Concurrent Powers

The government of the United States is based on the principles inherent in federalism, which requires a delegation of powers from the constituent states and the citizens to a national government and the retention of certain powers and rights by the states and the people. The Constitution grants certain exclusive powers to the federal government, a number of which—such as the power to declare war and exercise authority over the territory set aside for the nation’s capital (see Capital, National)—are set forth in Article I, section 8.

Other powers expressly granted to the national government in Article I, section 8, including the power to tax (see Taxation), to regulate commerce, and to establish uniform rules regarding Bankruptcy, [Page 109] are concurrent powers—powers that may be exercised by both the states and the national government at the same time. To a limited extent, states also extend copyright protection, and both state and federal governments have inherent police power. The concept of concurrent powers is not cited in the main body of the Constitution, although the Eighteenth Amendment (1919), which established prohibition, uses the term in section 2: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” The amendment was repealed by the Twenty-first Amendment (1933).

Referring to the allocation of powers then existing under the Articles of Confederation (1781–89), James Madison, in essay 44 of The Federalist (1787–88) (see Federalist Papers), wrote: “The right of coining money, which is here [in the proposed Constitution] taken from the States, was left in their hands by the Confederation as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value [of the coinage].” Alexander Hamilton, in essay 32, added: “[A]s the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States” (see Sovereignty; States’ Rights). In those cases where the grant of power to the federal government was not exclusive, he further noted, “the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.”

For the most part, the body of constitutional law relating to concurrent powers has been developed by the courts when faced with conflicts between national and state attempts to legislate in the same areas. In the area of taxation, Chief Justice John Marshall, speaking for the Supreme Court in Mcculloch v. Maryland (1819), recognized the concurrent power of the state of Maryland and the federal government to levy taxes. In light of the national government’s constitutional supremacy, a state’s power to tax stops when it attempts to tax a federal instrumentality—in this case, a nationally chartered bank located in the state.

In a succession of cases beginning with Gibbons v. Ogden (1824), the Supreme Court has mapped out spheres of authority for the national government and the states with regard to their concurrent powers to regulate commerce. Although Article I, section 8, gives Congress the power to regulate interstate commerce, conflicts have arisen from the continuing encroachment of national regulation on state power and from the effect of state regulation of intrastate commerce on interstate commerce.

...