Federal and State Government

Federal and State Government

An Analysis of Powers in Federal and State Government

The debate over having a strong central government or strong state government in the early days of the Republic seemed to fall on the side of the states. But as the years have proven, the Constitution, which extended very specific powers to the U.S. government, has come to be interpreted in ways that would extend even more power to the central government than at first seemed possible or even permissible. This paper will show what powers are actually extended to the federal government (according to the Constitution), what powers are extended to the state governments, the power limitations of both, and the powers that overlap.

As Ellis Katz (1996) states, "The Constitution, as written and ratified, creates a system of dual federalism in which both the national government and the states are sovereign in their respective spheres of competence" (p. 4). Although today governmental power is far more centralized than in the early days of the Republic, the federal government was originally given only those powers that the Constitution specifically granted it.

These powers may be found in Article I, Section 8, of the U.S. Constitution. Article I, Section 8, grants 18 powers to the U.S. Congress. Specifically, the federal government has the power:

[1] To lay and collect Taxes, Duties, Imposts and Excises…; [2] To borrow money on the credit of the United States; [3] To regulate Commerce…; [4] To establish an uniform Rule of Naturalization…; [5] To coin Money…; [6] To provide for the Punishment of counterfeiting…; [7] To establish Post Offices…; [8] To promote the Progress of Science and useful Arts…; [9] To constitute Tribunals…; [10] To define and punish Piracies and Felonies committed on the high Seas…; [11] To declare War…; [12] To raise and support Armies…; [13] To provide and maintain a Navy; [14] To make Rules for the Government and Regulation of the land and naval Forces; [15] To provide for calling forth the Militia…; [16] To provide for organizing, arming, and disciplining the Militia…; [17] To exercise Legislation...over…the Seat of the Government of the United States…Forts, Magazines…and other needful buildings; [18] To make Laws which shall be necessary and proper for carrying into Execution the foregoing Powers… (U.S. Constitution).

But the greatest of these powers is generally believed to be the power to collect taxes, regulate commerce, and declare war -- although, today, this last appears to have been appropriated by the Executive branch of the Federal government in the Office of the President of the United States. Moreover, the 18th power may be seen as a kind of "elastic clause" (Katz, 1996, p. 5) that extends the powers of the federal government in perpetuity.

In contrast, the powers that are extended to the States (by the Constitution) are simply stated in the 10th Amendment. The 10th Amendment tersely identifies the powers of the States in this way: "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" (U.S. Constitution). In other words, anything that is not listed in those 18 powers identified in Article I, Section 8, by definition is a power that belongs to the States.

There are also limitations to the power of the federal government. Article I, Section 9, "sets definite limits on what Congress may do" (McClellan, 2000, p. 300). Some of the restraints placed upon Congress are archaic, such as the restraint stating that Congress may not forbid the importation of slaves until 1808. Article I, Section 9, also denies the federal government the power to "levy direct taxes unless in proportion to population; to tax exports; or to favor the ports or shipping of one State over…another" (McClellan, 2000, p. 301). The federal government is also forbidden to use money from the Treasury unless it is "in accordance with Congress's appropriation of funds" -- but of course it appears that this section of the Constitution is violated all the time today; and finally the federal government cannot grant anyone a title of nobility or accept gifts/bribes/favors from foreign nations without approval by Congress (McCellan, p. 301).

Likewise, the States have limits too. They may not make treaties or alliances with foreign nations; license or privateer mercenaries; issue money; pass bills of attainder or interfere with contracts. States also need Congressional approval to tax both imports and exports -- and even if they gain it, they do not gain the right to keep the money (it must go to the federal treasury). Without approval, states cannot maintain an army or navy.