Three Faces of Federalism: Finding a Formula for the Future

The first, and oldest, of the Supreme Court's concepts of federalism is the territorial model. This model recognizes that there is a discernible boundary between the subjects fit for national regulation and those reserved for state governance. Territorialists argue that the national government is supreme in some areas, while states reign sovereign in others. Adherents of this model, for example, might declare that the national government directs foreign affairs while the states control domestic relations.

Under the territorial model, federalism violations occur when the national government attempts to invade a substantive area of law reserved to the states. The Supreme Court's 1976 decision in National League of Cities v. Usery drew heavily on this model, especially as the decision was interpreted by lower courts and commentators. In Usery, the Court held that Congress could not regulate the wages and hours of state and local employees working in areas of "traditional governmental functions." This emphasis on traditional functions evoked a territorial concept. State employees working in "traditional" spheres (such as "fire prevention, police protection, sanitation, public health, and parks and recreation") were subject to state regulation while workers in other "nontraditional" fields-such as railroad operation-submitted to national legislation.

By dividing government functions into state-regulated zones and nationally dominated spheres, Usery endorsed a territorial approach and spawned a decade of lawsuits attempting to distinguish "traditional governmental functions" from nontraditional ones.