The Tenth Amendment states that all governmental powers not granted to the federal government by the Constitution are reserved for the states or the people. Each of the state has its own government. The legislative branch of the states consists of state legislatures. Every state except for Nebraska has a bicameral legislature, comprised of two chambers. In the majority of states, the state legislature is called the Legislature. The rest of the states call their legislature the General Assembly.
An elected Governor heads the executive branch of every state. Most states have a plural executive, where several key members of the executive branch are directly elected by the people and serve alongside the Governor. Each state government is free to organize its executive departments and agencies in any way it likes, resulting in substantial diversity among the states with regard to every aspect of how their governments are organized.
A supreme court that hears appeals from lower state courts heads the judicial branch in most states. Most states have at least one trial-level court and an intermediate appeals court from which only some cases are appealed to the highest court.
Powers of local governments are defined by state rather than federal law, and states have adopted a variety of systems of local government. Local government in the United States is structured in accordance with the laws of the individual states, territories and the District of Columbia. Typically each state has at least two separate tiers of local government: counties and municipalities.
Some states have their counties further divided into townships. There are several different types of local government at the municipal level, generally reflecting the needs of different levels of population densities; typical examples include the city, town, borough and village.
The Tenth Amendment to the Constitution makes local government a matter of state rather than federal law, with special cases for territories and the District of Columbia. The states have adopted a wide variety of systems of local government. The US Census Bureau conducts the Census of Governments every five years to compile statistics on government organization, public employment, and government finances.
The categories of local government established in this Census of Governments is a convenient basis for understanding local government: county governments, town or township governments, municipal governments and special-purpose local governments. County governments are organized local governments authorized in state constitutions and statutes. Counties form the first-tier administrative division of the states. All the states are divided into counties for administrative purposes.
A number of independent cities operate under a municipal government that serves the functions of both city and county. In areas lacking a county government, services are provided either by lower level townships or municipalities or the state. Town or township governments are organized local governments authorized in the state constitutions and statutes of states, established to provide general government for a defined area, generally based on the geographic subdivision of a county.
Depending on state law and local circumstance, a township may or may not be incorporated, and the degree of authority over local government services may vary greatly.
In particular, towns in New England have considerably more power than most townships elsewhere and often function as independent cities in all but name, typically exercising the full range of powers that are divided between counties, townships and cities in other states. Municipal governments are organized local governments authorized in state constitutions and statutes, established to provide general government for a defined area, generally corresponding to a population center rather than one of a set of areas into which a county is divided.
The category includes those governments designated as cities, boroughs, towns, and villages. This concept corresponds roughly to the incorporated places that are recognized in Census Bureau reporting of population and housing statistics. Municipalities range in size from the very small to the very large, reflected in the range of types of municipal governments that exist in different areas.
In most states, county and municipal governments exist side-by-side. In some states, a city can become independent of any separately functioning county government and function both as a county and as a city.
Depending on the state, such a city is known as either an independent city or a consolidated city-county. Municipal governments are usually administratively divided into several departments, depending on the size of the city. Article Four of the United States Constitution outlines the relationship between the states, with Congress having power to admit new states.
In the United States, states are guaranteed military and civil defense by the federal government. The federal government is also required to ensure that the government of each state remains a republic. Four states use the official name of Commonwealth, rather than State. However, this is merely a paper distinction. The United States Constitution uniformly refers to all of these sub-national jurisdictions as States. The United States : Americans live in a federal system of 50 states that, together, make up the United Sates of America.
Under Article Four of the United States Constitution, which outlines the relationship between the states, the United States Congress has the power to admit new states to the Union. The Article imposes prohibitions on interstate discrimination that are central to our status as a single nation. States are prohibited from discriminating against citizens of other states with respect to their basic rights, under the Privileges and Immunities Clause.
Under the Extradition Clause, a state must extradite people located there who have fled charges of treason, felony, or other crimes in another state if the other state requests extradition. The Article contends that the Constitution grants Congress expansive authority to structure interstate relations and that in wielding this interstate authority Congress is not limited by judicial interpretations of Article 4.
The provisions are judicially enforceable against the states. However, the ability to enforce the provisions is dependent on the absence of congressionally authorized discrimination. Concurrent powers are the powers that are shared by both the State and the federal government, exercised simultaneously. The United States Constitution affords some powers to the national government without barring them from the states. Concurrent powers are powers that are shared by both the State and the federal government.
These powers may be exercised simultaneously within the same territory and in relation to the same body of citizens. These concurrent powers including regulating elections, taxing, borrowing money and establishing courts. National and state governments both regulate commercial activity. In the Commerce Clause, the Constitution gives the national government broad power to regulate Commerce with foreign Nations, among several of the States and with the Indian tribes.
This clause allowed the federal government to establish a national highway system that connected the states. A state may regulate any and all commerce that is entirely within its borders. National and state governments make and enforce laws themselves and choose their own leaders.
They have their own constitutions and court systems. Supreme Court provided that it raises a federal question, such as an interpretation of the U. Constitution or of national law. The Supremacy Clause established the U. Constitution, Federal Statutes and U. Constitution, Federal Statutes, and U. The Federalist Papers are a series of 85 essays advocating the ratification of the Constitution. James Madison similarly defends the Supremacy Clause as vital to the functioning of the nation, noting that state legislatures were invested with all powers not specifically defined in the constitution, but also having the federal government subservient to various state constitutions would be an inversion of the principles of government.
In Ware v. Hylton , the Supreme Court relied on the Supremacy Clause for the first time to strike down a state statute. The state of Virginia passed a statute during the Revolutionary War allowing the state to confiscate debt payments to British creditors.
The Court found this Virginia statute inconsistent with the Treaty of Paris with Britain, which protected the rights of British creditors. In McCulloch v. Maryland , the Supreme Court reviewed a tax levied by the state of Maryland on the federally incorporated Bank of the United States. The Court found that if a state had the power to tax a federally incorporated institution, then the state effectively had the power to destroy the federal institution, thereby thwarting the intent and purpose of Congress.
The Court found that this would be inconsistent with the Supremacy Clause, which makes federal law superior to state law. In Martin v. Virginia , the Supreme Court held that the Supremacy Clause and the judicial power granted in Article III give the Supreme Court power to review state court decisions involving issues arising under the Constitution and laws of the United States. This makes it hard to govern the entire country from the capital city. For example, Australia has no major cultural differences between states, but it would be hard to govern such a large territory from one location.
Second, federalism disperses access to power, wealth and resources more widely to different territorial groups. It may help promote both peace and stability by giving local people a stake in the system. It might also encourage better governance, with more equal economic development. Third, by satisfying demands for recognition, autonomy and resources, federalism might help ease political tensions and prevent secession. It might help countries that would otherwise fall apart, to hold together.
Fourth, federalism is a safeguard against abuses of power. It limits the power of all governing institutions, thereby preventing any one person or institution from having too much power. Fifth, federalism allows for policy experimentation. This resulted in that state achieving the highest literacy rate in the country. But it is also important to keep in mind that there are some challenges that federalism cannot resolve.
For example, some members of the same ethnic group might live in more than one region of the country. Or, some parts of the country might have several minority groups within one territory. For those, federalism alone may not offer sufficient protection. These groups may need special minority rights and protections, as well as a strong independent court system to enforce these rights.
Federalism can be expensive because it duplicates government functions at both the central and regional levels. Federalism can also be inefficient and inflexible. For example, it might be more difficult for a federal system to coordinate responses to natural disasters or pandemics. Maine , the Supreme Court found that the same principles of sovereign immunity identified in Hans would prevent Congress from authorizing a state to be sued in its own courts without permission.
As in Hans , the Court acknowledged that the literal text of the Eleventh Amendment does not prohibit such suits, as its language addresses only suits brought in federal courts. Consequently, the Court relied instead on the proposition that sovereign immunity is a "fundamental postulate" of the constitutional design, and is not amenable to congressional abrogation. The same reasoning that prohibited these suits from being brought in federal court, a deference to the "respect and dignity" of state sovereignty, led the Court to conclude that it would be anomalous to allow such cases to be brought instead in state court.
In Federal Maritime Comm'n v. South Carolina State Ports Authority , the Court addressed the issue of whether state sovereign immunity extended to proceedings before federal agencies.
The cruise ship company, Maritime Services, filed a claim with the Federal Maritime Commission FMC arguing that South Carolina had discriminated against it in violation of the Shipping Act of and sought, among other things, damages for loss of profits. In reviewing the case, the Court analogized between the FMC's quasi-judicial proceedings and traditional judicial proceedings, while noting that "[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.
Thus, while an agency remains capable of enforcement actions against states in federal court, it cannot use its own adjudicative process to determine whether to do so, but must rely on its investigatory powers.
It should be noted that in many instances, the federal government still has the ability to influence state behavior despite the constitutional limits discussed above. Considering the large amount of funds provided to states by the federal government, this represents a significant power for Congress to exercise.
Further, as the concept of grant conditioning can involve waiver by the states of Tenth Amendment rights, these grant conditions may allow Congress to indirectly achieve compliance by a state in a way that could not be achieved directly. The question of whether a state can be required to perform or refrain from certain actions was addressed in the Supreme Court case of South Dakota v.
The state of South Dakota, which permitted year-olds to purchase beer, brought suit arguing that the law was an invalid exercise of Congress's power under the Spending Clause to provide for the "general welfare. The Court noted that the grant condition did not implicate an independent constitutional bar i.
Further, the court noted that the grant condition was not a violation of the Tenth Amendment, which generally prevents Congress from "commandeering" state legislatures and executive branch officials to implement federal programs.
The Court did suggest, however, that there were limits to Congress's power under the Spending Clause. First, a grant condition must be related to the particular national projects or programs to which the money was being directed. Second, the Court suggested that, in some circumstances, the financial inducements offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion," which would suggest a violation of the Tenth Amendment.
In Dole , however, the percentage of highway funds that were to be withheld from a state with a drinking age below 21 was relatively small, so that Congress's program did not coerce the states to enact higher minimum drinking ages than they would otherwise choose. Sebelius , however, seemed to suggest that an alternative line of analysis might apply in some grant condition cases.
Following the enactment of the ACA, state attorneys general and others brought several lawsuits challenging various provisions of the act on constitutional grounds. As noted in Dole , the loss of federal funds associated with a grant condition cannot be so large that the withholding of such funds is coercive. Justice Roberts's opinion in NFIB , however, addressed the slightly different question of whether a grant condition attached to a "new and independent" program here, the Medicaid expansion that threatened the funding of an existing program here, Medicaid violated the Tenth Amendment.
It is unclear, therefore, whether the NFIB decision was an application of the Dole analysis, or whether the combination of factors presented in NFIB suggests an alternate line of reasoning. Justice Roberts's opinion in NFIB held that, in the case of existing program funding being conditioned on the adoption of a "new and independent" program, the amount of federal funds at issue cannot represent a significant portion of a state's budget or its withdrawal will be found to be unconstitutionally coercive under the Tenth Amendment.
Justice Roberts did not identify a standard to determine what level of withholding funds would be coercive, or specify what kind of distinguishing factors were necessary to such analysis. It is not clear, however, whether the confluence of factors at issue in the NFIB case is likely to be present in future cases. Few federal programs, for instance, even approach the level of state funding as does Medicaid; nor do there appear to be significant examples of grant conditions requiring creation of "new and independent" programs in order to retain funding for a separate program.
Consequently, the NFIB case may have minimal effect on the validity of existing or future federal grant conditions. It would appear that the status of the state in the federal system has been strengthened by recent Supreme Court opinions. Although the Court has not scaled back the federal government's substantive jurisdiction significantly, it has to some extent prevented the expansion of Congress's power under the Commerce Clause and under Section 5 of the Fourteenth Amendment.
Further it has created a variety of obstacles as to how these powers can be executed, forbidding Congress under the Tenth Amendment from commandeering the authority of state legislative and executive branches, and limiting the authority of Congress to abrogate state sovereign immunity.
Ultimately, however, Congress retains significant powers to influence state behavior, such as through the Spending Clause, and, under the Supremacy Clause, Congress may require the enforcement of its laws in both state and federal court.
See, e. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. This "Full Faith and Credit Clause" gives Congress what amounts to enforcement authority over the required recognition by each state of the judgments, records, and legislation of other states. Article I, Section 1, of the Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States.
Maryland, 17 U. To establish an uniform Rule of Naturalization. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. While the Fifteenth Amendment and the other voting rights guarantees noted above protect only against state action, congressional authority under this clause includes protection of the electoral process against private interference.
A variety of enactments can be traced to this authority, including campaign finance laws and the Hatch Act insofar as it applies to federal elections.
The House and the Senate act as judicial tribunals in resolving contested election cases. To exercise exclusive Legislation in all Cases whatsoever, over such District Implicit in the Fifth Amendment's requirement that just compensation be paid for private property that is taken for a public use is the existence of the government's power to take private property for public use.
Those materials which do address congressional control over commerce focus on the necessity of uniformity in matters of foreign commerce, although the drafters clearly intended domestic commerce to be regulated as well. Lerner, The Founder's Constitution Alexander Hamilton, Continentalist, No. Lerner, supra note 32 "The vesting of the power of regulating trade ought to have been a principal object of the confederation for a variety of reasons.
It is as necessary for the purposes of commerce as of revenue. United States v. Darby, U. See Heart of Atlanta Motel v. United States, U. McClung, U. The Court failed to note that to some extent, the three categories are intertwined. For instance, the first category, the regulation of "streams" or "channels" of commerce, allows regulation of the creation, movement, sale and consumption of merchandise or services. But the initial extension of the "streams" of commerce analysis by the Court to intrastate trade was justified by the "effect" of these other activities on commerce.
See NLRB v. Similarly, the second category, which allows the regulation of such instrumentalities of commerce as planes, trains or trucks, is also based on the theory that a threat to these instrumentalities "affects" commerce, even if the effect is local in nature.
Southern Railway Company v. Thus, the final category identified by the Court appears to be a catch-all for all other activities which "substantially affect" commerce. The Court rejected arguments that possession of guns in school affected the national economy by its negative impact on education. The Court has reiterated its concern over extending Commerce Clause powers to Congress in areas of the law traditionally reserved to the states.
Army Corps of Engineers, U. The requirement that a commerce clause regulation be economic or commercial has been influential in a number of subsequent statutory interpretation cases. In Jones v. Section i , which, in part, makes it a crime to destroy by fire or explosive a building "used" in interstate commerce. Applying the statutory canon that one should interpret a statute to avoid constitutional doubt, Jones v. The Court construed the statute to require that a building protected by Section i be "actively employed" for commercial purposes, id.
The Court held that this interpretation of the statute would raise serious constitutional questions, requiring, for instance, a close examination of precisely what activity was being regulated.
Absent a clear statement from Congress that it intended the Clean Water Act to have such a broad reach, the Court found the rule was not supported by the statute. See also Rapanos v. I, Section 8, cl. Seminole Tribe of Florida v. Florida, U. One plaintiff in Lane claimed he was unable to appear to answer criminal charges on the second floor of a courthouse that had no elevator. The second plaintiff, a certified court reporter, claimed she was denied the opportunity both to work and to participate in the judicial process because she was unable to access numerous county courthouses.
The Court cited congressional evidence that legislative attempts preceding Title II inadequately addressed the problem of patterned unconstitutional treatment in access to the courts. The Court held that it need not examine Title II as a whole when evaluating the remedy's congruence and proportionality to the injury of disability discrimination in access to the courts.
The relevant inquiry solely concerned Title II's scope as applied to the rights associated with access to judicial services.
The Court cited as precedent for this limited application approach the Garrett case, in which it considered only Title I of the ADA for purposes of Fourteenth Amendment analysis. Based on this narrow scope of inquiry, the Court determined that both the pattern of past discrimination in access to the courts and the failure of previous legislative attempts to remedy the injury were sufficient to hold that Title II is a valid exercise of Congress's power under Section 5 of the Fourteenth Amendment.
As noted by Chief Justice Rehnquist in dissent, U. See id. Title II does not require states to compromise the integrity of public programs or make unduly burdensome changes to public facilities.
Rather, states need only take reasonable measures to comply with Title II regulations. In National League of Cities v. Usery , the Court conceded that the legislation under attack, which regulated the wages and hours of certain state and local governmental employees, was undoubtedly within the scope of the Commerce Clause, but it cautioned that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.
Justice Blackmun's opinion for the Court in Garcia concluded that the National League of Cities test for "integral operations" in areas of traditional governmental functions had proven impractical, and that the Court in had "tried to repair what did not need repair. VI, cl. It should be noted that not all suits in which a state is involved is a "suit" against a state. In Tennessee Student Assistance Corp. Hood, U. In that case, the Court addressed whether Eleventh Amendment immunity extended to an adversary proceeding initiated by a debtor seeking an undue hardship discharge of her state-held student loan debt.
The Court held that the proceeding did not constitute a suit against the state for purposes of the Eleventh Amendment.
The Court noted that the bankruptcy petition in question was an in rem proceeding, so that the court's jurisdiction was over the petitioner's debt, rather than over her person or the state.
Thus, the federal bankruptcy court's exercise of jurisdiction over the state-held debt did not infringe upon the state's sovereignty immunity. One apparent argument is that the Fourteenth Amendment was passed after the Eleventh Amendment and thus, unlike legislative powers found in Article I of the Constitution, it can be seen as an alteration of the restrictions of the Eleventh Amendment.
However, as is discussed in detail below, the Supreme Court has held that state sovereign immunity preceded and predated the Constitution. Alden v. Maine, U. Consequently, all the Articles of the Constitution could arguably be seen as altering the restrictions of the state sovereign immunity. Another argument made by the Court in Seminole is that the Fourteenth Amendment was designed to alter the pre-existing balance between state and federal power at the time of its passage.
This argument is more plausible, but is still difficult to differentiate between Congress's power under the Fourteenth Amendment and Congress's power under the Articles of the Constitution. Like the Fourteenth Amendment, the Articles of the Constitution were clearly intended to alter the balance between state and federal power at the time of the passage of the Constitution, which included state sovereign immunity.
This is exemplified by the Supremacy Clause, U. The Court noted that "[there are] numerous common features shared by administrative adjudications and judicial proceedings.
The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcript of testimony and exhibits together with the pleadings constitutes the exclusive record for decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record.
Justice Breyer noted that after this decision "a private person cannot bring a complaint against a State to a federal administrative agency where the agency 1 will use an internal adjudicative process to decide if the complaint is well founded, and 2 if so, proceed to court to enforce the law. For instance, the federal government has, in some cases, made the application of federal regulatory authority contingent, so that if a state chooses to regulate in that field, the federal regulatory role is circumscribed.
In many cases, this will encourage states to regulate, so that the state has closer control of the application of such regulation within the state. It would seem that sovereign immunity is a core state power, and that requiring its waiver would raise Tenth Amendment concerns. Usery, U. As discussed previously, however, the Court has, for the time being, abandoned this line of cases. Garcia v. However, these seven Justices either wrote or joined one of two separate opinions on this issue, and did not join in either the reasoning or judgment of the other opinion.
The opinion of Chief Justice Roberts, which was joined by Justices Breyer and Kagan, appears to be significantly narrower than the dissenting opinion authored by Justices Scalia, Kennedy, Thomas, and Alito, and is thus controlling.
Marks v. The Court went on to hold, however, that the remedy was to sever that enforcement mechanism, effectively making state participation in the Medicaid expansion voluntary. Sebelius: Constitutional Issues and Analysis , by [author name scrubbed]. Topic Areas About Donate. Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power March 21, — September 23, RL The lines of authority between states and the federal government are, to a significant extent, defined by the United States Constitution and relevant case law.
Download PDF. Download EPUB. Topic areas Constitutional Questions. Summary The lines of authority between states and the federal government are, to a significant extent, defined by the United States Constitution and relevant case law. Powers of the States States may generally legislate on all matters within their territorial jurisdiction. The Necessary and Proper Clause The Constitution provides Congress not only enumerated powers, but also the ability to pass laws to make such powers effective.
Eleventh Amendment and State Sovereign Immunity The Eleventh Amendment and state sovereign immunity provide an example of the complicated interaction between the powers of the federal government, the state, and the individual. Conclusion It would appear that the status of the state in the federal system has been strengthened by recent Supreme Court opinions.
Footnotes 1. Portions of this report were prepared by Kristin Thornblad, legal intern. Gibbons v. Ogden, 22 U. Butler, U. Greenspan, supra note 32 at
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