American Federalism Timeline: 1754-Present
Albany Plan, proposed by Benjamin Franklin, called for creation of a confederation with a general government having a Grand Council with members appointed by the colonial assemblies and a president-general appointed by the British Crown. Britain and the colonial assemblies rejected the plan.
Declaration of Independence, written mostly by Thomas Jefferson, was adopted in Philadelphia, Pennsylvania, on July 4, 1776, to announce and explain the 13 colonies’ separation from Great Britain. The colonies then regarded themselves as independent sovereign states and adopted constitutions. As such, the 13 states invented modern written constitutions.
Articles of Confederation, drafted by a committee of delegates from the 13 states and chaired by John Dickinson, was adopted by the Continental Congress on November 15 after a year-long debate on issues such as state sovereignty and exactly what powers would be delegated to the confederation.
Massachusetts Constitution, the first to expressly provide for a separation of powers and ratification by the people, is the world’s oldest written constitution still in effect.
Articles of Confederation, ratified on February 2 as the first written constitution of the United States of America, established a “perpetual union,” although the states remained sovereign and independent. The confederation was granted limited powers such as declaring war, concluding treaties, borrowing money, issuing paper currency, and running a postal service. However, the confederation could not legislate for individuals; thus, it could not levy taxes, regulate commerce, or conscript men into the military. The Articles, along with the Declaration of Independence and state constitutions, comprised America’s first constitutional system.
Land Ordinance, enacted on April 23, provided that lands west of the Appalachian Mountains, north of the Ohio River, and East of the Mississippi River be divided into states to be admitted into the union. The ordinance resolved most of the extant 13 states’ claims to these lands. It outlawed slavery and established the important principles that the western frontier would be settled, not colonized for the benefit of the existing states, and western lands would be incorporated into the union as self-governing republican states on an equal footing with existing states. The ordinance was superseded by the 1787 Northwest Ordinance.
Land Ordinance implemented the 1784 ordinance and established a grid survey system to facilitate land purchases by individuals and companies. Land was surveyed into square townships having six miles on each side. Each township was sub-divided into 36 square-mile sections or 640 acres. Section 16 of each township was reserved to support public schools.
Maryland and Virginia Boundary Agreement was apparently the first interstate compact, which is a contractual agreement between two or more states permitted under the Articles of Confederation and the U.S. Constitution (Article I, Section 10). As of 2017, there were more than 200 active compacts, 22 of which were nationwide in scope.
Annapolis Convention, formally titled Meeting of Commissioners to Remedy Defects of the Federal Government, was a convention of 12 delegates from five states that met on September 11-14 to discuss interstate trade issues under the Articles of Confederation. The convention voted to amend the Articles but had no power to enforce it. The delegates also called for a constitutional convention consisting of delegates from the 13 states.
Shays’s Rebellion, led by Daniel Shays, a Revolutionary War veteran and farmer, was a series of armed protests and attacks on courthouses from June 1786 to August 1787 by farmers in western Massachusetts who were losing their farms to foreclosures. Because the rebellion had to be suppressed by a private militia, many advocates of reform of the Articles of Confederation cited Shays’s rebellion as a key reason to create a stronger general government to maintain internal security and address economic problems.
Constitutional Convention convened in Philadelphia, Pennsylvania, between May and September with 55 of 74 pledged delegates from 12 states eventually attending (with Rhode Island absent). The convention drafted the federal Constitution of the United States and created a new form of government known as federalism in which, unlike a confederation, the general (or national) government, while still having limited delegated powers, is authorized to legislate for individuals within its sphere of power and, thus, levy taxes, regulate interstate and foreign commerce, conscript individuals into the military, and enforce treaties.
Northwest Ordinance, enacted by Congress on July 13, formally created the Northwest Territory, provided that 3-5 new states be admitted to the union on an equal footing with the existing states, established territorial governments for them before statehood, prohibited slavery, guaranteed rights for settlers and Indians, and set aside lands to support education. “Religion, morality, and knowledge being necessary to good government and the happiness of mankind,” stated the ordinance, “schools and the means of education shall forever be encouraged.”
Ratification of the U.S. Constitution by popularly elected state conventions in each state ensured that the peoples of the states had the final role in making the federal Constitution. New Hampshire was the ninth state to ratify on June 21, thus putting the Constitution into effect and ending the Articles of Confederation. However, official certification was held back until the powerful states of Virginia and New York ratified shortly thereafter. Also, North Carolina did not ratify until 1789 and Rhode Island in 1790. The ratification method sparked a continuing debate over whether “We the People” refers to the whole people of the United States or the separate peoples of the united states.
Funding Act provided for paying Revolutionary War debts and authorized the federal government to pay the states’ war debts. This was the first federal financial subsidy for states. In a major compromise needed to pass this act, Congress also enacted the Residence Act locating the nation’s capital in the South along the Potomac River.
First Bank of the United States, established on February 21 as proposed by the Secretary of the Treasury, Alexander Hamilton, was a depository for federal government funds and managed the government’s monetary and financial affairs. This bank did not displace or regulate state-chartered banks.
Bill of Rights, which was not called “the Bill of Rights” until the 1890s, was added by state ratification to the U.S. Constitution on December 15 as its first ten amendments. A number of opponents of the Constitution had insisted the Congress propose such amendments in return for their voting to ratify the Constitution. The first nine amendments protect natural or God-given rights against infringement by the federal government. The Tenth Amendment reaffirms that: “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.”
Fugitive Slave Act codified the fugitive slave clause in Article IV, Section 2 of the U.S. Constitution, which required states to return escaped slaves to their owners in other states. The southern states insisted on including this clause in the Constitution; many northern states objected to it.
Alien and Sedition Acts, enacted by a Federalist Congress during John Adams’s presidency, prohibited written or spoken criticism of the federal government, made it harder for immigrants to become citizens, and allowed imprisonment and deportation of non-U.S. citizens.
Kentucky Resolution of November 16, drafted by Thomas Jefferson in opposition to the Alien and Sedition Acts, declared the U.S. Constitution to be a compact and that each state has authority to declare a federal law unconstitutional and void within its borders.
Virginia Resolutions of December 24, drafted by James Madison in opposition to the Alien and Sedition Acts, declared the U.S. Constitution to be a compact among the states and that when the federal government acts outside its constitutional authority, the state legislatures and governors “have the right . . . to interpose for arresting the progress of the evil, and for maintaining” the rights of their citizens.
Kentucky Resolution of December 3 declared that when the federal government acts outside the U.S. Constitution’s authority, the states, “being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts . . . is the rightful remedy.” Other states did not endorse the Kentucky and Virginia Resolutions.
Fletcher v. Peck, a unanimous U.S. Supreme Court decision, was the first time the Court struck down a state law as violating the U.S. Constitution. The case involved the contracts clause of Article I, Section 10, which states that no state shall impair “the Obligation of Contracts.”
Hartford Convention was series of initially secret meetings in Hartford, Connecticut, of Federalists from New England states who threatened to secede from the union over grievances about the continuing War of 1812, trade embargoes, tariffs, and fears of military tyranny by the federal government.
Dartmouth College v. Woodward, a 5-1 U.S. Supreme Court ruling, held states cannot enact laws that overturn private contracts. Thus, New Hampshire could not invalidate a 1769 royal charter granted to Dartmouth College and make the college a state institution. The decision encouraged increased private business investment and growth.
Sturges v. Crowinshield, a 7-0 U.S. Supreme Court ruling, held states can enact laws that exercise powers delegated exclusively to the Congress by the U.S. Constitution so long as the Congress does not preempt (i.e., override) such state laws. The ruling allowed states to enact bankruptcy laws, which many did, until the Congress passed a permanent bankruptcy law in 1898 that preempted most portions of state bankruptcy laws. This case is important because it allows states to legislate in areas of exclusive federal power when the federal government is unable or unwilling to act. During the nineteenth century, especially, states often acted in the absence of federal legislation.
McCulloch v. Maryland, a unanimous U.S. Supreme Court decision, upheld the Second Bank of the United States as a constitutional exercise by the Congress of Article I, Section 8’s “necessary and proper clause” (implied powers clause) and ruled states could not tax the bank without U.S. consent because the bank was an instrument of the sovereign U.S. government. This strengthened the federal government but also established the doctrine of intergovernmental tax immunity whereby the states and the federal government cannot tax each other’s sovereign instrumentalities.
Missouri Compromise of 1820, a federal law signed on March 6, attempted to preserve the balance of power in the Congress between slave and free states by admitting Missouri to the union as a slave state and Maine as a free state. It prohibited slavery above latitude 36º 30’ in the Louisiana Territory. The compromise helped forestall disunion.
Gibbons v. Ogden, a unanimous U.S. Supreme Court ruling, held that the Congress’s commerce power includes authority to regulate navigation on interstate waterways, thereby striking down a New York law that granted a monopoly to one company to operate steamboats on the Hudson River at the expense of another company holding a federal license. The court asserted a broad interpretation of the phrase commerce “among the several States” found in Article I, Section 8 of the U.S. Constitution.
South Carolina Exposition and Protest, written anonymously by John C. Calhoun (then vice president of the United States), protested the so-called Tariff of Abominations (1828) and defended states’ rights to nullify U.S. laws they deemed to be unconstitutional and also secede from the union. Later, Calhoun propounded his compact theory of the U.S. Constitution, arguing that the Constitution is a compact among the states, not an instrument of the American people.
Webster-Hayne Debates in January saw Democratic Senator Robert Y. Hayne of South Carolina defend states’ rights while Whig Senator Daniel Webster of Massachusetts defended nationalism. Hayne argued that the U.S. Constitution is a compact among the states and that states have the right to nullify federal laws they deem to be unconstitutional. Webster argued that the U.S. Constitution is an instrument of the sovereign people and, therefore, the supreme law of the land, which cannot be nullified by state legislatures. “It is,” he declared, “the people’s Constitution . . . made for the people, made by the people, and answerable to the people.” If a state believes a federal law is unconstitutional, it should appeal to the federal courts, seek to amend the Constitution, or exercise the right of revolution. These debates highlighted many of the key disagreements that sparked the Civil War.
Fort Hill Address by John C. Calhoun objected to a high federal tariff and invoked the Kentucky and Virginia resolutions to argue that states could interpose their sovereignty so as to veto or nullify within their borders federal laws they deem to be unconstitutional. James Madison, then 80 years old, rejected Calhoun’s argument.
South Carolina Ordinance of Nullification declared the federal tariffs of 1828 and 1832 null and void within the state, thus starting the Nullification Crisis that triggered President Andrew Jackson’s Nullification Proclamation of 1832 condemning the ordinance, dispatching a naval flotilla, and threatening to send federal troops to enforce the tariffs. No other state supported South Carolina’s position. South Carolina repealed the ordinance after Congress lowered the tariff in 1833 and enacted the Force Bill authorizing vigorous enforcement of U.S. laws.
Barron v. Baltimore, a unanimous U.S. Supreme Court ruling, was an important federalism ruling holding that the U.S. Bill of Rights applied only to actions of the federal government, not actions of state and local governments. In later rulings beginning with Chicago, B & Q Railroad Co. v. Chicago (1897), the Supreme Court largely reversed Barron by incorporating most provisions of the Bill of Rights within the due process clause of the Fourteenth Amendment during the twentieth century.
Charles River Bridge Company v. Warren Bridge Company, a 5-2 U.S. Supreme Court ruling, held that Massachusetts did not violate the Constitution’s contracts clause when it authorized the Warren Bridge Company to build a bridge across Boston’s Charles River close to the Charles River Bridge Company’s bridge. By siding with Massachusetts, the U.S. Supreme Court under new Chief Justice Roger Taney signaled a shift toward states’ rights and away from the nationalism of Chief Justice John Marshall’s Court.
Prigg v. Pennsylvania, an 8-1 U.S. Supreme Court ruling, overturned a slave-catcher’s conviction under Pennsylvania law for kidnapping a slave. The Court ruled that the Fugitive Slave Act of 1793 preempted (i.e., overrode) the Pennsylvania law under the supremacy clause of Article VI of the U.S. Constitution. Justice Joseph Story opined, however, that state officials were not required to enforce the federal fugitive-slave law; hence, some northern states passed personal liberty laws prohibiting state officials from interfering with runaway slaves. Prigg weakened enforcement of the Fugitive Slave Act and provoked southern criticism that northern states were violating the U.S. Constitution’s fugitive slave clause (Article IV, Section 2), but established the foundation for the court’s anti-commandeering doctrine articulated in New York v. United States (1992) and Printz v. United States (1997), for state legalizations of marijuana despite its illegal status under federal law, and for sanctuary cities that refused to enforce federal immigration laws.
Compromise of 1850 was a series of five bills grouped together to deal with the balance between free and slave states in the Congress in the lands acquired from the Mexican-American War (1846-1848). The compromise admitted California to the union as a free state, created the New Mexico and Utah territories with slavery to be decided by public votes, settled a Texas-New Mexico boundary dispute, amended the Fugitive Slave Act to make it easier for southerners to capture runaway slaves, and abolished slave trading in Washington D.C.
Kansas-Nebraska Act established the Kansas and Nebraska territories and permitted settlers to decide whether to allow or prohibit slavery in either territory. The act contradicted the Missouri Compromise of 1820 prohibiting slavery north of latitude 36°30´. One result was “Bloody Kansas” where pro- and anti-slavery settlers battled for territorial control.
Dred Scott v. Sandford, a 7-2 U.S. Supreme Court ruling, declared that black residents were not citizens of the United States and that slaves had no right to sue for freedom in federal courts. By also declaring slaves to be “property” under the Fifth Amendment of the U.S. Constitution, which states: “No person shall be . . . deprived of life, liberty, or property, without due process of law,” the Court allowed slave-owners to take slaves into free states. The decision overturned the Missouri Compromise of 1820 by holding that the Congress lacked authority to abolish slavery because it was a power reserved to the states. The ruling helped trigger the Civil War.
South Carolina was the first state to declare secession from the United States on December 20—2.5 months before Abraham Lincoln’s inauguration.
The Civil War, which took the lives of some 720,000 Americans, determined the unity of the United States and moved the federal union in a more nationalist direction that, among other things, rejected secession, nullification, and slavery. The war stemmed from irreconcilable differences between the North and the South over slavery, states’ rights, and the nature of the federal union. Many southerners referred to the conflict as the “War for Southern Independence,” “War between the States,” or “War of Northern Aggression.” Many northerners called it the “War of the Rebellion,” “Freedom War,” or “War of Southern Aggression.”
Department of Agriculture was created by President Abraham Lincoln, who called it the “people’s department,” to collect agriculture statistics, conduct research, distribute new varieties of seeds and plants, apply chemistry to farming, assemble state crop reports, and foster agricultural education. After lobbying by state farmers’ organizations, the department was elevated to Cabinet status in 1889.
Morrill Act, a law enacted by the Congress, provided 30,000-acre land grants to the states to establish colleges “to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.” Today’s land-grant colleges include such renowned institutions as the University of California, Berkeley; University of Maryland, College Park; Cornell University; Ohio State University; Pennsylvania State University; and University of Wisconsin, Madison.
Emancipation Proclamation was a wartime executive order issued by President Abraham Lincoln on January 1 declaring that “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.” The proclamation applied to about three-quarters of all slaves in the United States. It did not free the approximately one million slaves living in states not in rebellion because Lincoln believed he lacked authority to interfere with slavery in those states. Nonetheless, the proclamation started an irreversible drive toward nationwide abolition in 1865.
Appomattox, Virginia, is the site of Confederate Army general Robert E. Lee’s surrender of the Army of Northern Virginia to Lt. Gen. Ulysses S. Grant, commander of the Union Army, on April 9. As General-in-Chief of Confederate forces, he then brought the other southern armies to surrender, thus ending the Civil War.
Thirteenth Amendment to the U.S. Constitution, ratified on December 18, declares: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” This was the first of three post-war amendments that asserted federal constitutional power over traditional states’ rights.
First Civil Rights Act granted citizenship and equal rights to all men in the United States regardless of race or previous condition of servitude because, after the Civil War, some states did not accept former slaves as citizens.
Fourteenth Amendment to the U.S. Constitution, ratified on July 9, grants citizenship to “all persons born or naturalized in the United States,” while retaining state citizenship, and expands federal authority over the states by giving the Congress power to enforce the stipulations that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment sought to protect freed slaves, especially in southern states readmitted to the union, but its mid-twentieth-century use by the Supreme Court and the Congress effected a revolution in American federalism and society by transferring principal authority to protect civil rights and liberties from the states to the federal government.
Texas v. White, a 5-3 U.S. Supreme Court decision involving state bonds, rejected the South’s compact theory of the U.S. Constitution, holding instead that states cannot secede unilaterally from the union and that even during its rebellion, Texas remained a state. Citing the Articles of Confederation’s establishment of a “perpetual union,” the court opined that: “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”
Fifteenth Amendment to the U.S. Constitution, ratified on February 3, declares that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The amendment applied only to men, thus disappointing suffragettes, and was not completely effective until the Civil Rights Movement (1954-1968) and the Voting Rights Act of 1965 secured black voting rights, especially in the South. This was the first amendment to override state authority to set voter qualifications.
Slaughterhouse Cases were a 5-4 ruling in which the U.S. Supreme Court upheld, as a valid exercise of the state’s police power, a Louisiana law granting a monopoly to one slaughterhouse and stockyard in New Orleans. The state law, opined the court, did not violate the “privileges and immunities” clause of the Fourteenth Amendment because the clause applied only to rights enjoyed under national citizenship, not state citizenship. “Was it the purpose of the fourteenth amendment . . .” asked the majority, “to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?” This influential but controversial ruling was the first in which the court interpreted the Fourteenth Amendment’s implications for states’ powers.
Civil Rights Act, enacted by the Congress, assured that blacks could serve on juries and “that all persons within . . . the United States shall be entitled to the full and equal and enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” The act was hardly enforced; the U.S. Supreme Court declared portions of the act unconstitutional in 1883; and the Congress did not pass another civil rights act until 1957.
Interstate Commerce Commission Act created the Interstate Commerce Commission with authority to regulate railroads. This first federal agency to regulate interstate commerce was dissolved in 1996 after the Congress deregulated railroads and buses.
Sherman Antitrust Act prohibits monopolistic business practices, such as trusts, deemed by the federal government to restrain interstate or foreign commerce and allows the federal government to break up monopolies so as to restore market competition. The act also preempts state laws deemed by the federal government to limit competition; however, state attorneys general can file suits to enforce both state and federal antitrust laws. Famous Sherman antitrust cases include those filed against Standard Oil in 1911, Kodak in 1921, AT&T in 1974, Microsoft in 1988, and Toys ”R” Us in 1997. Notably, the U.S. Supreme Court exempted major league baseball from this act, most recently in Curt Flood v. Kuhn (1972).
Uniform Law Commission (aka National Conference of Commissioners on Uniform State Laws) was established as a nonprofit, volunteer association of commissioners from each state and territory to propose laws for state adoption and to strengthen the federal system by fostering consistent rules and procedures across the states and territories that also reflect the states’ diverse experiences. The commission has proposed more than 300 laws. It is best known for its Uniform Commercial Code (1952), adopted by all states and territories, and other widely adopted laws, such as the Uniform Trade Secrets Act (1985), Uniform Transfers to Minors Act (1986), Uniform Child Custody Jurisdiction and Enforcement Act (1997), Uniform Electronic Transactions Act (1999), Uniform Anatomical Gift Act (2006), and Uniform Interstate Family Support Act (2008).
National Civic League was founded as the National Municipal League by leading Progressive reformers such as Theodore Roosevelt, Louis Brandeis, and Frederick Law Olmsted to promote good city governance and civic participation. It publishes the National Civic Review, a quarterly journal, as well as model city and county charters.
Plessy v. Ferguson, a landmark 7-1 Supreme Court decision, upheld racial segregation in public accommodations by declaring that laws requiring “separate but equal” public facilities, such as separate railroad passenger cars for blacks and whites, did not violate the Thirteenth and Fourteenth amendments. The ruling permitted further state and federal legislative distinctions based on race and sanctioned the spread of Jim Crow laws.
Allgeyer v. Louisiana, a unanimous decision voiding a Louisiana law for violating an individual’s liberty of contract, marked the first time the U.S. Supreme Court interpreted “liberty” in the due process clause of the Fourteenth Amendment as including economic liberty to enter into contracts freely. This decision, along with others, especially Lochner v. New York (1905), constrained states’ authority to regulate wages, working hours, and other economic activities.
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, a 7-1 U.S. Supreme Court ruling, held that states must provide just compensation under the Fifth Amendment of the U.S. Bill of Rights when they take private property under their eminent domain power. This was the first time the U.S. Supreme Court incorporated a provision of the U.S. Bill of Rights into the Fourteenth Amendment’s due process clause.
Lochner v. New York, a controversial 5-4 U.S. Supreme Court ruling, struck down a New York law that set bakery worker hours at no more than 10 hours a day and 60 hours a week. The law, opined the court, violated the due process clause of the Fourteenth Amendment of the U.S. Constitution, which includes a right to “freedom of contract.” The ruling curtailed states’ ability to regulate business during the urban-industrial era. The “Lochner Era,” which actually began with Allgeyer v. Louisiana (1897), ended when West Coast Hotel Co. v. Parrish (1937) spurned Lochner.
National Governors Association founded as a nonpartisan organization to help support governors, coordinate activities among governors, and lobby the federal government.
Sixteenth Amendment to the U.S. Constitution gave the Congress authority to tax personal and corporate income “from whatever source derived,” thereby greatly increasing the federal government’s fiscal power over the states, as well as its ability to redistribute income among persons and states.
Seventeenth Amendment to the U.S. Constitution was an important change in constitutional federalism that ended state legislative selection of U.S. senators and instituted direct election of senators by the voters of each state. Although the amendment weakened the institutional representation of the states as polities in the U.S. Senate, 31 states had passed resolutions calling for this constitutional amendment, and 33 had instituted direct primaries to advise the legislature of the people’s choices.
International City/County Management Association founded to professionalize city and county management, provide education and credentialing, share information, and monitor federal activities.
Port Authority of New York and New Jersey is an interstate compact approved by the Congress to oversee seaports, airports, bridges, tunnels, and bus and rail transit in the 1,500 square miles of the states’ port facilities. Its budget, $6 billion in 2017, makes the authority one of the largest local governments in the United States. It oversaw the World Trade Center towers that were destroyed by terrorists on September 11, 2001, and oversees the reconstructed center.
National League of Cities founded to foster professional development, share information, and lobby the federal government on behalf of cities.
Gitlow v. New York, a 7-2 U.S. Supreme Court ruling, upheld a conviction under New York’s criminal anarchy law but also ruled that the due process clause of the Fourteenth Amendment incorporates the freedom of speech and press clauses of the First Amendment of the U.S. Bill of Rights, thereby nationalizing portions of the U.S. Bill of Rights by applying those clauses to the actions of state and local governments and partly reversing Barron v. Baltimore (1833).
United States Conference of Mayors established to lobby the federal government on behalf of cities having 30,000 or more residents and to provide educational services and information-sharing to mayors.
Council of State Governments established to coordinate the national and interstate activities of state executive, legislative, and judicial officials, monitor federal activities, and provide educational services and information-sharing. The council publishes the annual information- and data-rich Book of the States.
New Deal Programs marked significant expansions of federal power through legislative and executive action under President Franklin D. Roosevelt in response to the Depression (1929-1933 and 1937-1938). The federal government increased its regulation of most sectors of the economy and created social welfare programs, such as the Social Security Act of 1935. But state powers were partly preserved through dual regulation whereby both the federal and state governments regulate such economic activities as banking, securities, and telecommunications while states remained sole regulators of some sectors such as insurance. Most social welfare programs also involve federal-state cooperation. In these respects, the New Deal marked a high point of cooperative federalism and the rise of grants-in-aid to state and local governments.
Social Security Act passed by Congress established what is now the Old-Age, Survivors, and Disability Insurance (or Social Security) program for senior citizens, joint federal-state unemployment insurance, and federal grants for welfare (formerly called Aid to Families with Dependent Children), maternal and child welfare, assistance for the blind, and public health services. The act is the foundation for the U.S. government’s massive role in social welfare, including Food Stamps (1961), Medicare and Medicaid (1965), the Family Support Act (1988), and more than 100 other welfare-related programs, most of which are federal-state programs.
National Association of Counties founded to foster professional development, share information, and lobby the federal government. It was the sixth organization serving state or local public officials founded since 1908.
West Coast Hotel Co. v. Parrish, a 5-4 U.S. Supreme Court decision, upheld the constitutionality of Washington state’s minimum wage law, thus overturning Adkins v. Children’s Hospital (1923) and ending the Lochner era when the U.S. Supreme Court voided many state laws regulating business.
National Labor Relations Board v. Jones & Laughlin Steel Corp., a 5-4 U.S. Supreme Court ruling, upheld the National Labor Relations Act as a constitutional exercise of the interstate commerce power, ruling that the Congress can regulate intrastate commerce that has “a close and substantial relation to interstate commerce.” The case is often called “the switch in time that saved nine” Supreme Court justices from President Franklin D. Roosevelt’s threat to increase the number of justices if the court did not support his policies. The ruling permitted a vast increase of federal power over state and local governments through expansive interpretations of the commerce clause. Not until 1995, in United States v. Lopez, did the U.S. Supreme Court strike down a federal law for exceeding the Congress’s commerce power.
United States v. Darby Lumber Co., an 8-0 U.S. Supreme Court ruling, upheld the U.S. Fair Labor Standards Act of 1938 against a Tenth Amendment challenge by holding that the “amendment states but a truism that all is retained which has not been surrendered.” The court held that the Congress can regulate intrastate business and manufacturing practices that affect interstate commerce, in this case, state laws deemed to endorse substandard labor practices so as to gain a competitive advantage in interstate commerce. The court thereafter declined, until 1976, in National League of Cities v. Usery, to use the Tenth Amendment as a shield against federal incursions into states’ powers.
Federal Disaster Relief Act, enacted by the Congress, was the first continuing act authorizing the president to provide federal aid when a governor requested disaster-relief help and the president approved the request by declaring a major disaster. From 1803 to 1950, the Congress had enacted 128 laws providing assistance for specific disasters. The 1950 act was strengthened and expanded by the Disaster Relief Act of 1974 and the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988.
Department of Health, Education, and Welfare was established by the Congress as a Cabinet department of the U.S. government that oversaw policies on public education and public health. It was renamed the Department of Health and Human Services in 1979 after the Office of Education was separated out and elevated by Congress to a Cabinet department. The development of these departments marked significant increases in U.S. government involvement in traditional state and local domestic functions.
Kestnbaum Commission, officially known as the Commission on Intergovernmental Relations, was established by Congress “to study the proper role of the Federal Government in relation to the States and their political subdivisions” and to make recommendations on how to define and allocate functions between the federal and state governments most effectively, adjust intergovernmental fiscal relations to improve efficiency and effectiveness, and manage state-federal disagreements. The commission transmitted its report to Congress in June 1955.
Brown v. Board of Education of Topeka was a landmark 9-0 U.S. Supreme Court ruling that separate public schools for black and white children were unconstitutional because they violated the Fourteenth Amendment’s equal protection clause. The court ordered in 1955 that school desegregation proceed “with all deliberate speed.” The decision overturned the 1896 Plessy decision that upheld “separate but equal” public facilities. Brown, which had been initiated by the National Association for the Advancement of Colored People (NAACP), helped to spark the Civil Rights Movement and the U.S. government’s assault on racial discrimination and, later, other forms of discrimination in the public and private sectors.
Little Rock Nine refers to nine black students who were blocked from attending Central High School in Little Rock, Arkansas, by the Arkansas National Guard, which had been dispatched to the school by Governor Orval Faubus on September 4. On September 24, President Dwight D. Eisenhower sent white soldiers of the 101st Airborne Division of the U.S. Army to Little Rock to enforce the federal court’s desegregation order and federalized the Arkansas National Guard, thus removing it from Faubus’s command.
U.S. Advisory Commission on Intergovernmental Relations was established by the Congress as a permanent, independent, bipartisan successor of the Kestnbaum Commission. The commission consisted of three private citizens, three Cabinet-level officials, four governors, three state legislators, three county officials, and four mayors appointed by the president, as well as three members of the U.S. Senate and three members of the U.S. House. It was tasked with examining federal-state-local relations and making recommendations to the Congress and the president for improving intergovernmental relations. The commission was defunded in 1996.
Driver License Compact came into existence in 1961 when Nevada became the first member after the Congress authorized such a compact under the Interstate Compacts for Highway Safety Resolution of 1958. The compact enables states to exchange information about license suspensions and traffic violations of non-residents and transmit them to the state where they are licensed so that the driver’s home state can treat offenses as if they had been committed at home and apply home-state laws to out-of-state offenses. Forty-five states belong to the compact.
Baker v. Carr, a 6-2 U.S. Supreme Court ruling, established the authority of the federal courts to intervene in state redistricting of state legislative seats, thus rejecting the historic view that redistricting was a “political question” not subject to federal judicial resolution. The decision laid the groundwork for Reynolds v. Sims (1964).
The Great Society, launched by President Lyndon B. Johnson, was based on the idea that the United States was affluent and enlightened enough to eliminate poverty and racism. Great Society programs involved a flood of legislation that expanded the federal government’s powers over the states, thus spurring coercive federalism, and fostered what Johnson called “Creative Federalism,” which intensified federal-local relations so as to bypass state legislatures and governors deemed to be uncooperative. Policies included The Economic Opportunity Act (1964), which initiated the “War on Poverty,” Civil Rights Act (1964), Voting Rights Act (1965), Elementary and Secondary School Act (1965), Higher Education Act (1965), and creation of Medicare and Medicaid.
Wesberry v. Sanders, a 6-3 U.S. Supreme Court ruling, held that the equal protection clause of the Fourteenth Amendment requires election districts for the U.S. House of Representatives to be as equal in population as practicable. By undercutting the historic county bases of representation, this decision, along with Reynolds v. Sims, helped nationalize the Democratic and Republican parties and weaken the ability of state and local government officials to hold members of the Congress accountable to their states and local communities.
Reynolds v. Sims, an 8-1 U.S. Supreme Court decision, clearly pronounced the court’s “one person, one vote” rule holding that the Fourteenth Amendment’s equal protection clause requires election districts for both houses of state legislatures to be as equal in population as practicable. Thirty-two state legislatures passed Article V resolutions calling for a constitutional convention to overturn this decision. The effort failed in the Congress.
Civil Rights Act, enacted by the Congress, prohibits discrimination and segregation in public accommodations involved in interstate commerce, prohibits state and local governments from denying access to public facilities because of race, color, religion or national origin; bans discrimination by government agencies that receive federal funds; prohibits discrimination in employment based on race, creed, color, religion, national origin, and sex; bars unequal application of voter registration rules; authorizes the U.S. attorney general to initiate lawsuits to desegregate public schools; and establishes the U.S. Equal Employment Opportunity Commission.
Voting Rights Act prohibits discrimination in voter registration and voting based on race or color; bans discriminatory practices such as literacy tests; requires preclearance by the U.S. Department of Justice or U.S. District Court for the District of Columbia of any changes that affect voting in the 17 states covered by the act; requires ballots and instruction in non-English languages in covered localities where more than 10,000 or over 5 percent of the total voting-age citizens in a single political subdivision belong to a single minority language group, have depressed literacy rates, and do not speak English very well; and authorizes the U.S. attorney general to send federal examiners and observers to monitor elections.
Medicaid is an intergovernmental health-insurance program for low-income families and individuals, including low-income persons with disabilities and senior citizens needing long-term care. States are not required to participate in Medicaid, but all have done so since 1982. The federal government’s share of states’ Medicaid costs ranges from 50 percent in states with high per capita incomes such as California and Connecticut to 73 percent in West Virginia and 74 percent in Mississippi. On average, Medicaid is the single largest category of state spending.
Elementary and Secondary Education Act, enacted by the Congress to further President Lyndon B. Johnson’s “War on Poverty” and foster racial desegregation, was, at the time, the biggest federal intervention into K-12 education. The act aimed to promote equal opportunity for all students regardless of socio-economic status. Title I allocated federal funds to schools having at least 40 percent of their students from low-income families, and established standards to close achievements gaps between high-income and low-income students. The act also disbursed funds for library materials, textbooks, other instructional resources, various education centers and services, research, training, and strengthening state departments of education. This act, reauthorized periodically under different names, became the Every Child Succeeds Act of 2015.
Griswold v. Connecticut, a 7-2 decision, held that “penumbras” of and “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments create a constitutional right to privacy. Griswold had been convicted under a Connecticut law that criminalized the sale and use of contraceptives. Although only Connecticut and Massachusetts then had such a law, the ruling became the foundation for the court’s later overturning of state laws prohibiting abortion, sodomy, and same-sex marriage.
Department of Housing and Urban Development was enacted by the Congress as a Cabinet department in the U.S. government as part of President Lyndon B. Johnson’s Great Society. Cities lobbied to create this department, which oversees federal low-income housing, community development, and urban economic development programs. The department brought the Federal Housing Administration (FHA) and the Housing and Home Finance Agency under its roof and increased their scope of action.
Education Commission of the States (ECS) was created to implement the interstate Compact for Education (1965), which was approved by all the states and the Congress, and to serve as a counterweight to the federal government’s increasing role in K-12 and higher education. The ECS compiles data, conducts research, disseminates information, convenes leaders, and provides personalized support to help “governors, state legislators, state education officials, and others to identify, develop and implement public policy for education.” The ECS chair alternates between a Democratic and Republican governor every two years. Each state (except Washington), the District of Columbia, and three territories is represented by seven commissioners. The ECS’s staff and budget dropped sharply in 1982 when President Ronald Reagan privatized administration of the National Assessment of Educational Progress test.
Department of Transportation, enacted by the Congress as a Cabinet department in the U.S. government as a part of President Lyndon B. Johnson’s Great Society, brings under one roof most of the federal government’s air, ground, and water transportation agencies and programs. It also regulates state transportation. The department claims its agencies “preempt State law only where there is express preemption or ‘clear evidence’ that Congress intended preemption, or State action ‘conflicts with’ Federal action.”
New Federalism, proclaimed by President Richard M. Nixon, aimed mainly at “rationalizing” and decentralizing the federal system by channeling more aid to state and local governments with fewer federal rules. It was implemented in such enactments as General Revenue Sharing (1972), the Comprehensive Employment and Training Act (1973), and the Housing and Community Development Act creating the Community Development Block Grant (1974). Nixon also sought to decentralize operations of federal domestic departments and sort out state and federal responsibilities.
National Environmental Protection Act (NEPA), the first major federal environmental law, aimed to prevent pollution and environmental damage by setting national environmental-quality objectives and establishing programs to achieve those objectives. The act requires federal agencies to complete environmental assessments and environmental impact statements on their planned actions. The act has major fiscal and administrative impacts on state and local governments because all programs and projects receiving federal funds must comply with NEPA guidelines set by federal agencies.
General Revenue Sharing was created by the State and Local Fiscal Assistance Act. It distributed largely unrestricted federal funds to the states and 38,200 general-purpose local governments by two formulas: one that included population, tax effort, and relative income and another that included population, urban population, per-capita income, income-tax collections, and general tax effort. Congress ended funding for the states in 1980 and for local governments in 1986.
Roe v. Wade, a 7-2 U.S. Supreme Court ruling, struck down laws in 30 states that prohibited abortion and in 20 other states that limited abortion. The decision held that states could not prohibit abortion during the first trimester of a pregnancy but could regulate abortion during the second trimester to protect the mother’s health and during the third trimester to protect “potential life” and even prohibit an abortion except to preserve the mother’s life or health.
American Legislative Exchange Council is a private non-profit organization of mostly Republican state legislators who promote “limited government, free markets, and federalism.” The council enables state legislators, trade associations, and corporations to collaborate to produce model bills for state legislatures. About 200 model bills become laws each year.
Fair Labor Standards Amendments, enacted by the Congress, extended coverage of the Fair Labor Standards Act of 1938 to almost all employees of state and local governments, thereby abrogating the sovereign authority of state and local voters to decide the work conditions of their public servants. The Supreme Court partly and temporarily voided much of this enactment in National League of Cities v. Usery (1976).
Individuals with Disabilities Education Act, enacted by the Congress, is a costly program for schools that emphasizes individualized education programs (IEPs), free and appropriate public education in a least restrictive environment, appropriate evaluation, parent and teacher participation, and procedural safeguards for the rights of disabled children and their parents. Congress promised to pay 40 percent of states’ costs of implementing this law but has never paid that amount.
National Conference of State Legislatures formed to lobby the federal government and strengthen state legislatures through educational programs and information-sharing.
National League of Cities v. Usery, a 5-4 U.S. Supreme Court ruling, held that the Tenth Amendment bars application of the 1974 amendments to the U.S. Fair Labor Standards Act to traditional state government functions because Congress cannot impair a state’s ability to function as a state within the U.S. federal system. This ruling was quickly weakened by subsequent decisions and then overturned by Garcia v. San Antonio Metropolitan Transit Authority (1985).
National Association of Towns and Townships founded to lobby the federal government on behalf of small communities, especially rural and suburban localities, having 10,000 and fewer residents.
Department of Education was enacted by the Congress as a Cabinet department in the U.S. government during Democratic President Jimmy Carter’s administration over opposition by many Republicans who argue it unconstitutionally intrudes into state and local affairs. The department’s purposes are to “establish policy for, administer and coordinate most federal assistance to education, collect data on US schools, and to enforce federal educational laws regarding privacy and civil rights” from kindergarten through higher education. Although less than 10 percent of elementary and secondary school funding comes from the federal government, the department administers a large array of education programs and regulations.
New Federalism, proclaimed by President Ronald Reagan, sought to reduce the size of the U.S. government, restore state powers, and curtail direct federal relations with local governments. A major reduction in federal aid to state and local governments occurred in 1981. Federal aid dropped (in inflation-adjusted dollars) from $264.6 billion in 1980 to $224.5 billion in 1990. Reagan persuaded the Congress to consolidate 77 categorical (i.e., specific-purpose) grants into nine block (i.e., semi-general-purpose) grants and also terminate 62 categorical grants. He proposed a “swap” whereby the federal government would take responsibility for Medicaid (i.e., the major intergovernmental health-insurance program for the poor) while the states would take responsibility for several intergovernmental social-welfare programs. The majority of governors rejected the swap. Reagan also issued Executive Order 12612 in 1987, which sought to reduce interventions into state and local affairs by federal agencies. However, the Reagan years saw increased federal preemption of states’ authority and an increase of federal mandates on states.
Department of Health and Human Services is a Cabinet department of the U.S. government established by the Congress to replace the Department of Health, Education, and Welfare. The department aims to “to enhance and protect the health and well-being of all Americans.” Its 11 operating divisions administer about 115 programs, including Medicare, Medicaid, Head Start, Public Health Service, and Indian Health Service. It has the biggest budget of any U.S. government department and is one of the most important for federalism because of its many intergovernmental programs such as Medicaid and Head Start.
Michigan v. Long, a 6-3 U.S. Supreme Court ruling, held that state high-court rulings that increase rights protections above standards set by the U.S. Supreme Court cannot be reviewed by the U.S. Supreme Court when they are based solely on “adequate and independent” state constitutional grounds. This decision is an important pillar of the so-called “new judicial federalism.”
State and Local Legal Center supports state and local governments by filing amicus curiae briefs in U.S. Supreme Court cases affecting those governments and conducting moot courts for attorneys arguing before the Supreme Court. The center, which has filed more than 300 amicus briefs, was established by the Big Seven national associations that represent state and local governments: the Council of State Governments, National Governors Association, National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, and International City/County Management Association.
Garcia v. San Antonio Metropolitan Transit Authority, a 5-4 U.S. Supreme Court ruling, held that the commerce clause permits application of the U.S. Fair Labor Standards Act to traditional state government functions. In this case, a bus driver did not receive overtime pay due to the ruling in National League of Cities v. Usery (1976). Garcia said that states cannot expect the court to protect their powers by invoking the Tenth Amendment; instead, states must rely on “the political safeguards of federalism,” namely, their representatives in the Congress to influence the “workings of the National Government itself” to protect their powers.
Tax Reform Act, passed by the Congress, reduced ‘tax expenditure’ subsidies for state and local governments by placing some limits on tax-exempt state and local bonds and by eliminating the deductibility of state and local sales taxes from personal federal income-tax liabilities. (The deduction was partially reinstated in 2004 for those wishing to use it rather than the state and local income-tax deduction.)
South Carolina v. Baker, 7-1 U.S. Supreme Court decision, upheld the Tax Equity and Fiscal Responsibility Act (TEFRA) of 1982, which removed the federal tax exemption for interest on unregistered long-term state and local bonds. The court ruled TEFRA does not violate the Tenth Amendment or intergovernmental tax immunity.
South Dakota v. Dole, a 7-2 U.S. Supreme Court ruling, upheld a condition the Congress attached to federal highway aid allowing the withholding of 5 percent of highway money from any state not complying with the National Minimum Drinking Age Act (which required all states to increase their alcoholic-beverage purchase-age to 21). Grants are voluntary; therefore, any state that does not take highway aid need not increase the drinking age, but all states did so because they could not afford to lose the money and they could not keep the 9-cent gas-tax money their residents would still pay the federal government. Due to the states’ ability to refuse the aid, the U.S. Supreme Court found that the condition of aid was not coercive and did not exceed the Congress’s spending power or violate the Twenty-First Amendment.
Americans with Disabilities Act, passed by the Congress, prohibits discrimination against people with disabilities and requires private businesses and federal, state, and local governments to provide “reasonable accommodations” for disabled employees and access to all programs and facilities for persons with disabilities. Compliance with the act has been very costly for state and local governments because they have so many public facilities such as schools, libraries, courthouses, and public transit.
Missouri v. Jenkins, a 5-4 U.S. Supreme Court decision, held that although federal district-court judges cannot directly levy or raise a local tax to pay for their court orders, judges can require a local or state government to raise taxes to pay for implementation of federal court orders, even if a state must override a tax rule contained in its constitution.
Rutan v. Republican Party of Illinois, a 5-4 U.S. Supreme Court ruling, struck down partisan political considerations in hiring, promoting, and transferring most state and local employees, thus curtailing state and local practices dating back to the republic’s beginning but not ending the nearly 4,000 patronage appointments made by U.S. presidents.
Intermodal Surface Transportation Efficiency Act (ISTEA) made a major change in surface transportation policy by emphasizing intermodal connections of highway, rail, water, and air transportation that are “economically efficient and environmentally sound” and by mandating airbags in all motor vehicles. The act transformed federal funding relations with states and localities by directing more aid to maintenance and replacing the Interstate, primary, secondary, and urban federal-aid systems with two new ones–a National Highway System of High Priority Corridors and the Interstate Highway System. The act required formation of metropolitan planning organizations and gave state and local governments more flexibility, including authority to spend not only on highways and bridges but also on car-pooling, transit capital projects, safety improvements, bicycle and pedestrian trails and facilities, transportation-control measures, and a new Congestion Mitigation and Air Quality Improvement Program. ISTEA was succeeded by the Transportation Equity Act for the 21st Century in 1998.
Gregory v. Ashcroft, a 7-2 U.S. Supreme Court ruling, held that contrary to a U.S. Equal Employment Opportunity Commission ruling, the Missouri Constitution’s 70-year-old mandatory retirement age for judges did not violate the federal Age Discrimination in Employment Act or the U.S. Constitution’s equal protection of the laws clause. The majority opined that “the authority of the people of the states to determine the qualifications of their most important government officials . . . lies at the heart of representative government” and is protected by the Tenth Amendment and the U.S. Constitution’s republican guarantee clause (Article IV, Section 4).
Coleman v. Thompson, a 6-3 U.S. Supreme Court decision, overturned Fay v. Noia (1963), which gave prisoners broad grounds to seek habeas corpus relief in federal courts. “This case is about federalism,” opined the court. “It concerns the respect federal courts owe the states and the states’ procedural rules.”
Quill Corp. v. North Dakota, an 8-1 U.S. Supreme Court decision, struck down North Dakota’s requirement that Quill collect the state’s use tax from its North Dakota mail-order customers and remit it to the state. The court held that because Quill had no substantial “physical nexus,” such as a warehouse or retail outlet, in North Dakota, the state’s law interfered with interstate commerce and, thus, violated the U.S. Constitution’s commerce clause. The decision has cost state and local governments billions in lost sales-tax revenue because more and more people purchase goods online from out-of-state vendors.
New York v. United States, a 6-3 U.S. Supreme Court ruling, voided the provision of the federal Low-Level Radioactive Waste Disposal Act requiring states to take title of undisposed waste. The court ruled that the provision violated the Tenth Amendment by compelling states to enact such a regulation. The decision established today’s anti-commandeering doctrine, which holds that Congress cannot simply require or compel state and local officials to carry out federal policies.
Planned Parenthood v. Casey, a 5-4 U.S. Supreme Court decision, abandoned the Roe v. Wade trimester system and held that states cannot place any “undue” burdens on a woman’s right to have an abortion prior to fetal viability but can regulate abortion after fetal viability and even prohibit abortion except when the mother’s health or life is at risk. The ruling also upheld the state’s informed consent, 24-hour waiting period, parental consent, and reporting requirements and its definition of “medical emergencies.” The decision restored some state regulatory authority over abortion.
National Voter Registration Act (aka “Motor Voter”) requires states to provide voter registration to any person applying for or renewing a driver’s license or applying for public assistance and to “accept and use” a federal voter-registration form. The law encourages states to provide voter registration by mail and prohibits states from dropping registered voters from voter rolls except for specified reasons. The act authorizes the Federal Election Commission to guide states on how to implement the law and allows the U.S. Department of Justice to bring civil actions in federal court to enforce the law. The act applies only to federal elections, but because states have unified voter registration systems for state and federal elections, Motor Voter effectively covers federal, state, and local elections.
Contract with America, written by congressmen Newt Gingrich (R-GA) and Dick Armey (R-TX), was released by the Republican Party during the 1994 congressional campaign setting forth ten policies the party would bring to a vote if it became the majority in the U.S. House of Representatives. The contract focused on downsizing the federal government and restoring powers to state and local governments. The party obtained a majority, and Gingrich was elected House Speaker, but few of the policies were enacted, though the first one, calling for an Unfunded Mandates Reform Act, was enacted in 1995.
Unfunded Mandates Reform Act is a rare act of self-limitation by the Congress that makes it more difficult for the Congress to impose sizable unfunded mandates on state, local, and tribal governments. No bill containing a mandate imposing a direct cost of more than $50 million ($77 million in 2016) on state, local or tribal governments can go to the House or Senate floor without a compensating appropriation. However, this limitation can be overridden by a majority vote of either chamber. As of 2015, Congress had enacted 13 laws since 1995 containing 18 intergovernmental mandates exceeding the act’s cost threshold. According to the Congressional Budget Office, from 2006 through 2015, Congress enacted 335 intergovernmental mandates.
United States v. Lopez, a 5-4 U.S. Supreme Court ruling, was the first time since 1937 that the Supreme Court struck down a federal law (in this case, the Gun-Free School Zones Act) for exceeding the Congress’s power under the U.S. Constitution’s commerce clause. The court rejected the Congress’s view that bringing a handgun to a high school disrupts interstate commerce because it produces an unstable school environment and inhibits learning. The court found this argument to be a slippery slope that would turn the commerce clause into a general grant of power allowing the Congress to regulate any activity.
Seminole Tribe of Florida v. Florida, a 5-4 U.S. Supreme Court decision, held that the Congress violated the Eleventh Amendment when it abrogated states’ sovereign immunity under the Indian Gaming Regulatory Act of 1988. Sovereign immunity, protected by the Eleventh Amendment, implies states cannot be sued by parties in federal court without their consent, although the court allows abrogation in order to protect citizens’ rights guaranteed under the Fourteenth Amendment.
Defense of Marriage Act, passed by the Congress, defined marriage, for federal tax and benefit purposes, as between one man and one woman and allowed states to refuse to recognize same-sex marriages solemnized under the laws of other states despite the U.S. Constitution’s full faith and credit clause (Article IV, Section 1), which otherwise requires recognition of out-of-state marriages. The U.S. Supreme Court’s 2015 Obergefell decision mooted this act.
Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), passed by the Congress, is considered a cornerstone of bipartisan welfare reform. The act ended Aid to Families with Dependent Children (AFDC) and, thereby, welfare as an entitlement. The law required all states to move 50 percent of their AFDC recipients from welfare to work by 2002 or face financial penalties, established a five-year lifetime limit on cash assistance paid with federal funds, guaranteed Medicaid coverage for at least one year for recipients transitioning to work, and allowed states to establish a two-child limit on public assistance benefits. The law created a block grant called Temporary Assistance for Needy Families (TANF) that gives states flexibility in how they implement PRWORA and help recipients enter the workforce through support services such as subsidized child care.
Emergency Management Assistance Compact (EMAC) is a state-to-state mutual-aid agreement among all the states and most territories. It is the first national disaster–relief compact since the Civil Defense and Disaster Compact of 1950 to be ratified by the Congress. EMAC enables states and territories to send personnel, equipment, and commodities to help with disaster relief in governor-declared natural and human-caused disaster emergencies, including terrorism, in other states. The National Emergency Management Association administers the compact.
State Children’s Health Insurance Program (CHIP) was created by the federal Balanced Budget Act of 1997 as part of the Social Security Act. CHIP provides health insurance through Medicaid and other public programs to eligible children whose families earn too much for Medicaid but too little for private health insurance. The program, which is funded 30 percent by the states and 70 percent by the federal government, is administered by the states according to federal requirements. Benefits vary among the states. The word “state” was dropped from the program’s name in 2009. CHIP had 5.7 million enrolled children in 2013.
City of Boerne v. Flores, a 6-3 U.S. Supreme Court ruling, held that sections of the federal Religious Freedom Restoration Act of 1993 (RFRA) exceeded the Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. The decision upheld a historic preservation ordinance that prohibited expansion of a historic church. RFRA, opined the court, “is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.”
Vacco v. Quill and Washington v. Glucksberg, both 9-0 U.S. Supreme Court rulings, upheld 49 state laws prohibiting physician-assisted suicide rather than declaring it to be a fundamental right under the Fourteenth Amendment. The court left it to the democratic processes of the states to decide whether physician-assisted suicide is a fundamental right under state law. As of 2016, six states permitted physician-assisted suicide.
Printz v. United States, a 5-4 U.S. Supreme Court decision, voided the interim provision of the Brady Handgun Control Act that required local law-enforcement officers to conduct background checks of gun buyers. The decision reconfirmed the court’s anti-commandeering doctrine established in New York v. United States (1992).
Internet Tax Freedom Act, passed by the Congress, prohibits federal, state or local taxes on Internet access and discriminatory bit taxes, bandwidth taxes, email taxes, and multiple taxes on electronic commerce. Originally temporary, the law was made permanent in 2016.
Transportation Equity Act for the Twenty-first Century (TEA-21), enacted by the Congress on June 9, built on ISTEA (1991) and authorized almost $218 billion for highway, highway safety, and transit programs for 1997-2003 and assured that each state received a minimum return on the amount of gas taxes it contributed to the Highway Trust Fund. It was then the largest federal public works project in U.S. history. TEA-21 also emphasized improved safety, environmental protection, and equal opportunity for all citizens.
Bush v. Gore, a controversial per curiam 7-2 U.S. Supreme Court ruling, ended the Florida recount dispute over the 2000 presidential election by holding that the Florida Supreme Court’s authorization of county-by-county manual recounts of ballots violated the equal protection clause of the U.S. Constitution. The court also ruled 5-4 that no constitutional recount could be fashioned before the December 12 election-reporting deadline set by federal law. The decision had the effect of giving Florida’s electoral-college votes to Republican George W. Bush, allowing him to win the presidency even though he received fewer popular votes than Democrat Al Gore. Dissenting justices Ruth Bader Ginsburg and John Paul Stevens argued that out of respect for federalism, the court should have upheld the Florida high court’s decision.
United States v. Morrison, a 5-4 U.S. Supreme Court decision, struck down sections of the federal Violence Against Women Act because they exceeded the Congress’s power under the U.S. Constitution’s commerce and equal protection clauses. The Congress contended that, among other things, women subjected to violence have decreased work output that negatively affects the national economy. This case marked the second time–with United States v. Lopez (1995) being the first time since 1937–that the court struck down a federal statute for exceeding the Congress’s commerce power.
Streamlined Sales and Use Tax Agreement is an interstate agreement, launched in 2000, that became effective in 2005. The agreement is a response to the U.S. Supreme Court’s 1992 Quill ruling that states cannot require sellers having no physical presence in a state to collect taxes on sales into the state. It is a voluntary agreement among 24 states and the District of Columbia to simplify the more than 7,000 state and local sales and use tax bases and rates so as to ease tax collection and administration by out-of-state vendors. The agreement also attempts to level the playing field between brick-and-mortar stores and remote electronic sellers.
Religious Land Use and Institutionalized Persons Act, enacted by the Congress in response to the U.S. Supreme Court’s 1997 City of Boerne decision, holds that no state or local government may restrict prisoners’ free exercise of religion, treat religious institutions less equally than nonreligious institutions, or impose substantial burdens on the operation, location, construction, or expansion of religious institutions without a compelling government interest in doing so and without employing the least restrictive means of furthering that compelling interest.
No Child Left Behind Act (NCLB) reauthorized the Elementary and Secondary Education Act and increased the federal role in holding schools accountable for students’ learning outcomes. The act aimed to close the gap between disadvantaged and more advantaged students. The NCLB required states to develop annual testing assessments of basic skills, especially mathematics and reading, and put financial pressure on schools to boost the academic scores of their disadvantaged students. The act was strongly resisted by associations of school teachers and many school administrators.
USA PATRIOT Act, officially titled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” was signed into law by President George W. Bush after the terrorist attacks of September 11. This wide-ranging law includes provisions for increased federal-state-local cooperation and coordination to prevent domestic terrorism, financial support for state and local law enforcement and first responders (although some states, such as New York, objected to the act’s formula for distributing funds), and increased grants to the states to compensate victims of terrorism. The act, since modified, is criticized by some as authorizing violations of the U.S. Bill of Rights.
Help America Vote Act (HAVA), enacted by the Congress in response to the disputed 2000 presidential election, gives states federal funds to upgrade their election procedures, including replacing punch-card and lever-machine voting equipment with better machines. HAVA establishes the U.S. Election Assistance Commission to guide state administration of federal elections; creates a new federal voter-registration form; requires new registrants to provide either a driver’s license number or last four digits of their Social Security number at the time of registration; and requires new voters who registered by mail to show identification the first time they vote. HAVA requires states to, among other things, establish minimum election administration procedures in accord with federal rules, create a computerized voter registration system, train poll workers, improve voter education, allow provisional balloting, improve access for disabled people, and post a Voters Bill of Rights in all polling places. All of HAVA’s requirements had to be implemented before the 2006 elections. Many implementation specifics were left to the states’ discretion.
Department of Homeland Security was created by the Congress as a Cabinet department in the U.S. government in response to the terrorist attacks on September 11, 2001. The department brings under one roof most federal agencies having responsibility for domestic security and natural disasters for the purposes of “preventing terrorism and enhancing security; managing our borders; administering immigration laws; securing cyberspace; and ensuring disaster resilience.” Most crucial for state and local governments was movement of the Federal Emergency Management Agency (FEMA) into this department. DHS also administers many grants-in-aid for state and local governments.
Gonzales v. Raich, a 6-3 U.S. Supreme Court ruling, held that use of the federal Controlled Substances Act of 1970 to prohibit or regulate the local cultivation and use of homegrown marijuana for medical purposes does not violate the commerce clause even if the marijuana is legal under state law and does not directly enter interstate commerce. Local marijuana cultivation and use indirectly affects the national marketplace, opined the court in a manner similar to Wickard v. Filburn (1942), hence authorizing federal prohibition despite state laws to the contrary. This decision has been criticized by some for excessively stretching the notion of interstate commerce. The Obama administration chose not to exercise its enforcement powers.
REAL ID Act, enacted by the Congress in response to the terrorists of September 11, 2001, who used driver’s licenses to board the aircrafts they hijacked, requires states to comply with standardized federal security rules in issuing driver’s licenses and identification cards. By 2020, any adult not possessing a REAL ID compliant driver’s license or identification (or a passport) will not be allowed, among other things, to board an airplane, open a bank account, buy a firearm, or enter a federal building, military base, or nuclear power plant. REAL ID also funded small border-security projects and waived any laws interfering with the construction of physical barriers at U.S. borders.
Class Action Fairness Act, enacted by the Congress, moved from state to federal courts most class action lawsuits in diversity jurisdiction that involve at least 100 plaintiffs, at least one of which is from a different state than at least one defendant, who are seeking more than $5 million in total aggregate damages. The act significantly reduced a historic state-court jurisdiction. Senator Harry Reid (D-NV) said the act “turns federalism upside down by preventing state courts from hearing state law claims.”
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) provided $244.1 billion for 2005-2009 for interstate highways; public transit, including new rail systems; pedestrian and bicycle facilities; freight rail; a New Freedom formula grant for new public transportation services and alternatives beyond those called for by the Americans with Disabilities Act (1990); and many earmarks, including the infamous “Bridge to Nowhere” in Alaska. The act offered financial incentives for states to enact laws to increase punishments for repeat DUI drivers and to fine drivers for not wearing a seatbelt even if they are not breaking other laws. The act also guaranteed donor states a return of 92 cents for each dollar they contribute to the Highway Trust Fund. The act was replaced by the Moving Ahead for Progress in the 21st Century Act (2012).
Gonzalez v. Oregon, a 6-3 U.S. Supreme Court decision, upheld Oregon’s Death with Dignity Act by ruling that the federal Controlled Substances Act (1970) does not allow the U.S. attorney general “to bar dispensing controlled substances for assisted suicide in the face of a state medical regime permitting such conduct.” The ruling, which is in line with Vacco v. Quill (1997) and Washington v. Glucksberg (1997), assured continuing state authority to experiment with physician-assisted suicide.
National Popular Vote Interstate Compact, initiated in 2006 in response to the 2000 presidential election, is a proposed compact in which the member states would award all their electoral-college votes to the presidential candidate who wins the nationwide popular vote. The compact would take effect when enough states join to reach the 270 electoral votes needed to elect a president. As of late 2016, 11 states totaling 165 electoral votes had approved the compact. Proponents believe the compact does not require congressional consent to take effect because Article II, Section 1 of the U.S. Constitution states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Others argue that the compact affects federal power and therefore needs congressional approval under the U.S. Constitution’s compact clause (Article I, Section 10).
Great Lakes–St. Lawrence River Basin Water Resources Compact, approved by the Congress, includes Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin and is the means for the governors of those states to implement the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement of 2005, which includes the premiers of Ontario and Quebec, Canada. The Great Lakes-St. Lawrence River Water Resources Regional Body is the joint mechanism by which the U.S. governors and Canadian premiers cooperate to protect the world’s largest source of surface fresh water.
American Recovery and Reinvestment Act, passed by the Congress, authorized an $831 billion countercyclical stimulus package based on Keynesian economic theory to revive the U.S. economy during the 2007-2009 recession. One objective was to provide funds to state and local governments so as to reduce their spending cutbacks. The act provided tax incentives for individuals and businesses; funds for Medicaid, other health-care programs, and public education; increased aid and job training for low-income people; and funds for infrastructure programs, housing, renewable energy, and scientific research. Most state and local officials responded favorably, in part because federal funds flowed through established intergovernmental channels.
Common Core State Standards Initiative was launched by the National Governors Association and Council of Chief State School Officers and adopted by 42 states by 2015. It seeks to make basic education standards uniform across the states by detailing what all K-12 students should know in mathematics and English language arts by the end of each grade level. Implementation became controversial, especially when the U.S. Department of Education provided Race to the Top grants to press states to adopt it or something like it. Controversies developed thereafter around state testing associated with the standards, high student failure rates in many states, parental concerns about being ill-prepared to help their children meet the standards, and rapid implementation of the standards in some states. The Every Child Succeeds Act of 2015 prohibits the U.S. Department of Education from requiring states to adopt it.
Patient Protection and Affordable Care Act (aka “Obamacare”), enacted by the Congress, authorized a major change and increase in the federal role in health care. The act mandated that all citizens purchase health insurance or pay a tax for not doing so. Among many other provisions, the act provided funds for each state to establish an online health-insurance exchange for residents to buy insurance. If a state did not establish an exchange, the federal government established an exchange in the state. As of late 2016, 16 states had established their own exchange. The act also required all states to expand their Medicaid program or else lose all their federal Medicaid funding. The U.S. Supreme Court struck down this requirement in National Federation of Independent Business v. Sebelius (2012), thus making state expansions of Medicaid voluntary. To pay for expansion, states received 100 percent federal funding for 2014 through 2016 for their new Medicaid beneficiaries, 95 percent federal funding in 2017, 94 percent in 2018, 93 percent in 2019, and 90 percent federal financing for 2020 and beyond. As of early 2017, 31 states had expanded Medicaid.
Dodd-Frank Wall Street Reform and Consumer Protection Act, a wide-ranging act passed by the Congress in response the 2007-2009 financial recession, preempted some state regulatory powers but preserved most state regulatory authority in banking and consumer protection, allowed states to enforce some federal consumer-protection laws on national and state banks, permitted states to regulate hedge funds and investment advisors handling less than $100 million, treated federal consumer law as a floor not a ceiling for state consumer laws, and allowed states to petition the new federal Consumer Financial Protection Bureau to issue new protection rules.
McDonald v. Chicago, a 5-4 U.S. Supreme Court ruling, declared that the Second Amendment is applicable to the states and not just the federal government, thus incorporating the Second Amendment into the Fourteenth Amendment of the U.S. Constitution. The right to bear arms is an essential part of our nation’s liberty, opined the court. The decision elevated the right to bear arms to the same level as other rights, such as freedom of speech and religion. Historically, state and local governments regulated firearms, but this decision restrains such regulation, thus triggering considerable litigation over what state and local regulations are acceptable under McDonald.
National Federation of Independent Business v. Sebelius, a set of U.S. Supreme Court decisions involving 9-0, 5-4, 7-2, and 5-4 votes, upheld the individual insurance mandate in the 2010 Patient Protection and Affordable Care Act (ACA) but struck down as “coercive” the act’s condition that states expand their Medicaid programs or lose all of their federal Medicaid money. As a result, by 2017, 31 states, mostly Democratic, expanded Medicaid under the ACA, while the other states, mostly Republican, did not do so.
Moving Ahead for Progress in the 21st Century Act was a two-year transportation reauthorization providing $105 billion for surface transportation in 2013 and 2014. The act, which was the first multi-year transportation law enacted since 2005, created a performance-based system to fix problems in the transportation system. This act was superseded by the Fixing America’s Surface Transportation Act of 2015.
Shelby County v. Holder, a 5-4 U.S. Supreme Court ruling, declared Section 4 of the U.S. Voting Rights Act unconstitutional because it imposes current requirements on certain states that are based on outdated discrimination data from the mid-1960s. The case questioned the constitutionality of sections 4 and 5 of the act, which require states covered by the act to obtain preclearance from the federal government to change their voting laws. The court opined that election regulation has always fallen under state jurisdiction and that absent current documentation of discrimination, it is unconstitutional for the federal government to abridge this authority.
State Innovation Exchange is a private nonprofit organization founded by a merger of the Progressive States Network, Progressive States Action, the American Legislative and Issue Campaign Exchange, and the Center for State Innovation in order to support liberal state legislators by providing policy expertise and research, training, communications support, political strategy advice, information sharing, and ideas for state legislation. The exchange is partly a counterweight to the conservative American Legislative Exchange Council founded in 1973.
Walker v. Texas Division, Sons of Confederate Veterans, a 5-4 U.S. Supreme Court ruling, upheld states’ authority to reject certain messages on specialty auto-license plates, in this case a request by the Texas chapter of the Sons of Confederate Veterans for a plate showing two confederate flags: one in the organization’s logo and one faintly making up the plate’s background.
Obergefell v. Hodges, a 5-4 U.S. Supreme Court decision, held same-sex marriage to be a fundamental right under the Fourteenth Amendment, thereby striking down 31 state constitutional prohibitions of same-sex marriage while 19 states had already recognized same-sex marriages or civil unions.
Every Student Succeeds Act (ESSA) was a major reauthorization by the Congress of the Elementary and Secondary Education Act (1965) that replaced the No Child Left Behind Act (2001). The act – which aims to achieve a 90 percent high-school graduation rate by 2020 – authorized more than $15 billion a year in formula funding to states and consolidated about 50 programs into a new $1.6 billion block grant. The act retained a maintenance-of-effort requirement, though with some flexibility. ESSA gave states more discretion over how they define school success and intervene in schools that do not demonstrate progress, but states must still conform their standards to multiple federal statutes and gain approval from the U.S. secretary of education for many activities. ESSA ended the federal requirement that tied teacher evaluations to student performance on state tests, barred the U.S. Department of Education from telling states how to assess teacher and school performance, and prohibited the federal government from mandating or giving states financial incentives to adopt particular academic standards, such as Common Core.
Fixing America’s Surface Transportation Act (FAST), enacted by the Congress, authorized $305 billion for 2016 through 2020 for highway, highway and motor-vehicle safety, public transportation, motor-carrier safety, hazardous materials safety, rail, and research, technology, and statistics programs. Not since 1998 had Congress passed such a long-term bill. Since 2005, there had been 35 extensions of the highway program, thus making long-term state and local planning nearly impossible. To help pay for FAST, Congress took money from the Federal Reserve’s “rainy day fund.” Additional funds came from reducing the amount of dividends the Federal Reserve pays to banks and from selling millions of barrels of oil from the Strategic Petroleum Reserve. Congress refused to increase the 18.4-cent per gallon gas tax, which was last raised in 1993.
Presidential Election was won by Republican Donald Trump who received 306 electoral-college votes compared to 232 won by Democrat Hillary Clinton even though Clinton won 65,844,954 popular votes while Trump won 62,979,879 popular votes. This was the fifth time in U.S. history that the candidate who lost the popular vote won the presidency. The previous cases were John Quincy Adams winning the presidency in 1824, Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. The 2016 election reminded Americans of the potency of the federalist method of electing presidents via the electoral college.
Safe and Accurate Food Labeling Act, enacted by the Congress, preempted state laws requiring GMO products made with genetically modified organisms to have a label saying, “produced with genetic engineering,” and established a single federal labeling standard.
Prepared by John Kincaid and Leigh Howe of Lafayette College, Easton, PA