In the United States, the government operates under a principle called federalism. Two separate governments, federal and state, regulate citizens.
The federal government has limited power over all fifty states. State governments have the power to regulate within their state boundaries. State powers are also limited in the sense that states cannot make laws that conflict with the laws of the federal government.
Federalism
A system of government in which the people are regulated by both federal and state governments.
Powers of the Federal Government
The power of the federal government to regulate and make laws is limited by the U.S. Constitution, which grants express and implied powers to regulate. Express powers are granted to the U.S. Congress in Article I, Section 8 of the Constitution, which gives Congress the right to regulate such matters as the coining of money, the post office, and the military.
Along with the express powers, the federal government also has the power to make all laws that are necessary and proper for executing any of the stated powers. When Congress makes laws under this provision, it is using its implied powers. Implied powers must be related to one of the express powers.
Matters that are not within the express or implied powers of the federal government are generally left to the states to regulate. The Tenth Amendment to the U.S. Constitution provides, “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.”
Express powers
Powers given to Congress that are spelled out in the Constitution.
Implied powers
The power that Congress has to regulate that is derived from the express powers.
As a practical matter, however, the power of the federal government to pass laws and to regulate is extensive. One reason for this is that the Supreme Court has given a broad interpretation to the Commerce Clause. This clause gives the federal government the right to regulate interstate commerce. In the past, the Court has liberally interpreted this power. For example, Congress used this section to justify numerous laws, including civil rights legislation.
Powers of the State Government
States have very broad powers to make laws that apply within the state boundaries. States are said to have general police powers. This means that states can make laws that provide for the general health, welfare, and safety of its citizens. However, they cannot make laws that conflict with federal laws. Nor can states enact any laws in areas that are preempted by the federal government.
Preemption means that the federal government has the exclusive right to regulate a particular subject area.
Some subject areas that cannot be regulated by states are set out in Article I, Section 10 of the Constitution and include such activities as entering into treaties, coining money, and passing ex-post facto laws.
Ex post facto laws make a person criminally responsible for an act that was committed before the act was made a crime.
Areas commonly regulated by states include criminal conduct, contractual relationships, civil tort liability, and forms of business such as partnerships and corporations.
Preemption
A doctrine referring to the right of the federal government to be the exclusive lawmaker in certain areas.
Police powers
The authority of states to make laws that provide for the general health, welfare, and safety of its citizens.
Ex Post Facto
“After the fact”; refers to laws that impose criminal responsibility for acts that were not crimes at the time the acts occurred.
As George Washington’s secretary of the treasury from 1789 to 1795, Alexander Hamilton championed legislative efforts to create a publicly chartered bank. For Hamilton, the establishment of the Bank of the United States was fully within Congress’s authority, and he hoped the bank would foster economic development, print and circulate paper money, and provide loans to the government. Although Thomas Jefferson, Washington’s secretary of state, staunchly opposed Hamilton’s plan on the constitutional grounds that the national government had no authority to create such an instrument, Hamilton managed to convince the reluctant president to sign the legislation.The Lehrman Institute. “The Founding Trio: Washington, Hamilton and Jefferson.” //lehrmaninstitute.org/history/FoundingTrio.asp
When the bank’s charter expired in 1811, Jeffersonian Democratic-Republicans prevailed in blocking its renewal. However, the fiscal hardships that plagued the government during the War of 1812, coupled with the fragility of the country’s financial system, convinced Congress and then-president James Madison to create the Second Bank of the United States in 1816. Many states rejected the Second Bank, arguing that the national government was infringing upon the states’ constitutional jurisdiction.
A political showdown between Maryland and the national government emerged when James McCulloch, an agent for the Baltimore branch of the Second Bank, refused to pay a tax that Maryland had imposed on all out-of-state chartered banks. The standoff raised two constitutional questions: Did Congress have the authority to charter a national bank? Were states allowed to tax federal property? In McCulloch v. Maryland, Chief Justice John Marshall [Figure] argued that Congress could create a national bank even though the Constitution did not expressly authorize it.McCulloch v. Maryland, 17 U.S. 316 [1819]. Under the necessary and proper clause of Article I, Section 8, the Supreme Court asserted that Congress could establish “all means which are appropriate” to fulfill “the legitimate ends” of the Constitution. In other words, the bank was an appropriate instrument that enabled the national government to carry out several of its enumerated powers, such as regulating interstate commerce, collecting taxes, and borrowing money.
This ruling established the doctrine of implied powers, granting Congress a vast source of discretionary power to achieve its constitutional responsibilities. The Supreme Court also sided with the federal government on the issue of whether states could tax federal property. Under the supremacy clause of Article VI, legitimate national laws trump conflicting state laws. As the court observed, “the government of the Union, though limited in its powers, is supreme within its sphere of action and its laws, when made in pursuance of the constitution, form the supreme law of the land.” Maryland’s action violated national supremacy because “the power to tax is the power to destroy.” This second ruling established the principle of national supremacy, which prohibits states from meddling in the lawful activities of the national government.
Defining the scope of national power was the subject of another landmark Supreme Court decision in 1824. In Gibbons v. Ogden, the court had to interpret the commerce clause of Article I, Section 8; specifically, it had to determine whether the federal government had the sole authority to regulate the licensing of steamboats operating between New York and New Jersey.Gibbons v. Ogden, 22 U.S. 1 [1824]. Aaron Ogden, who had obtained an exclusive license from New York State to operate steamboat ferries between New York City and New Jersey, sued Thomas Gibbons, who was operating ferries along the same route under a coasting license issued by the federal government. Gibbons lost in New York state courts and appealed. Chief Justice Marshall delivered a two-part ruling in favor of Gibbons that strengthened the power of the national government. First, interstate commerce was interpreted broadly to mean “commercial intercourse” among states, thus allowing Congress to regulate navigation. Second, because the federal Licensing Act of 1793, which regulated coastal commerce, was a constitutional exercise of Congress’s authority under the commerce clause, federal law trumped the New York State license-monopoly law that had granted Ogden an exclusive steamboat operating license. As Marshall pointed out, “the acts of New York must yield to the law of Congress.”Gibbons v. Ogden, 22 U.S. 1 [1824].
Various states railed against the nationalization of power that had been going on since the late 1700s. When President John Adams signed the Sedition Act in 1798, which made it a crime to speak openly against the government, the Kentucky and Virginia legislatures passed resolutions declaring the act null on the grounds that they retained the discretion to follow national laws. In effect, these resolutions articulated the legal reasoning underpinning the doctrine of nullification—that states had the right to reject national laws they deemed unconstitutional.W. Kirk Wood. 2008. Nullification, A Constitutional History, 1776–1833. Lanham, MD: University Press of America.
A nullification crisis emerged in the 1830s over President Andrew Jackson’s tariff acts of 1828 and 1832. Led by John Calhoun, President Jackson’s vice president, nullifiers argued that high tariffs on imported goods benefited northern manufacturing interests while disadvantaging economies in the South. South Carolina passed an Ordinance of Nullification declaring both tariff acts null and void and threatened to leave the Union. The federal government responded by enacting the Force Bill in 1833, authorizing President Jackson to use military force against states that challenged federal tariff laws. The prospect of military action coupled with the passage of the Compromise Tariff Act of 1833 [which lowered tariffs over time] led South Carolina to back off, ending the nullification crisis.
The ultimate showdown between national and state authority came during the Civil War. Prior to the conflict, in Dred Scott v. Sandford, the Supreme Court ruled that the national government lacked the authority to ban slavery in the territories.Dred Scott v. Sandford, 60 U.S. 393 [1857]. But the election of President Abraham Lincoln in 1860 led eleven southern states to secede from the United States because they believed the new president would challenge the institution of slavery. What was initially a conflict to preserve the Union became a conflict to end slavery when Lincoln issued the Emancipation Proclamation in 1863, freeing all slaves in the rebellious states. The defeat of the South had a huge impact on the balance of power between the states and the national government in two important ways. First, the Union victory put an end to the right of states to secede and to challenge legitimate national laws. Second, Congress imposed several conditions for readmitting former Confederate states into the Union; among them was ratification of the Fourteenth and Fifteenth Amendments. In sum, after the Civil War the power balance shifted toward the national government, a movement that had begun several decades before with McCulloch v. Maryland [1819] and Gibbons v. Odgen [1824].
The period between 1819 and the 1860s demonstrated that the national government sought to establish its role within the newly created federal design, which in turn often provoked the states to resist as they sought to protect their interests. With the exception of the Civil War, the Supreme Court settled the power struggles between the states and national government. From a historical perspective, the national supremacy principle introduced during this period did not so much narrow the states’ scope of constitutional authority as restrict their encroachment on national powers.Joseph R. Marbach, Troy E. Smith, and Ellis Katz. 2005. Federalism in America: An Encyclopedia. Westport, CT: Greenwood Publishing.