Official White House photo (2021).

An Analysis of Presidential Accretive Power – Part 3

There is a point in a novel or play where the hero has a true anagnorisis because the moral fault is never himself, only in outside conspirators. Some would call it fate, others call it arrogance in a man.

The nation’s founding fathers called it a “monarchy,” and they had enough of England’s unitary rule. The solution was to form a nation where no king or “man” had enough power to literally control a citizen’s life. They created America, where citizens seeking freedom could be free. It was not easy, and old norms would die slow. Also, there was another problem. Since declaring freedom from England, the 13 colonies had been operating under an Articles of Confederation.

The Confederation was a group of strong independent bodies with a weak central government. The problem had manifested itself during the American Revolution. Raising a standing army from the states to fight the British and funding the costs of feeding, arming, and supplying required war materials became so burdensome that the revolution became inauspicious to most colonists. There was still uncertainty after that. It took another decade to formulate the Ten Amendments to the Constitution before “We the People” really got started.

The concept of federalism would grow as the country grew. Along the way, it would take some serious challenges to define this unique new government. Each new development phase offered lessons for the future. The handling of Native Americans, the slavery issue, voting rights, nationwide depressions, world wars, segregation, and civil rights have provided painful learning experiences in the country’s growth.

For the past year, the COVID-19 pandemic has brought new and often different questions about the meaning of federalism. History will record that the handling of the nationwide disaster had many trials and tribulations. Much of what happens in general reflects the leadership and stamina in 50 different states.

The obsession with assessing President Donald Trump’s and now President Joseph Biden’s executive powers reflects a larger tension as old as the nation. The presidency today retains the awesome accretive power collected over two centuries. With 400,000 plus deaths attributed to the pandemic, Trump made claims for authorities he simply did not have. In short, the pandemic has demonstrated that the president does not have the unlimited power found in a unitary system of government and can be removed by the general population’s vote.


Key elements of federalism include (see Table 1):

  • A written constitution
  • Non-centralization of government
  • A real division of power to ensure neutrality and equality in the representation of various groups and interests (also, the accommodation of truly diverse groups whose differences are fundamental rather than transient)
  • Direct lines of communication between the citizenry and all governments that serve them

Table 1. Government Powers Under U.S. Federalism

Federal governments powersFederal and state (concurrent) government powersState govement powers
Regulate foreign and interstate commerce and conduct foreign relations and make treatiesLevy taxesRegulate intrastate commerce
Coin money and tax imports and exportsBorrow moneyEstablish and maintain schools
Establish and regulate the postal systemAdminister courtsEstablish local governments
Create and maintain armed forcesMake and enforce lawsIssue licenses, permits, and certificates
Declare warBuild roads and transportation systemsProtect public health, safety, and morals
Amend the U.S. ConstitutionTake private land for public use with just compensation (eminent domain)Maintain state militia (National Guard)
To make laws that shall be necessary and proper for carrying enumerated powersCharter banks and corporationsRatify amendments to the U.S. Constitution


The Constitution & State’s Rights

The U.S. Constitution solved the two main issues sparking debate among the founding fathers. The nation now has checks and balances, and both the state and federal governments have power. The Constitution allows the federal government to create a unified nation and for the states to have control. Any change to the Constitution must be approved by two-thirds vote of the states before it can become a law. However, states’ rights confrontations do occur periodically. For example, in Brown vs. Board of Education, the Supreme Court ruled that separate school facilities based on race are inherently unequal and thus a violation of the 14th Amendment.

One of the most illustrative cases of states’ rights involved the Supreme Court case Reno vs. Condon, which was held in November 1999. That case focused on the 1994 Driver’s Privacy Protection Act (DPPA), which establishes a regulatory scheme that restricts the states’ ability to disclose a driver’s personal information without the driver’s consent. South Carolina’s Attorney General Charlie Condon filed suit citing a violation by the federal government of the 10th Amendment. South Carolina sold the driver registration data to insurers and direct marketers. The Supreme Court ruled that, because drivers’ personal information is (in this context) an article of commerce, its sale or release into the interstate stream of business is sufficient to support congressional regulation. States, however, do have general enforcement power that permits them to enact public health regulations and quarantine requirements that far exceed any power the president or federal government have.

Local Governments

It might seem the ultimate power available to the government is a national emergency declaration by a president. However, governors, county executives, and mayors across the country who have declared states of emergency have gained even more comprehensive powers.

The Federal Emergency Management Agency (FEMA) is not usually called on for public health emergencies. After Hurricane Katrina, efforts to improve health response during disasters shifted responsibility for pandemic and disease response to Health and Human Services (HHS) under the Pandemic and All-Hazards Preparedness Act. FEMA would have a supporting role in any major national emergency, such as logistical support and equipping quarantine facilities.

Types of Federalism

Over the years, the meaning of federalism has changed several times. The changes follow the history of the nation. During the first decades of the republic, many state leaders thought that states’ rights allowed states to refuse to comply with any national government that, in their view, exceeded its power. This dogma was doomed after the Civil War.

Next came a period of dual federalism. The division of labor between national and state government became the prevailing doctrine. The massive economic crises of the Great Depression accelerated the end for dual federalism.

During the New Deal of the 1930s, cooperative federalism – where both federal and state governments worked together to solve problems – held control until the 1960s. President Franklin D. Roosevelt implemented the New Deal for citizens facing massive unemployment. His argument was that the national government could restore the economy faster and better than states and local governments. By 1939, national government expenditures equaled state and local expenditures combined. The Supreme Court rejected several of Roosevelt’s programs, but held up programs such as labor-management relations, minimum wages, and subsidies to farmers. Eventually, programs such as “Great Society” and “War on Poverty” spawned massive new programs funded by the national government.

Since the 1960s, the nation has experienced 60 years of competitive federalism, where responsibilities are assigned based on whether the federal government or the state is thought best to handle the issue. Under competitive federalism, funds are distributed from the national government to state and local governments with terms and conditions known as mandatesState and local governments do not like unfunded mandates where the national government tells the state what to do but provides no funding to support the program. In 1994, Congress passed a rule to bar unfunded mandates.

U.S. Capitol building. Source: DEA (2019).


U.S. Capitol building. Source: DEA (2019).


Why Federalism Works

Hurricane Katrina was an exceptional challenge to federalism. When the landfall occurred on 29 August 2005, it exposed many weaknesses. The disaster depicted a sense of failure that few Americans had ever felt. Live television brought the catastrophe into everyone’s life. Americans, many for the first time, saw and felt stress and fear as tragic deaths were witnessed. The visual glimmer of hope was seeing the United States Coast Guard helicopters rescuing people from the rooftops.

The lessons from Katrina are not that federalism does not work, that the president is not the most powerful “man” in the world, or that the nation failed. What Katrina ultimately demonstrated is that the nation’s real strength is in “We the People.” Volunteers, first responders, and all levels of government united for a common mission and worked together to stabilize New Orleans. For most, there was no thought given to the concept of federalism. However, the response to Katrina involved hundreds of different federal, state, and local agencies.

History repeats itself again in the response to COVID-19. Federalism is playing a lead role in the pandemic efforts and will provide many lessons for future leaders. The lesson the nation is learning again is that federalism does not work well unless there is a strong and coordinated response from all levels of government.

As Biden explained on his first day in office, “We are currently facing four converging crises – COVID-19, the resulting economic crisis, climate change, and racial inequity.” The federal government is taking action to combat these challenges, so must the states and local governments.

This article is Part 3 of a three-part series on “An Analysis of Presidential Accretive Power”:
Part 1 – Introduction to Presidential Accretive Power
Part 2 – The Trump and Biden Transition and the Impact on the Administrative State
Part 3 – Federalism – How It Works and Limits Presidential Power

Bill Austin
William H. Austin

William H. Austin, DABCHS, CFO, CHS-V, MIFire, currently teaches in the Emergency Management Master’s Degree Program at the University of New Haven in Connecticut (2016-present). He formed a consulting firm, The Austin Group LLC, in 2011. He served as fire chief of West Hartford, CT (1996-2011) and as the fire chief of Tampa, FL (1985-1995). He has a master’s degree in Security Studies (Defense and Homeland Security) from the United States Naval Postgraduate School (2006) and a master’s degree in Public Administration from Troy State University (1993). He is a member of the Preparedness Leadership Council and has served on various governing councils in Florida and Connecticut. Contact at



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