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cooperative federalismalso known as marbled federalismit is defined as a flexible relationship between the federal and state governments in which the two work together on a variety of issues and programs.
In the United States
In the US federal system, there are limitations on the national government’s ability to execute its policies through the executive branch of state governments. For example, in Printz v. U.S521 US 898 (1997), the Court held that the national government could not directly require state police officers to conduct background checks under the Brady Gun Violence Prevention Act legislation. The court explained that previous rulings had warned that “this Court has never explicitly sanctioned a federal command to the States to enact and enforce laws and regulations.” And yet, there are significant advantages to a federal system for obtaining state assistance in implementing federal programs locally. Implementing such programs through national officials would significantly increase the size and intrusiveness of the national government. Furthermore, local implementation can ensure that these programs are implemented in a way that takes into account local conditions.
For this reason, Congress has often avoided the adoption of programs completely nationalized by either device. In the first, Congress creates a federal program delivery system in which the national government encourages local implementation of a federal program by providing significant matching funds. In this context, the phrase can be found in several Supreme Court and federal lower court cases. The most frequent early usage of the phrase can be found in a series of cases describing the paradigm of federally sponsored wellness programs such as health care or the former Assistance to Families with Dependent Children (AFDC) programs in which a participating state’s program is funded largely by the Federal Government, based on a matching fund, subject to mandatory federal regulations. See for example, king against smith and a series of subsequent AFDC cases. More recently, the term has been used in connection with other federal programs built on the model of cooperative federalism. To see California v. USA 438 US 645 (1978) (recovery law) and Schaffer v. weist (special education). Here, the motivation for state compliance is that without state compliance with federal conditions, the state loses significant federal resources.
The second method of encouraging states to implement federal programs is described in New York v. U.S, 505 US 144 (1992). Thus, Congress declares that it will undertake the regulation of an activity at the national level, unless the State itself implements its own regulatory program meeting minimum federal standards. Here, the motivation for state compliance is that, in the absence of state regulation, the state completely loses power over the regulated area. At the New York v. U.Sthe court explained:
“…where Congress has authority to regulate private activity under the Commerce ClauseWe recognize the power of Congress to offer states the option of regulating this activity in accordance with federal standards or having state law superseded by federal regulation. Hodel v. Virginia Mining and Surface Remediation Association. See too FERC v. mississippi. This arrangement, which has been termed ‘a program of cooperative federalism’, Hodel, supra, is replicated in various federal statutory schemes. These include the Clean Water Law, see Arkansas v. Oklahoma, (Clean Water Act ‘envisions a partnership between the States and the Federal Government, animated by a shared purpose’); The Occupational Safety and Health Act 1970I see Gad v. National Solid Wastes Management Assn.The Resource Conservation and Recovery Act of 1976I see Department of Energy v. Ohioand the Alaska National Interest Land Conservation ActI see Kenaitze Indian Tribe v. Alaska.”
While the federal system places limits on the national government’s ability to require implementation by a state executive branch or its local political subdivisions, this limitation does not equally apply to state court systems. In part, this is because the founders understood that state courts would be courts of general jurisdiction, required to apply both state and federal law. In part, this is because state courts hear cases between citizens who are required to comply with state and federal laws. When Congress seeks to establish federal legislation governing the behavior of citizens, Congress is free to choose between three paradigms of judicial enforcement. It may open federal or state courts to enforce this right, specifically providing concurrent jurisdiction in federal courts. can grant exclusive jurisdiction federal courts, or may choose to leave the enforcement of this right to the resolution of civil disputes between the parties in state court.
We also see the large-scale use of cooperative federalism in implementing federal law that criminalizes drug and gun possession. The federal government lacks a police force that can carry out these types of crimes; must rely on state and local police forces. As a result, the federal government implemented programs such as Safe Neighborhoods Project that encourage cooperation between state and local law enforcement/district attorneys and federal prosecutors. This type of cooperation can have problematic effects. As William Partlett writes:
“…cooperative federalism presents new – and largely unexplored – constitutional problems. In particular, unlike the civil regulatory context, cooperation threatens the constitutional rights of individual criminal defendants by allowing executives to circumvent juries, judges and local laws. Furthermore, this cooperation also potentially weakens the ability of states and cities to function as political entities that can hold their officers accountable in an area of traditional state police power…”
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1. Intergovernmental Relations
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