Interpretation & Debate

Article I, Sec. 8: Federalism and the Overall Scope of Federal Power

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Matters of Debate

Common Interpretation

by Randy E. Barnett

Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center

by Heather Gerken

Dean and Sol & Lillian Goldman Professor of Law at Yale Law School

In practice, federalism has waxed and waned since the founding, and federal-state relations have always been contested. Nonetheless, federalism underwent four distinct phases during four different eras in our constitutional history: post-Founding, post-Civil War, post-New Deal, and from the Rehnquist Court to today.

Enumerated Powers Federalism

In 1787, the Constitution replaced the Articles of Confederation—which was essentially a treaty among sovereign states—with a new constitution ratified by the people themselves in state conventions rather than by state legislatures. The Founders provided the national government with powers it lacked under the Articles and ensured it would be able to act on behalf of the citizenry directly without going through the state governments. But the Founders also thought it important to preserve the states’ power over their own citizens.

The Founders struck this balance by granting the new national government only limited and enumerated powers and leaving the regulation of intrastate commerce to the states. State legislative powers were almost exclusively limited by their own constitutions.

Federalism at the Founding can therefore best be described as “Enumerated Powers Federalism.” The national government was conceived as one of limited and enumerated powers. The powers of states were simply everything left over after that enumeration. This is expressed in the first words of Article I, which created Congress: “All legislative powers herein granted shall be vested in a Congress of the United States.” The Tenth Amendment reinforces this principle: “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.” State power, then, was protected not by affirmatively shielding state power, but by limiting the ability of the federal government to act in the first place.               

Fundamental Rights Federalism

Federalism changed in the wake of the Civil War. The Republicans in the Thirty-Eighth Congress enacted the Thirteenth Amendment, eliminating the power of states to enforce slavery within their borders. But Southern states almost immediately used the rest of their vast police powers to enact Black Codes to oppress the newly freed slaves. Their aim was to come as closely as possible to restoring slavery in everything but name.

In response to this, the Republicans in the Thirty-Ninth Congress used their Thirteenth Amendment enforcement power to enact the Civil Rights Act of 1866. Although they overrode the veto of President Johnson by super-majorities in both houses, some in Congress saw the need to write these protections into the Constitution lest courts question Congress’s power to enact the Civil Rights Act.

The Republicans thus created the Fourteenth Amendment. Section 1 forbade states from violating the fundamental rights of their own citizens, placing new federal constraints on all three branches of state governments. Section 5 granted Congress the power to enforce those constraints. With the passage of the 14th Amendment, the federal government could now prevent states from violating the privileges and immunities of their citizens; depriving anyone of life, liberty, or property without due process; and denying anyone equal protection. Following on its heels, a similar provision was enacted to prevent states from denying citizens the right to vote based on their race. The Reconstruction Amendments, taken together, thus ushered in what we can call “Fundamental Rights Federalism.”

Soon after its enactment, however, the Supreme Court systematically neutered the Fundamental Rights Federalism of the Reconstruction Amendments through such cases as The Slaughter-House Cases (1873), U.S. v. Cruikshank (1875), The Civil Rights Cases (1883), Plessy v. Ferguson (1896), and Giles v. Harris (1903). As a result, the powers accorded to the federal government lay dormant until the Court and Congress took them up again in the early Twentieth Century to protect economic liberties in cases like Lochner v. New York (1905) and Buchanan v. Warley (1917). Eventually, beginning in the 1930s until today, the Court largely withdrew from this area in favor of to protecting so-called “fundamental rights” and the civil rights of “suspect classes” like racial minorities. 

New Deal Federalism

With the New Deal, the Court expanded federal regulatory power. Relying primarily on the Commerce Clause and the Necessary and Proper Clause to expand Congress’s reach, the Court effectively brought about the demise of the Enumerated Powers Federalism of the Founding Era. The Court interpreted Article I to give Congress the power to regulate wholly intrastate economic activity that substantially affects interstate commerce. Because the scope and importance of the national economy had vastly outpaced the vision of interstate commerce held by the Founders, the power to regulate anything that affects interstate commerce amounts to the power to regulate almost everything. As a result, the federal government could now regulate in areas once governed exclusively by the states. It could even regulate the states themselves. So what becomes of the states in the wake of New Deal Federalism?

State Sovereignty Federalism  

Enter the Rehnquist Court. After William Rehnquist became Chief Justice in 1986, the Court began developing what came to be known as the “New Federalism,” but which in this story could be called “State Sovereignty Federalism.” 

First came the Court’s so-called Tenth Amendment cases of New York v. United States (1992), Gregory v. Ashcroft (1991), and Printz v. United States (1997). In each of these cases, the Court attempted to carve out a zone of state autonomy that the federal government could not invade. States were thus shielded from federal regulation in a fashion that private parties were not. Then came the Eleventh Amendment cases of Seminole Tribe of Florida v. Florida (1996) and Alden v. Maine (1999), immunizing states from some lawsuits in federal court in order to preserve their sovereign status.

The Rehnquist Court later began tentatively to revive Enumerated Powers Federalism in cases like United States v. Lopez (1995) and United States v. Morrison (2000). Pushing back against New Deal Federalism, the Court continued to license federal regulation of wholly intrastate economic activity that had a substantial effect on interstate commerce while drawing a line at the regulation of noneconomic intrastate activity.  

The Roberts Court has now taken up the mantle. Like its predecessor, it has continued both to (1) invoke state sovereignty to preserve a zone of state autonomy, and (2) build out a modern version of enumerated powers federalism by interpreting the New Deal federalism as the “high water mark” of federal power such that federal powers cannot be expanded still further without a limiting principle. The first strategy places external limits on Congress’s power, marking where Congress’s power ends by identifying where state power begins and using sovereignty as a touchstone. The second derives those limits internally without reference to the states. But both are efforts to cut back on the expansive view of federal power that had evolved in the wake of the New Deal and thereby preserve a zone of autonomy for the states.

Further Reading:

Why Federalism Matters

by Randy E. Barnett

Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center

Some people are “fair weather federalists” who only assert the virtues of federalism when they lack the votes in Congress for the national policies they prefer. I think this is a mistake. The federalism of our constitutional order has yielded some enormous advantages for protecting the rights retained by the people. Let’s see why.

Federalism Leaves Most Legal Issues to the States

If the federal government only has the power to provide for the common defense as well as to protect the free flow of commerce between states, along with a few other specific tasks, most of the laws affecting the liberties of the people will be made at the state level. This would include the regulation of most economic activity as well as what are today called “social issues.” 

In the 1824 case of Gibbons v. Ogden, Chief Justice John Marshall referred to these reserved state powers as “that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves.” For example, “inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.”

Marshall then affirmed that “no direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes.” But he immediately made clear that by “national purpose” he meant “it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.”

Federalism Makes Regulatory Diversity Possible

Given widespread disagreement about both economic and social policies, lodging this “immense mass of legislation” in the states enables a diversity of approaches to develop. Sometimes states are characterized as “laboratories of experimentation,” a paraphrase of a dissenting opinion by Justice Louis Brandeis in the 1932 case of New State Ice Co. v. Liebmann. In his dissent, Brandeis described how a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

When it comes to economic regulation, so long as they remain within the proper scope of their power to protect the rights, health and safety of the public, fifty states can experiment with different regimes of legal regulation so the results can be witnessed and judged rather than endlessly speculated about. States will be somewhat inhibited in imposing restrictions on businesses by the threat of regulatory competition. Other states will be induced to offer more receptive “business climates” to entice businesses to relocate. Businesses small and large can decide to relocate if they deem a particular scheme of regulation to be too onerous.

Critics of this competitive dynamic disparage this as a “race to the bottom” in which states are prevented from enacting beneficial regulations. Of course, it is possible that some states may enact “inferior” regulations to attract business seeking to lower their costs of production. But it is far more likely that local electorates will demand the sorts of “reasonable regulations” they witness other states successfully implementing at a reasonable cost.

Foot Voting Empowers the Sovereign Individual Citizen

When it comes to liberty, the competition provided by federalism empowers the sovereign individual. Because one’s vote in an election is swamped by the ballots of millions of others, it is simply irrational for most persons to invest too heavily in the time and resources to learn what it takes to vote wisely. Not only is it next to impossible to influence any particular policy by casting one’s individual ballot, it is also impossible to separate that policy from others in the “package” offered by one of the two contending political parties.

By contrast, as Ilya Somin explains, when voting with one’s feet by moving to another city or state, one has far greater control over the results. See Ilya Somin, Democracy and Political Ignorance 119-54 (2013). Each person can individually control the state in which they live by selecting from among fifty choices, not just two. And they can witness the economic opportunities that result from different state polices. In a federal system, people are then free to move to another state for a better job, or for a cleaner and safer environment. Because their decisions will have tangible effects on their lives, it is far more rational for individuals to investigate the difference between states than it is the difference between political candidates.

In short, what prevents a legislative “race to the bottom” in a federal system is the freedom of sovereign individuals to race to the states with a better package of results. This dynamic is much less powerful at the national level, because individuals are much more reluctant to leave their country than their state.

The Importance of Keeping Social Issues Local

When it comes to social policy, the preferences of individuals loom even larger than with economic policies. Not only is it difficult to identify the objectively “correct” social policy, it is not clear that such policies even exist. Different people subjectively prefer to live in different types of communities, not only due to differing opinions about morality, but simply as a matter of taste. Given that, by their nature, communities must be one type or another, it is best to have as many different communities from which to choose as possible to satisfy the range of individual tastes, preferences, and moral commitments.

A rich diversity of preferred lifestyles can only be achieved at the local level. As with economic policy, sub-national competition between social policies in a federal system imposes a salutary constraint on state governments by threatening an exodus of dissenting citizens to other states. On the positive side, with fifty states to choose from, it is far more likely that a person can find a state or municipality with a social environment in which they are more comfortable than if one social policy is imposed on the United States as a whole.

The cost of exiting one state for another is far lower than exiting the United States when one disagrees with a national policy. Consequently under a federal system the citizen’s enhanced power of exit not only provides a comparatively greater constraint on legislative power that is reserved to the states, it empowers individuals to achieve their own purposes far more effectively than relying on their ability to influence national policy by their vote, or by leaving the country of their birth. 

In all these ways, liberty is more robustly protected by confining lawmaking to the state and local levels in a federal system, than moving all such decisions to the national level.

Federalism Avoids a Political War of All Against All

There is another, and potentially even more powerful, way that federalism protects the individual sovereignty of the people. When any issue is moved to the national level, it creates a set of winners and a set of losers. Because the losers will have to either live under the winners’ regime or leave the country, everyone will fight much harder to achieve their result or, failing that, to block the other side from achieving its goal.

Consequently, the more issues that are elevated to the national level, the more contentiousness, bitterness, and “gridlock” develops as people fight ever harder not to lose. The result is a political version of what Thomas Hobbes called a “war of all against all.”

We can avoid this by ensuring that as many issues as possible are handled at the personal level of the individual person, which is why individual liberty is the ultimate means to the pursuit of happiness for people living in society with others. Because of the competitive processes I have already described, reinforced by federal checks on state power, such individual liberty is far better protected at the more local level than at the national.

Again, it is not that the social and economic policy issues protected by a diversity of state regulations are less important than those handled at the national level. To the contrary, the more important the issue, the more likely it will engender a political war-of-all-against-all to avoid having another’s social policy imposed on you. So, the more important the issue, the less is it fit to be decided at the national level.

For all these reasons, the United States has been a far more prosperous and contented country because of its federal system. 

Further Reading:

I explain the individualist conception of “We the People” and popular sovereignty in Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016).

Beyond Sovereignty, Beyond Autonomy: A Nationalist’s View of Federalism’s Future

by Heather Gerken

Dean and Sol & Lillian Goldman Professor of Law at Yale Law School

Federalism cases have always posed a dilemma for judges. The federal government is supposed to be a government of limited powers. But whenever the Supreme Court tries to cabin Congress’s reach, the odds are that the analysis in the dissent will be sounder than that in the majority opinion. If the Justices don’t act, on the other hand, they end up ignoring what most agree to be true — the federal government isn’t supposed to be able to do anything it wants. As every law student learns, facts on the ground have outpaced the Founders’ vision, as our interconnected system now leaves room for the federal government to regulate virtually everything the states can. That’s why the Court’s Commerce Clause decisions, in particular, are so easy to dismantle. It’s a commonplace among lawyers that those decisions are trying to limit the limitless. Legal doctrine, in sharp contrast, has its limits, and it has failed the Court time and time again. So therein lies the tragic choice of federalism doctrine: do nothing or do something . . . silly.

In their efforts to limit federal power the Rehnquist and Roberts Courts have offered us two kinds of federalism decisions. Some start with the states. They mark where Congress’s power ends by identifying where state power begins, using sovereignty as a touchstone. It might seem odd for the Court to begin with the states in describing the limits of federal power. But the Court does so for a reason. It designates the outer limits of federal authority by marking the bounds of state power, much the way an artist designates a shape using negative space. 

Other federalism opinions — including most of the decisions of the Roberts Court — start with Congress and delineate the bounds of its power in isolation. Rather than trace the (state) boundaries that federal power cannot cross, the Court demarcates federal power without looking to the states. The Court itself has acknowledged this difference (see New York v. United States (1992)), and scholars often orient their teaching and writing around the difference between external/sovereignty-based limits on congressional power and those derived internally.

While it is conventional to note that federalism cases come in these two flavors, the mistake scholars make is to treat both lines of doctrine as if they are equally flawed. They are not. The cases that rely on state sovereignty to limit federal power are misguided, but we should give the devil its due. These decisions have managed to generate doctrine that is more manageable, more comprehensible, and therefore more likely to endure. The cases that define federal power in isolation have been a failure on almost any measure. When the Court addresses Congress’s power in isolation, it creates a challenge for itself: how to bound the boundless. Deprived of the handy stopping point that the sovereignty account provides, the Court must decide how far to follow a chain of reasoning in a world where the market touches virtually everything and interconnected regulatory regimes can sweep almost anything into Article I’s ambit. Because these opinions attempt to identify limits through sheer force of logic, the doctrine they generate amounts to little more than logic games, which can be played by both sides of any issue. This doctrine is unlikely to endure, and there will be little reason to mourn its passing.

Federalism opinions that begin with the states have chosen the right starting point but headed in the wrong direction because they’ve followed the trail marked by the sovereigntists. As John Hart Ely quipped about the “one person, one vote” doctrine, manageability is sovereignty’s long suit, but it’s not clear what else it has going for it. See John Hart Ely, Democracy and Distrust 121 (1980). The Court is correct to define federal power in relational terms, but it’s missed how that relationship actually works. The states and the federal government regulate shoulder-to-shoulder in the same, tight policymaking space. Just think about how the Affordable Care Act has been implemented. Read just about anything written in environmental law these days.  Take a look at telecom, the AFDC, Medicaid, drug enforcement, workplace safety, health care, immigration, even national security law. In these integrated regulatory regimes, the states and federal government have forged vibrant, interactive relationships that involve both cooperation and conflict. If the Court is going to generate doctrine that is not only enduring but worth preserving, the case law must reflect these realities.

So where should the Court go from here? Returning to a sovereignty-centered federalism isn’t a solution. While the Court is much more likely to generate enduring legal doctrine if it begins with something manageable, the point is to build doctrine that’s worth keeping around. And while a sovereignty account is admirably concrete and manageable, it’s also wrongheaded and out of date. The Court may have chosen the right starting point for its analysis, but it’s still got the wrong map.

The Court needs a relational account. It needs to think hard about how the states and the federal government interact. But it should think about those interactions differently. As intuitively appealing as the sovereignty argument is, it can’t possibly survive 21st century realities. It can’t survive in a world where sovereignty is not to be had, where regulatory overlap is the rule, where states’ most important form of power lies not in presiding over their own empires but in administering the federal empire.

If the Court is hunting for a new path, it should retain the central insight of the sovereignty cases — that federal power must be defined in relation to the states — but take it in a different direction. The problem with the Court’s relational account of federal power is that it’s not sufficiently relational. It fails to capture the deeply integrated, highly interactive relationship that exists between the states and federal government in so many regulatory arenas. The states and federal government have forged vibrant working relationships. They are not engaged in the governance equivalent of parallel play.

Further Reading:

Matters of Debate
    The Constitution