Exclusive powers are powers that can be exercised by only one order of government, such as the federal government but not the states. Concurrent powers are powers that can be exercised simultaneously and independently by more than one order of government, that is, by the federal government, state governments, and/or local governments.
Taxation is a leading example of a concurrent power. The federal government levies personal and corporate income taxes. In 2014, forty-three states also levied a personal income tax, and forty-four states levied a corporate income tax. In 2011, 4,923 local governments in seventeen states levied an income or wage tax. Neither the federal government nor the states must coordinate with, or obtain the consent of, the other in setting personal income-tax bases and rates. (State corporate income taxes are constrained by federal interstate-commerce rules.)
Unlike the constitutions of some federal countries, such as India, the US Constitution contains no list of concurrent powers, even though concurrent powers were invented by the Founders. The one exception is the short-lived Eighteenth Amendment ( 1919 ), which gave Congress and the states “concurrent power to enforce” Prohibition. Otherwise, the US Constitution authorizes the federal government to exercise only those powers delegated to it; the states can exercise all powers not prohibited to them by the US Constitution, federal statutes, or treaties.
Although there is no generally accepted list of concurrent powers, such powers include federal and state authority to regulate congressional and presidential elections, establish lower courts, charter banks and corporations, regulate the economy, punish currency counterfeiting, exercise eminent domain, borrow money, build roads, establish parks, operate prisons, protect the environment, provide for health care, and protect public health.
Some federal powers are exclusive. For example, only Congress can declare war and tax imports, and only the Senate can ratify treaties, because the Constitution prohibits states from exercising those powers (although a state can engage in war if invaded). Examples of exclusive state powers are authority to establish local governments and ratify amendments to the US Constitution. In Federalist No. 82, Alexander Hamilton wrote that exclusive federal powers exist where (1) the union is expressly granted an exclusive power, (2) a power granted to the union is prohibited to the states, or (3) state exercise of a power is “utterly incompatible” with a delegated union power.
Many of the powers delegated to Congress can be exercised by the states until Congress legislates in the field. For example, the Constitution authorizes Congress to enact “uniform Laws on … Bankruptcies throughout the United States.” This sounds like an exclusive power; yet many states enacted bankruptcy or insolvency laws until 1898, when Congress passed a federal bankruptcy law that also preempted (i.e., displaced) state bankruptcy laws. The US Supreme Court had affirmed this doctrine in Sturges v. Crowninshield, 17 U.S. 122 ( 1819 ), which held that states could enact bankruptcy laws until Congress preempted them. This decision was controversial because Federalists wanted to preempt state bankruptcy laws while Jeffersonian Republicans wanted to maintain them.
Many states now use a provision in the current federal bankruptcy law that lets them adopt their own laws exempting certain debtors' assets from bankruptcy in place of the federal exemptions. For instance, some states have more generous homestead and motor-vehicle exemptions than those provided by the federal law. In many states, debtors can choose either their state's exemptions or the federal exemptions. States also can pass laws regulating certain aspects of the debtor–creditor relationship, and those laws are applied by the US bankruptcy courts.
When the Founders split the atom of sovereignty, they did not create a strict system of dual sovereignty in which the federal government exercises entirely exclusive powers. Such a plan would have been impractical, and the Founders would have had to spell out a longer list of specific powers in the Constitution.
Most important, Hamilton and other advocates of a stronger national government wanted a virtually unrestricted tax power for the federal government. Many Anti-Federalists wanted to limit the federal tax power to a 5 percent import duty. Hamilton resisted limits, arguing that the federal government's foreign and domestic responsibilities require a robust tax power in order to meet unforeseen exigencies. The states would not surrender significant tax powers to a new federal government. Therefore the Founders established the federal tax power as a concurrent power with the states, allowing both orders of government almost unfettered access to every conceivable tax, and thereby protecting each government from fiscal subordination to the other.
Hamilton was proud of this concurrent solution. “I flatter myself,” he wrote in Federalist No. 34, for forging the idea of concurrent tax jurisdiction against purveyors of abstract reasoning who believe that such “co-ordinate authority cannot exist.” The US Constitution, therefore, merely prohibits the federal government from taxing exports from any state and prohibits the states from taxing exports and imports.
The Founders also realized that, compared to the states, the federal government would be weak for many decades. To have delegated exclusive domestic powers, especially over the economy, to the federal government would have prevented the states from enacting laws to fill policy vacuums arising from federal inaction. But because of concurrency, the states were the primary governments in domestic affairs until the 1930s. In the first decades of the twentieth century, the United States became a world power despite its relatively weak national government.
As a consequence of concurrent powers, Hamilton noted in Federalist No. 82 that state courts also have concurrent jurisdiction with federal courts “in all cases arising under the laws of the union, where it is not expressly prohibited.”
Continuing debates over concurrent powers are reflected in federal preemptions of state laws. An early case was Houston v. Moore, 18 U.S. 1 ( 1820 ), in which the US Supreme Court upheld the court martial by a Pennsylvania court of a militia man who refused to appear for federal militia duty during the War of 1812. Houston argued that the Pennsylvania law, which was a copy of the federal law, was unconstitutional because it infringed on Congress's exclusive power over the militia. The court upheld Houston's conviction, ruling that Pennsylvania's law was constitutional because Congress had not forbidden states to enact laws enforcing the federal militia statute. Justice Joseph Story dissented, arguing that the federal militia law was exclusive.
Preemption has basically two forms: total and partial. Total preemption means that Congress occupies a policy field completely and exclusively. Partial preemption leaves some room for state law. For example, many federal environmental laws establish national environmental protection standards but allow states to enact standards that are equal to or stricter than the federal standards. Such partial preemptions establish a national floor that displaces state laws that fall below the floor but permits state laws that rise above the floor.
Preemptions also may be explicit or implied. An explicit preemption is a statutory provision or regulation that expressly displaces certain state laws. An implied preemption occurs when a state law is overridden by a federal agency or court because its operation is incompatible with a federal law.
Explicit preemptions of state laws were rare in the nineteenth century, increased slightly during the first half of the twentieth century, and skyrocketed after 1969. Implied preemptions have also increased substantially. Consequently, concurrent powers have been reduced considerably, and state action in concurrent fields is increasingly based on federal permission rather than independent state sovereignty.
SEE ALSO Federalism, Theory of ; Federalism in American History ; Governance ; Preemption .
Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. 1787–1788. Library of Congress: THOMAS. http://thomas.loc.gov/home/histdox/fedpapers.html .
Kincaid, John. “The Federalist and V. Ostrom on Concurrent Taxation and Federalism.” Publius: The Journal of Federalism 44, no. 2 (2014): 275–97.
McLaughlin, Andrew C. “Concurrent Powers.” In Cyclopedia of American Government, Vol. 1, edited by Andrew C. McLaughlin and Albert Bushnell Hart, 369. New York: Appleton, 1914.
US Advisory Commission on Intergovernmental Relations. Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues. September 1992. http://www.library.unt.edu/gpo/acir/Reports/policy/a-121.pdf .