Malcolm Rivera
Concurrent powers are powers of a federal state that are shared by both the federal government and each constituent political unit, such as a state or province. In the United States, the Constitution established a system of
| Characteristics | Values |
|---|---|
| Definition | Powers of a federal state that are shared by both the federal government and each constituent political unit, such as a state or province |
| Exercise | May be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject matter |
| Comparison to reserved powers | Concurrent powers are not possessed by the federal government, whereas reserved powers are |
| Comparison to exclusive federal powers | Exclusive federal powers are forbidden to be possessed by the states, or require federal permission, whereas concurrent powers do not |
| Pre-emption | Enumerated federal powers are supreme and may pre-empt a state or provincial law in case of conflict |
| Types | Those not generally subject to federal pre-emption, such as the power to tax private citizens, and other concurrent powers |
| US examples | The powers to tax, to spend, and to create lower |
| Dual federalism | A style of government that created a strong government while giving the states their own powers |
| Dual sovereignty | The States have surrendered many of their powers to the Federal Government, but also retained some sovereignty |
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What You'll Learn
Dual federalism
Federalism is a system of government in which the same territory is controlled by two levels of government. In the United States, the Constitution has established a system of "dual sovereignty", also known as dual federalism, in which the federal and state governments have clearly defined and separate spheres of power.
The Constitution outlines several concurrent powers, or areas where the federal and state governments share authority. For example, the power to tax and regulate commerce is shared by both levels of government. The federal government can pass national policies to regulate the economy, as seen with the Interstate Commerce Act and Sherman Antitrust Act, which solidified Congress's authority to regulate commerce between states.
Several seminal court cases have helped clarify the purview of the federal government within the framework of dual federalism. One such case, McCulloch v. Maryland, concerned the constitutionality of a federally chartered bank. The Supreme Court's decision backed the interpretation that the federal government had the implied power to charter a bank under its constitutional authority to "tax, borrow, and regulate interstate commerce."
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Dual sovereignty
Concurrent powers of the US Constitution refer to powers that are shared by both the state and federal governments. One notable aspect of concurrent powers is the "dual sovereignty" doctrine, which relates to the Fifth Amendment of the Constitution.
The dual sovereignty doctrine holds that prosecution by two governments of the same defendant for the same conduct does not constitute double jeopardy. In other words, a person can be tried and punished for the same crime by both state and federal authorities without it violating the Fifth Amendment's protection against double jeopardy.
The concept of dual sovereignty was established in the Supreme Court case United States v. Lanza in 1922. In this case, the Court stated:
> "We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. [...] Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other."
This principle has been reaffirmed in subsequent cases, such as Heath v. Alabama in 1985, where a defendant was prosecuted for murder in two different states as the crime occurred across state lines. The dual sovereignty doctrine allowed for consecutive prosecutions by multiple states for the same crime when the offense falls within multiple states' jurisdictions.
More recently, in Gamble v. United States in 2019, the Supreme Court clarified that "where there are two sovereigns, there are two laws, and two 'offences.'" The Court asserted that the dual sovereignty doctrine is justified by historical interpretations of the Double Jeopardy Clause, which, at the time of the Constitution's writing, defined an "offence" as a violation of a particular law.
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Delegated powers
Concurrent powers refer to powers that are shared by both the state governments and the federal government in the US Constitution. Deciding which powers are exclusive to the federal government and which are concurrent is a complex and ongoing process. The US Supreme Court plays a crucial role in determining whether the federal government has "occupied the field", making federal authority exclusive in a given area.
- Lay and collect taxes, duties, imposts, and excises, ensuring uniformity throughout the United States
- Regulate commerce with foreign nations, among the states, and with Indian tribes
- Establish uniform rules of naturalization and uniform laws regarding bankruptcies
- Promote the progress of science and useful arts by securing intellectual property rights for authors and inventors
- Define and punish piracies, felonies committed on the high seas, and offences against the law of nations
- Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water
- Raise and support armies, with appropriations limited to a term of two years
- Make all laws necessary and proper for executing the powers vested in the US government, departments, and officers
The Court has upheld Congress's ability to delegate power under broad standards, as seen in cases such as Skinner v. Mid-America Pipeline Company, where the delegation of discretionary authority under Congress's taxing power was subject to constitutional scrutiny. The Court has also approved delegations to administrative agencies to determine "excessive profits" during wartime, "unfair and inequitable distribution of voting power", fix "fair and equitable" commodities prices, and regulate broadcast licensing in the public interest.
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Reserved powers
Concurrent powers are powers shared by both the federal government and each constituent political unit, such as a state or province. These powers may be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject matter.
The US Constitution sought to strike a balance of power between the state and federal governments by outlining delegated, reserved, and concurrent powers. Delegated powers, also called enumerated or expressed powers, are those that the Constitution explicitly gives to the federal government. Any powers not delegated to the federal government are reserved for the states.
The Constitution thus clarifies some powers for the federal government and reserves the rest for the states. Even though the state and federal governments share some powers, if there are any conflicts, the Supremacy Clause indicates that federal laws take precedence.
Examples of reserved powers include the power to pass laws for any issue that falls under the state's power. Just like Congress, most state legislatures are bicameral, consisting of a Senate and a House of Representatives. The legislative process varies from state to state, and each state has its own capitol building where the legislature meets to pass laws.
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Taxing, spending, creating laws
Concurrent powers in the US Constitution refer to powers that are shared by both the federal government and state governments. The power to tax is a concurrent power, as is the power to spend.
Taxing
The US Constitution grants Congress the power to "lay and collect Taxes, Duties, Imposts and Excises" to provide for the common Defence and general Welfare of the United States. This power is known as the Taxing Clause.
The interpretation of the Taxing Clause has been a subject of debate, with early disagreements between Hamilton and Madison. Hamilton argued that Congress had robust taxing and spending powers, while Madison contended that the phrase "general Welfare" was defined and limited by the specific grants of authority in the rest of Section 8. In 1936, the Supreme Court sided with Hamilton in United States v. Butler, establishing that Congress can use the Taxing Clause independently.
The Sixteenth Amendment, ratified in 1913, further clarified Congress's power to tax, stating that it has the power to “lay and collect taxes on income, from whatever source derived, without apportionment among the several States". This was affirmed in the 1916 Supreme Court case Brushaber v. Union Pacific Railroad.
Spending
The power to spend is closely tied to the power to tax, as Congress needs the ability to spend the revenue it collects. The Supreme Court has held that Congress may incentivize state governments to adopt and enforce federal policies by appropriating federal funds. This was demonstrated in South Dakota v. Dole, where the Court upheld a federal law withholding highway funds from states that did not raise the minimum legal drinking age to 21.
Creating Laws
Article I, Section 8 of the US Constitution outlines Congress's power to create laws, stating that Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States". This is known as the Necessary and Proper Clause.
This clause grants Congress the authority to enact laws that are necessary and proper for executing its enumerated powers, such as the power to regulate commerce, establish uniform rules of naturalization, and raise and support armies.
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Frequently asked questions
Concurrent powers are powers of a federal state that are shared by both the federal government and each constituent political unit, such as a state.
The power to tax, to spend, and to create lower laws.
Congress has the power to pass laws at a federal level.
States have the power to pass laws for any issue that falls under the state's power.
The US Constitution takes precedence and pre-empts state law.
