Federalism is a fluid concept. Historically, the
relationship between the two levels of government has been defined by the
courts, Congress, and funding policies.
The role of the courts
Questions concerning the respective powers of the states and the federal government are constitutional, and the courts must address them. Early Supreme Court decisions reflected the views of Chief Justice John Marshall, who personally favored a strong national government. In defining commerce in the broadest possible terms in Gibbons v. Ogden (1824), he argued that Congress's power to regulate interstate commerce could be "exercised to its utmost extent." Marshall's interpretation of the commerce clause has provided a means to enforce civil rights laws and regulate wages, working conditions, and other areas that seem, at first glance, far removed from federal jurisdiction. At the same time, however, he believed the Bill of Rights imposed no restrictions on the states.
Throughout most of the 19th century and on into the 1930s, the Supreme Court did not follow Marshall's lead; it was reluctant to allow an expansion of federal power at the expense of the states. As the makeup of the Court changed with the appointments made by President Franklin Roosevelt, so did the direction of its decisions. In the areas of civil liberties and civil rights in particular, the Supreme Court and the lower federal courts have set national standards that states and municipalities are obligated to follow. Through their interpretation of the due process and equal protection clauses of the Fourteenth Amendment, they have brought about a significant transfer of power from the states to the federal government. This amendment, along with the Fifteenth and the Twenty-fourth, has largely restricted the authority of the states to determine who can vote and where they cast their ballots. The courts have directed how state and local authorities draw their congressional, legislative, and school-board district boundaries.
In recent years, the Supreme Court limited the powers of the federal government in favor of the states. United States v. Lopez (1995) held that Congress cannot prohibit guns in the area around a public school under the commerce clause. The Court also upheld Oregon's "death with dignity" law, which allows the terminally ill to end their lives, against a federal challenge, in Gonzales v. Oregon (2006).
The role of Congress
Legislation can compel states either directly or indirectly to take action they otherwise might not take. Again, civil rights provide a pertinent example. The 1965 Voting Rights Act intruded on the constitutional power of the states to set voter qualifications by challenging the literacy tests and poll tax that were used in the South to get around the Fifteenth Amendment.
A wide range of environmental laws establishes requirements for air and water pollution control and the disposal of hazardous wastes to which states and municipalities must adhere. These are examples of mandates.
Congress may also threaten to cut off funds if states do not implement a particular policy. Although a law forcing the states to establish 21 as the minimum drinking age or 55 miles per hour as the maximum highway speed might be unconstitutional, Congress can and did threaten to cut off federal highway funds to states that did not comply with the two limits. This is known as a condition of aid.
The role of funding policies
The most powerful tool the federal government has in its relations with the states is money. A grant-in-aid is funding provided by the federal government to the states or municipalities. The earliest federal grants were land. Under the Morrill Act (1862), the states received large tracts of land for the specific purpose of establishing agricultural and mechanical colleges (still known as land-grant colleges).
A categorical grant earmarks funds for a specific purpose. The two types of categorical grants are project and formula grants. A project grant is awarded on the basis of competitive applications; money from the National Institutes of Health or the National Endowment for the Humanities is awarded in this manner. While many project grants go to individuals, formula grants go to states and municipalities that meet the requirements described in the legislation. Depending on what the grant is for, factors such as the age, education, and income level of the population; the number of miles of highway; or the unemployment rate might be relevant to qualifying for aid.
A block grant is given for more general purposes than categorical grants — say, mental health, community services, mass transit, or job training — and state and local governments have a great deal of flexibility in how the money is actually spent. A county may decide to upgrade its buses rather than build a light rail system, for example. This does not mean, however, that strings are not attached to block grants. Recipients are bound by federal mandates. The county upgrading its buses may be required to buy a certain percentage of them from a minority-owned business or hire additional drivers from a training program for those on welfare.