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.
