generation since the
governments, with the Founding has debated how to divide responsibilities between the two. As we
states exercising the have seen, the Constitution delegated specific powers to the national government
most important powers and reserved all the rest to the states. That left a lot of room for interpretation,
however, because of the final, “elastic” clause of Article I, Section 8. The three
formal words necessary and proper amounted to an invitation to struggle over the
distribution of powers between national and state governments. We confront
this struggle throughout the book. However, it is noteworthy that federalism
remained dual for nearly two-thirds of our history, with the national government
remaining steadfastly within a “strict construction” of Article I, Section 8.
The Supreme Court has at times ruled on the debate over the distribution
of powers between national and state governments, starting in 1819 with a case
favoring national power, McCulloch v. Maryland.13 The issue was whether Con-
gress had the power to charter a bank—in particular the Bank of the United

12 A good discussion of the constitutional position of local governments is in York Y.

Willbern, The Withering Away of the City (Bloomington: Indiana University Press, 1971).
For more on the structure and theory of federalism, see Thomas R. Dye, American
Federalism: Competition among Governments (Lexington, MA: Lexington Books, 1990),
chap. 1; and Martha Derthick, “Up-to-Date in Kansas City: Reflections on American
Federalism,” PS: Political Science and Politics 25 (December 1992): 671–75.
13 McCulloch v. Maryland, 4 Wheaton 316 (1819).

80 Chapter 3: Federalism and the Separation of Powers

States (created by Congress in 1791 over Thomas Jefferson’s constitutional
opposition)—because no express power to create banks exists anywhere in
Article I, Section 8. Chief Justice John Marshall stated that such a power could
be “implied” from the commerce clause plus the final necessary and proper commerce clause
clause. Essentially, Marshall’s ruling said that if a goal was allowed in the Consti-
The clause found in
tution and Congress’s chosen means to achieve the goal was not prohibited by
Article I, Section 8, of
the Constitution, then Congress could act. Thus the Court created the potential
the Constitution that
for significantly increased national governmental power. delegates to Congress
A second question of national power arose in the same case of whether the power “to regulate
Maryland’s attempt to tax the bank was constitutional. Once again Marshall and Commerce with foreign
the Supreme Court sided with national government, arguing that a bank created Nations, and among the
by a legislature representing all the people (Congress) could not be taxed out of several States, and with
business by a state legislature (Maryland) representing only a small portion of the Indian Tribes.” This
the American people. Here also the Supreme Court reinforced the supremacy clause was interpreted
clause: whenever a state law conflicts with a federal law, the state law should be by the Supreme Court to
favor national power over
deemed invalid because “the Laws of the United States . . . shall be the supreme
the economy
Law of the Land.” (For more on federal supremacy, see Chapters 2 and 9.)
This nationalistic interpretation of the Constitution was reinforced by
Gibbons v. Ogden in 1824. At issue was whether the state of New York could grant
a monopoly to a steamboat company to operate an exclusive service between
New York and New Jersey. Aaron Ogden had secured his license from the com-
pany, whereas Thomas Gibbons, a former partner of Ogden’s, had secured a
competing license from the U.S. government. Chief Justice Marshall argued that
Gibbons could not be kept from competing because the state of New York did
not have the power to grant this particular monopoly affecting other states’ inter-
ests. At issue was the commerce clause, which delegates to Congress the power
“to regulate Commerce with foreign nations, and among the several States and with
Indian tribes” [emphasis added]. Marshall insisted that the definition of the com-
merce clause was “comprehensive” but added that the comprehensiveness was
limited “to that commerce which concerns more states than one.” This opinion
gave rise to the legal concept that later came to be called interstate commerce.14
Despite the Court’s expansive reading of national power in the Republic’s
early years, between the 1820s and the 1930s federal power grew slowly. During
the Jacksonian period, a states’ rights coalition developed in Congress. Among
the most important members were state party leaders who often had them-
selves appointed to the Senate, where they jealously guarded the powers of the
states they ruled. Of course, the senators and members of the House from
the southern states had a particular reason to support states’ rights: so long as
the states were powerful and the federal government weak, the South’s institu-
tion of slavery could not be threatened.
Aside from the interruption of the Civil War, the states’ rights coalition
dominated Congress, affected presidential nominations—a matter also con-
trolled by the state party leaders—and influenced judicial appointments, which
required senatorial acquiescence, as well. Indeed, the Supreme Court turned

14 Gibbons v. Ogden, 9 Wheaton 1 (1824).

Who Does What? Federalism and Institutional Jurisdictions 81

 away from John Marshall’s nationalistic jurisprudence in favor of a states’ rights
interpretation of the Constitution—especially in cases concerning the com-
merce clause. For many years, any federal effort to regulate commerce in such
areas as fraud, the production of impure goods, the use of child labor, or the
existence of dangerous working conditions or long hours was declared uncon-
stitutional by the Supreme Court as a violation of interstate commerce. Regula-
tion in these areas would mean the federal government was entering the factory
and the workplace, areas inherently local because the goods produced there had
not yet passed into commerce and crossed state lines. Rather, the Court held
that regulation of these areas constituted police power, a power reserved to the
states. No one questioned the power of the national government to regulate
certain kinds of businesses, such as railroads, gas pipelines, and waterway trans-
portation because they intrinsically involved interstate commerce.15 But well into
the twentieth century, most other efforts by Congress to regulate commerce
were blocked by the Supreme Court’s interpretation of federalism, with the con-
cept of interstate commerce as the primary barrier.
After his election in 1932, President Franklin Delano Roosevelt was eager
to expand the power of the national government. His “New Deal” depended
on governmental power to regulate the economy and to intervene in every facet
of American society. Roosevelt’s efforts provoked sharp conflicts between the
president and the federal judiciary. After making a host of new judicial appoint-
ments and threatening to expand the size of the Supreme Court, Roosevelt
managed to bend the judiciary to his will. Beginning in the late 1930s, the Court
issued a series of decisions converting the commerce clause from a barrier to a
source of national power.
One key case was National Labor Relations Board v. Jones & Loughlin Steel
Company.16 At issue was the National Labor Relations Act, which prohibited
corporations from interfering with the efforts of employees to organize into
unions, to bargain collectively over wages and working conditions, and to go
on strike and engage in picketing. The newly formed National Labor Relations
Board (NLRB) had ordered Jones & Loughlin to reinstate workers fired because
of their union activities. The appeal reached the Supreme Court because the
steel company had made a constitutional issue over the fact that its manufactur-
ing activities, being local, were beyond the government’s reach. But the Court
ruled that a large corporation with subsidiaries and suppliers in many states was
inherently involved in interstate commerce and hence subject to congressional
regulation. In other decisions, the Court upheld minimum wage laws, the Social
Security Act, and federal rules controlling how much of any given commodity
local farmers might grow.17

15 In Wabash, St. Louis, and Pacific Railway Company v. Illinois, 118 U.S. 557 (1886), the
Supreme Court struck down a state law prohibiting rate discrimination by a railroad;
in response, Congress passed the Interstate Commerce Act of 1887, creating the
Interstate Commerce Commission (ICC), the first federal regulatory agency.
16 National Labor Relations Board v. Jones & Loughlin Steel Company, 301 U.S. 1 (1937).
17 Wickard v. Filburn, 317 U.S. 111 (1942).

82 Chapter 3: Federalism and the Separation of Powers

 After 1937, the Court threw out the old distinction between interstate
and intrastate commerce. The Court would not even review appeals chal-
lenging acts of Congress that protected employees’ rights to organize and
engage in collective bargaining, regulated the amount of farmland in cul-
tivation, extended low-interest credit to small businesses and farmers, and
restricted corporate activities dealing in the stock market as well as many
other laws that contributed to the construction of the “regulatory state” and
the “welfare state.”

Cooperative Federalism and Grants-in-Aid:

Institutions Shape Policies

Roosevelt was able to overcome judicial resistance to expansive New Deal pro-
grams. Congress, however, forced him to recognize the continuing importance
of the states. It accomplished this by crafting particular programs in such a way
as to encourage the states to pursue nationally set goals while leaving them some
leeway to administer programs according to local needs.
If the traditional system of two sovereigns performing highly different
functions can be called dual federalism, then the system that prevailed after the
1930s could be called cooperative federalism, which generally refers to sup- cooperative
portive relations, sometimes partnerships, between the national government and federalism
the state and local governments. It takes the form of federal subsidization of
A type of federalism
special state and local activities; these subsidies are grants-in-aid. Because many existing since the New
of these state and local programs would not exist without the federal grant-in- Deal era, in which
aid, the grant-in-aid is also an important form of federal influence. (We discuss grants-in-aid have been
another form of federal influence, the mandate, in the next section.) Thus the used strategically to
shift from dual federalism to cooperative federalism was a subtle but important encourage states and
institutional change. Whereas dual federalism left decision, agenda, and veto localities to pursue
powers in the realm of domestic policy firmly in the hands of the states, cooper- nationally defined
ative federalism gave the federal government far greater control over the domes- goals; also known as
tic political agenda. Under dual federalism, for example, corporations mainly intergovernmental
cooperation
concerned themselves with state regulation of their business. Most firms hardly
even lobbied in Washington. With the emergence of cooperative federalism and
a greater federal role in the nation’s economy, hardly any firm could afford not grants-in-aid
to lobby in Washington.
A grant-in-aid is really a kind of bribe, whereby Congress appropriates money A general term for funds
given by Congress
for state and local governments with the condition that it be spent for a particu-
to state and local
lar purpose. Congress uses grants-in-aid because it does not have the political or
governments
constitutional power to command local governments to do its bidding. Federal-
ism gives the states the power to veto many national government efforts. For
example, some states threatened to opt out of the federal No Child Left Behind
education law and thus veto it in their own jurisdictions. (No Child Left Behind
was replaced in 2015 by the Every Student Succeeds law, which returned much of
the control to the states for school performances.) When you can’t command, a
monetary inducement sometimes works. For instance, the nationwide speed limit
of 55 miles per hour became law only after Congress threatened to withdraw

Who Does What? Federalism and Institutional Jurisdictions 83

 federal highway grants-in-aid if the state legislatures did not set that speed limit.
In the early 1990s, Congress began to allow the states, under certain conditions,
to go back to the 65-mile-per-hour (or higher) limit without losing their highway
grants. The grant-in-aid is one more example of the fact that institutions shape
policies: being that America’s constitutional system gives the states de facto vetoes
over many potential national government programs, the central government has
learned to craft policies likely to elicit the states’ cooperation.
When applying this approach to cities, Congress set national goals in spe-
cific policy categories, such as public housing and assistance to the unem-
ployed, and provided grants-in-aid to meet them. World War II temporarily
stopped the distribution of these grants. But after the war, Congress resumed
making grants for urban development and school lunches. The range of cate-
categorical gories has expanded greatly over the decades and the value of such categorical
grants-in-aid grants-in-aid increased from $2.3 billion in 1950 to over $550 billion in 2015
(Figure 3.1). Sometimes the state or local government must match the national
Funds given by Congress
contribution, but for some programs, such as the interstate highway system,
to states and localities
the congressional grant-in-aid covers much of the cost.
and that are earmarked
by law for specific
For the most part, the categorical grants created before the 1960s simply
categories, such as helped the states perform their traditional functions, such as educating and
education or crime
prevention

Figure 3.1
THE HISTORICAL TREND OF FEDERAL GRANTS-IN-AID

ANALYZING
THE EVIDENCE 600

550
Federal grants-in-
GRANTS-IN-AID (IN BILLIONS OF DOLLARS)

500
aid began to expand
dramatically during the 450
1960s. What political
400
trends might explain
this expansion? What 350

are the ramifications of 300

this trend for individuals
250
and for states?
200

150

100

50

0
55
60
65
70
75

85

95
50

80

90

00

05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
19
19
19
19
19
19
19
19
19
19
20

20
20
20
20
20
20
20
20
20
20
20
20
20
20
20

FISCAL YEAR estimate

NOTE: Excludes outlays for national defense, international affairs, and net interest.
SOURCE: Office of Management and Budget, www.whitehouse.gov/omb/budget/historicals (accessed
2/10/16).

84 Chapter 3: Federalism and the Separation of Powers

Figure 3.2
TWO HISTORIC VIEWS OF FEDERALISM

policing.18 In the 1960s, however, the national role expanded For example,
during the 89th Congress (1965–66) alone, the number of categorical grant-
in-aid programs grew from 221 to 379.19 The grants authorized during the
1960s announced national purposes much more strongly than did earlier
grants. Central to that national purpose was the need to provide opportunities
to the poor.
Many of the categorical grants enacted during the 1960s were project grants, project grants
which require state and local governments to submit proposals to federal agen-
Grant programs in
cies. In contrast to the older formula grants, which used a formula (composed
which state and local
of such elements as need and state and local capacities) to distribute funds, the governments submit
new project grants made funding available on a competitive basis. Federal agen- proposals to federal
cies would award grants to the proposals they judged to be the best. In this way, agencies and for which
the national government acquired substantial control over which state and local funding is provided on a
governments got money, how much they got, and how they spent it. competitive basis
The political scientist Morton Grodzins characterized the shift to post–
New Deal cooperative federalism as a move from “layer cake federalism” to
“marble cake federalism,”20 in which it is difficult to say where the national formula grants
government ends and the state and local governments begin. Figure 3.2 Grants-in-aid in which
demonstrates the basis of the marble cake idea. In the late 1970s, federal a formula is used to
aid contributed 25 to 30 percent of the operating budgets of all the nation’s determine the amount
state and local governments (Figure 3.3). In 2010, federal aid accounted for of federal funds a state
more than 35 percent of these budgets (today it accounts for 33 percent). or local government will
This increase was temporary, resulting from the Obama administration’s receive

18 Kenneth T. Palmer, “The Evolution of Grant Policies,” in The Changing Politics of

Federal Grants, Lawrence D. Brown, James W. Fossett, and Kenneth T. Palmer, eds.
(Washington, DC: Brookings Institution, 1984), p. 15.
19 Palmer, “The Evolution of Grant Policies,” p. 6.
20 Morton Grodzins, “The Federal System,” in Goals for Americans, President’s Commission
on National Goals, ed. (Englewood Cliffs, NJ: Prentice-Hall, 1960), p. 265. In a marble
cake, the white cake is distinguishable from the chocolate cake, but the two are streaked
rather than arranged in distinct layers.

Who Does What? Federalism and Institutional Jurisdictions 85

 Figure 3.3
THE RISE, DECLINE, AND RECOVERY OF FEDERAL AID

ANALYZING
THE EVIDENCE 36
34 Federal aid as
percentage of
The extent to which 32 state/local budget
state and local 30
governments rely
28
on federal funding
26
has varied a great
deal over time. What 24

difference does it make 22

PERCENTAGE

if the states depend 20

fiscally on the federal 18
government? Grants-in-aid
16 as percentage of
14 federal domestic
programs
12
10
8 Grants-in-aid
as percentage of
6 gross domestic
4 product
2
0
60

65

70

75

80

85

90

95

00

05

10

15
19

19

19

19
19

19

19

19

20

20

20

20
YEAR

SOURCE: Robert J. Dilger, Federal Grants to State and Local Governments, CRS, 2015.

$787 billion stimulus package designed to help state and local governments
weather the 2008–10 recession. Briefly, however, federal aid became the single
largest source of state revenue, exceeding sales and property tax revenues for
the first time in U.S. history.

Regulated Federalism and National Standards

Developments from the 1960s to the present have moved well beyond
cooperative federalism to what might be called regulated federalism.21 Regu-
lated federalism is an important new decision rule, enhancing the national

21 The concept and the best discussion of this modern phenomenon are found in Donald
F. Kettl, The Regulation of American Federalism (1983; repr., Baltimore: Johns Hopkins
University Press, 1987), esp. pp. 33–41.

86 Chapter 3: Federalism and the Separation of Powers

government’s power. In some areas—especially civil rights, poverty pro-
grams, and environmental protection—the national government actually reg-
ulates the states by threatening to withhold grant money unless state and local
governments conform to national standards. This focus reflects a shift away
from federal oversight of economic activities toward “social regulation”—
intervention on behalf of individual rights and liberties, environmental pro-
tection, workplace safety, and so on. Here the national government provides
grant-in-aid financing but sets conditions the states must meet to keep the
grants and refers to these policies as “setting national standards.” Examples
include the Asbestos Hazard Emergency Act of 1986, which requires school
districts to inspect for asbestos hazards and remove them from school build-
ings when necessary, and the Americans with Disabilities Act of 1990, which
requires all state and local governments to promote access for the disabled
to all government buildings. The net effect of these national standards is
that state and local policies are more uniform from coast to coast. National
regulations and standards provide coordination across states and localities
and solve collective action problems.
However, in other programs the government imposes national stan-
dards on the states without providing any funding at all. These are called
unfunded mandates. 22 These burdens became a major part of the ral- unfunded
lying cry that produced the Republican Congress elected in 1994 and mandates
its Contract with America. One of that Congress’s first measures was
National standards
the Unfunded Mandates Reform Act (UMRA). Considered a triumph of or programs imposed
lobbying efforts by state and local governments, UMRA was “hailed as on state and local
both symbol and substance of a renewed congressional commitment to governments by the
federalism.”23 Under this law, any mandate with an uncompensated state federal government
and local cost estimated to be above a certain amount can be stopped by without accompanying
a point of order raised on the House or Senate floor. This so-called stop, funding or reimbursement
look, and listen requirement forced Congress to own up to a mandate’s
potential costs.
UMRA does not prevent members of Congress from passing unfunded
mandates; it only makes them think twice before they do. Moreover, the act
exempts several areas from coverage. And states must still enforce antidiscrimi-
nation laws and meet other requirements in order to receive federal assistance.
Nonetheless, UMRA is a serious effort to move the national–state relationship
a bit further toward the state side.

22 John J. DiIulio and Donald F. Kettl report that in 1980 there were 36 laws that
could be categorized as unfunded mandates. And despite the concerted opposition
of the administrations of Ronald Reagan and George H. W. Bush, another 27 laws
qualifying as unfunded mandates were adopted between 1982 and 1991. See John
DiIulio, Jr., and Donald F. Kettl, Fine Print: The Contract with America, Devolution,
and the Administrative Realities of American Federalism (Washington, DC: Brookings
Institution, 1995), p. 41.
23 Paul Posner, “Unfunded Mandate Reform: How Is It Working?” Rockefeller Institute
Bulletin (1998): 35.

Who Does What? Federalism and Institutional Jurisdictions 87

 New Federalism and the National–State
Tug-of-War

Federalism in the United States is partly a tug-of-war between those seeking

more uniform national standards and those seeking more variability from state
to state. Even before UMRA, Presidents Richard Nixon and Ronald Reagan
called their efforts to reverse the trend toward national standards and rees-
tablish traditional policy making and implementation the “new federalism.”
They helped craft national policies that would return more discretion to the
block grants states. Examples include Nixon’s revenue sharing and Reagan’s block grants,
which consolidated a number of categorical grants into one larger category,
Federal funds given to
leaving the state (or local) government more discretion to decide how to use
state governments to pay
the money.
for goods, services, or
programs, with relatively
President Barack Obama, in contrast, seemed to believe firmly in regulated
few restrictions on how federalism, with the national government viewing the states more as administra-
the funds may be spent tive arms rather than independent laboratories. For example, under the Obama
administration’s health care reform law, every state was encouraged to estab-
lish an insurance exchange where individuals in need of health insurance can
shop for the best rate. Citizens purchasing insurance through these exchanges
would receive federal tax subsidies. Some states did not establish exchanges,
but the Supreme Court ruled that their citizens could receive tax benefits for
the policies they purchased through the federal government’s exchange.24 The
law also required states to expand their Medicaid programs, adding as many as
15 million Americans to the Medicaid rolls. Several states were concerned that
the costs of the new program would fall on their strained budgets, and 12 state
attorneys general brought suit, charging that the program’s mandates violate
the Tenth Amendment. Ultimately, the Supreme Court upheld major provi-
sions of the legislation, although the Court ruled that the federal government
cannot require that Medicaid rolls be expanded. As of November 2016, 31
states and Washington, D.C. had decided to expand their rolls. The Analyzing
the Evidence unit on pp. 90–1 looks at how health care policy varies
across the states.

The Supreme Court as Referee. The courts establish the decision

rules that determine the relationship between federal and state power. For
much of the nineteenth century, federal power remained limited. The Tenth
states’ rights Amendment was used to bolster arguments about states’ rights, which in
their extreme version claimed that the states did not have to submit to national
The principle that states
should oppose increases
laws when they believed the national government had exceeded its authority.
in the authority of the Arguments in favor of states’ rights were voiced less often after the Civil War.
national government; this But the Court continued to use the Tenth Amendment to strike down laws
view was most popular that it thought exceeded national power, including the Civil Rights Act passed
before the Civil War in 1875.

24 King v. Burwell, 576 U.S.____(2015).

88 Chapter 3: Federalism and the Separation of Powers

 In the early twentieth century, however, the Tenth Amendment appeared
to lose its force. Reformers began to press for national regulations to limit
the power of large corporations and to preserve the health and welfare of
citizens. The Supreme Court approved some of these laws but struck down
others, including a law combating child labor. The Court stated that the law
violated the Tenth Amendment because only states should have the power
to regulate conditions of employment. By the late 1930s, however, the Court
had approved such an expansion of federal power that the Tenth Amendment
appeared irrelevant.
Recent years have seen a revival of interest in the Tenth Amendment
and important Supreme Court decisions limiting federal power. Much of the
interest stems from conservatives who believe that a strong federal govern-
ment encroaches on individual liberties and so power should be returned to
the states through the process of devolution. At the same time, the Court
has revived the Eleventh Amendment concept of state sovereign immunity. state sovereign
This legal doctrine holds that states are immune from lawsuits by private immunity
individuals or groups claiming that the state violated a statute enacted by A legal doctrine holding
Congress. that states cannot be
The Supreme Court’s ruling in United States v. Lopez in 1995 fueled fur- sued for violating an act
ther interest in the Tenth Amendment. Stating that Congress had exceeded its of Congress
authority under the commerce clause, the Court struck down a federal law that
barred handguns near schools. It further limited the federal government’s power
over the states in a 1996 ruling based on the Eleventh Amendment. That ruling
prevented Seminole Indians from suing the state of Florida in federal court. A
1988 law had given tribes the right to sue a state in federal court if the state did
not negotiate in good faith issues related to gambling casinos on tribal land. The
Court’s ruling appeared to signal a much broader limitation on national power
by raising new questions about whether individuals can sue a state if it fails to
uphold federal law.25
Another significant decision was the 1997 case of Printz v. United States,
in which the Court struck down a key provision of the Brady bill, enacted
in 1993 to regulate gun sales. Under the act, state and local law enforce-
ment officers were required to conduct background checks on prospective
gun purchasers. The Court held that the federal government cannot require
states to administer or enforce federal regulatory programs.26 Because
the states bear administrative responsibility for a variety of other federal
programs, this decision could have far-reaching consequences. Overall, rul-
ings such as these signaled a move toward a much more restricted federal
government.
This trend continued with the 2006 Gonzales v. Oregon case. Gonzales involved
Oregon’s physician-assisted suicide law, which permitted doctors to prescribe
lethal doses of medication for terminally ill patients who requested help end-
ing their lives. In 2001, the U.S. attorney general issued an order declaring that

25 Seminole Tribe v. Florida, 517 U.S. 44 (1996).

26 Printz v. United States, 521 U.S. 898 (1997).

Who Does What? Federalism and Institutional Jurisdictions 89

 any physician involved in such a procedure would be prosecuted for violating
the federal Controlled Substances Act. The state of Oregon joined several
physicians and patients in a suit against the order. Eventually, the Supreme
Court ruled that the federal government could not overrule state laws deter-
mining how drugs should be used so long as the drugs were not prohibited
by federal law.27
In 2012, however, the Court once again seemed to favor the importance of
national power in the nation–state tug-of-war. In addition to the Obamacare
decision cited earlier, the Court struck down portions of an Arizona immigra-
tion law, declaring that immigration was a federal, not a state, matter,28 and in
a 2013 decision it struck down an Arizona law requiring individuals to show
documentation of citizenship when registering to vote. The Court ruled that
this requirement was preempted by the federal National Voter Registration Act
requiring states to use the official federal voter registration form.29 In two other
cases, the Court ruled against state legislatures on questions involving congres-
sional district boundaries.30
Of course, shifting interpretations of the Constitution often reflect underly-
ing struggles for political power, and the political forces controlling the national
government generally advocate a jurisprudence of nationalism. Those uncertain
of their ability to control Capitol Hill and the White House, but more sure of
their hold on some states, support respect for state power. In recent decades,
Republicans, who control a majority of the states, have expressed respect for
states’ rights while Democrats, with more power at the national level, have
sought to increase the power of the federal government. How different insti-
tutional forms will influence decision, agenda, and veto powers is a matter of
political principle—and political interest.

THE SEPARATION OF POWERS

As we have noted, the separation of powers enables several different federal

institutions to influence the nation’s agenda, to affect decisions, and to prevent
the other institutions from taking action—dividing agenda, decision, and veto
power. The Constitution’s framers saw this arrangement, although cumbersome,
as an essential means of protecting liberty.
In his discussion of the separation of powers, James Madison quoted the
originator of the idea, the French political thinker Baron de Montesquieu:

27 Gonzales v. Oregon, 546 U.S. 243 (2006).

28 Arizona v. United States, 132 S.Ct. 2492 (2012).
29 Arizona et al. v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247 (2013).
30 Alabama Legislative Black Caucus v. Alabama 575 U.S. ____ (2015) and Arizona State
Legislature v. Arizona Independent Redistricting Commission 576 U.S. ____ (2015).

92 Chapter 3: Federalism and the Separation of Powers

“There can be no liberty where the legislative and executive powers are united in
the same person . . . [or] if the power of judging be not separated from the leg-
islative and executive powers.”31 Using the same reasoning, many of Madison’s
contemporaries argued that there was not enough separation among the three
branches, and Madison had to backtrack to insist that complete separation was
not required:

Unless these departments [branches] be so far connected and blended as to

give to each a constitutional control over the others, the degree of separation
which the maxim requires, as essential to a free government, can never in
practice be duly maintained.32

This is the secret of how Americans have made the separation of powers
effective: they have made it self-enforcing by giving each branch of government
the means to participate in, and partially or temporarily obstruct, the workings
of the other branches.

Checks and Balances: A System of Mutual Vetoes

The means by which each branch of government interacts with the others
is known informally as checks and balances. This arrangement gives each
branch agenda and veto power, under a decision that requires all the branches
to agree on national policies (Figure 3.4). Examples are the presidential
power to veto legislation passed by Congress; the power of Congress to
override the veto by a two-thirds majority vote; the power of the Senate to
approve presidential appointments; the power of the president to appoint
Supreme Court justices and other federal judges with Senate approval;
and the power of the Court to engage in judicial review (discussed later in
this chapter). The framers sought to guarantee that the three branches would
use the checks and balances as weapons against each other by giving each
branch a different political constituency: direct, popular election of the mem-
bers of the House and indirect election of senators (until the Seventeenth
Amendment, adopted in 1913); indirect election of the president (still in
effect, at least formally); and appointment of federal judges for life. The
best characterization of the separation-of-powers principle in action is, as
we said in Chapter 2, “separated institutions sharing power.”33 This system
sometimes gives a measure of agenda power to groups like the corn farmers
discussed in the Policy Principle section on page 76. While the corn farmers
are a small group, our system of separated powers allows them to exert a

31 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, Clinton L.
Rossiter, ed. (New York: New American Library, 1961), no. 47, p. 302.
32 The Federalist, no. 48, p. 308.
33 Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of
Leadership from Roosevelt to Reagan (1960; rev. ed., New York: Free Press, 1990), p. 33.

The Separation of Powers 93

Figure 3.4
CHECKS AND BALANCES

94 Chapter 3: Federalism and the Separation of Powers

good deal of influence through the members of Congress whose electoral
chances they influence.

Legislative Supremacy

Within the system of separated powers, the framers provided for legislative legislative
supremacy by making Congress the preeminent branch. Legislative supremacy supremacy
made the provision of checks and balances in the other two branches all the
The preeminent position
more important. assigned to Congress by
The framers’ intention of legislative supremacy is evident in their decision the Constitution
to place the provisions for national powers in Article I, the legislative article, and
to treat the powers of the national government as powers of Congress. In a sys-
tem based on the rule of law, the power to make the laws is the supreme power.
Section 8 provides in part that “Congress shall have Power To lay and collect
Taxes . . . ; To borrow Money . . . ; To regulate Commerce” [emphasis added].
The Founders also provided for legislative supremacy by giving Congress sole
power over appropriations and giving the House of Representatives the power
to initiate all revenue bills. Madison recognized legislative supremacy as part and
parcel of the separation of powers:

It is not possible to give to each department an equal power of self-defense.

In republican government, the legislative authority necessarily predominates.
The remedy for this inconveniency is to divide the legislature into different
branches; and to render them, by different modes of election and different
principles of action, as little connected with each other as the nature of their
common functions and their common dependence on the society will admit.34

Essentially, Congress was so likely to dominate the other branches that it

would have to be divided against itself, into House and Senate. One almost
could say that the Constitution provided for four branches, not three.
Although “presidential government” gradually supplanted legislative
supremacy after 1937, the relative power position of the executive and legisla-
tive branches since that time has varied with the rise and fall of political parties.
It has been especially tense during periods of divided government, when one divided
party controls the White House and another controls Congress. government

The condition in
American government in
Checks and Balances: The Rationality which the presidency is
Principle at Work controlled by one party
while the opposing party
The framers’ idea that the president and Congress would check and bal- controls one or both
ance each other rests, in part, on an application of the rationality principle. houses of Congress
The framers assumed that each branch would seek to maintain or expand its

34 The Federalist, no. 51, p. 322.

The Separation of Powers 95

 power and would resist “encroachments” by the other branch. This idea
seems consistent with the behavior of presidents and congressional lead-
ers, who have battled over institutional prerogatives since at least the Nixon
administration. For example, the Watergate struggle began when President
Nixon sought a reorganization of the executive branch that would have
increased presidential control and reduced congressional oversight powers. 35
After Nixon’s resignation, Congress acted to delimit presidential power; but
subsequently President Reagan undid Congress’s efforts and bolstered the
White House. During President George W. Bush’s second term, Congress
and the president battled constantly over the president’s refusals to disclose
executive privilege information on the basis of executive privilege and his assertions that only
the White House was competent to manage the nation’s security. “I am the
The claim that
decider,” the president famously averred. Although during Obama’s first two
confidential
years the Democratic leadership in control of both houses cooperated with
communications between
the president and the
the new president, this “honeymoon” ended when the GOP took control of
president’s close advisers the House of Representatives in 2010 and then the Senate in 2014. In the
should not be revealed 2016 elections, Americans chose a Republican president and left the GOP in
without the consent of control of both houses of Congress. This development seemed to portend
the president closer cooperation between the executive and legislative branches.
Over time, the president has generally possessed an advantage in this strug-
gle between institutions. The president is a unitary actor, whereas Congress,
as a collective decision maker, suffers from collective action problems (see
Chapter 13). That is, each member may have individual interests that are incon-
sistent with the collective interests of Congress as a whole. For example, when
Congress initially supported Bush’s plan to use force in Iraq in 2003, members
were uneasy about his assertion that he did not need congressional approval.
The president was using the war to underline claims of institutional power, but
few members of Congress thought it politically safe to express that viewpoint
when the public was clamoring for action. These considerations help explain
why, over time, the powers of the presidency have grown and those of Congress
diminished.36 We will return to this topic in Chapter 7.

The Role of the Supreme Court: Establishing

Decision Rules

The role of the judicial branch in the separation of powers has depended on
the power of judicial review (see Chapter 9), a power not provided for in the
Constitution but asserted by Chief Justice Marshall in 1803:

If a law be in opposition to the Constitution; if both the law and the

Constitution apply to a particular case, so that the Court must either

35 Benjamin Ginsberg and Martin Shefter, Politics by Other Means, 3rd ed. (New York:
Norton, 2002), chap. 1.
36 Matthew Crenson and Benjamin Ginsberg, Presidential Power: Unchecked and Unbalanced
(New York: Norton, 2007).

96 Chapter 3: Federalism and the Separation of Powers

 decide that case conformable to the law, disregarding the Constitution,
or conformable to the Constitution, disregarding the law; the Court must
determine which of these conflicting rules governs the case: This is of the
very essence of judicial duty.37

Marshall’s decision was an extremely important assertion of judicial power:

in effect, he declared that whenever there was doubt or disagreement about
which rule should apply in a particular case, the Court would decide. In this way,
Marshall made the Court the arbiter of all future debates between Congress and
the president and between the federal and state governments.
Judicial review of the constitutionality of acts of the president or
Congress is relatively rare. For example, there were no Supreme Court
reviews of congressional acts in the 50 plus years between Marbury v. Madison
(1803) and Dred Scott v. Sandford (1857). In the century or so between the
Civil War and 1970, 84 acts of Congress were held unconstitutional (in whole
or in part), but there were long periods of complete Court deference to
Congress, punctuated by flurries of judicial review during times of social
upheaval. The most significant was 1935–36, when 12 acts of Congress were
invalidated, blocking virtually the entire New Deal program.38 Thereafter no
significant acts were voided until 1983, when the Court declared unconstitu-
tional the legislative veto, a practice in which Congress authorized the presi-
dent to take action but reserved the right to rescind presidential actions with
which it disagreed.39 The Court became much more activist (that is, less def-
erential to Congress) after the elevation of Justice William H. Rehnquist to
the position of chief justice in 1986.40 Each of the cases in Table 3.1 altered
some aspect of federalism by declaring unconstitutional all or an important
portion of an act of Congress.
Since the New Deal period, the Court has been far more deferential toward
the president, with only five significant confrontations. One was the so-called
steel seizure case of 1952, in which the Court refused to permit President Harry
Truman to use “emergency powers” to force workers back into the steel mills
during the Korean War.41 In a second case, the Court declared unconstitutional
President Nixon’s refusal to respond to a subpoena to make available the infa-
mous White House tapes as evidence in a criminal prosecution. The Court argued
that although executive privilege protected confidentiality of communications

37 Marbury v. Madison, 1 Cranch 137 (1803).

38 The Supreme Court struck down 8 out of 10 New Deal statutes. For example, in
Panama Refining Company v. Ryan, 293 U.S. 388 (1935), the Court ruled that a section
of the National Industrial Recovery Act of 1933 was an invalid delegation of legislative
power to the executive branch. And in Schechter Poultry Corporation v. United States,
295 U.S. 495 (1935), the Court found the National Industrial Recovery Act itself to be
invalid for the same reason.
39 Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
40 Cass R. Sunstein, “Taking Over the Courts,” New York Times, November 9, 2002, p. A19.
41 Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579 (1952).

The Separation of Powers 97

 Table 3.1
A NEW FEDERAL SYSTEM? THE CASE RECORD, 1995–2016

CASE DATE COURT HOLDING

United States v. Lopez, 1995 Voids federal law barring handguns

514 U.S. 549 near schools: it is beyond Congress’s
power to regulate commerce

Seminole Tribe v. Florida, 1996 Voids federal law giving tribes the
517 U.S. 44 right to sue a state in federal court:
“sovereign immunity” requires a
state’s permission to be sued

Printz v. United States, 1997 Voids a key provision of the Brady law
521 U.S. 898 requiring states to make background
checks on gun purchases: as an
“unfunded mandate,” it violated state
sovereignty under the Tenth Amendment

City of Boerne v. Flores, 1997 Restricts Congress’s power under the

521 U.S. 507 Fourteenth Amendment to regulate
city zoning and health and welfare
policies to “remedy” rights: Congress
may not expand those rights

Alden v. Maine, 527 1999 Declares states “immune” from suits

U.S. 706 by their own employees for overtime
pay under the Fair Labor Standards
Act of 1938 (see also the Seminole
case)

United States v. Morrison, 2000 Extends the Seminole case by

529 U.S. 598 invalidating the Violence against
Women Act: states may not be sued
by individuals for failing to enforce
federal laws

Gonzales v. Oregon, 546 2006 Upholds state assisted-suicide law

U.S. 243 over attorney general’s objection

National Federation of 2012 Upholds the Affordable Care Act and

Independent Business v. expansion of federal control over
Sebelius, 567 U.S. __ (2012) health care policy

Arizona State Legislature 2013 Declares that state voter

v. Arizona Independent identification rules are preempted by
Redistricting Commission the National Voter Registration Act
570 U.S. __ (2013)

98 Chapter 3: Federalism and the Separation of Powers

to and from the president, this protection did not extend to data in presidential
files or tapes linked to criminal prosecutions.42 In yet another instance, the Court
struck down the Line Item Veto Act of 1996, which allowed the president to
veto specific items in spending and tax bills without vetoing the entire bill. The
Court held that any such change in the procedures of adopting laws would have
to be made by amendment to the Constitution, not by legislation.43
Another important confrontation came a few years after the September 11,
2001, terrorist attacks. In 2004 the Court held that the estimated 650 “enemy
combatants” detained without formal charges at the U.S. Naval Station at
Guantánamo Bay, Cuba, had the right to seek release through a writ of habeas writ of habeas
corpus.44 However, in Section 7 of the 2006 Military Commissions Act, Con- corpus
gress declared that enemy combatants held at Guantánamo Bay could not avail
A court order demanding
themselves of the right of habeas corpus. Then, in 2008, the Supreme Court that an individual in
responded by striking down Section 7 and affirming that the Guantánamo custody be brought
detainees had the right to challenge their detentions in federal court.45 The Court into court and shown
noted that habeas corpus was among the most fundamental constitutional rights the cause for detention;
and was included in the Constitution even before the Bill of Rights was added. habeas corpus is
guaranteed by the
Constitution and can be
suspended only in cases
CONCLUSION: FEDERALISM AND THE of rebellion or invasion

SEPARATION OF POWERS—COLLECTIVE
ACTION OR STALEMATE?

As asserted by the institutions principle, institutions are designed to solve col-

lective action problems, but the solutions can take many different forms. The
framers believed that agenda, decision, and veto powers should be dispersed
among many different institutions. And because history matters and the 13
existing states already possessed significant autonomy when the Constitution
was drafted, the framers had little choice but to relinquish considerable agenda,
decision, and veto powers to them as well. The result was our federal system of
separated powers.
Critics of the American constitutional framework have often pointed to this
dispersion of governmental power as a source of weakness and incoherence in
America’s policy-making processes. Because of federalism, America’s national
government is often unable to accomplish what might be a matter of course
in most other nations. As we saw in United States v. Lopez, the Supreme Court
invalidated a federal statute prohibiting the possession of firearms near schools,
saying that it was an unconstitutional encroachment on the sovereignty of the

42 United States v. Nixon, 418 U.S. 683 (1974).

43 Clinton v. City of New York, 524 U.S. 417 (1998).
44 Rasul v. Bush, 542 U.S. 466 (2004).
45 Boumediene v. Bush, 553 U.S. 723 (2008).

Conclusion: Federalism and the Separation of Powers—Collective Action or Stalemate? 99

 states. In a country with a unitary system of government, this statute would not
face such a hurdle.
Over the course of American history, as we saw, the power of the states has
waned relative to that of the national government. Nevertheless, the states still
matter and under the terms of what we called the “new federalism,” the states
can exert a good deal of power over nominally federal programs. Nevertheless,
the United States began as a nation of semi-sovereign states and is now closer
to being a unitary republic.
As to the separation of powers, the policy principle tells us that political out-
comes are the products of individual preferences and institutional procedures.
Because of the separation of powers, an institutional procedure, Congress is
often stymied by the president—or the president by Congress in their efforts to
develop policies. The president can veto congressional action; Congress can, by
legislation, limit the powers of the executive. In 2011, for example, the newly
elected Republican House of Representatives promised to repeal the president’s
recently enacted health care program. The Senate, still controlled by Demo-
crats, disagreed, and the president promised to veto any bill that threatened
what he viewed as the major achievement of his first term in office. In the
meantime, legal challenges to the new law eventually led to a Supreme Court
decision upholding the new legislation’s main provisions. The dispersion of
power among different institutions of government ensures that collective action
will be difficult, though not impossible.
At times, however, stalemate between Congress and the president may become
so severe that the government is paralyzed. As we saw in 2013, conservative House
Republicans refused to allow a vote on any continuing resolution (CR) to extend
the government’s spending authority that contained funding for the Affordable
Care Act (ACA). Senate Democrats and the president said they would not accept
a CR that did not provide funding for the ACA. Without a CR, much of the gov-
ernment’s spending authority lapsed, such that most federal agencies had to close
in a “government shutdown.” Republicans also threatened to refuse to raise the
nation’s debt limit, thereby reducing the government’s borrowing power and forc-
ing further cuts in government programs. After a tense 16 days, Republicans and
Democrats agreed to a spending bill and a temporary new debt ceiling.
Thus the separation of powers has real political consequences. The framers,
though, did not want to make collective action too easy. They thought it was
important to provide checks and balances that would protect the nation from
the tyrannical actions of a small number of leaders, as well as from precipitous
actions on the part of larger groups—“majority tyranny.” The framers believed
that well-constructed institutions should diminish the likelihood of inappropri-
ate and unwise collective action, even at the cost of occasional stalemate. In
recent years, the U.S. government often has been criticized more for what it
has done, especially in regard to the wars in Iraq and Afghanistan, than what it
has not done. Many Americans believe that Congress should have done more to
thwart presidential war policies and hope the judiciary will do more to delimit
presidential war powers in the future. The framers likely would have under-
stood this desire to check the executive branch. Stalemate is not always the worst
collective outcome.

100 Chapter 3: Federalism and the Separation of Powers

For Further Reading

Bednar, Jenna. The Robust Federation. New York: Cambridge University Press, 2008.

Crenson, Matthew, and Benjamin Ginsberg. Presidential Power: Unchecked and

Unbalanced. New York: Norton, 2007.

Ferejohn, John A., and Barry R. Weingast, eds. The New Federalism: Can the States
Be Trusted? Stanford, CA: Hoover Institution Press, 1997.

Fisher, Louis. Constitutional Conflicts between Congress and the President. 7th ed.
Lawrence: University Press of Kansas, 2007.

Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers, no. 39.
Clinton Rossiter, ed. New York: New American Library, 1961.

Karmis, Dimitrios, and Wayne Norman. Theories of Federalism: A Reader. New

York: Palgrave, Macmillan, 2005.

LaCroix, Alison L. The Ideological Origins of American Federalism. Cambridge:

Harvard University Press, 2010.

Moellers, Christoph. The Three Branches: A Comparative Model of Separation of

Powers. New York: Oxford University Press, 2015.

Nolette, Paul. Federalism on Trial: State Attorneys General and National Policymaking in
Contemporary America. Lawrence: University Press of Kansas, 2015.

Noonan, John T. Narrowing the Nation’s Power: The Supreme Court Sides with the
States. Berkeley: University of California Press, 2002.

Riker, William H. Federalism: Origin, Operation, Significance. Boston: Little, Brown, 1964.

Robertson, David. Federalism and the Making of America. New York: Routledge, 2011.

Samuels, David, and Matthew Shugart, Presidents, Parties and Prime Ministers:
How the Separation of Powers Affects Party Organization and Behavior. New York:
Cambridge University Press, 2010.

Smith, Rogers M. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New
Haven, CT: Yale University Press, 1997.

Van Horn, Carol E. The State of the States. 4th ed. Washington, DC: CQ Press, 2004.

Winston, Pamela. Welfare Policymaking in the States: The Devil in Devolution.

Washington, DC: Georgetown University Press, 2002.

For Further Reading 101