What is Federalism

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To say that the United States formed a Federal System that operates today is to say that the governments of the states coexist with the national, or federal, government. This federal government has specifically enumerated powers, which are granted and limited in their scope, by the United States Constitution. 

The Constitution established three separate branches of federal government – the legislative, the executive, and the judicial – and each branch wields and asserts only those powers specifically or implicitly provided to it in the Constitution.

The interaction between Federal and state governments, therefore, is defined by the concept of Federalism and the specifically and implicitly enumerated powers granted the Federal government by the Constitution.

A state’s power is limited only insofar as no state may pass any law that violates the Constitution. For example, a state has the right to pass a law setting the maximum speed limit at 55 miles per hour, as this does not violate any Constitutional provisions. The state does not need to be empowered by the Constitution to pass such a law – its powers are inherent. 

The Federal government, however, is limited to passing laws in only those areas in which the Constitution bestows it power. So while the Federal government can withhold national highway funds from states that do not comply with its desire for a 55 m.p.h. speed limit, the Federal government itself is unable to pass such a law absent Constitutional authority.

EXAMPLE: Southernstate wishes to pass a law requiring that all whiskey labeled as “Made in Southernstate” pass certain purity standards. The state requires no federal constitutional authority to pass such a law, provided the legislation does not otherwise violate the federal law or the federal constitution (for example by prohibiting minority-owned business from labeling their product "Made in Southernstate").

Following the 1819 decision of McCulloch v. Maryland, 17 U.S. 316 (1819), the scope of the Congressional power granted by Article I of the U.S. Constitution increased significantly. This is because the Court in McCulloch found that not every power meant to be granted Congress could have been spelled out in the Constitution. The difference between the Constitution and a complete legal code is that the Constitution does not require that every power be explicitly stated or minutiae fully described. Rather, the powers specifically enumerated in the Constitution entail some further implied powers.  For example, the U.S. Supreme Court has read the "Necessary and Proper Clause" to grant precisely these implied powers to Congress.

In McCulloch, the problem centered around the federal government’s authority to create and operate a national bank, which at that time violated Maryland law. Maryland law required that any bank issuing notes do so only under authority of the state and only on paper issued by the state. The state charged a fee for the paper, and the statute provided for penalties for violations. The Constitution did not specifically grant Congress the power to create such a bank, nor does the Constitution specifically give Congress the right to ignore Maryland law in this regard.  But the Court held that Congress’s power to create and operate a national bank was implicit, i.e., because Congress did have the power to handle national finances, a federal bank was therefore a "useful, convenient and essential instrument" (it was necessary and proper) for fulfilling this Constitutional obligation.  

But the Necessary and Proper Clause is not some legal technicality belonging to the past. As recently as April of 2003, in Jinks v. Richland County, South Carolina, 538 U.S. 456 (2003) the Court reaffirmed Congressional power to pass an act based on the Necessary and Proper Clause. Applying McCulloch v. Maryland, the court reiterated that the Necessary and Proper Clause does not demand that an Act of Congress be “absolutely necessary” to the exercise of an enumerated power. Jinks at 463, citing McCulloch at 414. See also Stewart v. Kahn, 78 U.S. 493 (1871). 

So from McCulloch in 1819 to Jinks almost 200 years later, the Court has held its ground that the threshold test for the Necessary and Proper Clause is below absolute necessity. So long as the Congressionally chosen means is rationally related (see chapter on Substantive Due Process, Non-fundamental Rights) to a Constitutionally permitted end, the Necessary and Proper Clause may be properly invoked as the source of Congressional power.

EXAMPLE (1): The Constitution requires Congress to apportion to the states Representation in the House “according to their numbers.” In 1941 a Federal statute was enacted which, when applied in 1990, caused Montana to lose one of the two seats it held in the House of Representatives. Montana sued and the case ended up in the Supreme Court. The Court held that Congressional selection and application of the method by which to apportion Representatives is valid under the Necessary and Proper Cause. While the method and formulas were not themselves necessary – Congress could have chosen others – it was necessary to choose some specific manner of calculation, and Congress did not enter into the task lightly or hastily. See Department of Commerce v. Montana, 503. U.S. 442 (1992).

EXAMPLE (2): Congress is given the power to establish federal courts under the Constitution. Necessarily, some court rules must be established in order to ensure the smooth operation of these courts. Although there is no specific Constitutional provision to that effect, Congress has the power to promulgate these rules, known as the Federal Rules of Civil Procedure (a set of guidelines for how federal civil litigation operates) pursuant to the Necessary and Proper Clause.

What does all this mean? It means that while Congress has only the powers specifically enumerated in the Constitution, Congress may also have other, non-enumerated powers, which are implicitly required to carry out the enumerated powers. It also means that for a case involving the Necessary and Proper Clause, which makes it all the way to the Supreme Court, the outcome is not a foregone conclusion.

The Supreme Court has recognized the fluid nature of Congressional power pursuant to the Necessary and Proper Clause.  Instructive here is an excerpt from New York v. United States, 505 U.S. 144, 157 (1992):

"This [Constitutional] framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role."

In other words, while the Constitutionally enumerated powers granted the Federal government are static, absent a Constitutional amendment, the meaning and scope of those powers must remain sufficiently flexible to allow for enormous changes in the nature of government. 

So, the interaction between state and Federal government in our Federal system is a fluid concept, which operates differently as it is applied in different times and different contexts, and over time, Congress’ power has steadily increased in range pursuant to Supreme Court decisions.

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