Academic journal article Public Administration Quarterly

Judicial Intergovernmentalism: The Impact of Federalization on the American Court System

Academic journal article Public Administration Quarterly

Judicial Intergovernmentalism: The Impact of Federalization on the American Court System

Article excerpt


Congress has been federalizing traditional state law areas since the nation first formed. "Federalization," as used in this context, denotes "the extension of federal court jurisdiction to civil causes of action and criminal persecutions that could be maintained in state courts" (Schwarzer and Wheeler, 1994:651). The consequences of this activity on American governance are profound. This article describes the incentives Congress has to take over state judicial policy concerns and the effect of federalization on both federal and state judiciaries.

The first section of this article discusses the historic precedents for federalization, The second, third, and fourth sections describe the systemic, constitutional, and political forces that compel Congress to federalize state law areas. The following two sections describe how these forces redirect both criminal law and tort law from state and local jurisdiction to federal jurisdiction.

Since each of these sections suggests that federalization overburdens both federal and state judicial systems, subsequent sections expand on that premise, looking specifically at how federalization influences administration of federal district, federal appellate, and state courts. It further explicates how these different courts respond to continued congressional federalization efforts.

The final section offers strategies for coping with congressional federalization of traditional state law areas, including: (1) enhanced judicial accountability; (2) alternative dispute resolution; (3) access restrictions; and (4) organizational restructuring.


Prior to 1930, the relationship between the national and state governments can be characterized as "dual federalism" because each level of government had separate realms of authority and responsibility (Lester and Stewart, 1996:10-12). Even then Congress passed laws in traditional state policy areas. For example, Congress passed the Federal Road Act of 1916 to provide grants to state highway departments and the Vocational Education Act of 1917 to help pay teachers' salaries and the costs of vocational education.

During the period of "cooperative federalism" (1930-1960), Congress passed many laws, like the Social Security Act of 1935 and the Water Pollution Control Acts of 1948 and 1956, that used the burgeoning financial resources and growing bureaucracy of the federal government to help state governments perform their responsibilities. Then, from 1960 until 1972, the federal government became more dominant in the relationship. During this period of "creative federalism," the federal government worked with state and local governments to achieve the national social objectives that Congress defined in broad statutory language. For example, Congress passed the Elementary and Secondary Education Act of 1965 and the Omnibus Crime Control and Safe Streets Act of 1968.

Since 1972, states and cities have tried to reassert their independence. During this phase of "new federalism," however, Congress has been able to mitigate state and local independence efforts by using legislative tools such as preemptions, mandates, and federal grants-in-aid (Lester and Stewart, 1996:12). For example, the Americans with Disabilities Act of 1990 and the Hazardous and Solid Waste Amendments of 1984 both offer states enticing grant opportunities accompanied by constraints on state implementation through the use of detailed regulation.

As this brief history clearly suggests, Congress' taking of state domestic law areas has been gradual yet consistent. This relentless aggrandizement of congressional power is facilitated by the systemic, constitutional, and political characteristics of American federalism.


While the conceptual delineation of American federalism into national, state, and local governments is quite clear, the allocation of functional authority of each level of government is considerably more nebulous. …

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