Cooperative or "Marble Cake" Federalism

In response to the commonly held views of dual federalism and permissive federalism, both of which suggest an adversarial relationship between the national and state governments, some constitutional scholars have argued that attempts to draw lines between national and state governmental activities are counter-productive. Instead of a two or three-layered cake, they argued that the relationship between different levels of government in this nation is more like a marble cake, with swirls that cut across the levels, often blurring the distinction between them. In practice:

Functions are not neatly parceled out among the many governments. They are shared functions. It is difficult to find any governmental activity which does not involve all three of the so-called "levels" of the federal system. . . . [F]ederal-state-local collaboration is the characteristic mode of action.²⁰

The “marble cake” metaphor suggests that the national and state governments are highly interwoven and interdependent. Accordingly, another term for marble cake federalism is cooperative federalism. According to this view, the national government and state governments are not adversaries, but rather different levels of government pursuing largely the same goals. For example, both national and state governments are interested in improving education, protecting the environment, promoting economic growth, and reducing crime. To the extent that cooperation is feasible and beneficial, national, state, and local governments can and do work together to accomplish these goals.

In an attempt to formalize this view of federalism, President Clinton issued an executive order on federalism in March of 1999. After state legislators and governors complained that they had not been consulted in the process, the White House withdrew the order and began a series of discussions with state officials. The result was a rewritten executive order on federalism issued in August, 1999. (Associated Press. “Clinton issues new order on federalism.”)²¹

The executive order, among other things, holds that:

• Issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people.
• The Framers recognized that the states possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy.
• Acts of the national government — whether legislative, executive, or judicial in nature — that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.
• The national government should be deferential to the states when taking action that affects the policy-making discretion of the states and should act only with the greatest caution where state or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government.

By issuing this Executive Order, Clinton reinforced the efforts of his immediate predecessors in the Oval Office (Reagan and Bush) to define more clearly the "federal" relationship between the national and state governments.

New Federalism

As policy leaders and the Supreme Court grad- ually redefine federalism, they are confronted with the need to set priorities and determine which levels of government are best suited to perform which tasks. The “new federalism” being created in the process is one which places a greater emphasis on the states, both in terms of funding and running programs. One of the most striking examples of this trend is the 1995 welfare reform legislation passed by the Congress which shifted much of the administration of federal welfare programs from the national level to the states. State governors and conservatives in Congress are eager to tip the scales even more toward the states. It seems unlikely, however, that a major change in the balance of power is on the horizon. Members of Congress, conservatives and liberals alike, are unwill- ing to cede their authority and spending power to the states. Many interesting and difficult questions lie ahead, however, as the Congress and the states deal with the new realities of the economy, technology, education, and health care.

^20. Morton Grodzins, "The Federal System" in Goals for Americans: The Report of the President's Commission on National Goals, (Englewood Cliffs, New Jersey: Prentice-Hall, 1960), 265-66 ^21.CNN Interactive, allpolitics.com 5 August 1999