13 Section 2.1: Dual Federalism

Dual federalism refers to the governmental system of the United States where there are 50 state governments and a single federal government. At least theoretically, the states are allowed to exercise their own powers without interference from the federal government. In other words, some powers are delegated to the federal government while others remain with the states. In reality, this boils down to an ever-evolving body of law. The trend has been toward the federal government gaining more and more influence in the sphere of criminal justice over the years since the Constitution was drafted.

The Hierarchy of Laws

Article Six of the U.S. Constitution has long been interpreted as meaning that federal law trumps state law whenever the two come into conflict. Conversely, the power of the federal government was thought to be held in check by the Bill of Rights, which are the first ten amendments to the Constitution. The exact reach of federal power has long been debated and is still not fully resolved. Major changes in how the federal government exercised its power in relation to the states have happened quickly at times, such as a dramatic increase in federal power during the Civil War, the passage of the Fourteenth Amendment immediately after the war, and during the New Deal era prior to World War II. Many political scientists contend that dual federalism is no longer an accurate term, stating that the states and the federal government share powers in a model that may more accurately be described as cooperative federalism. Nowhere has this overlap of power been more obvious than in the criminal laws of the United States and how those laws overlap the criminal codes of the various states.

The Hierarchy of Courts

As a direct result of American federalism, a dual court system exists within the United States today. There is a complete and independent federal court system, and there is a complete and somewhat independent state court system in every state. The idea of separation of powersdoes not suggest that the courts are completely independent of the other branches of government. The laws that federal courts arbitrate, for example, are passed by Congress and signed by the President. The federal courts, in turn, have the authority to decide the constitutionality of federal laws and resolve other disputes over them. On the other hand, judges depend upon the executive branch to enforce court decisions. It can be seen from these few examples that the branches of government depend on each other to function.

The U.S. Constitution gives Congress the power to create federal courts other than the Supreme Court and to determine the jurisdiction of those courts. It is Congress, not the judges, that controls the type of cases that may be addressed in the various federal courts. Congress has other constitutional responsibilities that determine how the courts operate. Congress decides how many judges there should be and where they will work. Congress, through the confirmation process, has a role in determining which presidential nominees eventually become federal judges. Congress also approves the federal courts’ budget and appropriates money for the judiciary to operate (Congress wields this authority over many components of the criminal justice system. The power to control funding is often called the power of the purse). According to the Administrative Office of the US Courts, “the judiciary’s budget is a very small part- substantially less than one percent-of the entire federal budget.”

United States District Courts

The United States District Courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico. Three territories of the United States-the Virgin Islands, Guam, and the Northern Mariana Islands-have district courts that hear federal cases.

United States Courts of Appeal

The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States Court of Appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. Because these courts are organized into circuits, they are sometimes referred to as circuit courts.

The United States Supreme Court (USSC)

The United States Supreme Court consists of the Chief Justice of the United States and eight associate justices. At its discretion, and within certain guidelines established by Congress, the Supreme Court each year hears a limited number of the cases it is asked to decide. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law. This standard is often referred to as a substantial federal question. Thus, only certain state court cases are eligible for review by the U.S. Supreme Court. State courts are the final deciders of state laws and constitutions. Their interpretations of federal law or the U.S. Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may choose to hear or not to hear such cases.

State Court Structures

The Constitution and laws of each state establish the state courts. A court of last resort, often known as a supreme court, is usually the highest court in a state. Some states also have an intermediate court of appeals. Below these appeals courts are the state trial courts. Some are referred to as circuit or district courts. Historically, states usually had courts that handled specific legal matters, (e.g., probate courts, juvenile court; family court, etc.). Many states, however, have followed the federal model and have combined these various courts. Parties dissatisfied with the decision of the trial court may take their cases to the intermediate court of appeals in states that have them, or to the court of last resort in states that do not.

The Hierarchy of Law Makers

As previously discussed, Article Six of the United States Constitution contains what is known as the supremacy clause. The second clause of Article VI of the Constitution of the United States pronounces: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What exactly this means has been subject to interpretation over the years, but several Supreme Court cases have clarified things.

In Gibbons v. Ogden (1824), for example, the court stated that when laws “though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution…the act of Congress…is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.” This means that when a federal law (so long as it is constitutional) comes into conflict with a state law, the federal law wins and the state law is null and void.

The Dual Executive

Often neglected in discussions of federalism are the issues that arise from having dual executive functions within the government structures of the states as well as the federal government. Just as there are federal laws and federal courts, there are federal law enforcement agencies. The federal agencies can only enforce federal laws. Law enforcement officers within those states only enforce state laws. Importantly, each level of government can provide support for the law enforcement efforts of the other.

The Third Layer of Cake

The dual federalist system in the United States has been referred to (especially in its earlier versions) as layer cake federalism. The idea of a layer cake suggests the distinct yet united spheres of power held by the federal government and by the various states. In a 1960 report entitled Goals for Americans: The Report of the President’s Commission on National Goals, political scientist Morton Grodzins compared the layer cake analogy to marble cake federalism. The marbling of this type of cake symbolized the overlapping and concurring powers of the state and federal governments.

Often forgotten in this power tug of war between the state and federal governments is that there is a third tier of government within nearly every jurisdiction in the United States: the local governments. The term local government is used to discuss the governing bodies of America’s myriad cities and counties. Local governments are critically important to criminal justice because most of the workload of the criminal justice system is taken care of on a local level. The vast majority of police officers are employed at the municipal (city) level of government. A large number of law enforcement officers and correctional officers are employed by country (or parish, depending on the state) governments under the auspices of the Sheriff’s Department.

For legal purposes, most local and county agencies are considered state agencies. Municipal police officers and country deputies are charged with enforcing state laws; they can do nothing about violations of federal law except for turning a case over to federal authorities. Local governments are also empowered to make “minor” laws known as ordinances. In the criminal justice system, ordinances regulating conduct are usually considered violations, resulting in only a fine. Local governments are not entrusted by the state and federal governments with the power to enact laws that punish by imprisonment.

Key Terms

Article Six, Circuit Courts, Cooperative Federalism, Court of Last Resort, Gibbons v. Ogden (1824), Intermediate Court of Appeals, Layer Cake Federalism, Local Government, Marble Cake Federalism, Power of the Purse, Separation of Powers, Substantial Federal Question, Supremacy Clause, United States Courts of Appeals, United States District Courts


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