Sellers, Alfred J., Jr.

English

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The Rise of a New Federalism: Federal-State Co-operation in the United States (Book Review)

St. John's University School of Law

St. John's Law Review Volume 13 Number 1 Volume 13, November 1938, Number 1 Article 38 May 2014 The Rise of a New Federalism: Federal-State Co-operation in the United States (Book Review) Alfred J. Sellers Jr. Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Sellers, Alfred J. Jr. (1938) "The Rise of a New Federalism: Federal-State Co-operation in the United States (Book Review)," St. John's Law Review: Vol. 13 : No. 1 , Article 38. Available at: https://scholarship.law.stjohns.edu/lawreview/vol13/iss1/38 This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHN'S LAW REVIEWdeep student of metaphysics, some passages will prove rather difficult reading.However, for the most part, the matter will prove of intense interest to thestudent of law who sees in his beloved profession not merely the means ofsatisfying his material needs in as painless a way as possible, but who regardsit as one of the great fields of knowledge by means of which we may help "tosecure the blessings of liberty to ourselves and our posterity."THOMAS P. MURPHY.*THE RIsE OF A NEw FEDERALISM; FEDERAL-STATE CO-OPERATION IN THEUNITED STATES. By Jane Perry Clark. New York: Columbia UniversityPress, 1938, pp. xviii, 347.The "New Federalism" of which the author writes is a type of govern-mental co-operation which "will invite the federal government to use stateagencies for the performance of federal functions under federal control withthe help of a state civil service with high standards." A federal government,the author states, has within it inherent difficulties involving problems and func-tions common both to the state and to the federal government. The controlof narcotics is a problem about which both the states and the federal govern-ment are concerned as are also the problems of unemployment compensationand child labor in industry. Some problems which were originally only state-wide and which the states attempted to control by state-wide laws rapidlybecame national in scope and the federal government has now come to lookupon their control as a distinctly federal function. Such is the problem of therailroads and of flood control.While in the past our governments, both state and federal, have attackedvarious governmental problems individually and with varying degrees of suc-cess, co-operation between the two would seem to be the ideal toward which eachshould strive in order to avoid duplication and possible conflict in their work.The author states that co-operation can be used (1) to co-ordinate the use offederal and state resources, (2) to eliminate duplications in activity, (3) to cutdown the expenses, (4) to accomplish work which would not otherwise becarried out, (5) to make the wheels of government in the federal system movemore smoothly.The types of co-operation now in use between the federal and state govern-ments range from the haphazard and totally unplanned type, as the informalconferences between the police officers of the two governments in the apprehen-sion of a criminal, to the legally binding contracts and agreements for theconstruction of Boulder Dam. Between these two there are countless othermethods whereby co-operation is obtained between the two governments. Infor-mal agreements or understandings are used, as, for example, in the naturaliza-tion of aliens in California, the federal authorities accepting a diploma from aCalifornia state or local school as evidence of literacy. One of the most fre-* Professor of English, St. John's University School of Pharmacy.[ VOL. 13BOOK REVIEWSquently used methods of co-operation is the exchange of personnel whereadministrative or executive problems are common to both governments. Thereare limitations upon this system, however, as dual job holding is frowned upon,and forbidden in certain cases. Another type of co-operation occurs when theactivities of one government are made to depend upon the program of theother. As, for instance, the Lacey Act of 1900, the Migratory Bird TreatyAct of 1918, and the Black Bass Protection Act of 1930, all forbade interstateshipment of wild animals, birds and fish captured or killed in violation of thelaw of the state where taken. The federal government attempts to prevent theshipment of goods into states where the sale of those goods is forbidden, and insome instances turns over to the states the articles in question. For example,many states object to the sale of prison-made goods, and in compliance withtheir objections, the Hawes-Coper Act of 1929 stated that prison-made goodsshipped to another state are subject to the laws of that state. This was followedby the Ashurst-Sumner Act of 1935 which made it a federal offense knowinglyto transport convict-made goods into any state forbidding their sale or posses-sion. This particular type of co-operation might be used to prevent the ship-ment of commodities made with child labor into a state which prohibits theemployment of children in industry. In line with this idea, the legislatures ofNew York, Missouri and Vermont have passed laws forbidding the sale in theirstate of goods made with child labor, hoping that Congress will pass a lawforbidding the transportation of goods made with child labor, into statesforbidding their sale. The author points out, however, the administrative andexecutive difficulties of carrying out such a law.The most important recent examples of co-operation between the twogovernments have been federal credits for state taxation and the grant-in-aidsystem. By the former, taxes paid to the state are credited under certainconditions against similar federal taxation. It is a method used by the federalgovernment to lure states into a desired program. It has been used in twoimportant instances: federal inheritance taxation and the unemployment compen-sation taxation provisions of the Social Security Act. Both instances seem to havesecured the desired result, i.e., state participation in the federal program. Thegrant-in-aid method is not recent, having been used long ago in the distributionof federal lands to the states, but it has been developed in the recent economicdepression with the federal government bearing a greater and greater share ofthe burden and assuming a greater and greater degree of control. The grant-in-aid is a system of co-operation between the states and the federal governmentin which the latter contributes a certain amount of money to a specific programif the state will comply with federal requirements, which might take the formof a state grant in equal or varying amounts or the passage of certain statelaws, or a variety of other alternatives. If the state fails to comply with thefederal request, the federal grant is not forthcoming.The question which presents itself to the student of government when con-sidering these methods of co-operation is, what changes, if any, are being madein our federal form of government? Are the states gradually losing theirindependence of action? Is the national government assuming an unwarrantedand unhealthy control over state activities made in conformity with the co-opera-tive program? In many cases it seems fairly close to a centralization of1938 ]226 ST. JOHN'S LAW REVIEW [ VOL. 13power. If, in the grant-in-aid system, the states fail to live up to the require-ments as laid down by the federal government the grants are withheld. In thetax credit system, as it relates to inheritance taxes, states which do not passthe desired legislation are required to pay the full amount of the federal tax,but those states having the necessary laws are credited up to eighty per centof the federal inheritance tax. The net result in the more important types ofco-operation is, therefore, that federal legislation or legislation desired by thefederal government is passed and executed by the states in return for a reward.The author intimates that this may very well be "The New Federalism" whereinthe federal government will "use state agencies for the performance of federalfunctions under federal control with the help of a state civil service with highstandards."The author makes no attempt in her book to pass judgment upon thegovernmental trend which she reports. She states clearly what is taking place,babks up her findings with a wealth of sources and lets the reader draw hisown conclusions. In her consideration of the constitutional hurdles, both stateand federal, which the grant-in-aid system and also the tax-credit system hadto clear before they became widely operative, the author is lucid and interesting,especially to the student of law and government. A copious bibliography isappended.Au'aaD J. S.LLERS, JR.*TH. FEERAL DEATH TAX. By John E. Hughes. Chicago: Callaghan & Co.,1938, p. 519.Up to the present time legal treatises on the Federal Estate Tax havebeen rare. In fact, the "Federal Death Tax" by John E. Hughes is the firsttreatise on the law presented to the tax practitioner. To be sure, the legalprofession has had some formal treatment of federal estate taxes in a handbookprepared by Montgomery and Magill' and in Volume Six of the "Procedureof Law of Surrogates Courts", a volume devoted to New York and federalestate and inheritance taxes, rewritten and enlarged by Albert Handy this year.Since 1916 when the first Federal Estate Tax Law was enacted, theTreasury Department had been occupied with the administration of the law,the taxpayer has been busily engaged in searching and finding loopholes in thelaw, and Congress has been constantly changing the law and closing up theloopholes. During all this time the courts have been busy setting limitations onwhat Congress may or may not include in the determination of the gross estateof a decedent. After twenty years of federal estate tax administration, it ispossible for the first time to speak with any definiteness of principles of estatetaxation.* Professor of History, St. John's University College of Arts and Sciences."FEDERAL TAXES ON ESTATES, TRUSTS AND GIFTs (1935-6). See Harrow,Book Review (1936) 10 ST. JOHN'S L. Rnv. 401.

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The Rise of a New Federalism: Federal-State Co-operation in the United States (Book Review)

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