How has the relative power of federal versus state governments changed over time?

The United States is a constitution-based federal system, meaning power is distributed between a national (federal) government and local (state) governments.

Although the Supremacy Clause states that the Constitution, federal laws, and treaties are the “supreme law of the land,” according to the Supreme Court, it is clear that the Constitution created a federal government of limited powers. The Supreme Court has noted that “every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”

These limited powers are set forth as what are termed “enumerated powers” in Article I, Section 8 of the Constitution. These enumerated powers include, among other things, the power to levy taxes, regulate commerce, establish a uniform law of naturalization, establish federal courts (subordinate to the Supreme Court), establish and maintain a military, and declare war.

In addition, the Necessary and Proper Clause has been interpreted by the Supreme Court to define “implied powers,” those which are necessary to carry out those powers enumerated in the Constitution. In McCulloch v. Maryland, Justice John Marshall set forth the doctrine of implied powers, stating, that a government entrusted with great powers must also be entrusted with the power to execute them.

While the Constitution thus grants broad powers to the federal government, they are limited by the 10th Amendment, which states that “[t]he 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.”

As James Madison explained, “[t]he 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.”

These reserved powers have generally been referred to as “police powers,” such as those required for public safety, health, and welfare.

Finally, certain powers are called concurrent powers, which the states and the federal government both may exercise. These can include, for example, setting up courts, levying taxes, and spending and borrowing money. Typically, these are powers necessary for maintenance of public facilities.

As can be appreciated, one of the difficulties in the federal system is determining which entity, if any, has the power to legislate in a particular realm. In general, the problem of conflicting laws between the states and the federal government has given rise to what is called the doctrine of preemption.

Under this doctrine, based on the Supremacy Clause, if a state or local law conflicts with a federal law, the state or local law must give way (unless the federal law is itself unconstitutional, in other words, it exceeds the power of the federal government). As Justice Marshall put it in McCulloch v. Maryland, “[s]tates have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government.”

Under this doctrine, the Supreme Court has indicated that the Supremacy Clause may entail preemption of state law either by express provision, by implication, or by a conflict between federal and state law. If there is an express provision in the legislation, or if there is an explicit conflict between the state law at issue and the federal law, the state law provision is immediately invalid. Field preemption occurs when Congress legislates in a way that is comprehensive to an entire field of an issue. Impossibility preemption occurs when it would be impossible for someone to comply with both state and federal laws. Purposes and objectives preemption occurs when the purposes and objectives of the federal law would be thwarted by the state law.

Ronald Reagan and George Bush are considered architects of New Federalism, a program that allowed states to make many decisions regarding local issues. However, states were also expected to pay the bill for their own decisions, and Reagan is criticized for getting states into debt.

Ever since the critical McCullogh v. Maryland decision in 1819, the federal-state relationship has shifted more and more toward national supremacy. But some observers today believe that over the past twenty years, the balance of power is beginning to tilt back toward the states. Presidents Richard Nixon, Ronald Reagan, and George Bush tried to slow down the growth of the national government under the banner of "New Federalism."

Richard Nixon declared an open attempt to reverse the flow of power to the federal government back to the states. In his winning campaign of 1980, Ronald Reagan claimed that the federal government, in its attempts to improve society, was actually eroding individual freedoms. Then in 1994, when Republicans took control of both houses of Congress, the leaders of the "devolution revolution" attempted to return many functions to the states. But the controversial task has not been easy, since so many national responsibilities are now shared with the states.

Before the Great Depression and New Deal, experts often compared federalism to a layer cake. Each layer of government — national, state, and local — had responsibilities separated clearly by a distinct covering of "icing." This interpretation is known as dual federalism, which each level of government dominating its own sphere. The Supreme Court served as an umpire between the national government and the states in case of a dispute. But Franklin Roosevelt changed all that.

The federal New Deal programs cast the states in supporting, cooperative roles with a clearly dominant national government. However, since both levels participated in the programs, the layers began to blur.

New Federalism

One sign of the growth of the national government was the large number of categorical grants that existed by the 1960s. Congress appropriates these grants to states for a specific purpose. Funds are allocated by a precise formula with detailed conditions imposed by the national government. Often states must contribute money to match federal funds, but categorical grants almost always come with a great many "strings" that demonstrate the "supremacy" of the national government.

Richard Nixon was a major mind behind New Federalism. Nixon eased the restrictions on money that was sent to the states, believing that they were in a better position to know how to spend the money than the federal government.

For example, there is no national drinking age. In the past, some states allowed people 18 years of age or older to drink alcohol, while others set the legal drinking age at 21. Passing a national drinking age might be unconstitutional, unless Congress could prove that such legislation was "necessary and proper" to carry out their expressed powers. Congress avoided the controversy by requiring all states that receive federal highway funds to set a legal drinking age of 21. No state could afford to lose these funds, so they had no choice but to comply.

When Richard Nixon became president in 1969, he backed a revenue sharing plan that channeled federal dollars back to the states, but without the strings of categorical grants. President Reagan (1981-89) coined the movement "New Federalism" — an attempt to return power to the states.

The Reagan administration's budget and policies radically altered the relationship between the federal government and the states. For the first time in many years federal aid to states declined, and Reagan pushed to consolidate categorical grants into block grants, which had few strings and much broader categories, such as "education" or "highways." Because New Federalism meant that states often had to pay the tab for their new responsibilities, Reagan was criticized for weakening the states with debt — an opposite effect from his stated intention

Today the issue of the proper balance between national and state powers is as viable as it was in 1789. States' rights have remained a controversial topic for more than 200 years. Americans are divided about which laws should be federal, and which should be reserved to the states.

Should the right to an abortion be regulated by individual states, or should the federal government set a uniform policy? Should individual states permit the use of marijuana for medical purposes, or is drug policy a large enough problem to be decided on the federal level? Should individual states have the power to allow doctor-assisted suicide? These questions and many others shape the modern debate over state and federal power.

QUIZ TIME: Federalism Quiz

How has the power of the national government relative to state governments changed over time?

How has federalism changed or evolved over time?

How did the federal government become much stronger over time?

What are the differences in power between the federal government and the state?