Simone Lawson
The US Constitution established a federalist system with a balance of powers between the state and federal governments, with concurrent powers being one of the categories of power given by the Constitution. These are powers shared by both the federal government and each constituent political unit, such as a state or province, and can be exercised simultaneously within the same territory and in relation to the same body of citizens. The Constitution also clarifies some powers for the federal government (called delegated or enumerated powers) and reserves the rest for the state (called reserved powers).
| Characteristics | Values |
|---|---|
| Powers shared by the federal government and each constituent political unit | To tax, to spend, and to create lower |
| Powers that may be exercised simultaneously within the same territory | Powers to make and enforce naturalization rules, regulate foreign commerce, and declare war on foreign nations |
| Powers that may be exercised in relation to the same body of citizens | Powers to regulate immigration |
| Powers that may be exercised regarding the same subject matter | Powers to enforce federal mandates in the Affordable Care Act |
| Powers that are not generally subject to federal pre-emption | Powers to tax private citizens |
| Powers that are forbidden to be possessed by the states | Powers to regulate marijuana, or cannabis |
| Powers that require federal permission | Powers over critical nationwide issues during the COVID-19 pandemic |
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What You'll Learn
Federal vs state powers
The US Constitution establishes a federalist system with a balance of powers between the state and federal governments. Concurrent powers refer to those powers that are shared by both the federal government and each constituent political unit, such as a state. These powers can be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject matter.
The Constitution clarifies some powers for the federal government (called "delegated" or "enumerated" powers) and reserves the rest for the states ("reserved" powers). Delegated powers refer to those that the Constitution explicitly gives to the federal government. Article 1, Section 8 of the Constitution outlines the delegated powers of the legislative branch, with most phrases starting with "Congress shall have power to...". Examples of delegated powers include the power to make and enforce naturalization rules, regulate foreign commerce, and declare war on foreign nations.
Reserved powers are any powers that the Constitution has not assigned to the federal government or disallowed, and are thus kept by state governments under the Tenth Amendment. Examples of reserved powers include the power to create their own laws and establish a judicial branch to help monitor the enforcement of these laws. State courts make rulings based on their state constitution, while federal courts make rulings based on the federal Constitution.
In the case of conflicting laws, the federal law takes priority over state laws due to the "Supremacy Clause" in Article VI of the Constitution. This clause names the US Constitution as "the supreme law of the land," and allows for federal preemption over state law. However, Congress can also write an express provision into a bill stating that its law preempts any state laws on a particular subject.
Throughout US history, there have been power struggles between the federal and state governments, with Supreme Court decisions and amendments to the Constitution shifting the balance of power. Despite these changes, the tension between federal and state powers remains a constant feature of the US political system.
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Supremacy Clause
The Supremacy Clause, part of Article VI of the US Constitution, establishes the Constitution and the laws of the United States made under its authority as "the supreme Law of the Land". This means that federal laws take priority over conflicting state laws, and that judges in every state are bound to uphold this.
The Supremacy Clause was a response to the Articles of Confederation, which lacked a provision establishing federal law as superior to state law. The Clause was introduced as part of the New Jersey Plan during the 1787 Federal Convention, passing unanimously. It was ratified in 1788, and in McCulloch v. Maryland, the Supreme Court ruled that it allowed for federal preemption over state law.
The Supremacy Clause is considered a cornerstone of the US federal political structure. It has been used by the Supreme Court to establish a strong role for the federal government in managing the nation's affairs. The Court has applied the Clause to uphold the supremacy of treaties over state law, and to recognise several types of preemption of state law by federal law, either expressly or impliedly. Federal law expressly preempts state law when it explicitly states as much, whereas federal law impliedly preempts state law when that intent is implicit in its structure and purpose.
The Supremacy Clause has been interpreted to allow the federal government to make treaties that supersede state law, even if they abrogate states' rights arising under the Tenth Amendment.
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Reserved powers
The Tenth Amendment to the U.S. Constitution, ratified in 1791, is a crucial element in dividing federal and state powers. It specifies that any power not explicitly granted to the federal government is reserved for the states. This amendment does not refer to powers "expressly" granted to the federal government, and thus the federal government has many implied powers that are not reserved for the states. The Tenth Amendment's language implies that the powers the Constitution grants to the federal government are exhaustive.
The Ninth and Tenth Amendments are unique in that they do not explicitly grant constitutional rights. They serve as guidelines for interpreting the Constitution. The Ninth Amendment states that the Bill of Rights is not exhaustive, implying that people may have other fundamental rights beyond those listed. The Tenth Amendment reinforces that all other powers, except those prohibited by the Constitution, are reserved for the states.
In Canada, reserved powers lie with the federal government. In contrast, in the United States, the Tenth Amendment ensures that powers not delegated to the federal government are reserved for the states, unless specifically prohibited. This dynamic between federal and state governments is a constant power struggle, with the Supreme Court playing a significant role in interpreting and upholding the Tenth Amendment.
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Delegated powers
The US Constitution establishes a federalist system with a balance of powers between the state and federal governments. It outlines three categories of power: delegated, reserved, and concurrent.
- Establishing uniform laws: The federal government can establish a uniform Rule of Naturalization and uniform Laws on the subject of Bankruptcies throughout the United States.
- Promoting progress in science and the arts: They can promote the Progress of Science and useful Arts by securing for limited times the exclusive Rights of Authors and Inventors to their respective Writings and Discoveries.
- Foreign relations and commerce: The Constitution gives the federal government the power to make and enforce naturalization rules, regulate foreign commerce, and declare war on foreign nations.
- Defining and punishing certain crimes: The federal government has the power to define and punish Piracies and Felonies committed on the high Seas and Offenses against the Law of Nations.
- Necessary and Proper Clause: According to Article 1, Section 8, the Congress shall have 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, or in any Department or Officer thereof." This clause grants the federal government certain implied powers to carry out its duties effectively.
It's important to note that while the Constitution establishes delegated powers for the federal government, it also recognises the powers of state governments. The Tenth Amendment to the Constitution, which is the last amendment in the Bill of Rights ratified in 1791, is crucial in dividing federal and state powers. It reserves powers for the states, ensuring that any powers not assigned to the federal government or disallowed are retained by the states.
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State and federal law conflicts
The US Constitution establishes a federalist system with a balance of powers between the state and federal governments. This system is outlined in Article 1, Section 8 of the Constitution, which describes the powers of the legislative branch, with most phrases starting with "Congress shall have the power to..."
The Constitution clarifies some powers for the federal government, known as "delegated", "enumerated", or "expressed" powers, and reserves the rest for the states, known as "reserved" powers. These reserved powers are any powers that the Constitution has not assigned to the federal government or disallowed, as per the Tenth Amendment.
Concurrent powers refer to those powers that are shared by both the federal government and each constituent political unit, such as a state. These powers can be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject matter. Examples of concurrent powers in the US include the powers to tax, spend, and create lower laws.
However, conflicts can arise when the state and federal governments use their concurrent powers to pass laws that are not aligned. In such cases, the US Constitution takes precedence, as outlined in the Supremacy Clause (Article VI). This clause establishes the Constitution and federal laws written under its authority as "the supreme law of the land". The Supreme Court affirmed this interpretation in McCulloch v. Maryland, allowing for federal preemption over state law.
Congress can also explicitly state in a bill that its law takes precedence over any conflicting state laws. Even without an express preemption provision, federal laws generally take priority over state laws. This dynamic has played out in various policy areas, including immigration, healthcare, and marijuana legislation, where state and federal laws have come into conflict.
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Frequently asked questions
Concurrent powers refer to the powers shared by both the federal government and each constituent political unit, such as a state or province.
The power to tax is an example of a concurrent power shared by both the federal and state governments.
If there is a conflict between state and federal law, the Constitution takes precedence. Congress can also write an express provision into a bill stating that its law preempts any state laws on the subject.
The Supreme Court plays a significant role in defining concurrent powers by testing the constitutionality of federal laws. It also hears cases involving disputes at the state level.
The Constitution describes delegated, reserved, and concurrent powers to strike a balance between state and federal authorities. Delegated powers are explicitly given to the federal government, while reserved powers are those that the Constitution does not assign to the federal government.
