B. Division of Powers

What is federalism?

After the delegates reached agreement on the difficult questions of slavery and representation, they dealt with other issues somewhat more easily. They divided power between the states and the national government, and they separated the national government’s power into three branches (legislative, executive, and judicial). Thus, they created an entirely new government. The new system of government that the delegates were building was a form of federalism, in which power is divided between a national government and several state governments.

A federal system of government, such as in the United States, divides power and responsibilities between the national government and state governments. At first glance, the U.S. Constitution appears to make this division clear. The supremacy clause contained in Article VI of the Constitution declares federal laws, treaties, and the U.S. Constitution to be the supreme law of the land. This means that federal laws supercede those of states.

National, State, and Shared Powers

The powers granted to the national government by the Constitution are known as delegated powers, or enumerated powers. These include such powers as the control of foreign affairs and regulation of trade between the states. Powers not specifically granted to the national government but kept by the states are called reserved powers. These include powers such as providing for and supervising education.

Many powers belonging to the federal government are shared by state governments. Such powers are called concurrent powers. These include the power to tax, spend, and borrow money. State governments operate their own judicial systems, charter corporations, provide public education, and regulate property rights.

Below is a list of specific national, state, and shared powers.

Implied Powers

However, the division of state and federal power is not as definitive as it might appear. The powers of Congress are augmented by the recognition that it possesses implied powers in addition to enumerated powers. Implied powers are not specifically mentioned in the U.S. Constitution, but are derived from the necessary and proper clause of Article I, Section 8. The necessary and proper clause, also known as the elastic clause, states, "The Congress shall have 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." Throughout American history, the necessary and proper clause has helped the US government adapt to changes that were not forseen by the Constitution's framers.

The U.S. Supreme Court has long recognized the existence of implied powers. For example, the commerce clause empowers the federal government to “regulate commerce with foreign nations, and among the several States…” This now extends to an array of activities unimagined by the Framers of the Constitution and outside the scope of what most people originally considered interstate commerce. A broad interpretation of Article I’s ambiguous language, combined with the necessary and proper clause, has made the enumerated powers a springboard for increased federal authority over state and local policies.