Powers specifically granted to the national government by the Constitution are known as

The United States is a constitution-based federal system, meaning power is distributed between a national (federal) government and local (state) governments.

Although the Supremacy Clause states that the Constitution, federal laws, and treaties are the “supreme law of the land,” according to the Supreme Court, it is clear that the Constitution created a federal government of limited powers. The Supreme Court has noted that “every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”

These limited powers are set forth as what are termed “enumerated powers” in Article I, Section 8 of the Constitution. These enumerated powers include, among other things, the power to levy taxes, regulate commerce, establish a uniform law of naturalization, establish federal courts (subordinate to the Supreme Court), establish and maintain a military, and declare war.

In addition, the Necessary and Proper Clause has been interpreted by the Supreme Court to define “implied powers,” those which are necessary to carry out those powers enumerated in the Constitution. In McCulloch v. Maryland, Justice John Marshall set forth the doctrine of implied powers, stating, that a government entrusted with great powers must also be entrusted with the power to execute them.

While the Constitution thus grants broad powers to the federal government, they are limited by the 10th Amendment, which states that “[t]he 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.”

As James Madison explained, “[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

These reserved powers have generally been referred to as “police powers,” such as those required for public safety, health, and welfare.

Finally, certain powers are called concurrent powers, which the states and the federal government both may exercise. These can include, for example, setting up courts, levying taxes, and spending and borrowing money. Typically, these are powers necessary for maintenance of public facilities.

As can be appreciated, one of the difficulties in the federal system is determining which entity, if any, has the power to legislate in a particular realm. In general, the problem of conflicting laws between the states and the federal government has given rise to what is called the doctrine of preemption.

Under this doctrine, based on the Supremacy Clause, if a state or local law conflicts with a federal law, the state or local law must give way (unless the federal law is itself unconstitutional, in other words, it exceeds the power of the federal government). As Justice Marshall put it in McCulloch v. Maryland, “[s]tates have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government.”

Under this doctrine, the Supreme Court has indicated that the Supremacy Clause may entail preemption of state law either by express provision, by implication, or by a conflict between federal and state law. If there is an express provision in the legislation, or if there is an explicit conflict between the state law at issue and the federal law, the state law provision is immediately invalid. Field preemption occurs when Congress legislates in a way that is comprehensive to an entire field of an issue. Impossibility preemption occurs when it would be impossible for someone to comply with both state and federal laws. Purposes and objectives preemption occurs when the purposes and objectives of the federal law would be thwarted by the state law.

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The United States federal system divides power between national and state governments, both of which govern the same constituents. The powers granted to the national government in the Constitution are called delegated powers. There are three types of delegated powers: enumerated powers, implied powers, and inherent powers. Enumerated powers, sometimes called expressed powers, are given directly by the Constitution. Examples of these powers include the power to declare war, regulate foreign and interstate commerce, conduct foreign relations, coin money, and raise and maintain a military (Article 1, Section 8).

Implied powers are those powers that are reasonably inferred by enumerated powers. The need for these implied powers is spelled out in the "necessary and proper" clause of the Constitution (Article 1, Section 8, Clause 18). The clause says 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 clause is often referred to as the "elastic clause," as it can stretch to cover a wide range of supplementary powers necessary to carry out enumerated powers.

Inherent powers, although not expressly delegated by the Constitution, are powers that are intrinsically held by any national government of a sovereign state. Examples of inherent powers include the power to control immigration, the power to acquire territory, and the power to quell insurrections.

The powers granted to the state governments are reserved powers. These are powers that are not given to the national government, but which are not denied to the states. These reserved powers are collectively known as the "police power" of the state. Powers that are shared by both the national and state governments are concurrent powers. Examples include the power to tax, borrow money, and define crimes and punish criminals.

There are several powers that are denied either to national, state, or both governments. Powers that are given to the state governments may be denied to the national government, and vice versa. Examples of powers that are denied to the states are the power to coin money, make treaties, and wage war. The national government cannot make new states without the consent of the state legislature concerned, nor can they try anyone for treason without two witnesses and/or a confession.

A recurring debate concerning federalism is the question of which government's power is supreme regarding disputes between state and national governments. Article VI of the Constitution, referred to as the supremacy clause, states that there are three items that are the superlative law of the land: the Constitution, the laws of the national government which are not otherwise unconstitutional, and treaties, which can only be formed by the national government.

Although the supremacy clause gives the national government supreme powers, boundaries to those powers are provided in the Tenth Amendment to the Constitution. This amendment gives the states those powers that are not delegated to the national government, nor prohibited to the states. Therefore, the Tenth Amendment became the states' guarantee to rights and the source of the state governments' reserved powers. This amendment clearly defines the eighteenth century concept of dual federalism: shared power with separated spheres of influence.

Federalism in the United States has been an evolutionary process. Three key issues have determined how national and state powers are balanced: implied powers, commerce power, and the Civil War.

The concept of implied power has often been brought into question concerning national supremacy. The Supreme Court case of McCulloch v. Maryland (1819) was instrumental in shaping the meaning of implied powers. This landmark case addressed whether or not Congress has the power to create a national bank. The state of Maryland charged the Baltimore branch of the Bank of the United States, a bank created by Congress, a hefty tax. When James McCulloch, the head cashier of the branch, refused to pay the tax or the fees he incurred, he was taken to county court. The case finally made its way to the Supreme Court, where Chief Justice John Marshall determined that establishing a national bank is a "necessary and proper" function of the federal government, therefore establishing the concept of implied power.

One of the delegated powers of the national government is the power to regulate foreign and interstate commerce. Although seemingly straightforward, defining "commerce" and establishing the boundaries of the power of commerce control has proven to be difficult. The case of Gibbons v. Ogden (1824) defined commerce broadly, giving Congress the power to control practically every form of interstate commercial activity.

Differences of opinion over the issues of national supremacy and state sovereignty were fought on the battlefield, as well as in the courts. The Civil War was fought, in part, over the issue of federalism. The concept of nullification was an issue that was used to argue states' rights preceding the Civil War. The idea of nullification was created in 1798 by James Madison and Thomas Jefferson, who argued in the Virginia and Kentucky Resolutions that states had the right to declare a federal law null and void if they determined it to be unconstitutional.

Later, John C. Calhoun of South Carolina revived the concept of nullification, first in opposition to a federal tariff and later to bolster South Carolina's right to continue slavery, even after Congress' efforts to ban it. Calhoun's position was that the states had the right to declare the federal ban of slavery unconstitutional, and therefore, null and void. Subsequently, the Civil War determined once and for all that states could not declare acts of Congress unconstitutional and that the federal union cannot be dissolved.

The Slaughterhouse Cases (1873) solidified the concept that the states were sovereign within their borders. In these cases, the state of Louisiana granted a monopoly of slaughterhouses for the protection of pubic health. Slaughterhouse operators who lost their businesses claimed that they had been deprived of their property without due process in violation of the Fourteenth Amendment. This amendment forbids the states to deprive any person of life, liberty, or property without due process of law and established citizenship for African Americans. The original intent of the Fourteenth Amendment was to guarantee the freedom of former black slaves. In these cases, the Court drew a distinction between United States and state citizenship, and it was held that the amendment did not intend to deprive the state of legal jurisdiction over the civil rights of its citizens. The restraint placed by the state on the slaughterhouse operators was declared not to have deprived them of their property without due process. In this case, the states preserved their authority.

As is obvious throughout history, federalism has evolved from its creation by the Framers of the Constitution and continues to change through the political discussions and court cases of today.

Copyright 2006 The Regents of the University of California and Monterey Institute for Technology and Education

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