US Federalism

Federalism splits authority between a national government and regional governments, so that each level holds powers the other cannot simply remove. The USA has 50 states plus the District of Columbia, and the states are not creations of the federal government — thirteen of them existed first and agreed to form the union in 1787–89.

The word "federalism" does not appear in the Constitution. The system is assembled from three provisions working together:

Provision	Effect
Article I, Section 8	Lists the powers Congress holds, implying that unlisted powers lie elsewhere
Article VI — supremacy clause	Where valid federal law and state law conflict, federal law prevails
Tenth Amendment (1791)	Powers not delegated to the federal government, and not forbidden to the states, are reserved to the states or the people

Article IV supplies the plumbing between states: each must give full faith and credit to the others' public acts and records, extradite fugitives, and treat other states' citizens on equal terms.

Federalism is not the same as decentralisation. A unitary state can be highly decentralised and still take its local powers back by ordinary law. In a federation the regional level holds its powers by constitutional right, so removing them requires a constitutional amendment ratified by three-quarters of the states themselves.

That is the sharpest contrast with UK devolution. The Scottish Parliament exists because Westminster passed the Scotland Act 1998; Texas exists as a sovereign entity within the union because the Constitution says so.

The practical question is which level does what. Three categories cover it.

Category	Held by	Examples
Enumerated (delegated)	Federal government alone	Coining money, declaring war, making treaties, regulating interstate and foreign commerce, immigration and naturalisation, post offices, patents
Reserved	States alone	Most criminal law, policing, education, family and marriage law, professional and driving licences, intrastate commerce, the administration of elections
Concurrent	Both levels	Levying taxes, borrowing money, running court systems, making and enforcing law, spending for public welfare

Two consequences follow that students routinely miss.

There are 51 legal systems, not one. A defendant can be prosecuted by a state and by the federal government for the same conduct without that counting as double jeopardy, because two separate sovereigns are bringing the charges. Most Americans encounter the criminal law, schools, roads and licensing entirely through their state.

Federal power grows through the concurrent and implied categories, not the enumerated list. Congress has not been granted a power over healthcare, education or the environment. It reaches those fields through the commerce clause, the taxing power and the elastic clause — which is why Supreme Court rulings on those clauses are federalism rulings.

Worked example — where the boundary actually sits. California legalised medical cannabis by ballot proposition in 1996. Federal law classifies cannabis as a Schedule I controlled substance. In Gonzales v Raich (2005) the Supreme Court held that Congress could still ban cannabis grown at home for personal medical use, because the cumulative effect of home cultivation on the interstate market brought it within the commerce clause. The state law survived, but so did the federal ban: the plaintiffs remained liable to federal prosecution while acting lawfully under Californian law. That double exposure is federalism, and it is the reason cannabis policy in the USA still looks contradictory.

The balance between the levels has moved repeatedly. Examiners reward candidates who can name the phases and attach a cause to each shift.

Dual federalism — the model to roughly 1933 — kept the levels in separate lanes. The federal government ran defence, foreign policy, currency and the post; almost everything a citizen dealt with was state business. It is pictured as a layer cake.

Cooperative federalism arrived with the New Deal after 1933. Mass unemployment was beyond the reach of any single state, so Franklin Roosevelt's administration built programmes that Washington funded and states delivered. Responsibility became shared and tangled — a marble cake. The Supreme Court, after initial resistance, accepted a far broader reading of the commerce clause, and that reading is still the constitutional basis for most federal domestic policy.

Creative federalism under Lyndon Johnson (1964–68) pushed further. Great Society programmes multiplied categorical grants, attached detailed federal conditions, and in some cases paid money straight to city governments, bypassing state capitals entirely.

By 1969 the reaction had begun. New federalism describes the attempt to return discretion to the states, associated with Republican presidents but continued under Democrats.

• Nixon introduced general revenue sharing in 1972, handing states federal money with few strings.
• Reagan consolidated dozens of categorical grants into block grants in the Omnibus Budget Reconciliation Act 1981, arguing that states knew their own needs.
• Welfare reform in 1996, signed by Bill Clinton, replaced a federal entitlement with a block grant to the states, letting each design its own welfare-to-work rules.
• The Supreme Court joined in. United States v Lopez (1995) struck down a federal law banning guns near schools because carrying a gun in a school zone was not interstate commerce. Printz v United States (1997) held that Congress could not order state sheriffs to run federal firearms background checks, establishing anti-commandeering.

Since 2001 the direction has been mixed, and party labels are a poor guide. Use these examples with the dates attached:

Administration	Centralising	Decentralising
George W. Bush (2001–09)	USA PATRIOT Act 2001; No Child Left Behind Act 2002 imposed federal testing conditions on school funding; Department of Homeland Security created 2002	Rhetorical commitment to states' rights; faith-based programme discretion
Barack Obama (2009–17)	Recovery Act 2009; Affordable Care Act 2010; Race to the Top tied education funding to federal reform targets	NFIB v Sebelius (2012) made Medicaid expansion optional, and several states declined it
Donald Trump (2017–21)	The 2017 tax law capped the deduction for state and local taxes, hitting high-tax states; funding pressure on sanctuary cities	Withdrawal from the Paris Agreement left climate policy to states, prompting a state-level climate alliance
Joe Biden (2021–25)	American Rescue Plan 2021; Infrastructure Investment and Jobs Act 2021; Inflation Reduction Act 2022	Most of that money flowed through state and local administration
Donald Trump (from 20 January 2025)	Attempted federal control of the Illinois National Guard for deployment to Chicago; tariffs imposed by executive action	Both were struck down — the Guard deployment in December 2025, the tariffs in February 2026

The federal government's most effective instrument is not command but cash. Because Article I lets Congress spend for the general welfare, it can attach conditions to money in fields where it holds no direct power at all.

Instrument	How it works	Effect on state autonomy
Categorical grant	Money for a narrowly defined programme with detailed federal conditions and reporting	Strongly reduces it — Washington sets the policy
Block grant	Money for a broad field, spent at state discretion	Increases it — states set priorities within the field
Federal mandate	A legal duty imposed on states, funded or unfunded	Reduces it, and shifts cost onto state budgets
Conditions of aid	Unrelated federal money withheld unless the state adopts a federal policy	Reduces it indirectly, without any grant of federal power

Worked example 1 — how the drinking age became 21 without a federal law setting it. Congress has no power over the sale of alcohol within a state. In 1984 it instead directed that states which did not raise the minimum purchase age to 21 would lose 5% of their federal highway funds. South Dakota sued. In South Dakota v Dole (1987) the Court upheld the condition: the sum was modest, so the choice remained a genuine one rather than compulsion. Every state complied. A power the federal government does not hold was exercised through a power it does.

Worked example 2 — where conditional funding went too far. The Affordable Care Act 2010 offered federal money for expanded Medicaid, but a state refusing the expansion would lose its entire existing Medicaid funding. In NFIB v Sebelius (2012) seven Justices held that this crossed from inducement into coercion — "a gun to the head" — and severed the penalty. Expansion became optional, and a substantial minority of states declined it for years. Compare the two rulings and the constitutional line becomes visible: 5% of one grant is persuasion; all of the largest grant is compulsion.

Unfunded mandates prompted their own backlash. The Unfunded Mandates Reform Act 1995 requires Congress to cost significant new duties before imposing them — a procedural brake rather than a prohibition.

The most persuasive evidence that the USA remains federal is the sheer divergence of policy between states on questions that other countries settle nationally.

Policy area	The divergence	Constitutional basis
Capital punishment	Retained and used in Texas; abolished in Virginia in 2021, the first Southern state to do so	Criminal law is a reserved power
Cannabis	Colorado and Washington legalised recreational use by ballot initiative in November 2012; federal law still lists it as a Schedule I controlled substance	State police power, colliding with the commerce clause
Abortion	Dobbs v Jackson Women's Health Organization (2022) overturned Roe v Wade (1973) and returned regulation to the states, producing immediate and sharp divergence	No enumerated federal power over the question
Minimum wage	The federal floor has been $7.25 an hour since 2009; many states legislate above it	Concurrent power over labour standards
Elections	States write their own registration, voter identification and postal voting rules, and draw congressional district boundaries	Article I, Section 4 gives states the time, place and manner of elections

Dobbs is the strongest recent case study, and it cuts in an unexpected direction. Removing a nationally protected right did not centralise power — it decentralised it. A single Supreme Court ruling turned abortion from a uniform constitutional guarantee into fifty separate policy questions. That is federalism functioning exactly as designed, and students should be ready to argue both that this proves the system's vitality and that it produces rights which depend on a citizen's postcode.

The reverse also happens. Obergefell v Hodges (2015) nationalised same-sex marriage, overriding the state bans then in force. Shelby County v Holder (2013) went the other way, striking down the formula that had required certain states to obtain federal approval before changing election law, and handing those states control of their own voting rules.

Specification section 1.4 asks you to judge this directly, so structure the answer around competing evidence rather than a narrative.

The case that federalism is alive:

• Anti-commandeering holds. Since Printz (1997) Congress cannot conscript state officials into enforcing federal programmes; it must persuade or pay.
• Policy divergence is real and growing. The post-Dobbs map, cannabis, capital punishment and election rules show fifty genuinely different jurisdictions.
• States litigate as sovereigns. State attorneys general routinely sue the federal government and win — the Illinois National Guard case reached the Supreme Court in December 2025 because state and city officials objected to a federal deployment, and they prevailed.
• The Tenth Amendment retains bite. Lopez (1995) showed the commerce clause has an outer edge.
• Constitutional amendment requires the states. Three-quarters of them must ratify, so the states hold a veto over the terms of the union itself.

The case that federalism has hollowed out:

• Money buys compliance. Dole (1987) legitimised conditional funding, and federal grants now shape state policy in fields where Congress has no direct power.
• The commerce clause reaches almost everywhere. Raich (2005) upheld federal control of a plant grown at home for the grower's own medical use, with no sale involved — and it was decided after Lopez, not before it.
• Crises centralise and the centre rarely gives the power back. The response to 2001, to the 2008 financial crisis and to the pandemic each expanded federal reach durably.
• Nationalised rights override state choices. Obergefell (2015) shows the Court can settle a contested moral question for all fifty states at once.
• Executive action bypasses the debate. Tariffs, immigration enforcement and troop deployments have been attempted by presidential order since January 2025, forcing states to seek judicial rescue rather than legislative protection.

A defensible judgement, as of September 2026: the USA remains constitutionally federal but is politically centralised. The states' formal protections are intact and the Supreme Court has enforced them twice against the current administration; what has changed is that Washington now shapes state policy through money and emergency powers rather than through the enumerated powers the framers listed.

1. Treating federalism and devolution as the same arrangement

They differ in where power originates. US states hold constitutionally protected powers; devolved bodies hold statutory ones granted by a sovereign Parliament. A comparative answer that misses this is describing decentralisation, not federalism.

2. Claiming the Tenth Amendment lists the states' powers

It does not list anything. It is a residual clause: whatever is not given to the federal government or forbidden to the states stays with the states or the people. That is precisely why the boundary keeps moving.

3. Using "states' rights" as if it were a neutral constitutional doctrine

The phrase carries political freight in the USA and has been used to defend segregation as well as policy autonomy. Write about reserved powers and name the specific policy at issue.

4. Describing the shift towards Washington as steady and one-directional

It is not. The arc runs dual, cooperative, creative, new federalism, then oscillation. Reagan devolved welfare; Bush centralised education; Dobbs devolved abortion under a conservative Court. Track the direction case by case.

5. Giving no dated contemporary evidence

Federalism questions reward current material. The December 2025 National Guard ruling, the February 2026 tariffs ruling and the post-2022 abortion divergence are all live examples with dates attached.

6. Confusing a block grant with a categorical grant

Block grants widen state discretion; categorical grants narrow it. Getting this the wrong way round inverts the argument about whether federal funding centralises power.

7. Reaching no judgement on the extent of federalism

Section 1.4 asks how far the USA remains federal. Set out both cases, then commit: say whether the legal protections or the fiscal leverage matters more, and why.