Constitutional Law: Relative Sphere of Federal and State Power Flashcards
Exclusive Federal Powers: Power of States Expressly Limited
Some powers are exclusively federal because of express constitutional limitation on or prohibition
of the states’ exercise thereof—such as the treaty power, coinage of money, and duty
on imports.
Exclusive Federal Powers: Inherent Federal Powers
Others are exclusively federal in view of their nature—such as declaration of war, federal
citizenship, naturalization, and borrowing money on the credit of the United States. Any
state exercise of these powers would basically subvert the federal system. On the exam, do
not allow states to take actions that might touch upon foreign relations.
Exclusive State Powers
Whereas the federal government has only those powers granted to it by the Constitution, the state
governments are governments of “unlimited” powers, having all powers not prohibited to them
by the Constitution. This is recognized by the Tenth Amendment, which provides that all powers
not delegated to the federal government by the Constitution are reserved to the states (or to the
people). However, given the expansive interpretation of federal powers (e.g., the commerce power;
see II.A.4., supra), little state power is exclusive.
Concurrent Federal and State Power - Supremacy Clause
Most governmental power is concurrent, belonging to both the states and the federal government.
Thus, it is possible for states and the federal government to pass legislation on the same subject
matter. When this occurs, the Supremacy Clause provides that the federal law is supreme, and the
state law is rendered void if it is preempted. State law may be preempted expressly or impliedly.
Concurrent Federal and State Power - Supremacy Clause: Express Preemption
A federal law may expressly provide that the states may not adopt laws concerning the
subject matter of the federal legislation. Note, however, that an express preemption clause
will be narrowly construed. [See Altria Group, Inc. v. Good, 555 U.S. 70 (2008)]
Concurrent Federal and State Power - Supremacy Clause: Implied Preemption
Even if federal law does not expressly prohibit state action, state laws will nevertheless be
held impliedly preempted if they actually conflict with federal requirements, they prevent
achievement of federal objectives, or Congress has preempted the entire field.
Concurrent Federal and State Power - Supremacy Clause: Implied Preemption
(a) actual conflict between state and federal law requirements
A valid act of Congress or federal regulation supersedes any state or local action that
actually conflicts with the federal rule—whether by commanding conduct inconsistent
with that required by the federal rule, or by forbidding conduct that the federal rule is
designed to foster.
Concurrent Federal and State Power - Supremacy Clause: Implied Preemption
(b) State prevents achievement of federal objective
State law will also be held impliedly preempted if it interferes with achievement of a
federal objective. This is true even if the state or local law was enacted for some valid
purpose and not merely to frustrate the federal law.
Concurrent Federal and State Power - Supremacy Clause: Implied Preemption
(c) Field preemption
A state or local law may also be found to be preempted if it appears that Congress
intended to “occupy” the entire field, thus precluding any state or local regulation.
The courts will look at the federal regulatory scheme to deduce Congress’s intent. For
example, if the federal laws are comprehensive or a federal agency is created to oversee
the field, preemption will often be found.
Concurrent Federal and State Power - Supremacy Clause: Presumption against preemption
The Supreme Court has stated that in all preemption cases, especially any involving a field traditionally within the power of the states (e.g., regulations involving health, safety, or welfare), it will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of congress.
Absence of federal and state powers
Some powers are denied to both Congress and the states. For example, the Supreme Court has
held that the Qualifications Clauses [Art. I, §2, cl. 2; §3, cl. 3], setting the qualifications to serve
in Congress, are exclusive and cannot be altered by Congress or the states. [United States Term
Limits, Inc. v. Thornton, 514 U.S. 779 (1995)—state-imposed term limit for members of Congress
invalidated; and see Cook v. Gralike, 531 U.S. 510 (2001)—state law instructing each member of
its congressional delegation to support a constitutional amendment for term limits, and providing
that failure to do so be noted on the ballot, was held invalid because it imposes a substantive
qualification rather than regulates the “manner” in which elections are held]
Interstate compact clause
The Constitution provides that states may enter into agreements or compacts with other states
upon the consent of Congress. [Art. I, §10, cl. 3] However, not all agreements between states are
“compacts” requiring congressional consent. The Compact Clause reaches only interstate agreements that increase the political power of the states at the expense of federal supremacy (e.g.,
an agreement whereby one state cedes territory to another state). [See United States Steel Corp.
v. Multistate Tax Commission, 434 U.S. 452 (1978)—congressional consent not required for
multistate tax compact because the compact does not give member states any powers they could
not exercise in its absence] The Supreme Court has the power to interpret such compacts—the
member states do not have final authority over interpretation. [West Virginia ex rel. Dyer v. Sims,
341 U.S. 22 (1951)]
