Dual Federalism

In general, there is little need for the federal government or the states to try to gain leverage over each other when there is consensus between them about various government functions and policies and when their own funding sources are sufficient.  For example, there is wide agreement that the states rather than the federal government shall administer birth and death records. In such cases, dual federalism, as spelled out in the Constitution, prevails.  (Next week, we will review cooperative federalism.)

The states enjoy some advantages under dual federalism.  One advantage is that states can legislate in areas of exclusive federal power.[1]  For example, when the Office of the President decided not to adopt the Kyoto Protocol on global warming in 2001, some state and local governments adopted their own Kyoto-style regulations.  Conversely, states can choose to maintain laws and regulations that the federal government has withdrawn. Thus, when the Office of the President declared in 2017 that the United States was withdrawing from the Paris Agreement on climate change, twenty states pledged to maintain the environmental standards of the agreement. 

A second advantage is that a state may provide stronger civil rights protections than what is found in the U.S. Constitution.  States and state courts may govern on the basis of their state constitutions so long as they are not in conflict with the U.S. Constitution or laws.[2] By way of example, the Arizona Constitution goes beyond the Fifth Amendment to U.S. Constitution, which says “nor shall private property be taken for public use, without just compensation” by adding “Private property shall not be taken for private use” with very few exceptions.[3] Examples from other states include rights related to education, health care, public assistance, and environmental quality.[4] (For an informative slideshow, click here.)

Want to read more? Click here for access to the full course. We are in Part 3 of 4 now.

Image: Federal, state, and county road signs. NYSDOT.

[1] In Sturges v. Crowninshield (1819), the Supreme Court said states can exercise powers delegated exclusively to Congress so long as Congress does not preempt them or the court does not find them in violation of interstate commerce.  See also Rozell & Wilcox, 2019, pp. 67-68.

[2] See https://encyclopedia.federalism.org/index.php?title=Michigan_v._Long_(1983)

[3] Constitution of the State of Arizona. https://www.azleg.gov/const/2/17.htm

[4] American Bar Association. https://www.americanbar.org/groups/crsj/publications /human_rights_magazine_home/2014_vol_40/vol_40_no_2_civil_rights/state_protection_of_human_rights/

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