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Federalism in the United States

States’ Rights versus Federal Authority

States' Rights, Nullification, and War

In the 19th century, South Carolina asserted the right to nullify a federal law; though that situation was defused by compromise, the theory of nullification remained popular in the South. After the election of 1860, 11 states withdrew from the Union to form the Confederacy, but the Union victory in the Civil War that followed preserved the Union.

While the U.S. Supreme Court, under Federalist John Marshall (chief justice from 1801 to 1835), issued rulings that buttressed federal power, other political leaders in the early republic held different views. Many advocates of states' rights believed that states remained sovereign entities with the right to judge federal action. Nullification is the theory that maintains that a state has the legal right to declare a federal law that the state considers unconstitutional to be null and void within that state. Nullification sparked a constitutional crisis in the 1830s. In 1828 the federal government passed a tariff on textiles imported from Great Britain. Many people in the southern states believed that this tariff favored the North, where textile mills were common. The South, however, depended on British textiles and considered the tariff punitive to its citizens. In 1832 South Carolina's legislature passed an Ordinance of Nullification, essentially declaring the tariff void within the state. Congress responded by passing the Force Bill in 1833, giving the president the power to use the military to collect the tariffs and thus execute federal law. The situation was defused when Congress passed a new tariff with terms acceptable to the South, but nullification remained a popular idea in the South, where many political leaders worried that Congress might enact laws that would interfere with slavery, on which the Southern economy depended.

When Abraham Lincoln was elected president in 1860, those fears led to secession, or withdrawal from the Union, by 11 Southern slave states. The states took this action despite there being no provision in the Constitution permitting it.

The difference between the federal and confederal systems was emphasized by the split, with the seceding states forming the Confederate States of America, in opposition to the federal Union. Secession triggered the beginning of the American Civil War in 1861. So while slavery and states' rights were the issues that led to the war, the very existence of the United States was at stake. As Lincoln would state in his Gettysburg Address, the war would test whether the nation could long endure. The defeat of the Confederacy in 1865 established that the national government had the power to maintain the Union and discredited the ideas of secession and nullification.

Interposition Proposed and Overturned

States' claim to the right of interposition, challenging federal court action, was overturned by the U.S. Supreme Court in Cooper v. Aaron (1958).

The related doctrine of interposition is the theory that states can stand between the federal government and their people to protect the people from a law or action they judge to be unconstitutional. Interposition was introduced in 1798 by James Madison. (Madison had by then shifted views on the relative balance of federal and state power.) When Congress passed the Sedition Act, which Madison saw as an attack on the 1st Amendment, he wrote the Virginia Resolutions, which was approved by the Virginia legislature. In that document, Madison argued "that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the [Constitution], the states ... have the right, and are in duty bound, to interpose for arresting the progress of the evil." Madison's resolution called on the governor of Virginia to work for repeal of the law, which was seen as unconstitutional.

Years later, the idea of interposition was revived when Southern opposition arose to the Supreme Court's decision in Brown v. Board of Education (1954), which ordered an end to racial segregation in public schools. Several states issued resolutions of "interposition and nullification" declaring the court's decision unconstitutional. The governor and legislature of Arkansas sued to prevent implementation of a federal court order to desegregate schools in Little Rock. They asked that the order be delayed. The U.S. Supreme Court, in Cooper v. Aaron (1958), unanimously denied the state's claim, stating "the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation." Interposition was denied.

Dual versus Cooperative Federalism

Federalism has evolved throughout America's history, and the powers of the federal government have waxed and waned as needs and expectations placed upon the federal government have changed.

The federal system practiced from the adoption of the Constitution until the 1930s is sometimes called dual or "layer-cake" federalism. In this system, the federal and state governments hold largely distinct powers. As the United States grew, so did people's expectations of government's role in national life. People demanded increased protections and services, and government grew to meet those demands. From the 1930s creation of Social Security to the 1950s launch of the interstate highway system to the 1960s creation of Medicare to provide health care to the elderly, the federal government has become increasingly involved in more and more areas of everyday life. The federal government has also become more active in protecting people. Fair labor practice and workplace safety laws aim to help workers. Antidiscrimination laws protect certain groups from unfair treatment in housing, education, and the workplace. When some of these laws were challenged, courts have upheld the expanded view of federal power. The increased federal role has resulted in what is sometimes called "marble-cake," or cooperative federalism, in which the federal and state governments work together to implement a policy. Sometimes the federal government has been the dominant power in this partnership, imposing its policy preferences on the states.

Some of these court decisions rested on the commerce clause. For example, the Supreme Court upheld the National Labor Relations Act in NLRB v. Jones and Laughlin (1937) on commerce clause grounds. Between then and 1995, the court sided with a broad interpretation of the commerce clause in every challenge. Beginning in the 1990s, however, the court limited the government's reliance on the commerce clause to justify legislative action.

Key Supreme Court Decisions and the Commerce Clause, 1985–2012

Case (Year) Decision
South Dakota v. Dole (1985) South Dakota challenged a federal law that withheld highway funds from any state that did not raise the drinking age to 21. The Supreme Court ruled that the federal government had the authority to mandate a higher drinking age on the grounds of "general welfare."
United States v. Lopez (1995) In 1990 Congress passed the Gun-Free School Zones Act, which banned carrying a gun in a school zone. Lopez contended that his conviction for breaking the law was unconstitutional because Congress exceeded its power under the commerce clause in passing the law. The court agreed on the grounds that carrying a gun was not an economic activity and thus the commerce clause did not apply.
United States v. Morrison (2000) Congress relied on the commerce clause and the 14th Amendment to pass the Violence Against Women Act. Two males objected to a lawsuit brought against them under this law for sexual assault of a woman. The court ruled that the law did not involve an activity affecting interstate commerce.
Raich v. Gonzalez (2005) Despite a federal law banning marijuana, California passed a law permitting citizens to grow it. The Supreme Court ruled that Congress could overrule this law under the commerce clause, as it soon became an item of interstate commerce.
NFIB v. Sebelius (2012) The Affordable Care Act stated that any citizen who did not buy a specified amount of health insurance would be fined. The Supreme Court ruled that this violated the commerce clause, saying that Congress does not have the authority to force people to buy something.

Dual versus Cooperative Federalism

Because the states are granted certain powers both by the Constitution and the 10th Amendment, there are limits to federal government action. When Congress passed the Brady Handgun Violence Act in 1993, it required local law enforcement officers to conduct background checks of individuals who wished to purchase guns. Two county sheriffs, Jay Printz and Richard Mack, challenged this requirement. In Printz v. United States (1997), the court sided with the sheriffs, finding that the federal government could not compel state or local officials to implement federal requirements. To get around this constraint, Congress uses incentives to encourage states to comply with federal policy. That encouragement can take the form of offering federal funds that match state contributions to programs the federal government wants the states to enact. This is the practice followed with the Aid to Families with Dependent Children (AFDC) program, which provides financial support to families below the poverty line. Along with its matching funds, the federal government sets minimum standards that state programs must meet. This arrangement has been called cooperative federalism, or "marble-cake" federalism. In this system, the federal and state governments work together to implement an agreed-upon policy.

Fiscal federalism is a theory of government that addresses how financial issues and functions are effectively divided among different levels of government, such as state and national. When the federal government attaches regulations to matched funds, as with AFDC, it can exercise considerable control over state action. It can be even more forceful when supplying all the funding for a program. In the 1980s, for instance, the federal government attached raising the age for drinking alcohol to 21 as a condition a state must meet before it could receive federal highway funds. Many conservative thinkers argue that fiscal federalism significantly encroaches on state powers, distorting the federal system.

In the 1970s a new judicial federalism began to arise—increasing the involvement of the judicial branch in the process of defining rights and laws. This judicial federalism occurs primarily at the state level, with state supreme courts interpreting state constitutions to provide more rights than the federal Constitution offers. There is considerable disagreement about how extensive judicial federalism should be.

Attempts to balance federal power, state sovereignty, and individual rights continue, as will the tension between those who want more federal control and those who value state power and individual liberty.