As the legislature of the U.S. government, the Congress both embodies federalism and influences how federalism is put into practice.
THE SENATE AS REPRESENTATIVE OF THE STATES
Federalism has shaped the form of the U.S. Congress. At the Constitutional Convention of 1787, the framers designed a national legislature with two houses: one of them, the House of Representatives, would represent the people directly, and the other, the Senate, would represent state governments. This product of the “Connecticut Compromise” was critical to the framing of the new government. It enabled a deadlocked Convention to proceed.
The Senate was to consist of two members from each state, to be chosen by the state’s legislature for a term of six years. Equal representation for the states was protected from constitutional amendment. Article V of the Constitution stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Although these provisions embedded a federal feature in the form of the new government, the Senate was not as pure a representative of the state governments as it could have been. The Constitution did not require that a state’s senatorial delegation vote as a unit, which would have compelled the members to cooperate in defining the interests of their state government. Nor did the Constitution specify short terms and provide for state legislatures to recall senators. In all of these respects, it departed from its predecessor, the Articles of Confederation. The Articles had created a pure federalism in which state governments retained autonomy, making only limited and revocable delegations of power to the Continental Congress. Whereas the old Congress was entirely a creature of the states, the new one was a creature of the people in which state governments were granted representation in one house of a bicameral legislature.
Very early in the history of Congress, it became clear that state legislatures would not control their senators. An early attempt by some states to establish the practice of recall failed, and by the mid-nineteenth century legislatures were beginning to lose control of the choice of senators to electorates. A gradual process, this culminated in 1913 in the Seventeenth Amendment to the Constitution, which provides for the popular election of senators. Equal representation of the states then alone remained emblematic of the Senate’s federal character. In congressional policy making, this feature of the Constitution has given an advantage to sparsely populated states, but has not protected the interests of state governments per se.
Besides influencing the form of Congress, federalism has shaped its functions. Its main function is to make law, in conformance with the grant of powers contained in Article I, Section 8, of the Constitution. The original theory, as explained by James Madison in The Federalist No. 45, was that Congress’s powers were few and defined, whereas those of the state governments were numerous and indefinite. “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State,” he wrote. This original theory was incorporated in the Tenth Amendment: “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.”
This original theory persisted for some time as an obstacle to congressional aggrandizement. When enlarged uses of congressional power were proposed—say, in regard to internal improvements in the nineteenth century or aid to elementary and secondary education in the twentieth—debates took place over constitutionality. Advocates of expanding congressional power bore a heavy burden of proof.
On the other hand, several of the grants of power to Congress were elastic, as early critics of the Constitution were quick to point out. Section 8 opens with the statement that Congress shall “have Power To lay and collect Taxes . . . and provide for the . . . general Welfare of the United States.” After enumerating a series of substantial powers, including the power to borrow and coin money, to regulate commerce among the states, to declare war, to raise armies and a navy, and to establish post offices and roads, Section 8 closes with the statement that Congress shall have power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” the foregoing powers.
Congress interpreted these elastic grants broadly, and sooner or later was confirmed in its choices by the Supreme Court. The Court early established itself as the arbiter of the federal system, with power to declare acts of Congress and of the state governments unconstitutional—a power that it has wielded far more often against the states than against Congress. An early milestone in the Court’s generous construction of Congress’s powers was McCulloch v. Maryland (1819), in which it interpreted the Necessary and Proper Clause so as to uphold Congress’s creation of a national bank. In United States v. Butler (1936), a case dealing with a New Deal law that regulated agricultural production, the Court endorsed a broad interpretation of the General Welfare Clause, holding that it amounts to an independent power to tax and spend, providing only that the general welfare is served.
Other cases from the New Deal era sanctioned a broad use of Congress’s power to regulate interstate commerce, making it in effect a national police power. One of these was United States v. Darby Lumber Company (1941), upholding the Fair Labor Standards Act, in which Congress set a minimum wage and a maximum work week. The chief justice’s opinion in this case dismissed the Tenth Amendment as “but a truism,” merely declaratory rather than being applicable law. Another was Wickard v. Filburn (1942), in which a unanimous Court ruled that wheat that never left the small Ohio farm of Roscoe C. Filburn, but was fed to his chickens, cattle, and family, nonetheless was subject to controls of the Agricultural Adjustment Act of 1938. Farmer Filburn had to pay a penalty of 49 cents a bushel on the 239 bushels that exceeded his acreage allotment.
The expansion of Congress’s powers, reaching a climax in the New Deal after a brief and abortive attempt by the Court to thwart Franklin D. Roosevelt’s revolution, has meant that in the federalism of the United States, the national legislature has enjoyed the best of two worlds. In domestic affairs it can choose to do nothing and leave matters to the state governments, yet it also has the option of reaching deeply into the economic and social life of the country, contrary to the original theory.
FROM CONFLICT TO COOPERATION TO COMMAND
With so much latitude, Congress has shaped federalism as well as being shaped by it. Making use of the states, it has devised institutions of federal-state relations to serve national purposes, insofar as it has been able to define them.
Even prior to the Civil War, Congress’s laws sometimes provided for federal-state cooperation, but in the opening decades of the United States a widely embraced doctrine of states’ sovereignty held that the states were independent in their reserved sphere and that Congress had no right to intervene in their internal affairs. Insofar as this doctrine prevailed, conflict between the federal and state governments could be viewed as normal, and the task of constitutional interpretation was to delineate the spheres, preserve the separation, and regulate the conflict. Until it surrendered to the forces of nationalization during the New Deal, the Supreme Court recurrently struggled with this challenging task.
By the early twentieth century, the federalism of conflict was yielding to a federalism of cooperation. The Civil War laid the foundation for this change with a bloody defeat of states’ sovereignty. Soon thereafter, Progressive political leaders such as Theodore Roosevelt and writers such as Herbert Croly and Mary Parker Follett advanced the view that social and economic progress depended on the cooperative pursuit of shared national ideals. Congress played a crucial part in the transformation by repeatedly enacting grants-in-aid to state governments.
An important innovation in American federalism, grants-in-aid are usually traced to the Morrill Act of 1862, which gave states land or scrip with which to endow colleges in the agricultural and mechanic arts. Before long, grant-in-aid programs were enacted also to help finance agricultural experiment stations (1887), forest fire protection (1911), extension work in agriculture and home economics (1914), highway construction (1916), vocational education (1917), and maternal and infant hygiene (1921).
With inclusion of grants for support of the poor in the Social Security Act of 1935, which marked the founding of the welfare state, they increased in size and importance, and they took another big jump with the Interstate Highway Act of 1956, which authorized a mammoth public works program that changed the American landscape. During the 1960's, the large Democratic majority in Congress enacted scores of grant programs to combat poverty and inequality, of which the most important were Medicaid, to provide medical care for the needy, and aid to elementary and secondary schools, to assist especially those school districts with a high proportion of poor children. The election of a Republican president in 1968 and 1972 did not arrest this trend, and by the end of the 1970's federal grant programs had become pervasive in domestic government. Numbering in the hundreds, they accounted for more than 20 percent of the federal government’s domestic outlays and approximately 30 percent of state and local governments’ general revenues from their own sources.
As grants proliferated, so did the conditions that Congress attached to them. Apart from a brief experiment in the 1970's and early 1980's with General Revenue Sharing, grants have always been designated for a function. Congress might define the function broadly (social services, or community development) or narrowly (control of sewer overflow, family planning, migrant health, or rat control), but the recipients were constrained to use the funds for that purpose. In early grant programs, conditions were few, simple, and plausibly related to execution of the purpose. Typically, they required state governments to provide matching funds and meet certain standards of administration, such as preparation of a state plan and designation of an agency that would be responsible for executing the plan. Over time, they increased in substance and complexity, and by the 1970's often went to extremes of detail.
Eventually, too, conditions sometimes failed to have any relation to the purpose of the grant, and became instead a convenient instrument by which Congress compelled the receiving governments to comply with its policy choices. An example is a law of 1984 that directed the secretary of transportation to reduce the highway grants of any state that had a drinking age lower than 21. This was a radical intrusion into a policy domain that had traditionally belonged to state governments. Challenged by the state of South Dakota, the law was upheld by the Supreme Court in 1987.
Another important development was Congress’s imposition of conditions that applied to the whole universe of grant programs. Scholars have called these “crosscutting requirements.” The most important of such requirements was contained in Title VI of the Civil Rights Act of 1964, which prohibited racial discrimination in the administration of grants. When combined with grants for elementary and secondary education, this requirement was instrumental in ending racial segregation in southern schools. Another landmark enactment was Title IX of the Education Amendments of 1972, which prohibited gender discrimination in educational institutions receiving federal aid. It was instrumental in fostering women’s athletic programs in colleges and universities. Section 504 of the Rehabilitation Act of 1973 prohibited discrimination against handicapped individuals in federally assisted activities, and the Age Discrimination Act of 1975 prohibited discrimination on the basis of age in activities supported with federal funds. Thus, Congress used grant-in-aid conditions as an instrument of the rights revolution. It also employed cross-cutting requirements in such fields as environmental protection, occupational health and safety, and individual privacy.
Another instrument with which Congress has enlisted state governments in pursuit of national purposes is called “partial preemption.” To understand what this is, it is necessary to begin with its parent, preemption. The Constitution provides that laws of the United States are the “supreme Law of the Land.” This has meant that when federal and state laws conflict, state laws must fall. Very often, it is left to courts to determine when preemption has occurred, but sometimes Congress expresses an intention to preempt, as when, for example, it prohibited regulation of cigarette labeling by state governments in the Federal Cigarette Labeling and Advertising Act of 1965, or prevented states from regulating Internet spam when it passed the Can Spam Act in 2003. Historically few, explicit prohibitions grew rapidly in the 1970's and 1980's.
When Congress in the 1960's and 1970's enacted a wave of new environmental, health, and safety regulations, it invented a new use of preemption. With statutes such as the Water Quality Act of 1965 and the Clean Air Act Amendments of 1970, which invaded domains traditionally belonging to the states, Congress set national standards and told the states that if they adopted these standards as their own, they could retain the function. If they failed to adopt them, then the federal government would take over, displacing the state government. Students of government christened this technique “partial preemption.” Congress used it in laws governing meat and poultry inspection, occupational health and safety, and energy regulation as well as air and water pollution control. Overwhelmingly, states have bowed to the will of Congress and enacted the nationally prescribed standards.
Another technique that Congress has used vis-à-vis the states since the 1970's is direct orders—that is, commands that state governments must comply with under the threat of civil or criminal penalties. Historically, as it developed regulation of private actors in the American economy, Congress had refrained from covering state governments. It acted as if their standing as governments in a federal system rendered them immune. Thus, for example, when it enacted the Fair Labor Standards Act in 1938 to regulate wages and hours of employment, the law did not apply to state and local governments. Similarly, when Congress in Title VII of the Civil Rights Act of 1964 barred racial and other forms of discrimination by private employers, it did not cover state and local governments. But in the 1970's this changed. In 1972 it passed the Equal Employment Opportunity Act, which barred job discrimination by state and local governments on the basis of race, color, national origin, religion, or sex. In 1974 it extended the Fair Labor Standards Act to cover employees of state and local governments. These and other examples served notice that state governments could no longer count on their status as such to protect them against Congress’s economic and social regulations.
As this history shows, Congress in the 1960's and 1970's moved beyond a federalism of cooperation to a federalism of cooptation and command. In large measure, it achieved what the founding generation referred to as a “consolidated” republic, in which the federal government employs the “ordinary magistracy” of the states in the execution of its laws, as the nationalist Alexander Hamilton approvingly anticipated in The Federalist No. 27. State sovereignty had been rendered archaic, the Tenth Amendment reduced to an anachronism. Expansions of federal power ceased to bear a heavy burden of proof. As a practical matter, little if anything was reserved to the states. As a result of laws passed in the 1960's, federal aid with intrusive conditions now extended even into local schools and law enforcement, which had been last bastions of state and local control.
A constitutional change of such consequence can be expected to elicit a reaction. In this case, the reaction came from three sources: Republican political leaders, state and local governments, and, eventually, the Supreme Court.
Republican presidents beginning with Richard Nixon advanced proposals calling for simplification and consolidation of categorical grants-in-aid so as to relieve states of some of the complexity and constraint that had become characteristic of grant-in-aid programs. Presidents Nixon and Ronald Reagan achieved modest successes in this attempt at creating what were called “block” grants, to indicate a broader purpose than that of the typical categorical program, but enactment was an uphill battle. Congress has usually preferred to reward specific constituencies—clients, advocacy groups, and the state and local administrators of particular functions—with targeted programs rather than loosen controls. And even when block grants were enacted, they did not always endure as such, but were recategorized.
Another Republican political leader who urged devolution was Newt Gingrich, who became speaker of the House after Republicans won the congressional election of 1994. Under Gingrich, the new Republican majority in Congress tried but failed to consolidate several hundred federal programs into a dozen new block grants. Nonetheless, with the help of state and local officials and popular support, it achieved two new statutes that offered state and local governments modest relief from congressional controls.
One of these laws was the Unfunded Mandates Reform Act of 1995, which made it somewhat harder for Congress to enact direct orders and onerous grant-in-aid conditions. Feeling exploited by Congress, state and local officials in the 1980's and 1990's had begun to protest the cost of requirements that were imposed without adequate compensation, calling them unfunded mandates. The new law did not affect existing laws, but permitted individual members of Congress to block unfunded mandates with a point of order unless overridden by a majority of the House or Senate.
A second statute with devolutionary features was the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, commonly called welfare reform. This law replaced the sixty-year-old categorical grant-in-aid program of Aid to Families with Dependent Children (AFDC) with a block grant called Temporary Assistance for Needy Families (TANF). Although it increased the states’ freedom to determine eligibility and to conduct administration of family welfare programs, it also imposed many new restrictions on them, proving once again that devolution is very difficult.
Devolutionary welfare reform might not have passed at all but for the fact that many state governments had unpredictably been liberated from congressional constraint prior to 1996 through the use of waivers in the AFDC program. Authorized by Congress in Social Security Act amendments in 1962, waivers permitted federal executive officials to suspend the application of certain regulations in order to conduct experiments. Beginning in the mid-1980's, the successive presidential administrations of Ronald Reagan, George H. W. Bush, and Bill Clinton made more aggressive use of waiver authority than Congress had anticipated, enabling enterprising state governments to put welfare reform into practice in advance of Congress’s approval. As a sequel to this event, waivers—whether to authorize them, in what programs, and on what terms—would increasingly become an issue in the making of domestic policy. So numerous were federal programs, and so extensive and complex were the controls on state governments, that much of the domestic policy dialogue in the new century revolved around refinement and redefinition of the controls.
It is not surprising that a legislature in which the controls originated hesitated to remove them. Members of Congress, be they Republicans or Democrats, are typically more concerned with protecting voting constituencies and pursuing policy goals than with protecting the interests of state and local governments. As the twentieth century closed, the Supreme Court emerged as the principal defender of federalism. In a series of surprising and controversial decisions, typically rendered with the narrowest of majorities, it showed a new willingness to strike down acts of Congress on the grounds that they violated principles of federalism. It also protected the states against the “commandeering” of their governments to enforce federal laws, and made it more difficult for private parties to enforce grant-in-aid conditions through suits brought in federal courts against state governments.
How durable the Court’s effort would be and how much it would change the federalism that Congress had wrought was unclear as the new century began. One of the first major laws passed after 2000, the No Child Left Behind Act of 2002—advocated by a Republican president, George W. Bush, and enacted by a bipartisan majority in Congress—carried federal intervention in the nation’s schools to a new extreme by penalizing schools whose test scores failed to meet annual targets (1965).
Advisory Commission on Intergovernmental Relations, Regulatory Federalism: Policy, Process, Impact and Reform (Washington, DC: ACIR, 1984); Timothy Conlan, From New Federalism to Devolution: Twenty-five Years of Intergovernmental Reform (Washington, DC: Brookings Institution Press, 1998); Edward S. Corwin, “The Passing of Dual Federalism,” Virginia Law Review 36, no. 1 (February 1950): 1–24; and William H. Riker, “The Senate and American Federalism,” American Political Science Review 49, no. 2 (June 1955): 452–69.
Last Updated: 2006
SEE ALSO: Age Discrimination; Agricultural Adjustment Act of 1933; Articles of Confederation; Block Grants; Categorical Grants; Civil Rights Acts of 1965; Civil War; Connecticut Compromise; Constitutional Convention of 1787; Devolution; Education; Elections; Environmental Policy; Grants-in-Aid; Hamilton, Alexander; Intergovernmental Relations; Internal Improvements; Interstate Commerce; Law Enforcement; Madison, James; Medicaid; Morrill Act of 1862; Necessary and Proper Clause; New Deal; New Federalism; Police Power; Preemption; Racial Discrimination; Reagan, Ronald; Roosevelt, Franklin; Roosevelt, Theodore; Seventeenth Amendment; Social Security Act of 1935; Sovereignty; Tenth Amendment; Transportation Policy; Unfunded Mandates; Welfare Policy