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The Division of Powers - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Division of Powers

These provisions of Article I promptly produced certain beneficial and practical effects. They gave the new general government essential powers that were sorely lacking in the old Confederation government; and they curtailed certain powers formerly asserted by the State governments that sometimes had endangered the Union itself.

Still more important, perhaps, in the long run, was Article I’s creation of an enduring federal design of government. That federal system contrived in 1787 still is functioning in the United States—even though the powers of the Federal government have since grown at the expense of the State governments.

In effect, after 1788 the American nation would benefit from two coordinate governments, each with its own legislative, executive, and judicial branches. The general or Federal government would concern itself with matters of high national importance, chiefly diplomacy, the common defense, international and interstate commerce, issuing of money, management of the nation’s western territories, ensuring a republican form of government in all States, and performing other public functions that no State could undertake adequately in isolation.

The State governments—thirteen of them to begin with, but soon several more—would carry on the administration of justice within their own boundaries, protecting people and property, maintaining the courts of law that dealt with most litigation, overseeing local governments, maintaining roads, transportation, and communications, and in general protecting the health, safety, and welfare of their citizens through the exercise of what is called “the state police powers.”

Thus the State governments were in many ways independent of the Federal government. Ordinarily the actions of the Federal organization and the actions of the State governments would not conflict because they operated on different levels of public policy. Nevertheless, a good many American political leaders foresaw difficulties in the relationship between the national government and the States.

For most Americans in our early republic, the idea of a national capital in some remote city seemed alien. Their hearts did not warm to it. There were marked differences among the States, and also between North and South, East and West—contrasting patterns of culture, economic activity, social institutions, customs, manners, speech. So we ought not to be surprised that many Americans’ first loyalty was to their State, rather than to the Federal union. The really surprising thing is that, despite this affection for one’s State and one’s local community, the people of the thirteen original States did assent, if reluctantly, to the federal structure set up by the new Constitution.

Their assent was reluctant because many of them could perceive that the autonomy, or self-government, of the States must be diminished in a federal system. This was because the Federal government was authorized by the Constitution to operate directly upon the citizens of every State, in a number of ways, whether or not a State government might agree with Federal policies. That is, the Federal power must prevail over State power when the Federal government is exercising one of the enumerated powers specified in the Constitution, usually in Article I.

Most enumerated powers are also called delegated powers because they originated in the States and were delegated or assigned by the States to the national government. In addition to enumerated powers, Congress also possesses under Article I, Section 8, by means of the “Necessary and Proper” Clause, certain implied powers. Article I, Section 8, Clause 18 provides that Congress shall have, in addition to the preceding enumerated powers, the 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.” Congress was given, for example, the enumerated power to regulate commerce among the States. Through the Necessary and Proper Clause, Congress therefore might regulate the shipment of goods from one State to another, if it could be demonstrated that this was a necessary and proper exercise of its power to regulate interstate commerce generally. The Necessary and Proper Clause, it may thus be seen, expands the enumerated powers of Congress, and for that reason is also referred to as the “elastic clause.”

But the clause does not give Congress the implied power to make laws for any purpose whatever—only for the purpose of executing its enumerated powers and “all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof,” meaning the President and the Federal courts. Congress’ implied powers, therefore, are not limited to the execution of its own enumerated powers. By virtue of this “all other powers” provision, Congress has the implied power to share in the responsibilities of other departments. It is under the authority of this provision, for example, that Congress passes laws to implement treaty obligations of the United States and to organize the Federal judicial system. Accordingly, the Necessary and Proper Clause confers important and far-reaching powers on Congress; and by giving Congress a voice in the affairs of the other branches, it also plays a key role in the check and balance system that will be examined later.

It should also be noted that each house of Congress possesses additional powers that are not always clearly specified in the Constitution. These are powers inherited from the English Parliament and the early State legislatures, and thus are called “inherited” powers. Under certain circumstances, for example, each house can exclude persons from its membership. Other important inherited powers include the power to conduct investigations, to subpoena witnesses, and to judge the qualifications of members.

Taken together, the powers of Congress may be classified as: (1) enumerated or delegated, as seen in Article I, Section 8; (2) implied, as seen again in Article I, Section 8; (3) prohibited, as seen in Article I, Section 9; and (4) inherited, as seen in Article I, Section 5. These powers can be further subdivided as exclusive and concurrent. An example of an exclusive power of Congress is the power to declare war. Thus the President cannot, on his own authority, declare war against another country, though he can, as Commander-in-Chief of the armed forces, participate with Congress in making war against a foreign enemy. The war-making power is, in fact, a concurrent power, one that Congress shares with the President. Congress also shares certain powers with the States. Its power to levy an income tax, for example, is a concurrent power because the States can also levy such a tax.

All other powers are commonly called reserved or residual powers. These are the unspecified powers that the people or the States did not delegate or surrender to Congress or the general government, and reserved to themselves. This reservation of various powers to the States was reaffirmed in the Tenth Amendment to the Constitution, which provides that “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 the people.” The Tenth Amendment is a rule of interpretation not only for the Federal courts, but also for Congress and the President. At one point in our history, the reserved powers were often regarded as the exclusive powers of the States. As such, they served to limit the powers of the Federal government. Article I, Section 8, for example, empowers Congress “to regulate commerce among the several States,” suggesting, therefore, that local commerce, wholly within a single State, could not be regulated by the Federal government. The Supreme Court has rejected this interpretation, however, and the Tenth Amendment is no longer interpreted by the courts as a limitation on Federal power. Today, it usually makes no constitutional difference whether an act of Congress governs an institution or activity otherwise reserved to the States. For this reason, federalism has weakened over the years, and much power formerly controlled by the States has been shifted to the central government. This reallocation of power is known as the centralization or nationalization of power, a phenomenon that is praised by some and criticized by others.