There are two main types of federalism: dual (layer cake) federalism and cooperative (marble cake) federalism (Grodzins, 1960).
- Layer cake (dual) federalism: power is divided between the federal and regional governments in clearly defined terms in order to promote limited government. It is based on the idea that the federal government and the regional governments are co-equals, and each is legislating in separate spheres.
- Marble cake (cooperative) federalism: the federal and regional governments flexibly cooperate on a variety of issues. It is based on the idea that both the federal and the regional governments legislate in the same sphere. “They are hierarchically arranged and complement each other in solving a social problem” (Schutze, 2009). This article will focus on the latter.
Marble-cake (cooperative) federalism is a subtype of federalism in which the federal government and the regional governments have a flexible relationship in which they work together on a variety of issues.
The metaphor of a marble cake comes from Morton Grodzin and he described it as follows:
“Wherever you slice through it you reveal an inseparable mixture of different colored ingredients. There is no neat horizontal stratification. Vertical and diagonal lines almost obliterate the horizontal ones, and in some places there are unexpected whirls and an imperceptible merging of colors, so that it is difficult to tell where one ends and the other begins” (Grodzins, 1960, p. 265).
What follows from this metaphor is the idea that the national governments and the state governments (in the case of the United States) balance each other out through constant interaction.
FDR and Marble Cake Federalism in the USA
After the presidency of Franklin D. Roosevelt, it is widely accepted that layer cake dual federalism in the United States ended and was replaced by cooperative or marble cake federalism (Staten, 1993; Zackin, 2011; Young, 2001 & Zimmerman, 2001).
There are conflicting views about this (for example, see: Smith & Greenblatt, 2019; Feeley & Rubin, 2009; Nugent, 2009; Rosenthal & Hoefler, 1989; Johnson, 2016; & Williams, 2009), but this view is the most common.
State and local governments now cooperate with the federal government in many policymaking areas.
Using the Commerce Clause, which states that the United States Congress shall have the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (U.S. Const. art. I, § 8, cl. 3), the federal government passed national policies to regulate the economy.
The Interstate Commerce Act and Sherman Antitrust Act strengthened the authority of Congress to regulate commerce between states and expanded its role. All this led to the federal government cooperating with the state governments.
Regional governmental entities help implement federal policies in several ways:
“by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce federal statutes” (Hills, 1998, p. 815).
Marble Cake Federalism and the 10th Ammendment
More specifically, it operates under the assumption that the federal and state governments are partners. It relies on the Supremacy Clause (U.S. Const. art. VI, cl., 2) and the Necessary and Proper Clause (U.S. Const. art. I, § 8, cl., 18) as its constitutional basis.
Theodore Lowi (1996) notes three Supreme Court cases that validated the shift from dual to cooperative federalism:
- National Labor Relations Board v. Jones & Laughlin Steel Corporation
- Helvering v. Davis, and (3) Steward Machine Company v. Davis.
The federal government was forced to cooperate with regional governmental entities to implement New Deal policies.
The local government earned an equal standing with the other layers of the “layer cake,” thereby giving rise to marble cake federalism.
- Australia (some elements): Federalism in Australia was adopted as a constitutional principle in 1901. Six self-governing Australian Colonies were federated: New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia. It has elements of cooperative or marble cake federalism. This system began to emerge in the 1920s and 1930s. Elements of cooperative federalism in Australia included: the establishment of the Australian Loan Council in response to intergovernmental competition, the cooperation of the federal and regional governments in economic management and policies during the Great Depression, and the establishment of joint consultative bodies such as ministerial councils.
- India: India has a National Institution for Transforming India (NITI Aayog). Its mandate is to support the center and the states in transforming India by promoting cooperative federalism through the involvement of State Governments of India in the economic policy-making process. Article 263 of the Constitution of India set up an Inter-State Council that aims to improve the relations between the Center and the States. Most importantly, the Concurrent List (Seventh Schedule) of the Constitution of India enumerates the areas in which the federal government and the state governments can cooperate. These include criminal law, economic planning, social planning, population control, and many more.
- The United States (post-1937): Before 1937, the United States had a system of dual (layer cake) federalism in which the powers of the federal and state governments were divided. After that, however, the U.S. gradually transitioned to a system of cooperative (marble cake) federalism.
Federalism is a form of government that combines a central (federal) government with regional governments (provincial, state, territorial, etc.). Such nations divide power between these different entities and usually establish a clear hierarchy where, in case of conflict, the federal government takes precedence over the regional governments. Some of the oldest surviving federations in the world include the United States, Mexico, Switzerland, Canada, Brazil, and Australia.
Marble-cake (cooperative) federalism is a subtype of federalism in which the federal government and the regional governments have a flexible relationship in which they work together on a variety of issues. This type of federalism partially exists in the United States, India, and Australia.
Feeley, M., & Rubin, E. (2009). Federalism: Political Identity and Tragic Compromise. University of Michigan Press.
Forsyth, M. G. (1981). Unions of States: The theory and practice of confederation. Leicester University Press.
Grodzins, M. (1960). The Federal System. In Goals for Americans: The Report of the President’s Commission on National Goals. Columbia University Press.
Hills, R. M. (1998). The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and “Dual Sovereignty” Doesn’t. Michigan Law Review, 96(4), 813–944. https://doi.org/10.2307/1290080
Lowi, T. J. (1996). The end of the republican era. Norman [Okla.] : University of Oklahoma Press. http://archive.org/details/endofrepublicane0000lowi
Nugent, J. D. (2009). Safeguarding Federalism: How States Protect Their Interests in National Policymaking. University of Oklahoma Press.
Rosenthal, D. B., & Hoefler, J. M. (1989). Competing Approaches to the Study of American Federalism and Intergovernmental Relations. Publius: The Journal of Federalism, 19(1), 1–24. https://doi.org/10.1093/oxfordjournals.pubjof.a037757
Schutze, R. (2009). From dual to cooperative federalism: The changing structure of European law. Oxford University Press. https://cadmus.eui.eu/handle/1814/23971
Smith, K. B., & Greenblatt, A. (2019). Governing States and Localities. SAGE Publications.
Staten, C. L. (1993). Theodore Roosevelt: Dual and Cooperative Federalism. Presidential Studies Quarterly, 23(1), 129–143.
Williams, R. F. (2009). The Law of American State Constitutions. Oxford University Press.
Young, E. (2001). Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception. George Washington Law Review, 69, 139–188.
Zackin, E. (2011). What’s Happened to American Federalism? Polity, 43(3), 388–403. https://doi.org/10.1057/pol.2011.4
Zimmerman, J. F. (2001). National-State Relations: Cooperative Federalism in the Twentieth Century. Publius: The Journal of Federalism, 31(2), 15–30. https://doi.org/10.1093/oxfordjournals.pubjof.a004894