Understanding Concurrent Powers: Constitutional Basis Explained

The US Constitution establishes a system of dual sovereignty, with powers shared between the federal government and each constituent political unit, such as a state. These concurrent powers are those that can be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject matter. They are contrasted with reserved powers, which are not held by the federal government, and exclusive federal powers, which are forbidden to the states or require federal permission. The US Constitution sought to strike a balance of power between the state and federal governments, and so it describes delegated, reserved, and concurrent powers.

Explore related products

The Supremacy Clause: A Reference Guide to the United States Constitution (Reference Guides to the United States Constitution)

$95

Concurrent Powers in Federal Systems (Studies in Territorial and Cultural Diversity Governance, 8)

$222

The Power of Separation

$53.58 $55

War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath

$58 $58

Can States Make Their Own Laws? (Ask the Constitution)

$29.6

Federal Preemption: States' Powers, National Interests

$17.7 $20

The US Constitution establishes a system of dual sovereignty between the federal government and smaller political subdivisions

The US Constitution establishes a system of dual sovereignty, a delicate balance of power between the federal government and smaller political subdivisions. This system recognises that both the national government and the states possess the authority to make laws and retain a degree of autonomy from one another. The Constitution, therefore, acts as a check on power, enumerating specific powers for the federal government and reserving the rest for the states.

The Tenth Amendment to the US Constitution, ratified in 1791, is pivotal in dividing federal and state powers. It states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This amendment underscores the principle of federalism, ensuring that the federal government's authority is limited to the powers explicitly outlined in the Constitution, with all other powers vested in the states or the people.

The Constitution delineates three types of powers: delegated, reserved, and concurrent. Delegated powers, also known as enumerated or expressed powers, are explicitly granted to the federal government by the Constitution. These powers are listed in Article 1, Section 8, and often begin with the phrase "Congress shall have power to..." Examples include the power to establish uniform rules of naturalisation and laws regarding bankruptcy, promoting scientific progress, and defining and punishing felonies on the high seas.

Reserved powers, on the other hand, are those that the Constitution specifically reserves for the states. These are powers that the federal government does not possess. In contrast, concurrent powers are shared by both the federal government and the states. They can be exercised simultaneously within the same territory, concerning the same citizens, and on the same subject matter. Examples of concurrent powers include the power to tax, spend, and create laws.

This system of dual sovereignty ensures that neither the federal government nor the states dominate, allowing for a cooperative governance structure. However, conflicts between federal and state laws can and do arise. In such cases, the "Supremacy Clause" in Article VI of the Constitution gives precedence to federal laws, stating that the US Constitution and federal laws made under its authority are "the supreme law of the land." This clause affirms the pre-eminence of federal authority in cases of conflict with state laws.

The Tenth Amendment limits the federal government to the specific powers outlined in the Constitution

Concurrent powers refer to the powers of a federal state that are shared by both the federal government and each constituent political unit, such as a state or province. These powers are exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject matter. The Constitution sought to strike a balance of power between the state and federal governments by describing delegated, reserved, and concurrent powers.

The Tenth Amendment to the US Constitution, ratified in 1791, is the last amendment in the Bill of Rights. It reads:

> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment was proposed by the 1st United States Congress in 1789 during its first term following the adoption of the Constitution. It was considered a prerequisite by many members before they would ratify the Constitution, particularly to satisfy the demands of Anti-Federalists, who opposed the creation of a stronger federal government. The Framers intended the Tenth Amendment to confirm that the federal government was a limited government of enumerated powers.

The Tenth Amendment has been used as a basis for states and local governments to assert exemption from various federal regulations, especially in the areas of labour and environmental controls. It also allows states the freedom to try out different ideas and programs, and they are sometimes called "laboratories of democracy" for this reason.

The Constitution sought to balance power between the state and federal governments

The US Constitution establishes a system of "dual sovereignty", with certain powers delegated to the federal government and others reserved for the states. This system was designed to balance power between the state and federal governments, ensuring neither entity held too much power. The Tenth Amendment to the US Constitution, ratified in 1791, reads:

> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This amendment limits the federal government to the specific powers outlined in the Constitution, with all other powers reserved for the states. The Constitution explicitly grants the federal government powers such as the ability to make and enforce naturalization rules, regulate foreign commerce, and declare war on foreign nations. These powers are referred to as "delegated", "enumerated", or "expressed" powers.

However, the Constitution also recognises concurrent powers, which are shared by both the federal and state governments. These include the powers to tax, spend, and create laws. While the term "concurrent" is only used in the Eighteenth Amendment, granting both the federal government and the states the authority to enforce Prohibition, other powers may be concurrent if they are not granted exclusively to the federal government by the Constitution.

Despite the Constitution's efforts to balance power, power struggles between the federal and state governments have persisted throughout US history. For example, during the COVID-19 pandemic, federal authority over critical nationwide issues clashed with state authority over public safety, schools, and businesses. Similarly, federal and state laws regarding marijuana remain in conflict, with the production, sale, possession, and use of the drug illegal under federal law, but legal in some states.

Explore related products

The Presidency in the Constitutional Order: An Historical Examination (American Presidents)

$48.63 $66.99

The Making and Ending of Federalism (Studies in Territorial and Cultural Diversity Governance)

$143 $192

Limits on States: A Reference Guide to the United States Constitution (Reference Guides to the United States Constitution Book 14)

$85.5 $95

Defensive Federalism: Protecting Territorial Minorities from the "Tyranny of the Majority" (Routledge Studies in Federalism and Decentralization)

$52.24 $54.99

The United States and the States Under the Constitution

$9.9 $13.57

Law without Nations?: Why Constitutional Government Requires Sovereign States

$25.01 $47

The Supremacy Clause in Article VI of the Constitution means federal laws take priority over state laws

The US Constitution is the cornerstone in the division of federal and state powers, and it can be amended to effect these changes. The Tenth Amendment to the US Constitution, for example, states that any powers not explicitly delegated to the federal government are reserved for the states or the people.

The Supremacy Clause, found in Article VI, Clause 2 of the US Constitution, establishes federal laws as the "supreme Law of the Land", taking precedence over state laws. This clause ensures that federal laws and treaties made under the authority of the United States are supreme, and that state courts and constitutions are subordinate to this supreme law. The Supremacy Clause was included in the Constitution to address the shortcomings of the Articles of Confederation, which lacked a provision declaring federal law supreme and resulted in conflicts between federal and state statutes.

The Supremacy Clause has been pivotal in shaping the relationship between federal and state powers. The Supreme Court has relied on this clause to uphold federal laws and treaties over conflicting state laws, asserting federal pre-emption in various cases. In McCulloch v. Maryland, the Supreme Court ruled that federal law takes precedence over state law, allowing for federal pre-emption. Similarly, in Ableman v. Booth, the Supreme Court cited the Supremacy Clause, stating that state courts cannot contradict the decisions of federal courts and that federal court judgments take precedence.

The Supremacy Clause also plays a role in federal immunity laws, where it precludes the use of incriminating statements and testimony given before Congress or a federal grand jury in state courts. Additionally, it has been invoked to invalidate state legislation that contradicts federal requirements, such as in the case of United States v. Pioneer American Insurance Co., where a state-created lien was deemed subordinate to a later-filed federal tax lien.

In summary, the Supremacy Clause in Article VI of the US Constitution establishes the priority of federal laws and treaties over state laws and constitutions. This clause has been instrumental in shaping the dynamic between federal and state powers, with the Supreme Court invoking it to resolve conflicts and assert federal supremacy.

The US Constitution is the one constant, but it can change with amendments

The US Constitution is the cornerstone of the country's system of government, establishing a framework of "dual sovereignty" between the federal government and the states. It outlines the distribution of powers, including concurrent powers, to maintain a balance between the two levels of government. However, it is not static and can be amended to adapt to the evolving needs of the nation.

The US Constitution, drafted in 1787, replaced the Articles of Confederation and Perpetual Union, which had granted extensive power to the states, leading to an ineffective national government and conflicts between states. The Constitution aimed to address this imbalance by establishing a federalist system with more evenly distributed powers.

Concurrent powers refer to the responsibilities and authorities shared by both the federal government and the states. These powers can be exercised simultaneously within the same territory, concerning the same citizens, and regarding the same subject matter. Examples of concurrent powers include the power to tax, spend, and create laws.

The Constitution explicitly grants certain powers to the federal government, known as "delegated" or "enumerated" powers. These are outlined in Article 1, Section 8 of the Constitution, which starts with phrases such as "Congress shall have the power to...". However, the Tenth Amendment to the Constitution, ratified in 1791, clarifies that any powers not specifically delegated to the federal government are reserved for the states or the people. This amendment plays a crucial role in defining the boundaries of federal and state powers.

While the Constitution provides a stable framework, it is not rigid. Amendments to the Constitution have played a significant role in shaping the balance of power between the federal government and the states. The Tenth Amendment, for instance, was a crucial step in delineating federal and state authorities. Additionally, the "Supremacy Clause" in Article VI of the Constitution establishes the priority of federal laws over state laws in cases of conflict. This clause reinforces the principle that federal laws, derived from the authority of the Constitution, take precedence.

In summary, while the US Constitution serves as the foundational document for governing principles and power distribution in the United States, it is subject to change through amendments. These amendments, such as the Tenth Amendment and the "Supremacy Clause," help refine the balance of power between the federal government and the states, ensuring a more adaptable and responsive system of government.

Frequently asked questions