Federalism 1

Running Head: FEDERALISM

Federalism

POL110

Shawn Wygant

Argosy University

Professor Andrea Miles

July 9, 2012

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Federalism

I. Federalism Defined

Federalism, within the United States of America, is based on the classical view of the

Constitution (Gedicks, 2009). Under this viewpoint, the Federal Constitution and the Laws of the

United States are the supreme Law of the Land (U.S. Const. art. VI., cl. 2). Each State agrees

to live under the Federal Constitution and to enact or enforce no laws which contradict it. Since

the Articles of Confederation were considered perpetual, the idea of a State having the authority

or power to secede was not expressly identified by the framers as a possibility and therefore the

Federal Constitution is silent on the issue.

The power of the Federal government, at the time of the ratification of the Constitution,

was defined and limited by its Articles and Amendments (Argosy University, 2012) and that

according to the Ninth and Tenth Amendments any powers not expressly granted to the Federal

government were either retained by the people or reserved to the States (Dye & Sparrow, 2009).

Therefore, power sharing and the protection of natural rights under the Federal Constitution, by

and between Federal and State governments, is supposed to be fluid and adaptive. States must

give proper obeisance to the Federal government through financial support while the Federal

government must act as protector of States rights within the limits of the Constitution.

States are free to enact and enforce their own laws and judge them as long as those laws

do not contradict any part of the Federal Constitution. This makes the system hierarchical in

nature. According to Dye and Sparrow (2009), there are over 89,000 governments in the United

States made up of 1 Federal government, 50 State governments, 3,033 County governments,

19,492 Municipalities, 16,519 Townships, 37,381 Special districts, and 13,051 School districts.

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For simplification purposes, the United States Federalist system divides power between County

governments that operate under State governments that operating under one centralized Federal

government (Dye & Sparrow, 2009). Dye & Sparrow imply that this means neither the Federal,

State, or County governments can alter this arrangement without the consent of the other

(2009, p. 107) and that each regional government has the right of representation within the

central government (Rosenn, 1994). Under this system, the central government exercises some

power exclusively, the regional governments (State and Counties) do the same, and some powers

are exercised concurrently (Rosenn, 1994, p. 5).

II. Three Advantages of Federalism

a. Protection of Liberty

The first advantage of Federalism is the protection of liberty through competition within

and among governmental units (Dye & Sparrow, 2009, p. 108). The concurrent power utilized

by Federal and State governmental units creates checks and balances on how executive,

legislative, and judicial powers are exercised over the citizenry. States, if left to their own

devices, might engage in depriving citizens of their individual liberties such as the State of

Alabama did during the 1950s enforced laws segregating white Americans from African

Americans. The Federal government was able to exercise its power over Alabama laws through

Article VI, clause 2 of the Federal Constitution (Constitution of the United States, 1787) and

after passing the Civil Rights Act of 1964 enforce the supremacy of Federal law over State law.

Likewise, the Federal government may also engage in deprivations of liberty against citizens

such as the recent cases of F.B.I. warrantless wire-tapping and D.E.A. warrantless searches and

seizures (Dye & Sparrow, 2009). These two Federal police agencies are just bound to the Fourth

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Amendment of the Federal Constitution as is State police agencies. Under the Fourth

Amendment, all police agencies must first obtain a warrant from a Court of law before searching

a house or person or wire-tapping somebodys phone.

b. Dispersing of Power

Another important advantage of Federalism is the dispersing of legislative, executive, and

judicial power between Federal and State governments (Eichenberger, 1994). The power to make

laws is dispersed among the fifty States so that they can have legislative autonomy. The power to

enforce and execute the laws is also dispersed among the individual States under the police

powers and the executive authority of each State Governor and Attorney General limited to the

jurisdiction boundaries of the State. The power to interpret State laws is given to Judicial Circuits

which have been set up regionally. Judicial Circuits have authority to rule on both State and

Federal laws so long as their rulings do not contradict the United States Supreme Court or any

ruling given by a Federal Court at the Appellate or District level (Bednar & Eskridge, 1994).

c. Fairness and Local Control

Two important aspects of Federalism which are advantageous are fairness and local

control. Under decentralized federalism, control of the most important governmental functions is

regionally allocated (Eichenberger, 1994. People who live in a State have local control over who

will judge, make, and enforce their State laws by electing their own State officials. Another State

or the Federal government cannot participate in this process of local control by appointing State

officials to office. Local control creates fairness, efficiency, and equanimity (Dorf, 1997).

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III. Three Disadvantages of Federalism

a. Supremacy Clause & Forced Compliance

Ironically, one of the most attractive features of United States Federalism can also

become a disadvantage; namely the supremacy clause of Article VI of the Constitution.

Whenever a State enacts or enforces a law which is deemed by the Supreme Court to be

unconstitutional, the State is forced to comply with the Federal government regardless of which

unit of Government is on the right side of justice. For example, several States have passed laws

over the years making acts of sodomy (oral or anal sexual penetration) unlawful and punishable

by incarceration (Dye & Sparrow, 2009). In 2003, the United States Supreme Court in Lawrence

v. Texas struck down a Texas law against sodomy by calling it unconstitutional since the

majority opinion agreed that it violated the petitioners Fourteenth Amendment rights to privacy.

States, in these types of cases, lose their rights under Federalism to create laws specific to their

State which accurately reflects their moral customs.

b. Federal Regulation

Too much Federal regulation on local and State businesses can cause economic slow-

downs, unemployment, and higher prices for goods and services (Rosenn, 1994). This is

definitely a disadvantage. One of the areas most affected by Federal over-regulation is health

care insurance. In the interest of trying to provide health care coverage for all Americans, the

Federal government enacted the Patient Protection and Affordable Care Act (PPACA) in March

of 2010 which requires all uninsured Americans to purchase health insurance (Patient Protection

and Affordable Care Act, 2010). This mandate under the law has been touted as a cost saver

however when studying the habits of Americans with regard to who they seek their health care

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services from and when, the law will cause an overall increase in health care and health care

related expenditures. First of all, in order for the Federal government to enforce the health

insurance mandate, it has to hire 16,000 new IRS employees at an annual cost to the tax payers

of roughly $688,000,000. Secondly, if the government simply eliminated the insurance

companies from the picture and allowed individual doctors to be personal liable for their medical

mistakes than the market place would eventually drive down health care costs while

simultaneously increasing the quality of care when patients are allowed to pay their doctors

directly based upon a sliding fee and their level of income without any regulation or interference

from the Federal government.

c. Redundant Bureaucracy

A third disadvantage of Federalism is the redundancy that occurs when two or more

governmental agencies are overseeing the same domestic policy. The Federal government, when

the Constitution was ratified, did not have a superior competency in the regulation of matters that

were traditionally handled by State or Local governments; such as education or child welfare

(Rosenn, 1994). However, during the 1960s and 70s, Federalism became more centralized as

Congress began authorizing funds for problems that were seen as national issues instead of local

or state issues (Dye & Sparrow, 2009). Among these were poverty, child support (Office of

Child Support Enforcement, 2012), and child abuse (Child Abuse Prevention and Treatment Act,

1974). Each of these domestic issues were already administered and serviced by and through

State and Local governmental agencies making the Federal governments involvement somewhat

redundant and in some cases counterproductive to the stated goals of the enacted Federal public

laws.

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For example, the Federal government actually pays local Friend of the Court offices to

open new child support without regard to the actual needs of the children involved which has led

to adversarial relationships between the government and families as well as unnecessary costs

and overhead (Rhodes, 1998).

IV. Two ways in which Federalism has changed since 1787

These types of domestic issues were never considered part of the responsibility or

enumerated powers of the Federal government under the Federalism in 1787. Social and child

welfare laws or policies funded and managed by the Federal government represents a dramatic

change from the early Colonial State-Centered Federalism and the current Centralized

Federalism (Dye & Sparrow, 2009). State-Centered Federalism is based on the idea that the

Congressional legislative power is exercised only in cases where the State Legislatures are

individually incompetent (Rosenn, 1994, p. 10). This would imply matters such as making

treaties, declaring war with a foreign country, national defence, interstate commerce, or printing

money.

After the Civil War it became clear that Federalism had changed from a State-Centered

perspective to a dualistic or more centralized perspective. President Abraham Lincoln declared

by executive order that a State did not have the power to secede from the union nor did it have

the power or authority to continue the practice of slavery. This meant that the Federal

government was asserting the notion that once a State has been accepted into the United States

its continued association with the Federalized union was not voluntary but mandatory and that

national laws passed by Congress even if they interfered with the domestic relations matters of

State laws would have to be obeyed by each State uniformly.

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V. One Advantage or Disadvantage of Federalism most relevant to me

One advantage of Federalism that is most relevant to me is the legal enforcement of my

civil rights under Title 42 1983 of the United States Code. This chapter of the Federal statutes

specifically states that:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured (Civil

Rights, 2006, para. 1).

Under this law, the Federal court system has the authority to enforce my civil rights to

parent my children. Over the past 6 years, several State of Michigan Court employees and

Judges, under color of law, have denied me access to my four minor children without hearing or

due process. The actions taken by these State actors against my family has been arbitrary (Poe

v. Ullman, 1961, p. 550) and in complete absence of all jurisdiction (Archie v. Lanier, 1996, p.

441). Without the Federalization of basic civil rights encoded in the United States Code and

protected by a Federal Judiciary system, these State actors can, with impunity, deprive my

children and I of a parent-child relationship.

The necessary steps to take in such a case involves the filing of a written complaint, in

the form of a petition, along with a request for relief in the form an order declaring the custody of

my children by the County Court system to be in violation of the Constitution. The petition must

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demonstrate that a Constitutional right has been violated by the State actors under color of law

and that a suitable remedy can be fashioned to restore the rights that have been deprived.

VI. Relationship between contemporary politics and trends in the size and power of the

Federal Government

Over the 200 plus years of the United States system of national, State, and Local

governments sharing executive, legislative, and judicial power, the amorphous nature of

Federalism plays a role in the size and power of the Federal Government especially in

contemporary politics over the past decade with the passage of several important laws and the

ruling of these laws by the Supreme Court. The most recent ruling by the Supreme Court on the

2010 Patient Protection and Affordability Care Act (PPACA) gives weight to the argument that

Congress has the authority to mandate that all citizens purchase health care insurance in order to

protect the citizenry at large from the use of health care services by patients who cannot afford to

pay for them.

Regardless of the arguments made by the dissenting Justices, Scalia and Thomas, there

are two ways to view the PPACA from the perspective of Centralized Federalism; (1) the Federal

government has a duty to protect citizens from being denied access to health care services by

forcing all citizens to carry a health insurance policy or (2) the Federal government has the duty

to hold physicians personally responsible for their medical mistakes (by eliminating all health

care insurance companies and policies) and to force health care professionals to treat all patients

regardless of their ability to pay.

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Conclusion

The original concept of the United States Constitutional form of government has

remained relatively intact, keeping a healthy balance of power between national and State

governments, despite forces within and without the Federal government attempting to aggregate

unconstitutional powers into the hands of individuals or groups of individuals who are not

elected by citizens. Laws that pass Constitutional strict scrutiny are the only protection citizens

have against encroachment upon their civil liberties by individuals or groups acting on their

behalf who wish to assume unlawful and tyrannical power and control over the weak, the poor,

or the alientated. The Constitution and the Federal government that serves under it, must serve

the weakest and the poorest among us for they are the ones who are most in need of Federalist

assistance and protection. Therefore, whether we call the current form of Federalism

centralized or cooperative or State-centered does not really matter as long as the power of

the individual to assert his or her civil rights remains intact whenever it is assailed by State or

Federal actors.

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References

Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996). Available at: http://scholar.google.com/scholar

Argosy University. (2012). American Experience: POL110: Module 2. Available at:

www.myeclassonline.com

Bednar, J., & Eskridge, W. (1995). Steadying the courts unsteady path: A theory of judicial

enforcement of federalism. Southern California Law Review, 68, 1447-1491. Available

at: http://www-personal.umich.edu/~jbednar/Pubs/bednareskridge.sclr.pdf

Child Abuse Prevention and Treatment Act. (1974). In U. S. Department of Health and Human

Services: Administration for Children and Families: Childrens Bureau. Available at:

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Civil Rights. (2006). In Law Offices of Michael D. Robbins and Associates. Available at:

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Dorf, M. (1997). Instrumental and Non-Instrumental Federalism. Rutgers Law Journal, 28, 825-

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