Federalism: How should power be structurally divided?

Photo of Austin City Hall, Austin, Texas

Austin City Hall (Credit: Victor Ovalle; Feature-Banner-Austin-City-Hall at http://www.austintexas.gov/government)

Learning Objectives

  • Identify some of the powers and responsibilities of federal, state, and local governments.
  • Examine how responsibilities differ and powers overlap.
  • Discover how federalism evolved in the US.

The US republic divides governmental power in two general ways–vertically and horizontally. Horizontally, we share power among three branches of government—the legislature, the executive, and the judiciary. Vertically, power is shared between levels of government: national and sub-national (state, parish, county, local, special district). In the United States, the term federal government refers to government at the national level.

Federalism is an institutional arrangement creating relatively autonomous levels of government, each able to act directly on behalf of the people with the authority granted to it.[1] What does this mean? According to William Riker, a federal system exists if two levels of government have authority over the same geographic area and people.[2] That is, in the U.S. federal system, residents of the state of Texas have both a state government that has authority to make laws and rules that impact citizens, and Texans are also impacted by a national government with authority to make laws and rules that directly impact the residents of Texas.

Although federal systems vary by design, some characteristics are common to the United States and other systems around the world including Germany and Mexico. Under a federal system, one characteristic is that people agree (consent) to cooperate under terms of a written constitution that defines how they will work together and hold each other accountable. The intention being to keep people in control of the government by providing numerous points of access. Federalism (a federal structure) increases access opportunities.

The second characteristic common to all federal systems is a written contract/constitution that cannot be changed without the substantial consent of sub-national governments. In the American federal system, the twenty-seven amendments added to the Constitution since its adoption resulted from an arduous process requiring approval by two-thirds of both houses of Congress and three-fourths of the states. This super-majority requirement ensures no changes to the Constitution may occur without broad support within Congress (the people’s representatives) and among states.

While each level of government is somewhat independent of the others (dual federalism), a great deal of interaction occurs (cooperative federalism). The ability of the federal and state governments to achieve their objectives often depends on cooperation.  Law enforcement agents at the local and state levels work to bolster the national government’s efforts to ensure homeland security.

Third, the constitutions of federal systems formally allocate legislative, judicial, and executive authority to the various levels of government to ensure each has some degree of autonomy from the other. Under the U.S. Constitution, the president assumes executive power, Congress exercises legislative powers, and the federal courts (e.g., U.S. district courts, appellate courts, and the Supreme Court) assume judicial powers. In each of the fifty states, a governor assumes executive authority, a state legislature makes laws, and state-level courts (e.g., trial courts, intermediate appellate courts, and supreme courts) possess judicial authority.

The Constitution contains several provisions that direct the functioning of U.S. federalism. Some delineate the scope of national and state power, while others restrict it. The remaining provisions shape relationships among the states and between the states and the federal government. The enumerated powers of the national legislature are found in Article I, Section 8. These powers define the jurisdictional boundaries within which the federal government has authority. The last clause of Article I, Section 8, commonly referred to as the elastic clause or the necessary and proper cause, enables Congress “to make all Laws which shall be necessary and proper for carrying” out its constitutional responsibilities. While the enumerated powers define the policy areas in which the national government has authority, the elastic clause allows it to create the legal means to fulfill those responsibilities. In fact, the open-ended interpretation of this clause has enabled the national government to expand its authority beyond what is specified in the Constitution, a development also motivated by the expansive interpretation of the commerce clause, which empowers the federal government to regulate interstate economic transactions.

The powers of the state governments were never listed in the original Constitution. The consensus among the framers was that states would retain any powers not prohibited by the Constitution or delegated to the national government.[3] However, when it came time to ratify the Constitution, a number of states requested that an amendment be added explicitly identifying the reserved powers of the states. What these Anti-Federalists sought was further assurance that the national government’s capacity to act directly on behalf of the people would be restricted, which the first ten amendments (Bill of Rights) provided. The Tenth Amendment affirms the states’ reserved powers: “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.”

Although states retain some sovereignty, the supremacy clause in Article VI proclaims the U.S. Constitution, national laws and treaties are “the supreme law of the land.”[4] In the event of a conflict between the states and national government, the national government takes precedence.

The enduring political debate over federalism and the proper role and scope of the national government depends on whether you place an emphasis on the elastic clause/necessary and proper clause of the Constitution or on the Tenth Amendment reserving powers to the states (not mentioned in the Constitution). Those who place an emphasis on the Tenth Amendment have been called dual federalists, stressing the independence of each level of government. Those who stress the interaction between the levels or the flexibility in authority of each are called cooperative federalists.[5]

Historical Struggle for Power–Conflicts with a Federal Structure of Governing

As George Washington’s secretary of the treasury from 1789 to 1795, Alexander Hamilton championed legislative efforts to create a publicly chartered bank. For Hamilton, the establishment of the Bank of the United States was fully within Congress’s authority, and he hoped the bank would foster economic development, print and circulate paper money, and provide loans to the government. Although Thomas Jefferson, Washington’s secretary of state, staunchly opposed Hamilton’s plan on the constitutional grounds that the national government had no authority to create such an instrument, Hamilton managed to convince the reluctant president to sign the legislation.[6]

A political showdown between Maryland and the national government emerged when James McCulloch, an agent for the Baltimore branch of the Second Bank, refused to pay a tax that Maryland had imposed on all out-of-state chartered banks. The standoff raised two constitutional questions: Did Congress have the authority to charter a national bank? Were states allowed to tax federal property? In McCulloch v. Maryland, Chief Justice John Marshall argued that Congress could create a national bank even though the Constitution did not expressly authorize it.[7]

Under the necessary and proper clause of Article I, Section 8, the Supreme Court asserted that Congress could establish “all means which are appropriate” to fulfill “the legitimate ends” of the Constitution. In other words, the bank was an appropriate instrument that enabled the national government to carry out several of its enumerated powers, such as regulating interstate commerce, collecting taxes, and borrowing money.

A portrait of Chief Justice John Marshall.

Chief Justice John Marshall, shown here in a portrait by Henry Inman, was responsible for establishing greater flexibilities in the exercise of national powers through the McCulloch v. Maryland (1819) decision. (Credit: National Archives)

This ruling established the doctrine of implied powers, granting Congress a vast source of discretionary power to achieve its constitutional responsibilities. The Supreme Court also sided with the federal government on the issue of state authority to tax federal property. Under the supremacy clause of Article VI, legitimate national laws trump conflicting state laws. As the court observed, “the government of the Union, though limited in its powers, is supreme within its sphere of action and its laws, when made in pursuance of the constitution, form the supreme law of the land.” Maryland’s action violated national supremacy because “the power to tax is the power to destroy.” This second ruling established the principle of national supremacy, which prohibits states from meddling in the lawful activities of the national government.

In Gibbons v. Ogden, the scope of national power was subjected to court interpretation of the commerce clause of Article I, Section 8; specifically, it had to determine whether the federal government had the sole authority to regulate the licensing of steamboats operating between New York and New Jersey.[8]

Aaron Ogden, who had obtained an exclusive license from New York State to operate steamboat ferries between New York City and New Jersey, sued Thomas Gibbons, who was operating ferries along the same route under a coasting license issued by the federal government. Gibbons lost in New York state courts and appealed. Chief Justice Marshall delivered a two-part ruling in favor of Gibbons that strengthened the power of the national government. First, interstate commerce was interpreted broadly to mean “commercial intercourse” among states, thus allowing Congress to regulate navigation. Second, because the federal Licensing Act of 1793, regulating coastal commerce was a constitutional exercise of Congress’s authority under the commerce clause, federal law trumped the New York State license-monopoly law granting Ogden an exclusive steamboat operating license. Marshall pointed out, “the acts of New York must yield to the law of Congress.”[9]

Various states railed against the nationalization of power that had been going on since the late 1700s. When President John Adams signed the Sedition Act in 1798, which made it a crime to speak openly against the government, the Kentucky and Virginia legislatures passed resolutions declaring the act null on the grounds that they retained the discretion to follow national laws. In effect, these resolutions articulated the legal reasoning underpinning the doctrine of nullification—that states had the right to reject national laws they deemed unconstitutional.[10]

A nullification crisis emerged over the tariff acts of 1828 and 1832. Nullifiers argued that high tariffs on imported goods benefited northern manufacturing interests while disadvantaging economies in the South. South Carolina passed an Ordinance of Nullification declaring both tariff acts null and void and threatened to leave the Union. The federal government responded by enacting the Force Bill in 1833, authorizing the president’s use of military force against states challenging federal tariff laws. 

In the ultimate showdown between national and state authority, Dred Scott v. Sandford, the Supreme Court ruled the national government lacked the authority to ban slavery in the territories.[11]

The election of President Abraham Lincoln in 1860 influenced eleven southern states to secede from the Union believing the new president would challenge the institution of slavery. What was initially a conflict to preserve the Union became a conflict to end slavery when Lincoln issued the Emancipation Proclamation in 1863, freeing all slaves in the rebellious states. The defeat of the South impacted the balance of power between the states and the national government. Congress imposed several conditions for readmitting former Confederate states into the Union; among them was ratification of the Fourteenth and Fifteenth Amendments. After the Civil War the power balance shifted toward the national government, a movement that had begun several decades before with McCulloch v. Maryland (1819) and Gibbons v. Odgen (1824).

Dual Federalism v. Cooperative Federalism: The Continuing Debate

Despite some shift in power toward the national government following the conclusion of the Civil War and passage of the Fourteenth Amendment, the late 1870s ushered in a new phase in the evolution of the U.S. federal system with a renewed emphasis on stressing distinctions between the role of the national government and the state governments. Under dual federalism, the states and national government exercise exclusive authority in distinctly delineated spheres of jurisdiction. Like the layers of a cake, the levels of government do not blend with one another but rather are clearly defined. Two factors contributed to this conception of federalism. Supreme Court rulings blocked attempts by state and federal governments to step outside their jurisdictional boundaries. Further, the prevailing economic philosophy at the time loathed government interference in the process of industrial development.

Diagram showing two cakes, one with layers representing dual federalism and one marbled to represent cooperative federalism.

Morton Grodzins, a professor of political science at the University of Chicago, coined the expression “marble-cake federalism” in the 1950s to explain the evolution of federalism in the United States. 

Morton Grodzins coined the cake analogy of federalism in the 1950s while conducting research on the evolution of American federalism. According to Grodzins the 1930s ushered in a new era of federalism he called “marble-cake federalism.”[12] He identified that the national government, in addition to state governments, were all engaged in administering health, safety, income security, education, and welfare to state residents. Moreover, the boundary had completely blurred between intra-state and interstate commerce as a result of broad interpretation of the commerce clause coupled with expanded use of the elastic/necessary and proper clause. In fact, shared (overlapping or concurrent) powers had now become an integral part of contemporary U.S. federalism. These concurrent powers range from taxing, borrowing, making, and enforcing laws to establishing court systems.[13] Grodzins found through his research that federalism has often but erroneously been symbolized by a layer cake, but a more accurate image was a marble cake characterized by inseparable mingling of different colored ingredients. As colors are mixed in the marble cake, so functions are mixed in the American system.[14]

What are the various types of power in a federal structure?

The Constitution contains several provisions that direct the functioning of the U.S. federal structure. The power of the national government is restricted and the states retain a degree of sovereignty as part of the framers’ creation of this federal system.  Although states retain some sovereignty, the supremacy clause in Article VI proclaims the U.S. Constitution, national laws, and treaties are “the supreme Law of the Land.” In the event of a conflict between the states and the national government, the national government takes precedence. Some delineate the scope of national and state power while others expressly restrict it. The remaining provisions shape relationships among the states and between states and the national government.

Chart illustrating government powers as shared between the national and state governments and which powers belong to the separate levels of government.
Before ratifying the Constitution, a number of states requested an amendment explicitly identifying the reserved powers of the states. These anti-federalists sought further assurance that the national government’s capacity to act directly on behalf of the people would be restricted, which the first ten amendments (Bill of Rights) provided. The Tenth Amendment affirms the states’ reserved powers: “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.”

Again, if a state law clashes with a federal law found to be within the national government’s constitutional authority, the federal law is supposed to prevail. The supremacy clause does not intend to subordinate the states to the federal government; rather, it affirms that one body of laws binds the country. In fact, all national and state government officials are bound by oath to uphold the Constitution regardless of the offices they hold. Yet enforcement is not always that simple. In the case of marijuana use, which the federal government defines to be illegal, twenty-three states and the District of Columbia have nevertheless established medical marijuana laws, others have decriminalized its recreational use, and four states have completely legalized it. The federal government could act in this area if it wanted to. Recent and current administrations have actively chosen to ignore the supremacy clause–using prosecutorial discretion–not holding states or individuals accountable for violating federal/national laws. For example, in addition to the legalization issue, there is the question of how to treat the money from marijuana sales, which the national government designates as drug money and regulates under laws regarding its deposit in banks.

National Institute on Drug Abuse at the National Institute of Health at https://www.drugabuse.gov/ publications/drugfacts/marijuana-medicine

Colorado’s marijuana laws do not match with federal standards. (Credit: National Institute on Drug Abuse at the National Institute of Health at https://www.drugabuse.gov/ publications/drugfacts/marijuana-medicine)

Photo showing brain scans from the National Institute on Drug Abuse at the National Institute of Health; "Marijuana as Medicine" April 2017; "What is medical marijuana?" https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine; studies indicate marijuana users have less gray matter in the brain.

The National Institutes of Health exhibit brain scans showing loss of gray matter for marijuana users. (Credit: National Institute on Drug Abuse at the National Institute of Health; “Marijuana as Medicine” April 2017; “What is medical marijuana?” https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine; studies indicate marijuana users have less gray matter in the brain)

Because the marijuana plant contains chemicals that may help treat a range of illnesses and symptoms, many people argue that it should be legal for medical purposes. In fact, a growing number of states have legalized marijuana for medical use.[15] The FDA requires carefully conducted studies (clinical trials) in hundreds to thousands of human subjects to determine the benefits and risks of a possible medication. So far, researchers have not conducted enough large-scale clinical trials that show that the benefits of the marijuana plant (as opposed to its cannabinoid ingredients) outweigh its risks in patients it is meant to treat.[16] Decriminalization of a controlled substance like marijuana highlights the conflict between states’ rights and the supremacy of national laws.

Various constitutional provisions also govern state-to-state relations. Article IV, Section 1, referred to as the full faith and credit clause or the Comity Clause (U.S. Constitution, Article IV, Section 2, Clause 1) requires the states to accept court decisions, public acts, and contracts of other states. Thus, an adoption certificate or driver’s license issued in one state is valid in any other state.

The privileges and immunities clause of Article IV asserts that states are prohibited from discriminating against out-of-staters by denying them such guarantees as access to courts, legal protection, property rights, and travel rights. The clause has not been interpreted to mean there cannot be any difference in the way a state treats residents and non-residents. For example, individuals cannot vote in a state in which they do not reside, tuition at state universities is higher for out-of-state residents, and in some cases individuals who have recently become residents of a state must wait a certain amount of time to be eligible for social welfare benefits. Another constitutional provision prohibits states from establishing trade restrictions on goods produced in other states. However, a state can tax out-of-state goods sold within its borders as long as state-made goods are taxed at the same level.

Federalism as a structural system of government creates relatively autonomous levels of governing, each possessing authority granted to them by the national constitution. The U.S. Constitution allocates powers to the states and federal government, structures the relationship between these two levels of government, and guides state-to-state relationships, and federal, state, and local governments rely on different sources of revenue to enable them to fulfill their public responsibilities.

Tenth Amendment

The Tenth Amendment to the United States Constitution 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.”[17]

Unlike other Bill of Rights provisions, this focuses on power rather than rights. What exactly do these words mean and why has this amendment been debated since its adoption? To some, the amendment is intended to significantly restrict and limit the power of the federal or national government; while, to others, it is seen as having little real impact.[18]

Those who minimize the Tenth Amendment read it as merely stating what former Chief Justice Harlan Stone called a “truism that all is retained which has not been surrendered.”[19]

In other words, rather than limiting the power of the federal government in any meaningful way, it simply restates what is made obvious elsewhere in the Constitution: the federal government has both enumerated and implied powers. The emphasis is especially placed on a broad interpretation of “implied” powers from the “necessary and proper clause” or Article I, Section 8 of the Constitution.[20]

From this point of view, where the national government does not (or chooses not to) exercise power, the state may do so. The amendment is viewed as permissive of state exercise of power, rather than restrictive of federal power.

Those who argue against this perspective suggest that such an interpretation turns the entire philosophy of constitutionally limited government on its head. That is, the Tenth Amendment was added to reinforce the concept that the U.S. government had limited, not unlimited powers. From this point of view, a much narrower interpretation of the implied powers of the “necessary and proper” clause is assumed.[21]

The courts have generally agreed with a broader interpretation of the necessary and proper clause, especially as it relates to the enumerated power of Congress to make laws relating to interstate commerce. In fact, use of the commerce clause of the U.S. Constitution, when coupled with the implied powers of the necessary and proper clause, has led to a major growth of federal power.[22]

The courts have rarely agreed with restrictions on this broad interpretation of the commerce clause except when the federal government appears to directly require state and local officials to do something.[23] For example, in 1995 the Supreme Court struck down part of a federal law requiring state and local law enforcement to conduct background checks for prospective gun purchasers.[24] In 2012 the court ruled the government could not compel states to expand the joint state-federal Medicaid program by taking away all their existing Medicaid funding if they refused.[25]

The Tenth Amendment also allows states to guarantee rights and liberties more fully or extensively than the federal government does, or to include additional rights. For example, many state constitutions guarantee the right to a free public education. Several states give victims of crimes certain rights. Eighteen states include the right to hunt game and/or fish.[26]

Some state constitutions explicitly guarantee equal rights for men and women. Some states permitted women to vote before the Nineteenth Amendment of 1920, and people aged 18–20 could vote in a few states before the Twenty-Sixth Amendment of 1971. Several states also explicitly recognize a right to privacy.

These state protections do not extend the other way, however. If the federal government passes a law or adopts a constitutional amendment that restricts rights or liberties, or a Supreme Court decision interprets the Constitution in a way that narrows these rights, the state’s protection no longer applies. For example, if Congress decided to outlaw hunting and fishing and the Supreme Court decided this law was a valid exercise of federal power, the state constitutional provisions that protect the right to hunt and fish would effectively be meaningless. The people would have to amend the Constitution through a national convention of the states. More concretely, federal laws that control weapons and drugs override state laws and constitutional provisions that otherwise permit them. While federal marijuana policies are not strictly enforced, state-level marijuana policies in Colorado and Washington provide a prominent exception to that clarity.

Questions to Consider

  1. What key constitutional provisions define the scope of authority of the federal and state governments?

  2. What are the main functions of federal and state governments?

  3. What are the main differences between cooperative federalism and dual federalism?

  4. What were the implications of McCulloch v. Maryland?

Terms to Remember

bill of attainder–a legislative action declaring someone guilty without a trial; prohibited under the Constitution

commerce clause–empowers the federal government to regulate interstate economic transactions

concurrent powers–shared state and federal powers that range from taxing, borrowing, and making and enforcing laws to establishing court systems

cooperative federalism–a style of federalism in which both levels of government coordinate their actions to solve national problems, lead to the blending of functions such as swirls in a marble cake

dual federalism–a style of federalism in which the states and national government exercise exclusive authority in distinctly delineated spheres of jurisdiction, creating a layer-cake view of federalism

elastic clause–the last clause of Article I, Section 8, which enables the national government “to make all Laws which shall be necessary and proper for carrying” out all its constitutional responsibilities

ex post facto law–a law that criminalizes an act retroactively; prohibited under the Constitution

federalism–an institutional arrangement that creates two relatively autonomous levels of government, each possessing the capacity to act directly on the people with authority granted by the national constitution

fiscal federalism–sharing of tax dollars, fees, etc. between levels of government; usually in the form of grants to state governments

full faith and credit clause–found in Article IV, Section 1, of the Constitution, this clause requires states to accept court decisions, public acts, and contracts of other states; also referred to as the comity provision

privileges and immunities clause–found in Article IV, Section 2, of the Constitution, this clause prohibits states from discriminating against out-of-staters by denying such guarantees as access to courts, legal protection, and property and travel rights

reserved powers amendment–the 10th Amendment to the Constitution that reserves powers to the states not delegated by the Constitution to the national government

writ of habeas corpus–a petition that enables someone in custody to petition a judge to determine whether that person’s detention is legal


  1. See John Kincaid. 1975. "Federalism." In Civitas: A Framework for Civil Education, eds. Charles Quigley and Charles Bahmueller. Calabasas, CA: Center for Civic Education, 391–392; William S. Riker. 1975. "Federalism." In Handbook of Political Science, eds. Fred Greenstein and Nelson Polsby. Reading, MA: Addison-Wesley, 93–172.
  2. See John Kincaid. 1975. "Federalism." In Civitas: A Framework for Civil Education, eds. Charles Quigley and Charles Bahmueller. Calabasas, CA: Center for Civic Education, 391–392; William S. Riker. 1975. "Federalism." In Handbook of Political Science, eds. Fred Greenstein and Nelson Polsby. Reading, MA: Addison-Wesley, 93–172
  3. Jack Rakove. 2007. James Madison and the Creation of the American Republic. New York: Pearson; Samuel H. Beer. 1998. To Make a Nation: The Rediscovery of American Federalism. Cambridge, MA: Harvard University Press.
  4. Constitution of the United States of America, Library of Congress and National Archives
  5. from Morton Godzins (2004) The Federal System; in American Government Readings and Cases, ed. P. Woll. New York: Pearson Longman, 74-78.
  6. The Lehrman Institute. "The Founding Trio: Washington, Hamilton and Jefferson." http://lehrmaninstitute.org/history/FoundingTrio.asp
  7. McCulloch v. Maryland, 17 U.S. 316 (1819).
  8. Gibbons v. Ogden, 22 U.S. 1 (1824).
  9. Gibbons v. Ogden, 22 U.S. 1 (1824).
  10. W. Kirk Wood. 2008. Nullification, A Constitutional History, 1776–1833. Lanham, MD: University Press of America.
  11. Dred Scott v. Sandford, 60 U.S. 393 (1857).
  12. Morton Grodzins. 2004. "The Federal System." In American Government Readings and Cases, ed. P. Woll. New York: Pearson Longman, 74–78.
  13. Morton Grodzins. 2004. "The Federal System." In American Government Readings and Cases, ed. P. Woll. New York: Pearson Longman, 74–78.
  14. Morton Grodzins. 2004. "The Federal System." In American Government Readings and Cases, ed. P. Woll. New York: Pearson Longman, 74–78.
  15. National Institute on Drug Abuse at the National Institute of Health; "Marijuana as Medicine" April 2017; "What is medical marijuana?" https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine
  16. National Institute on Drug Abuse at the National Institute of Health; "Marijuana as Medicine" April 2017; "What is medical marijuana?" https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine
  17. National Archives and Records Administration at https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say
  18. add
  19. United States v. Darby Lumber, 312 U.S. 100 (1941).
  20. United States Constitution at https://www.archives.gov/founding-docs/constitution-transcript#toc-section-8-
  21. United States Constitution at https://www.archives.gov/founding-docs/constitution-transcript#toc-section-8-
  22. United States Constitution at https://www.archives.gov/founding-docs/constitution-transcript#toc-section-8-
  23. United States Constitution at https://www.archives.gov/founding-docs/constitution-transcript#toc-section-8-
  24. United States v. Lopez, 514 U.S. 549 (1995) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3151195/
  25. Printz v. United States, 521 U.S. 898 (1997); National Federation of Independent Business v. Sebelius, 567 U.S. __ (2012).
  26. See Douglas Shinkle, "State Constitutional Right to Hunt and Fish." National Conference of State Legislatures, November 9, 2015. http://www.ncsl.org/research/environment-and-natural-resources/state-constitutional-right-to-hunt-and-fish.aspx (March 4, 2016).