Federalism and How it Works

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Federalism is the process by which two or more governments share powers over the same geographic area.

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

These powers are granted by the Tenth 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 US 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, like 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, we end up with a battle of “states' rights” which must often be settled by the 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 1960's 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 predominately Southern states 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 racial segregation was not in violation of the 14th Amendment if the separate facilities were "substantially equal."

In June of 1963, Alabama Governor 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 Asst. 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 percent 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.

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

Reno v. Condon - November 1999

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 Tenth Amendment. That much is clear and not at all disputed, but all powers have limits.

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. South Carolina's Attorney General Condon filed a suit claiming that the DPPA violated the Tenth and Eleventh 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.

United States Attorney General Reno appealed the District Courts' decisions to the 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 our personal drivers' license personal information without our permission, which is a good thing. On the other hand, the revenue from those lost sales must be made up in taxes, which is not such a good thing. But, that's how federalism works.