Era Of Cooperative Federalism

During the 1930s, federalism underwent a revolutionary shift, a shift that began with FDR’s New Deal. Faced with a depressed economy and having campaigned to enliven it with welfare and other forms of government care, FDR began to exert federal powers in a way no prior president had. The substance of FDR’s federal pivot was a set of non-mandatory grants that attached his own federal policy priorities to states’ (voluntary) receipt of these grants, facilitating the administration of the New Deal in states. These yielded an era of “cooperative federalism,” described by Kincaid as “a way to expand federal powers without subordinating state powers.” This federalism was a departure from the erstwhile “dual federalism” structure, under which Congress

Because of that basic utilitarian calculation, it follows that civil rights activism will target federal policy venues, and politicians, being opportunists, will flock.

Hence, because political actors respond to political pressures by finding ways to manipulate the federal system for their gain, and because for many important interest groups federal policymaking venues are more rewarding than state venues, there is a bias toward centralization in the U.S. federalist system.

While the foregoing section dealt with fluctuations in federalism due to democratic pressure, this section deals with fluctuations in federalism originating from its undemocratic gatekeeper: the federal judiciary. Federal courts may be described in this way because the Constitution lays out the federal structure, and only those courts may finally declare the Constitution’s meaning. Thus, it is both in principle and in practice Article III Courts’ job to delineate where federal powers end and where state powers begin. I argue here that the Supreme Court in particular has no reliable federal bias in two key areas of its federalism jurisprudence: the Commerce Clause and rights of

But, as with its Commerce Clause jurisprudence, the Court’s expansive rights jurisprudence may not be taken for granted. Consider the 2015 Obergefell v. Hodges case, which legalized same-sex marriage in all states. That decision, undeniably, was an audacious assertion of power by the Supreme Court, one that brought the guillotine down on states’ internal deliberations as to the merits of same-sex marriage. I thus cannot deny that this decision counts in favor of the view that the Court holds a bias toward centralization, but there is another side to this coin, namely, the four impassioned dissenting opinions delivered by the Court. The principal dissent among these decried the Court for “invalidat[ing] the marriage laws of more than half the States” without their assent. The one dissenting justice who did not join that principal dissent echoed similar federalism concerns, panning the Obergefell majority for disturbing the “system of federalism” that “provides a way for people with different beliefs to live together in a single