States and Congress

The states and Congress have never fully agreed on how to share—or divide—responsibility for governing the nation. For more than two centuries the states have protested acts of Congress that in the states' opinion have undermined their autonomy and independence. That conflict erupted once into the Civil War and has spawned numerous other political disputes.

Certain areas, such as national defense, clearly lie in the federal domain. But the Constitution was unclear in many gray areas as to what level of government was in charge. Often the Supreme Court has been forced to referee disputes, deciding whether the federal government or the states are ultimately responsible.

The sharing of responsibility for governing is called federalism. In the United States federalism means that a national government, fifty state governments, and thousands of local governments all operate at different levels. By the twenty-first century, the federal government clearly dominated the relationship; several Supreme Court decisions had enhanced federal authority, as had the enormous flow of federal money to state and local governments.

State and local officials found it almost impossible to refuse their share of tax dollars, even when the money came with rules and regulations that encroached on their autonomy. Congress, for its part, became accustomed in the 1960s and 1970s to setting national goals and giving other governments money to use in reaching those goals.

By the early 1990s constraints on the federal budget had made the pattern increasingly difficult to sustain. Sweeping new programs were out of the question, and existing policies were at risk. Congress continued to set national goals but could no longer be counted on to accompany the rules with the “carrot” of federal money for state and local governments to use in carrying out the rules. Governors and mayors, who began lobbying Washington heavily in the 1970s and 1980s, called these policies “mandates without money.” They were asked to spend their own governments' money to implement federal goals. Even worse, from their point of view, was the use of the federal “stick”—potential loss of federal funds in other areas if they failed to comply with new national policies. Clean air laws, for example, called for cuts in federal highway funds for states that failed to meet national goals.

A once beneficial relationship with the federal government suddenly became less attractive to state and local governments, and they began to resist federal demands. Old arguments about states' rights had a new appeal, several centuries after the Constitution tried to divide local and national responsibilities.

Constitutional Responsibilities

The Constitution enumerated several powers of Congress, including authority over the federal purse, interstate commerce, taxes and tariffs, and war. But it left untouched a wide area for the states to handle, such as education, property transactions, marriage, inheritance, contracts, and maintenance of domestic order, called the “police power.”

The Tenth Amendment addressed the division of state and federal authority: “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.”

Federal authority had an early test in Maryland, where opponents of the national bank tried to tax it into ruin. The Supreme Court in an 1819 decision, McCulloch v. Maryland, sided with the federal government, saying its law prevailed over any conflicting state laws or constitutions because of the “supremacy clause” of the Constitution.

But numerous Court decisions after that gave the upper hand to the states. Not until 1937, in a landmark case upholding the Social Security system (Helvering v. Davis), did the Court elaborate on the power of the “general welfare” clause. That was followed by other decisions endorsing a broad application of the interstate commerce clause, opening the door to broad federal regulations. Since then, federal authority has rarely been checked.

In setting up the national government, the Constitution protected state interests in several ways. Each state was to be represented in Congress by two senators and one or more representatives. States were to govern the election of presidents and vice presidents through the electoral college. No changes could be made in the Constitution itself without the approval of three-fourths of the states.

The Constitution left voter qualifications up to the states but it has been amended five times to overrule state restrictions on voting rights. Congress and the Supreme Court have also acted against state attempts to limit voting. Males without property, blacks, women, and young people were among those benefiting from the changes.

Three constitutional amendments ratified after the Civil War were designed to guarantee individual rights, even against action by states. The Thirteenth, Fourteenth, and Fifteenth amendments, respectively, outlawed slavery; affirmed that voting was a right regardless of race, color, or previous condition of servitude; and promised due process and equal protection to all citizens. Not until the 1960s, however, did Supreme Court decisions and congressional action on civil rights laws put the full authority of the federal government behind the concept of equal rights.

States' Rights

The philosophical debate over states' rights influenced the drafting of the nation's first documents. Statesmen such as Alexander Hamilton, who favored a strong national government, and Thomas Jefferson, who favored the states, continued the dialogue even after the Constitution appeared to resolve many issues.

Virginia and Kentucky Resolutions

The discussion was rekindled in 1798, when the Federalist Congress enacted the Alien and Sedition Acts, which were thinly disguised attempts to weaken the Republicans. Under the Sedition Act, the most vigorously enforced of four new laws, twenty-five people, including Republican newspaper editors, were arrested for publishing articles criticizing Federalist policies. Virginia and Kentucky reacted to the restrictive law by writing resolutions asserting the right of states to resist laws they considered unconstitutional. James Madison drafted the Virginia Resolution; Jefferson, the Kentucky Resolution.

Seven northern states protested the resolutions, particularly Kentucky's advocacy of the theory of nullification. Under that theory, a state—as opposed to the Supreme Court—could declare null and void any federal law it found to violate constitutional rights. In 1814 Massachusetts, Connecticut, and Rhode Island borrowed the theory when they met at the Hartford Convention to consider secession as a protest against the War of 1812.

Nullification

The concept of nullification was revived in the late 1820s and used to support the proslavery argument of the southern states. South Carolinian John C. Calhoun was an eloquent advocate of states' rights. He resigned the vice presidency in 1832 and returned to the Senate to defend the nullification doctrine. South Carolina that year voted to nullify a new federal tariff act and to prohibit its enforcement in the state. Southern opposition to protective tariffs, and to the national bank, was connected to the slavery issue; if the southern states could assert their rights on tariffs, they might also be able to nullify any federal law banning slavery.

President Andrew Jackson responded by denouncing nullification, contending that states had surrendered a part of their sovereignty to the federal government. “Disunion by armed force is treason,” Jackson said. A compromise on the tariff averted a direct confrontation, but the debate continued. Georgia in the 1830s tried to nullify a Supreme Court decision favoring the Cherokee Indians in its western territories.

Civil War

The southern states took their concept of states' rights to its ultimate test in 1860 and 1861 when eleven states voted to secede from the Union. Their action was triggered by the election of President Abraham Lincoln; he opposed slavery and argued that the states, by joining the Union, had given up certain rights.

The victory of the Union in 1865 made the national government supreme and settled the argument about secession. But other aspects of the debate remained in dispute. The concept of states' rights continued to be identified with those reluctant to end racial discrimination.

Dixiecrats and Desegregation

Champions of states' rights renewed their battle in the late 1940s and 1950s, as federal efforts to end racial discrimination intensified. When the Democratic National Convention in 1948 adopted a pro–civil rights platform, disgruntled southerners from thirteen states established a States' Rights, or Dixiecrat, Party. They nominated for president Strom Thurmond, the South Carolina governor; Thurmond eventually won in Alabama, Louisiana, Mississippi, and South Carolina. (Thurmond went on to enter the Senate as a Democrat in 1954 and became a Republican in 1964.)

Southern states also rallied around the states' rights cry in 1954, when the Supreme Court outlawed racially segregated public schools. For the next decade, congressional opponents of civil rights laws often made the claim that states had constitutional rights to resist federal policy. A 1956 “manifesto” signed by 101 southern members of Congress declared, “We commend the motives of those states which have declared the intention to resist forced integration by any lawful means.” In 1957 President Dwight D. Eisenhower sent federal troops to enforce civil rights in Little Rock, Arkansas, where black students enrolled at the previously all-white Central High School.

Grants-in-Aid

The debate over states' rights has at times been deeply philosophical, but a more powerful factor in the federal-state relationship has little to do with philosophy. Federal grants-in-aid to state and local governments steadily increased in the twentieth century, particularly in the mid-1960s and after. Such grants escalated from 5 percent of total federal outlays in fiscal 1955 to 17.5 percent in fiscal 2002. Conditions on use of this money gave the federal government increasing control over local matters.

The patchwork of grant programs developed piecemeal, as Congress responded to various problems. Conditions were devised haphazardly and have grown increasingly complex. To be eligible for federal health funds, for example, states must have overall plans for how health care is delivered. Federally insured mortgages are available only to states with flood control programs. Highway grants come with a host of rules about how roads and bridges must be built as well as with links to other federal policies, such as the minimum legal age for drinking alcoholic beverages.

Applicable to all grants are several “cross-cutting” rules on civil rights, affirmative action, environmental impact, labor, and accessibility for the handicapped.

Land Grants

The earliest federal grants consisted of land; as western territories were divided, a portion of every parcel, often one-sixteenth of each township, was set aside, with proceeds used to support local education. Application of the same approach to roads and canals met resistance. Several presidents, from Madison to Andrew Jackson, opposed as improper a federal role in “internal improvements,” despite the idea's popularity in Congress.

Land grants were sometimes controversial. President Franklin Pierce in 1854 vetoed Congress's plan to provide land to states for facilities aiding the mentally handicapped. In 1859 President James Buchanan vetoed a congressional attempt to fund agricultural colleges. Both presidents argued that such federal funding was unconstitutional. Lincoln supported a stronger federal role and in 1862 signed the Morrill Act, which provided grants of federal land to establish agricultural colleges.

Highways

A new era began in 1916 with federal highway legislation. Matching grants and formulas for distributing funds were among the procedures devised then, which became standard practice for decades afterward. To qualify for the aid, states were required to establish a highway department; by 1917 every state had managed to do so. It was no coincidence that the highway bill was passed just three years after enactment of a federal income tax, which for the first time guaranteed a steady flow of funds into federal coffers.

The New Deal and the 1950s

Coping with economic upheaval during the Depression of the 1930s, President Franklin D. Roosevelt proposed an array of federal programs, many of which were based on grants to states and also to cities. The most sweeping new law was the Social Security Act, which set up programs to benefit dependent children, the blind, and the elderly; these were administered by the states. Annual federal grants quadrupled between 1932 and 1940. By 1950, $2.3 billion was being spent on grants-in-aid.

Although the New Deal clearly changed the framework of federal-state relations, debate about the proper federal role had not ended. In the 1950s, Congress spent several years arguing about federal aid to elementary and secondary education, which had traditionally been handled by state and local governments. Some critics fought any federal aid, while churches insisted that funds should also be channeled to parochial schools. The deadlock was broken by the Soviet Union's launching of the first artificial satellite in 1957. In an effort to catch up with and surpass Soviet technology, Congress approved the National Defense Education Act the following year.

The Great Society

Democratic presidents John F. Kennedy and Lyndon B. Johnson led Congress in a sweeping expansion of federal welfare programs that required state and local governments to handle billions of additional federal dollars—according to federal rules. “This administration today here and now declares unconditional war on poverty in America,” Johnson proclaimed in 1964. Food stamps, urban housing programs, community development, health care for the poor (Medicaid), health care for the elderly (Medicare), and education programs for disadvantaged children (such as Head Start) were among the bills passed in the 1960s and 1970s. Johnson called his policy “creative federalism.”

The New Federalism

President Richard Nixon pushed a “new federalism” that would return responsibility to the state and local levels. He wanted to accompany that with an infusion of federal money, which he called “revenue sharing.” Congress in 1972 approved the revenue-sharing program, which provided virtually unrestricted grants to state and local governments. However, it resisted Nixon's efforts to combine most “categorical grant” programs, aimed at specific problems, into “block grants,” a move designed to give more flexibility to local administrators.

The Reagan Revolution

The 1980s brought another attempt at “new federalism,” this time by President Ronald Reagan, who argued that “our nation of sovereign states has come dangerously close to becoming one great national government.” Reagan saw block grants as the first step in the redirection of money and power to state and local governments. But Congress, anxious to have national policy carried out uniformly in every state and city, resisted major shifts of responsibility back to the local level. As part of his program, Reagan sought sweeping cuts in federal payments to states and cities; Congress cut funding, though not so deeply as Reagan proposed in each annual budget request.

The Reagan years also brought an end to revenue sharing, which between 1973 and 1986 transferred more than $80 billion to state and local governments with few strings attached. More than 39,000 local governments benefited from the program; states did not receive revenue-sharing funds after 1980. Revenue-sharing money was used to pay police and fire personnel, provide health care to residents, buy library books, build and repair highways, support education, and meet dozens of other needs.

Clinton and GOP Congress

Republicans, who became the majority in Congress as a result of the 1994 elections, sought to reduce the size of the federal government and to transfer power to the states. President Bill Clinton in 1995 signed into law a bill to curb unfunded federal mandates—those requirements that Congress and federal agencies imposed on state and local governments without providing the money to pay for them. The legislation was a watered-down version of a plank in the Republican Party's “Contract with America.” Clinton in 1996 signed a landmark welfare reform measure that ended a sixty-one-year-old entitlement to cash benefits for poor women and children. Under the new law, federal funds would be sent to the states in lump sums, and states would have broad leeway over eligibility and benefits. It was the first time the federal government had transformed a major individual entitlement program into block grants to the states. The law did impose some federal restrictions, such as requiring recipients to work within two years of receiving funds and limiting aid to five years.

Compromises between Clinton and Republicans resulted in a number of joint federal-state programs that were created in the late 1990s. For example, lawmakers in 1997 created a federal grant program aimed at expanding health insurance for children. In 2000, Congress created a six-year, $12 billion discretionary fund for state and federal public land programs. In addition, compromise was often the result of budget debates between GOP congressional leaders and Clinton over whether directed grants or block grants would best improve the quality of schools.

Bush's Mixed Record

President George W. Bush sought to shift power from the federal government to the states. He succeeded in some ways through the budget process by creating new federally funded block grant programs throughout various agencies and consolidating other directed grants into larger block grants.

However, at the same time, Bush also supported a number of bills that concentrated power at the federal level. Examples included elements of Bush's comprehensive education bill, which contained some programs allowing states more flexibility but also added a number of mandates on states, including a requirement that states test their students on an annual basis. Bush also supported the creation of a new homeland security agency, which was expected to direct state and local efforts to combat terrorism. In 2002 Bush signed legislation that set broad national standards for the conduct of federal elections—a first for an issue on which the details always had been handled by state and local governments. The result was a mixed record: While Bush favored local control, early in his presidency he often supported legislation that had the opposite effect.

additional reading

Conlon, Timothy. From New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform. Washington, D.C.: Brookings Institution, 1998.

Derthick, Martha. Keeping the Compound Republic: Essays on American Federalism. Washington, D.C.: Brookings Institution, 2001.