Federalism and How It Works

Mt Rushmore
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Federalism is the process by which two or more governments share powers over the same geographic area. It is the method used by most democracies in the world.

While some countries give more power to the overall central government, others grant more power to the individual states or provinces.

In the United States, the Constitution grants certain powers to both the U.S. government and the state governments.

The Founding Fathers wanted more power for the individual states and less for the federal government, a practice that endured until World War II. That "layer cake" method of duel federalism was replaced when state and national governments entered a more cooperative "marble cake" approach called cooperative federalism.

Since then, a new federalism initiated by presidents Richard Nixon and Ronald Reagan has returned some powers back to states through federal grants.

10th Amendment

The powers granted to the state and federal governments are in the Constitution's 10 Amendment, which states,

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Those simple 28 words establish three categories of powers which represent the essence of American federalism:

  • Expressed or “Enumerated” Powers: Powers granted to the U.S. Congress mainly under Article I, Section 8 of the U.S. Constitution.
  • Reserved Powers: Powers not granted to the federal government in the Constitution and thus reserved to the states.
  • Concurrent Powers: Powers shared by the federal government and the states.

For example, Article I, Section 8 of the Constitution grants the U.S. Congress certain exclusive powers such as coining money, regulating interstate trade and commerce, declaring war, raising an army and navy and to establish laws of immigration.

Under the 10th Amendment, powers not specifically listed in the Constitution, such as requiring drivers licenses and collecting property taxes, are among the many powers "reserved" to the states.

The line between the powers of the U.S. government and those of the states is usually clear. Sometimes, it is not. Whenever a state government's exercise of power might be in conflict with the Constitution, there is a battle of “states' rights” which must often be settled by the U.S. Supreme Court.

When there is a conflict between a state and a similar federal law, the federal law and powers supersede state laws and powers.

Probably the greatest battle over states' rights—segregation—took place during the 1960s civil rights struggle.

Segregation: The Supreme Battle for State's Rights

In 1954, the Supreme Court in its landmark Brown v. Board of Education decision ruled that separate school facilities based on race are inherently unequal and thus in violation of the 14th Amendment which states, in part:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

However, several states, predominantly in the South, chose to ignore the Supreme Court’s decision and continued the practice of racial segregation in schools and other public facilities.

The states based their stance on the 1896 Supreme Court ruling in Plessy v. Ferguson. In this historic case, the Supreme Court, with only one dissenting vote, ruled that racial segregation was not in violation of the 14th Amendment if the separate facilities were "substantially equal."

In June of 1963, Alabama Gov. George Wallace stood in front of the doors of the University of Alabama preventing black students from entering and challenging the federal government to intervene.

Later the same day, Wallace gave in to demands by Assistant Attorney Gen. Nicholas Katzenbach and the Alabama National Guard allowing black students Vivian Malone and Jimmy Hood to register.

During the rest of 1963, federal courts ordered the integration of black students into public schools throughout the South. In spite of the court orders, and with only 2% of Southern black children attending formerly all-white schools, the Civil Rights Act of 1964 authorizing the U.S. Justice Department to initiate school desegregation suits was signed into law by President Lyndon Johnson.

Reno v. Condon

A less momentous, but perhaps more illustrative case of a constitutional battle of "states' rights" went before the Supreme Court in November 1999, when Attorney General of the United States Janet Reno took on Attorney General of South Carolina Charlie Condon:

The Founding Fathers can certainly be forgiven for forgetting to mention motor vehicles in the Constitution, but by doing so, they granted the power to require and issue drivers licenses to the states under the 10th Amendment.

State departments of motor vehicles (DMV) typically require applicants for driver's licenses to provide personal information including name, address, telephone number, vehicle description, Social Security number, medical information, and a photograph.

After learning that many state DMVs were selling this information to individuals and businesses, the U.S. Congress enacted the Driver's Privacy Protection Act of 1994 (DPPA), establishing a regulatory system restricting the states' ability to disclose a driver's personal information without the driver's consent.

In conflict with the DPPA, South Carolina laws allowed the State's DMV to sell this personal information. Condon filed a suit on behalf of his state claiming that the DPPA violated the 10th and 11th Amendments to the U.S. Constitution.

The district court ruled in favor of South Carolina, declaring the DPPA incompatible with the principles of federalism inherent in the Constitution's division of power between the states and the federal government.

The district court's action essentially blocked the U.S. government’s power to enforce the DPPA in South Carolina. This ruling was further upheld by the Fourth District Court of Appeals.

Reno appealed the decisions to the U.S. Supreme Court.

On Jan. 12, 2000, the U.S. Supreme Court, in the case of Reno v. Condon, ruled that the DPPA did not violate the Constitution due to the U.S. Congress' power to regulate interstate commerce granted to it by Article I, Section 8, clause 3 of the Constitution.

According to the Supreme Court,

"The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations. The information is also used in the stream of interstate commerce by various public and private entities for matters related to interstate motoring. Because drivers' personal, identifying information is, in this context, an article of commerce, its sale or release into the interstate stream of business is sufficient to support congressional regulation."

So, the Supreme Court upheld the Driver's Privacy Protection Act of 1994, and the States cannot sell personal drivers' license information without permission. That's likely appreciated by the individual taxpayer.

On the other hand, the revenue from those lost sales must be made up in taxes, which the taxpayer isn't likely to appreciate. But that's all part of how federalism works.