Cooperative Federalism
Encyclopedia
Cooperative federalism is a concept of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...

 in which national, state, and local government
Local government
Local government refers collectively to administrative authorities over areas that are smaller than a state.The term is used to contrast with offices at nation-state level, which are referred to as the central government, national government, or federal government...

s interact cooperatively and collectively to solve common problems, rather than making policies separately but more or less equally (such as the nineteenth century's dual federalism
Dual federalism
Dual federalism, a legal theory which has prevailed in the United States since 1787, is the belief that the United States consists of two separate and co-sovereign branches of government. This form of government works on the principle that the national and state governments are split into their own...

) or clashing over a policy in a system dominated by the national government.

The European Union and the United States

Comparisons Between the European Union and the United States
In the Lisbon Treaty the distribution of competences in various policy areas between Member States and the European union is redistributed in 3 categories. In the United States soon after its creation (1789), it had exclusive competences only(changed somewhat since then, but the basic design remain to this day). Competences not explicitly listed belong to lower levels of governance.





United States

In the American federal system, there are limitations on national government's ability to carry out its policies through the executive branch of state governments. For example, in Printz v. United States
Printz v. United States
Printz v. United States, 521 U.S. 898 , was a United States Supreme Court ruling that established the unconstitutionality of certain interim provisions of the Brady Handgun Violence Prevention Act.-The Gun Control Act of 1968:...

, 521 U.S. 898 (1997) the Court held that the national government could not directly require state law enforcement officers to conduct background checks under the Brady firearms legislation. The court explained that prior decisions warned that "this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations." And yet, there are significant advantages in a federal system to obtain state assistance in the local implementation of federal programs. Implementing such programs through national employees would significantly increase the size and intrusiveness of the national government. Moreover, local implementation may assure that these programs are implemented in ways that take local conditions into account.

For this reason, Congress has often avoided adoption of completely nationalized programs by one of two devices. In the first, Congress creates a delivery system for federal programs in which the national government encourages local implementation of a federal program by providing significant matching funds. In this context, the phrase may be found in a number of Supreme Court and lower court federal cases. The most frequent early use of the phrase may be found in a series of cases describing the paradigm for federally sponsored welfare programs such as medical assistance or the former Aid to Families with Dependent Children
Aid to Families with Dependent Children
Aid to Families with Dependent Children was a federal assistance program in effect from 1935 to 1996, which was administered by the United States Department of Health and Human Services...

 (AFDC) programs in which a participating state's program is financed largely by the Federal Government, on a matching fund basis, subject to federal mandatory regulations. See for example, King v. Smith
King v. Smith
King v. Smith, 392 U.S. 309 , was a decision in which the Supreme Court of the United States held that Aid to Families with Dependent Children could not be withheld because of the presence of a "substitute father" who visited a family on weekends.Mrs. Sylvester Smith was an Alabama resident who...

and a series of subsequent AFDC cases. More recently, the phrase has been used in connection with other federal programs built on the cooperative federalism model. See California v. U.S. 438 U.S. 645 (1978) (Reclamation Act) and Schaffer v. Weist (Special education). Here, the motivation for State compliance is that absent state compliance with federal conditions, the state loses significant federal funding.

The second method of encouraging states to implement federal programs is described in New York v. United States
New York v. United States
New York v. United States, 505 U.S. 144 was a decision of the United States Supreme Court. Justice Sandra Day O'Connor, writing for the majority, found that the "Take Title" provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 exceeded Congress's power under the Commerce...

, 505 U.S. 144 (1992). In this form, the Congress states that it will take over the regulation of an activity at the national level, unless the State itself implements its own program of regulation meeting minimum federal standards. Here, the motivation for State compliance is that absent state regulation, the state loses power over the regulated area entirely. In New York v. United States, the court explained:


"....where Congress has the authority to regulate private activity under the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...

, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law preempted by federal regulation. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. See also FERC v. Mississippi. This arrangement, which has been termed “a program of cooperative federalism,” Hodel, supra, is replicated in numerous federal statutory schemes. These include the Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...

, see Arkansas v. Oklahoma, (Clean Water Act “anticipates a partnership between the States and the Federal Government, animated by a shared objective”); the Occupational Safety and Health Act of 1970, see Gade v. National Solid Wastes Management Assn., the Resource Conservation and Recovery Act of 1976, see Department of Energy v. Ohio, and the Alaska National Interest Lands Conservation Act, see Kenaitze Indian Tribe v. Alaska."


While the federal system places limits on the ability of the national government to require implementation by a State executive branch, or its local political subdivisions, that limitation does not apply in the same way to State judicial systems. In part, this is because the founders understood that state courts would be courts of general jurisdiction, bound to apply both state and federal law. In part, it is because the State courts adjudicate cases between citizens who are bound to comply with both state and federal law. When the Congress seeks to establish federal legislation which governs the behavior of citizens, the Congress is free to choose among three judicial enforcement paradigms. It may open both federal or state courts to enforcement of that right, by specifically providing concurrent jurisdiction in the federal courts. It may grant exclusive jurisdiction
Exclusive jurisdiction
In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...

to the federal courts, or it may choose to leave enforcement of that right to civil dispute resolution amongst parties in State court.
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