Powers shared by the federal government and state governments are known as .

Federalism is a system of government in which power is divided between a national (federal) government and various state governments.   In the United States, the U.S. Constitution gives certain powers to the federal government, other powers to the state governments, and yet other powers to both.

States have their own legislative branch, executive branch, and judicial branch. The states are empowered to pass, enforce, and interpret laws, as long as they do not violate the Constitution.

The federal government determines foreign policy, with exclusive power to make treaties, declare war, and control imports and exports.  The federal government has the sole authority to print money.  Most governmental responsibilities, however, are shared by state and federal governments and these include taxation, business regulation, environmental protection, and civil rights.

Federalism in the United States has evolved quite a bit since it was first implemented in 1787. Two major kinds of federalism have dominated political theory. There is dual federalism, in which the federal and the state governments are co-equals.  Under this theory, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.  As such, the federal government has jurisdiction only to the extent of powers mentioned in the constitution.

Under the second theory of federalism known as cooperative federalism, the national, state, and local governments interact cooperatively and collectively to solve common problems. Cooperative federalism asserts that the national government is supreme over the states.

Regardless of the kind of federalism, the Constitution does provide some very specific powers to both the states and the federal government. They are:

  • Delegated Powers – Delegated powers are those powers specifically assigned to the Federal Government.  The national government has very specific enumerated powers including the regulation of interstate and international trade, coinage and currency, war, maintenance of armed forces, postal system, enforcement copyrights and power to enter into treaties.
  • Reserved Powers – In this case, all powers not specifically delegated to the Federal Government are to be reserved or saved for the State Governments. These powers include power to establish schools, establishment of local governments, and police powers.
  • Concurrent Powers – Concurrent means “at the same time.” Concurrent powers are those that both the federal and state governments share simultaneously, for example the power to tax, maintain courts and the ability to construct and maintain roads.
  • Implied Powers – These are powers that are NOT specifically delegated in the Constitution, but are understood to be necessary or allowed. The “necessary and proper clause” of the Constitution state that Congress has the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers” (art. I, sec. 8 of the US Constitution).

Inside Federalism

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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.