Cooperative v. Dual Federalism: Is There a Right Answer

Posted by: Chelsea Gulinson, Grace Hicks, Mark Hodgson, Jeremy Gritten, Ankita Gupta, Theresa Harper, Kristen Hawks, Alfonso Herrera Leon

2898686447_29a1d676e5_z (1)Throughout history, there has been a tug-of-war between Cooperative Federalism and Dual Federalism in the Supreme Court.  While at times the Court held its decisions through a Dual Federalist mindset, the Justices should continue to analyze constitutional law issues through the theory of Cooperative Federalism.  Against the backdrop of pivotal Supreme Court cases, this theory is consistent with the Framer’s vision for the country, engages individual citizens, prevents tyrannical power, and allows the state and Federal government to be a check and balance upon each other.

The Present Debate

One day historians will look back at the Obama presidency and write about its accomplishments and defeats. Obamas foreign policy, cooperation with Congress, and place in history will likely all be debated. What will be undeniable however, is the significance of his Affordable Care Act. When a piece of legislation becomes eponymous with a president, it automatically goes on his Greatest Hits album. While Obamacare was wildly controversial before and after its passage into law, it has also been controversial as a matter of law. Twenty-seven states sued the Federal Government over the constitutionality of the Act, claiming among other things, that Congress did not have the power to force the states to expand Medicaid. The National Federation of Independent Business, a conservative lobby group, was lead plaintiff and the case was National Federation of Independent Business v. Sebelius.

Chief Justice Roberts wrote the opinion for the case. Though a majority of the law was upheld, one part was struck down. Part of Obamacare was a mandate that states accept an expansion of Medicaid or lose all Federal funding for the program. The Federal government currently supplies states with a significant amount of funding to cover their Medicaid programs. If the Federal government withdrew, some states would be left holding a bag that would cost them up to 10% of their budget. For instance, in 2014, the total spending on Medicaid in the state of Arizona was $9.2 Billion (, and Arizona spent a total of $28.9 Billion in 2014 ( If the Federal government hadn’t covered Arizona’s Medicaid tab, Arizonans would have lost nearly a third of their budget.

Though budget loss varied, states claimed the threat of withdrawing funds was unduly coercive and violated their rights. Congress, as stated by Justice Ginsburg was “like a generous benefactor” offering “$1 Million with few strings attached to 50 randomly selected individuals” and “assumed that every State would gratefully accept the Federal funds (and conditions) to go with the expansion of Medicaid.” How could the states see coercion in what the Federal government perceived as a gift? How could two spheres of government view the same piece of legislation so differently? As an overreach of Congressional power according to the states, versus a generous handout according to Congress. The answer lies within one of the most basic fundamental assumptions about our democracy: Federalism.

Introduction to Federalism

Ask a person on the street, Jimmy Kimmel style, what “Federalism” is, and unless you happen to be talking to a political scientist or a former victim of law school, you will likely get  a different answer every time. Federalism, the relationship between state governments and the Federal government, is largely taken for granted in the 21st century; that has not always been the case. At the time of the writing of the Constitution, Federalism was a point of great debate, contention, and controversy. In fact, Federalism was the point of controversy. States were independent but for a handful of responsibilities they handed to a unified government in the Articles of Confederation, such as the sole and exclusive power to make war and peace, enter into treaties, coin money, establish postal system, and send and receive ambassadors. Beyond these specific, enumerated powers, the Continental Congress under the Articles of Confederation had no powers. Another difference is that the Articles of Confederation drew its power from the independent states much in the same way that the United Nations or the European Union draws its authority from independent nation-states. In 1789 Congress called for a Constitutional Convention to revise the Articles. The nation was in an economic slump and the Federal government did not have the power to enact policies necessary to turn around the economic malaise. The Continental Congress called for a meeting of the young nation’s leaders to revise the Articles to better fit the nation’s needs. Rather than revise the Articles, the leaders decided to start from scratch, and the Constitutional Convention in Philadelphia produced a new document with drastic changes.

Scene_at_the_Signing_of_the_Constitution_of_the_United_States (1)One of the most important changes is found in the preamble, which begins “We the People.” This indicated one of the massive and most fundamental changes in the new Federal government. Rather than a compact of 13 independent states, the new government derived its power from its citizens. Rather than 13 different agendas, the new nation would have millions of individuals, each ascribing to his own beliefs and lending support to different interests. This “factionalism” was the vision of James Madison. Madison wrote the Federalist 10 prior to the implementation of the Constitution, in which he theorized that the more diverse and varied the interests in a nation, the less likely a strong, authoritarian majority could form able to tyrannize minorities. It was Madison’s thesis that a strong, citizen-based Federal government would be more likely to include many factions, rather than a weak, state-based government. In addition to private factions, Madison argued in the Federalist 51 that the powers of government itself split up and factionalized. The wisdom of the founders in dividing power between three branches is taught in every high school civics course, but less cited and more innovative is the division of power between the states and the Federal government. The desire of the states to do what they want provides a strong check to the Federal Government, and the Federal Government in turn provides a check when States overreach and violate the civil liberties of their citizens. The division between branches can be pictured as a horizontal division of powers, which allows each branch of the Federal Government to check the other. In contrast is the vertical division between state governments and the Federal Government.

The Basic Framework of Federalism

This two-layered government is the essence of Federalism, and early on it was understood that the Federal Government was granted expansive powers over the states, but a question remained – exactly how expansive should the scope of Federal power be? The Supreme Court dealt with the issue of Federal power early on. In McCulloch v. Maryland, Chief Justice Marshall examined such a clash between state and Federal power. Congress passed an Act to incorporate a national bank in 1816 and a branch opened in Baltimore, Maryland shortly thereafter. The State of Maryland immediately imposed a tax on “all banks incorporated outside the state of Maryland,” and the head of the Baltimore branch refused to pay. The State of Maryland then sued, claiming that since the Constitution did not expressly grant Congress the power to incorporate a bank that it was unconstitutional. This question as to the scope of Congressional power was answered succinctly in the most important phrase of any “Federal Power” opinion by Chief Justice Marshall: “let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Marshall recognized in this that the framers of the Constitution did not intend to enumerate in the document every conceivable power they could exercise. Maryland argued that the Constitution should be interpreted like a statute, limiting the powers of the Government to only those expressly provided in the Constitution. Marshall rejected this argument, reasoning that “we must never forget this is a Constitution we are expounding,” which is a guideline but not a strict set of rules. Maryland furthermore argued that the scope of Congressional power did not extend to the incorporation of a bank. The Necessary and Proper clause is found in Article 1, Section 8, and states “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Maryland argued that this clause was not a grant of power, but was meant to restrict the implied right of Congress to select the means for executing their enumerated powers. Marshall again rejected Maryland’s argument. So long as a law was based in an enumerated power of Congress, the law had a legitimate end. So long as a Congress was pursuing such an end, it had flexibility and freedom to pick whichever means it desired, so long as those means were “plainly adapted to that end.” Marshall’s ends/means test has stood the test of time, and is critical in our understanding of fights over the scope of Federal power over State governments.

Federalism, the Commerce Clause and Secular Natural Law

The “Necessary and Proper Clause” is the final clause in Article 1, section 8. Another clause that is responsible for determining the contours of Federalism is found near the start of Article 1, Section 8. Known as the “Commerce Clause,” it grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Chief Justice Marshall started the conversation about the relationship between Federal and State power with McCulloch, but he didn’t apply the logic to the Commerce Clause until Gibbons v. Ogden. In Gibbons, the New York state legislature granted an exclusive license to a steamboat operator to ply his trade in New York waters. Gibbons began to operate a competing ferry service under a Federal law. The most important issue of the case was put succinctly by Marshall when he asked rhetorically about the power to regulate commerce among the states: “What is this power?”

The power of Congress, he reasoned, is enumerated and therefore “limited to specified objects,” but within the scope of those enumerated objects, such as the power to regulate commerce between the states, Congressional power is “plenary.” In simple English, if the Constitution grants Congress the power to regulate something, they can pretty much do whatever they want as long as it relates to that “something.”

The plaintiffs in Ogden argued that “commerce” should be limited to “commercial trade in goods,” which therefore does not apply to the transport of people by ferry. This would become a common attack on the Commerce Clause in later years, but Marshall dispatched the argument quickly, stating that the proper definition of “commerce” is “intercourse” or any sort of activity between people or sovereigns. The plaintiffs also argued that the Federal government was obligated to limit its power as narrowly as possible in order to preserve state sovereignty.  Marshall rejected in Ogden the argument that Federal power should be “contracted by construction to the narrowest possible compass, and that the original powers of the States are retained.” He called this “metaphysical reasoning” that would render the Constitution a “magnificent structure, indeed, to look at, but totally unfit for use.” Marshall might as well have quoted his writing in McCulloch: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end…are constitutional.

This era of Secular Natural Law would not last forever. Secular Natural Law was enlightenment thinking, and was marked by a certainty that there was one correct version of law that could be discovered with the proper application of reason, and with the sense of obligation to discover that law. For a Secular Natural Law thinker like Chief Justice Marshall, each case was simply a data point, or a scientific experiment that could provide evidence to discover the Natural Law. The era came under critique after the Civil War, with Justice Brandeis providing the critique that law is not a “brooding omnipresence in the sky.”

Federalism, the Commerce Clause, and the Formalist Era

Formalist thought dominated the Court from the 1880s until 1937, during the era of the case at hand Champion v. Ames. The Formalist style deviated from Secular Natural Law, as Formalists use deductive reasoning to reach a legal decision and don’t rely on general non-legal principles for decision-making or seek to discover Natural Law. Professor Robert Clinton of Sandra Day O’Connor College of Law describes Formalism as a “sterile and formal way to do analysis.”

While the rise of Formalism in the Court in the 1880s led to adoption of Dual Federalism, the Court soon found that the rigidity of Formalism prohibited it from upholding laws passed by Congress which the justices felt were beneficial. In U.S. v. E.C. Knight (1895), the Court applied a new test to determine whether Congress could pass a law under the Commerce Clause. The direct/indirect test applied in E.C. Knight held that Congress may regulate interstate commerce only if the legislation directly affects interstate commerce. The Court defined “commerce” in E.C. Knight as the movement of goods between the states – not the production or manufacturing that occurred prior to distribution. E.C. Knight, which involved a Federal statute involving the production of sugar, was struck down because the commercial activity it regulated was deemed “antecedent” to its transportation across state lines, and therefore was outside the power of Congress to regulate under the Commerce Clause. In doing so, the Formalist E.C. Knight Court limited Marshall’s broad definition of commerce as “intercourse” in Ogden.

E.C. Knight is an archetype of the type of Formalist thought and an example of the narrowing of Commerce power. By 1903, the Formalist Court reviewed and struck down two types of legislation based on the Commerce power – laws which regulated economic activity generally and laws which involved the police power.

Dual v. Cooperative Federalism in the Formalist Era

Motivating this limitation of the Commerce power and the scope of power of the Federal government in general was the philosophy of Dual Federalism. Dual Federalism is the vision of a competitive, zero-sum relationship between the states and the Federal government. This is in contrast with Cooperative Federalism, in which the Federal government should be capable of enacting policies which may not invade the state’s rights so much as assist them. A Dual Federalist believes all economic regulation and police power to be the province of the states and that if the Federal government attempts to broadly regulate the economy or police behaviors of business or individuals, it necessarily invades state powers. A Cooperative Federalist may see Congress as having a role to play in achieving a broad social goal and that by using their unique power to regulate commerce among the states, they are assisting the states in achieving that goal.

The rise in Formalist thought coincided with the Progressive Era, which began in the 1890s and lasted until the first World War. The “muckraking” journalism of the era focused on social ills and galvanized Congress to create policy that would better society. Upton Sinclair’s “The Jungle” is an example of muckraking journalism. Sinclair spent several weeks working in a Chicago meatpacking plant and wrote a novel about a hard working immigrant factory worker who, over the course of the novel, loses his father, wife and child as a result of unsafe factory conditions. In 1905 he published the novel in serial form in a newspaper, and then released it as a book. The publication resulted in public outcry. A year after publication, Congress passed the Meat Inspection Act” and the “Pure Food and Drug Act of 1906.The novel is an excellent demonstration not only of some of the concerns of the era – low wages, unsafe factory conditions, corruption, and a lack of opportunity, but of the power of muckraking journalism and the national consensus around progressive ideals. Central to the Progressive Era was moralistic legislation. The Pure Food and Drug Act of 1906 is one example. Prohibition of alcohol and gambling was another.

This was the backdrop of Champion v. Ames, which was the first in a line of the “ills of society” cases which were the result of the moralistic legislation typical of the Progressive Era. In Champion, the moral ill Congress sought to regulate was gambling, addressed in the Federal Lottery Act of 1895, which prohibited the interstate transportation of foreign lottery tickets.

In Champion the Court found itself in a quandary. The consistent application of Formalist thought would require deference to Dual Federalism and the recognition that police power belonged to the states. This would force the Court to strike down the progressive Federal Lottery Act of 1895, which did not regulate so much as prohibit the transport of lottery tickets between states. But the progressive Court found merit in the popular legislation, and dodged the issue of state’s rights by ignoring precedent that had adopted Dual Federalism, and applying Cooperative Federalist thinking to the case.

Under the premise of Cooperative Federalism, the Federal government could use police power to prohibit lottery sales for the purpose of guarding moral welfare of the people. Cooperative Federalism did not present the Federal government as overstepping its bounds and invading the jurisdiction of the state, but as a helper and assistant to the states. Dual Federalism would approach the power of the states and the power of the Federal government as a zero-sum game, where any power asserted by the Federal government is power taken from the states. Cooperative Federalism sees state power as overlapping and reinforcing. Under Cooperative Federalism the states are free to exercise their police power, and when the Federal government exercises police power to prohibit the transfer of foreign lottery tickets between states, the Champion Court found them to merely be assisting the states.

The Court ignored the E.C. Knight’s precedent of Dual Federalism and used Cooperative Federalism in several other “ills of society” cases in the following years. The Pure Food and Drug Act of 1906, the result of Sinclair’s muckraking, was litigated in Hipolite Egg in 1911, and the Court again used Cooperative Federalism to justify a regulation on the sale of mislabeled eggs. Again, if the Court had applied the E.C. Knight standard, the Federal government would have been seen to have been invading the province of the states. In Hoke v. U.S. (1913) the Court upheld a prohibition on the transport of women across state lines for “immoral purposes,” with the reasoning that while the regulation of prostitution was a state police matter, the Federal government could be cooperative by regulating the movement of women across state lines.

However, Champion and Cooperative Federalism were an exception in the formalist era.   Hammer v. Daggenhart (1918) struck down the prohibition of the sale of goods across state lines that were produced with child labor under the Keating-Owen Act of 1916, despite the facts being nearly identical to Champion.  The main difference was that they prohibited the transport across state lines of goods with different types of manufacturing conditions. Yet when the Court chose to use the strict direct/indirect test from E.C. Knight in Hammer, it found that the Child Labor Act was “repugnant” to the Constitution because it inappropriately extended Congress’ commerce power and interfered with state police power. According to the Court, if such a law was upheld, “our system of government [would be] practically destroyed.” with the predictable outcome that the production of a good is too far removed from commerce for Congress to regulate it under the Commerce power. In Schechter Poultry Corp. v. U.S., the Court examined a case nearly identical to Hipolite Egg, in which Congress sought to regulate the conditions for the sale of chickens. The Court reincarnated Dual Federalism and rejected Cooperative Federalism in Schechter, using the direct/indirect test rather than the stream of commerce test to strike down the National Industrial Recovery Act of 1933.

Formalist thought has the appeal of applying bright line tests to the law rather than using what Formalists critique as limitless and amorphous discretion of other jurisprudential philosophies. Under this line of cases, however, the Formalist Court failed to apply one set of bright line rules. Rather, it developed two lines of thought – Cooperative and Dual Federalism, and two lines of tests – stream of commerce and the direct/indirect test. A Formalist Court is therefore able to use precedent and point to rules of law in every decision without the appearance of using discretion. The Formalist Court uses discretion, but the discretion it uses consists of which set of bright line rules to apply. When the Formalist Court wanted to strike down a law, such as in the cases of Hammer, E.C. Knight and Schechter Poultry, it did so using the direct/indirect test and the philosophy of Dual Federalism. When the Formalist Court wanted to uphold a statute, such as the case in Champion, Hipolite, and Hoke, it did so by applying the stream of commerce test and the philosophy of Cooperative Federalism. Formalist thought was not to last, however, and in 1937 the Supreme Court entered a new ear with profound implications for the contours of Federalism.

The Commerce Clause  in the Realist Era

The end of the Great Depression coincided with a shifting in the judicial opinion from a Formalist approach to a Realist approach.  Franklin Roosevelt was in the midst of trying to revive the economy through his New Deal, causing the Court to face an array of constitutional issues arising under the Commerce Clause.  The Court had a choice of analyses: a Dual Federalist approach as seen in E.C. Knight or a Cooperative Federalism approach in Champion. Due in part to Justice Roberts’ switch from Formalism to Realism, the Court adopted the latter.

In transitioning from Formalism to Realism, the Court took a more expansive view of the Commerce Clause. It rejected earlier jurisprudence on formal dichotomies and broadened authority to regulate activities related to interstate commerce. More specifically, the Court found that Congress could regulate actions that may have previously been described as indirectly linked to interstate commerce by using the stream of commerce test. Likewise, the Court held that Congress could reach private, individual behavior if the cumulative effect of that behavior would affect interstate commerce. Overall, the Court focussed more on the actual economic impact of various regulations and disregarded Congress’ motivations in proposing them.

The first evidence of a Supreme Court shift from Formalism to Realism came in 1937, in the form of N.L.R.B. v. Jones & Laughlin Steel Corp. The Court had to determine the constitutionality of the National Labor Relations Act proposed by Congress. The direct effect test used in Carter v. Carter Coal Co. only a year earlier was rejected, and a substantial effects test was used to uphold the statute. The substantial effects test introduced in N.L.R.B. was outlined by Chief Justice Hughes in the opinion:

It is the effect upon commerce, not the source of the injury, which is the criteria.  Whether or not particular action does affect commerce in such a close and intimate fashion has to be subject to Federal control [is] left by the statute to be determined as individual cases arise.

The change related more to the cooperative support model of Federalism that was seen earlier in Champion.  However, while Champion was an outlier in its time, N.L.R.B. set the standard going forward for Supreme Court decisions post-1937, which is further illustrated by United States v. Darby in 1941.

Following N.L.R.B., the Court continued to refine its usage of the substantial effects test. In Darby, the Court upheld the provision of the Fair Labor Standards Act, which prohibited interstate goods manufactured by employees who were employed in violation of the F.L.S.A. wage and hour standards. By using an aggregation principle to look at the interstate effects state-by-state labor conditions would have, the Court found that this regulation by Congress was appropriate.  This aggregation principle allowed the Court to look at a regulation’s end effect on interstate commerce, which was an expansion of the substantial effects test utilized in N.L.R.B. This expansion of Congressional power reflected the Court’s shift from zero-sum Dual Federalism to a more cooperative, realist approach. By allowing Congress police power under the Commerce Clause, the Supreme Court is supporting a Federalism that allows for the promotion of Federal and state powers to act in conjunction.

Darby also introduces the “Darby Bootstrap” rule, allowing the Court to uphold the F.L.S.A.’s wage and hour standards directly.  Despite the regulation only directly affecting intrastate commerce, the end goal had a regulatory effect on interstate commerce. Darby and the “ends justify the means” concept explicitly overruled the Court’s earlier analysis in Hammer. The Court adopted the belief that if the ends are legitimate, and the means are plainly adapted to or are reasonably related to furthering that end, it will be upheld.  

The Court continued to reject Formalist tests in Wickard v. Filburn in 1942.  Relying on Darby, the Court in Wickard held that Congress could limit the wheat grown by a single farmer because the aggregate effects of allowing their limitations to be broken would harm the commercial wheat business and negate the limitations in the first place.  Despite the individual farmer not having enough of an effect to have an impact on interstate commerce, the Court found an aggregate effect on interstate commerce that allowed it to fall under the Commerce Clause.  This was an express rejection of the indirect/effects test popularized in the Formalist era, and another example of historically moving from Dual Federalism to Cooperative Federalism.

The analysis in Wickard duplicates the application of the ends and means test used in both McCulloch and Darby.  The Realist approach is still seen in some modern cases, such as Gonzales v. Raich, which used the Darby analysis in 2004, but was no longer the pre-eminent approach to Commerce Clause questions in the Supreme Court when the Conservatives took control.  This change was highlighted by the decision in United States v. Lopez.  

The Commerce Clause in the Modern Era

The advent of neo-formalism in modern Supreme Court jurisprudence placed new limits on activity that the Federal government could regulate under the Commerce Clause. In U.S. v. Lopez (1995), the Court held that regulatable commercial activity must fit within one of three categories: (1) channels of interstate commerce, (2) instrumentalities that use channels of interstate commerce, or (3) activities that substantially affect commerce. These three categories were based on prior precedent. However, the Court also diverged Commerce Clause precedent by defining commerce as an economic transaction, rather than intercourse as it was previously defined as in Gibbons.

Under its neo-formalist framework, the Court struck down The Gun-Free School Zones Act, which made it a criminal offense under Federal law to possess a gun near a school zone. Although the Act was related to the third category, it failed to fit into the “substantially affecting commerce” category because the Court found it had no “concrete tie” to interstate commerce.

The Court rejected the governments argument that the Act was rationally related to economic activity. Instead the Court reasoned that “[t]o uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Ultimately, the Lopez Court’s neo-formalist conception of the Commerce Clause translates into a Dual Federalist view of the Federal and state relationship. The Court struck down the Gun-Free School Zones Act not only because it failed to fit into one of three categories, but also because it creeped in on state police power.

Ten years after Lopez, in Gonzalez v. Raich (2005), the Court applied a realist analysis to uphold the Controlled Substance Act under the Commerce Clause. The Act made it illegal to consume marijuana, even though it conflicted with California’s Compassionate Use Act, which legalized medical marijuana. In this case, California residents Raich and Monson grew and consumed marijuana for medicinal purposes. In 2002, however, Drug Enforcement Administration officers seized and destroyed Raich and Monson’s marijuana plants. The two sued the Attorney General of the United States, seeking injunctive relief against the application of the CSA. Raich argued that the CSA’s prohibition of marijuana as related to intrastate consumption of medical marijuana exceeded Congress’ Commerce Clause power. The Court disagreed, holding that under the Commerce Clause, Congress could regulate the intrastate consumption of marijuana because it was rationally related to interstate commerce.

Justice Stevens wrote the majority opinion and distinguished Lopez from Gonzalez. He reasoned that The Gun-Free School-Zones Act concerned a noneconomic activity, while the CSA was quintessentially economic”. Drawing similarities to Wickard, Justice Stevens reasoned that “Congress had a rational basis for concluding that leaving home-consumed marijuana outside Federal control would [] affect price and market conditions.” Here the majority’s Realist analysis aligned more with Cooperative Federalism than Dual Federalism.

Throughout the modern era, the Supreme Court has applied Formalist or Realist approaches to determine the extent of Congress’ power under the Commerce Clause. More recently, the Sebelius majority and dissenting opinions demonstrate the Court’s divide on the two approaches. Ultimately, the Formalist and Realist views influence the Justices’ different conceptions of the Federal and state relationship: Dual Federalism or Cooperative Federalism.

Sebelius – Does it Make Sense?

Sebelius is the most recent example of the ongoing controversy to determine the scope of the Federal government powers. The Court ruled that the individual mandate to purchase health insurance coverage could not be supported by the Commerce Clause. In his opinion, Chief Justice Roberts stated that the individual mandate does not regulate existing commercial activity, instead, it compels individuals to become active in commerce, on the grounds that if they failed to do so, affects interstate commerce. And concluded that the Framers gave Congress the power to regulate commerce, not to compel it.

This opinion is consistent with the interpretation that the Supreme Court has given to the Commerce Power under a Formalist approach (Dual Federalism), limiting the scope to regulating interstate transportation, and the actual movement of goods and services across the state lines (as in Champion v. Ames and E.C. Knight). In fact, this same approach has been established by the most recent precedent cases under the commerce clause: United States v. Lopez (holding that the Gun-Free School Zones Act of 1990, exceeded the authority of Congress to regulate commerce; possession of a gun in a local school zone is in no sense an economic activity that might, substantially affect any sort of interstate commerce); and United States v. Morrison, (civil remedy provision of the Violence Against Women Act of 1994 was unconstitutional; gender-motivated crimes of violence are not economic activity), affirming that there are enforceable structural limits on Federal power.

In contrast, Justice Ginsburg, joined in the opinion by Sotomayor, Breyer and Kagan, concurred that the individual mandate was within the commerce powers. Relying on Gonzales v. Raich and Wickard v. Filburn, Ginsburg acknowledged the authority of Congress to regulate activities (or inactivity) that substantially affect interstate commerce, arguing that here Congress’ intervention was needed to overcome the social and economic problem originated by the higher taxes and increased insurance cost that those with health insurance have to pay, subsidizing those who are unable or unwilling to obtain medical coverage. Gonzales and Wickard, represent the most radical example of commerce power expansion under a Realist approach. In Wickard, the Court held that Congress can regulate purely intrastate activity that is not itself commercial (not produced for sale), if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. In Gonzales, the Court, relying on Wickard, upheld the constitutionality of a comprehensive Federal ban on the private cultivation and use of marijuana, as applied to marijuana grown at a person’s home and intended solely for use by that person (no commercial transaction either intended or actual).

After Sebelius, the Supreme Court leaves us without a clear definition about where to draw in the line in future cases.  Do we use Cooperative Federalism, which tends to expand the Federal government powers, or do we use Dual Federalism, which does not allow Federal government powers to invade upon state powers?

Conclusion: Why Cooperative Federalism Is Best Federalism

Cooperative Federalism most comports with the vision of the founders. Dividing power amongst state and Federal governments, while allowing both to work together provides several benefits. First, Cooperative Federalism promotes diversity. Instead of tying the entire nation to one uniform law, Cooperative Federalism allows state and local governments, who are better suited to handle their citizens, to cater to their individual community’s needs. In the same way, Cooperative Federalism prevents backlog and increases efficiency. Instead of waiting for the Federal government to deal with every issue that arises, state and local governments can quash problems within their communities. This local solving of problems further supports the vision of the founders by permitting, and even encouraging, citizens to get involved in the political process to help decide things. Last, this dispersion of power prevents tyranny. With the state and local governments working with the Federal government, each body can check the other. In other words, neither body can usurp enough power to overtake the other or to gain omnipotent control of the nation.

Cooperative v. Dual Federalism: Is There a Right Answer