The interest in the theory and practice of federalism, federal relations, the federal structure of states has always been quite high among legal scholars, lawyers, political scientists in connection with the great importance of these problems for the development of human society. This is due to the need to further improve and increase the effectiveness of the system of state power in federal states, develop the legal foundations of interaction between federations and subjects of federations and the relationships between different territorial and national-territorial entities. The growing interest in the theoretical and legal aspects of federalism over the past decade is caused, in particular, by complex processes in the United States. The development of theoretical concepts, analysis and generalization of the experience of various ways of implementing the ideas of federalism is of great practical interest at present.
The attractiveness of modern federalism is due primarily to the fact that a federal state is in its essence more democratic and decentralized than a unitary state. The system of checks and balances implemented at the federal level through the separation of powers into executive, legislative and judicial horizontally is supplemented by a system of checks and balances realized by vertical separation of powers between the center and the federal subjects (Fossum and Jachtenfuchs 468). However, the main thing in federalism is not only management methods, not the establishment of interaction between the center and federation subjects. The national-state or territorial principles of the formation of a federal state are the initial principles that determine such structures and subjects of the federal center and the constituent parts of the federation that ensure the rational and effective functioning of the federal state in the interests of both the federation as a whole and its subjects.
However, at the same time, federalism requires constant reform, or at least constant readiness for reform. It is about the ongoing process of “fitting” federalism, its adaptation to changing external and internal conditions. Its core is the negotiation process, which includes not only federal and regional executive authorities, but also legislative and judicial powers, as well as representatives of political parties, trade unions, the expert community, and other. As a result, the resolution of all conflicts and contradictions occurs in an open public form, between constitutional partners, and not in the “shadow” of centralized bureaucratic institutions (Fossum and Jachtenfuchs 471). That is why even before the reform, an expert discussion begins, involving not only experts on federalism, but also representatives of political parties, as well as all branches of government at both levels.
The Federation was formed in the United States as a complex system of political organization, a “political organism” in which sovereignty is divided between central state power and states. The central government, on the one hand, and each state on the other, has its own areas of law enforcement, and in this regard, the United States can be described as the first federal state that really differs from countries with unitary state building (Coleman and Leskiw 24-25). At this historical stage in the development of the American state and law, the genesis of the constitutional principles of federalism took place.
As long as the war of independence continued and all significant decisions on behalf of the federation were made by Commander-in-Chief George Washington, the peripheral orientation of American federalism provided for in the Articles of Confederation did not prevent the country’s authorities from acting effectively. However, with the end of hostilities, peripheral federalism quite expectedly began to slip. The reform of 1787 transformed the federation from decentralized to centralized, which allowed it to survive and prosper. The evolution of federalism in the United States has clearly proved that American federalism, having passed a significant historical path, has evolved from a purely legal phenomenon into an effective means of solving many social problems and an integral element of the value system of American society.
Nowadays, the system of federal relations in the United States is undergoing constant changes. The global direction of evolution of modern American federalism is primarily associated with its own internal content of development, namely with the so-called process of “state revival.” The process of consistent centralization in the American Federation slowed sharply, and since the late 70s of the last century has generally declined (Banks 82). Today in the United States, the discussion of federalism reforms is mainly related to the problems of the federal center, its insufficient institutional capacity and the desire to shift the excessive financial burden (in particular, in the field of health policy) to the states, which undermines the principle of fiscal partnership between the national and regional levels.
The role of states and local governments, which are traditionally more trusted by most Americans than the federal center, has gradually increased and expanded, if not on an absolute, then on a relative scale. The growing role of high-tech industries and modern information technologies in the economy has only strengthened and accelerated this process. Over the past 25-30 years, it has noticeably stabilized and acquired a steady trend. Financially, it relied on relatively higher revenue growth rates at the state level compared to the federal level (Banks 55-58). The center of reformist ideas and innovations in the field of management has also moved to a considerable extent here.
In general, the sustainability of the “state revival” process is associated with such trends as improving the local governance structure, a significant improvement in the constitutional legislation in the states, the federal budget deficit growing until recently, and with it the general disappointment of Americans in federal institutions of power and growing hopes, related to solving their problems at the local level. In this regard, many American scholars discuss the onset of an era of “a new federal order” and directly note the “undoubted redistribution of powers in favor of the states” (Merriman 36-37). It should be emphasized that the last few years in the United States have been marked by undeniable and increased activity in the field of federal construction and intergovernmental relations of authorities at various levels, from federal to municipal. Turning to this phenomenon, a number of American researchers quite rightly point out that at the moment issues of federal development and intergovernmental relations in the country occupy an extremely important place (Merriman 42-43).
Over the past decades, the US federal government is still expanding its administrative power, but, unlike the eras of the New Deal and Great Society, this process is going on as if latently and is accompanied by large-scale anti-centralist rhetoric (Coleman and Leskiw 22). At the same time, it is significant that the states are by no means pushed to the periphery of political life – on the contrary, their constitutional status is not diminished, and their powers in the social and financial sphere are growing. Thus, in parallel to each other, opposite, multidirectional trends are unfolding: on the one hand, the federal center is strengthening, on the other, the powers of the subjects of the federation are expanding.
At the present stage, the federalism model, built on the opposition of the center and the periphery, recedes under the onslaught of a new model that considers the federation as a combination of overlapping and constantly interacting entities, powers and relationships. Today, federal relations in the United States are adjusted in three main ways: firstly, by formal amendments to the constitution of the country, secondly, by decisions of the Supreme Court, and thirdly, by using the “federal lead” mechanism (Banks 49-50). The combination of such dissimilar methods made the system extremely flexible. The main tenet of modern American federalism is that there is no once and for all optimal balance of powers between the center and the subjects of the federation (Coleman and Leskiw 17). When time poses new challenges for society, the balance of power in the federal system changes, and the idea of optimum changes with it.
However, American federalism is a dynamic multidimensional process in which not only constitutional aspects can be distinguished, but also economic, administrative, and political. This is especially true of the modern period. Six key questions that America is currently facing can be formulated:
- Unfunded mandates. Since the federal budget did not even have enough funds to solve federal tasks, Congress, taking advantage of the right granted to it by the Constitution to “regulate trade between states,” adopted a number of regulations binding on the states. They were called “unfunded mandates” because they required certain actions from the states without financial support from the federal budget. Many of these regulations were related to the protection of the environment, historical monuments, and the protection of individual rights. All of them demanded significant expenditures at the state level for their implementation. The states rebelled against these federal institutions; in response, Congress passed the Unfunded Mandate Act 1995, which (within certain limits) prohibits the federal government from setting new requirements for states and local governments without adequate financial support.
- Constitutional issues. Beginning in 1937, the US Supreme Court determined the powers of Congress to spend the federal budget on public purposes and regulate interstate commerce so broadly that, as a result, the federal government gains the right to regulate any type of economic, social, and even cultural activity. Federal laws are passed on issues traditionally under the jurisdiction of the local administration, such as the fight against crime, fire safety, land use, education, and even marriage and divorce issues. In a 1995 decision in the United States v. Lopez case, the Supreme Court unexpectedly determined that the federal government had exceeded its constitutional authority by enacting a law prohibiting people from carrying firearms near public schools. In the Court’s view, the federal government was unable to prove a link between carrying weapons near school buildings and Congressional powers to regulate interstate commerce (Banks 96-97). For the first time in 60 years, the Supreme Court has seriously questioned the practice of Congress exercising its powers in the field of trade regulation.
- Public funding. If the responsibility for making and implementing political decisions is increasingly shifting to state and local governments, it is easy to see that this will lead to a mismatch between obligations and financial capabilities. In the late 60s and early 70s, municipal authorities received significant federal subsidies for the implementation of social programs stipulated by the Great Society policy (Banks 105). Since then, funding from the federal budget has decreased, and in some cases completely stopped, but the population still requires the implementation of these programs. Traditional areas such as education (in the public school system), garbage collection, crime control and fire safety, road maintenance and repair are still largely the responsibility of municipalities and other local governments. In addition, they must conduct activities in the field of ecology, ensuring equal rights for representatives of different races and sexes, education for those with disabilities, and land use planning, for which neither the federal government nor state governments usually allocate funds. Demand for various services at the local level is increasing everywhere, while the funds for their provision are becoming less. In the face of this dilemma, local governments are forced to take more initiative in order to ensure the operation of these services.
- Reform of public administration. In the face of growing demands with decreasing financial resources, local authorities were forced to revise the system of providing financing services. This review covers a number of areas; the city authorities experimented with decentralization of management, enter the market and compete with private enterprises, treating customers as consumers and trying to ensure that government organizations report to them. It is interesting that privatization is carried out in various forms, from the conclusion of contracts with private firms for the organization of school meals to the privatization of the garbage collection system and even prisons. In addition, municipal authorities have to rely less on assistance from the federal budget and local property taxes and set fees for the services they provide. A creative approach to financing and maintaining services results in significant cost savings without compromising the quality of services.
- International trade. American federalism has a new, international dimension. Agreements such as GATT and NAFTA are likely to have a profound effect on federalism. Most observers believe that state government powers will continue to be reduced because state government policies on issues such as economic development, environmental protection, and licensing will need to be consistent with these international agreements and the restrictive provisions of the US Constitution (Coleman and Leskiw 86-87). They are certainly right, but in a sense, these international agreements can lead to the expansion of state powers. So, for example, in accordance with the NAFTA agreement, American states are given at least the right of an advisory vote on compliance with this agreement. It will be interesting to see how the emerging “federation of federations” will affect the states of America, Canada, and Mexico.
- States as research laboratories (Coleman and Leskiw 90-91). Many years ago, US Supreme Court member Louis Brandeis wrote that states are a kind of “social laboratory” in which various options for solving social and economic problems can be tested, without putting the entire country at risk (Coleman and Leskiw 90). This view of federalism is now more relevant than ever; in order to find new and effective solutions to problems such as crime, education, social welfare, and urban degradation, state governments need to work hand in hand with local government representatives. The future of American federalism depends on how successfully the states solve these problems and take advantage of the opportunities that open to them.
In such circumstances, it is obvious that the federal center plays the role of a kind of compass in the modern federal system, which determines only the main directions of politics and stimulates the states to coordinate their activities with the national course through subsidies and a partial federal advance mechanism. From this point of view, the main principle of the effective functioning of the federal system is the use by its subjects of compromise as the main working tool. The essence of modern American federalism cannot be understood or interpreted based solely on the text of the basic law of the United States.
This concept does not fit into a narrow constitutional framework – the system is in constant motion, which by its nature is not so much linear as random, and, moreover, central authorities and states are strengthened during this process. This determines the need for a systematic approach to any issues, related both to the very concept of the relationship between the federal center and the states, and to the competence of these entities as a system and its elements. In turn, it is necessary to take into account system effect of emergence, as well as trends towards synergy (strengthening the federal center) and entropy (expanding the powers of the states).
Banks, Christopher P. Controversies in American Federalism and Public Policy. Routledge.
Coleman, Aaron and Christopher S. Leskiw. Debating Federalism: From the Founding to Today. Lexington Books, 2018.
Fossum, John Erik and Markus Jachtenfuchs. “Federal challenges and challenges to federalism. Insights from the EU and federal states.” Journal of European Public Policy, Vol. 24, No. 4, 2017, pp. 467-485.
Merriman, Ben. Conservative Innovators: How States Are Challenging Federal Power. University of Chicago Press, 2019.