Dual Federalism


A federal system is a system that divides its legal authority and power between different levels of government.  The term federalism refers to a pact or a treaty and in this case to a government with different layers.  This division of authority and power can take many forms but the most popular federal system is that of America which uses dual federalism: having one central federal government that works alongside 50 state governments.

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What is Dual Federalism?

Dual federalism refers to any system of federalism, any federal system that is divided between two areas of authority and power. In the United States, those two areas include federal power and state power.

This type of structure is based on the idea that a balance between Federal power and state power can exist effectively. 

Dual federalism definition

The dual federalism definition states that Authority between two levels of government, the national level and the state level within the United States, could be treated equally, could hold roughly equal authority, and could live alongside one another equally. Article 4 of the Constitution explains how dual federalism will work in practice. The first two sections for example include the full faith and credit clause and the privileges and immunities clause both of which dictate things like how one state treats the citizens of their state as well as other states. The fourth section of this part of the amendment serves as a guarantee of government for each state. 

The doctrine of dual federalism

In America, you have National or federal levels of power underneath which you have the individual state power. States are responsible for further dividing their power at the local level and at the city level as well. These multiple layers of leadership and government learn the idea of federalism the nickname of the layered cake because each layer represents a different level of power, but they all stacked on top of one another to form a cake. 

With time, however, this layer cake has taken on more of a marble cake idea whereby each layer is somewhat intermixed and has overlapping areas of power. If you look at things like the Bill of Rights or Article 6 of the Constitution you’ll notice exclusive powers, those which are given specifically to one layer or one area of government. But there are also concurrent powers, things that can exist at multiple levels.

Article 6 of The Constitution for example establishes the Constitution as the main or supreme law of the United States. This in effect dictates specifically the laws that fall to the federal Authority like debt. It also means the Constitution serves as the highest law in the United States. This means the Constitution is higher than state law so if there is an issue at the state level which is taken to the Supreme Court, whatever ruling comes down from the Supreme Court replaces the ruling at the state level. The Constitution is also higher than the federal law and if a federal issue was taken to the United States Supreme Court, the same is true. 

For example, at the federal or national level exclusive powers include:

  • Making money
  • Declaring war
  • Raising an army
  • Regulating foreign commerce or interstate commerce
  • Conducting foreign affairs
  • Determining rules of citizenship or naturalization

At the state level, exclusive powers include:

  • Conducting elections, even as it pertains to elections for the president which are conducted at individual state levels and overseen by the Electoral College
  • Establishing local governments
  • Ratifying Constitutional Amendments
  • Regulating intrastate commerce where even if the Senate and House propose an amendment or a law, 3/4 of the states have to agree and vote in favor of it in order to ratify it

Concurrent powers, those shared between both layers include:

  • Taxation
  • Creation of laws
  • Chartering banks
  • Law enforcement
  • Borrowing money
  • Establishing courts 
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Examples of Dual Federalism

If you look at Article 1 Section 10 and Article 10 of the Constitution you will see something called the reserved powers clause. This clause delineates what powers fall under the federal system and what powers fall under the state government system. This section effectively says any powers that are not explicitly given to the federal government in the form of federal powers fall to the state government. 

Powers given to individual states are referred to as enumerated powers. In many areas of the Constitution, there are specific federal laws and responsibilities. The Constitution determines many of the federal powers and authorities. Those things not mentioned in the Constitution fall to states. One main dual federalism example is driver’s licenses. Each state is responsible for controlling and providing driver’s licenses within its boundaries. 

Dual federalism court cases

If you look at the example of establishing courts, that is one concurrent power. The American Justice system deals with multiple issues, treaties, rights, and politics at local, state, and federal levels. That means for the purposes of enforcing United States law, you can have judges at the state level who enforce state law and regulate state-level cases. Beneath them, you can have local law enforcement and local courts that deal with levels on a local basis. Pursuance of national or federal laws at any period in time falls to the U.S. Supreme Court. There are times when something is enforced at the state level but was escalated to the federal level. One example is Hammer v. Dagenhart where a decision was made at a lower level regarding child labor and then taken to the Supreme Court. 

Another example is the establishment of law or lawmaking. State law is created at the state level with state senators. Congress is in charge of state law and federal law depending on whether the laws are ratified at the state level or federal level. Even the House of Representatives and the Senate are examples of dual federalism in that both houses may be involved in the approval of a federal law that affects different states and would require state involvement, but issues can pass the desks of only state senators or only Federal Representatives.

Dual federalism represents a unique facet of American government and understanding the exclusive powers as well as the concurrent powers can make it easier for individuals to better appreciate the cake and its marbled or layered form.

Article by Inna Ptitsyna

Inna Ptitsyna is Product Communications Manager for Lawrina. Inna has a law degree and great expertise in legal innovations. Along with the work for Lawrina, Inna is a part of the international community of Legal Hackers, where she gives presentations about the importance of PR and marketing for lawyers.

At Lawrina, Inna communicates with bloggers and external resources to spread the word about Lawrina's projects and ideas. If you'd like to contact Inna, you can reach her via email inna@lawrina.com.

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