Constitution Provisions Related to Federalism
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Constitution Provisions Related to Federalism

October 4, 2019


At the most basic level, we know that federalism is a system of government in which the powers of government are divided between two levels: national and state. But how does the Constitution divide authority between the two levels? The Constitution delegates certain powers to the national government. We say that the national government is a government of delegated or enumerated powers. The theory, as well as the practice, of the
Constitution is that any power that the Constitution does not delegate to the national government is a power that is reserved to the states. We say that the states are governments of
reserved powers. While James Madison had argued that this was the theory of the Constitution
as it was drafted by the Philadelphia convention deputies, the 10th Amendment was added in 1791 to satisfy those who were concerned about what they perceived as insufficient limitations on the powers of the national government in the new constitution. The 10th Amendment reads… “The powers
not delegated to the United States (you should understand that “United States” here refers to the “national government”) “The powers not delegated to the United States by the Constitution are reserved to the States respectively…” In principle, then, if we have questions about whether a particular power is properly exercised by the national government or the state governments, all we have to do is read the Constitution. If it is enumerated in the Constitution as
a power of the national government, then it is a power properly exercised by the national government. If it is not enumerated in the Constitution, then it is a power that is properly exercised by state authority. Is the power to set speed limits on interstate highways
a power of the national government or a power of the states? The answer is: the states.
How do we know? Well, when we read the Constitution, we find no language that delegates that power to the national government. Therefore, it must be a power that is reserved to the states by the 10th Amendment. Is it a power of the national government or a power of the states to coin money and regulate its value? We find that the Constitution does specifically delegate that power to the national government in Article I, section 8, clause 5. Is it a power of the
national government or a power of the states to license people to be married? Is it delegated to the
national government by the Constitution. No, it is not so it is a power that is reserved to the states. It sounds like a fairly straight-forward way to determine the division of powers. But the matter of the extent of the powers
actually delegated to the national government in the Constitution is open to debate. Americans have debated this issue since the founding. More specifically, does the Constitution delegate powers to the national government that are not explicitly enumerated – that is, does
the Constitution delegate powers to the national government by implication? The possibility of powers being delegated
to the national government by implication stems from interpretation of Article I, section 8, clause 18 which reads: “The Congress shall have the power… to make all laws which shall be necessary and proper to carry 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.” This provision is know as the Necessary and Proper Clause, also known as the Doctrine of Implied Powers, also known as the Elastic Clause. Does the Constitution delegate to the national government the power to require individuals to have health care coverage? Congress apparently thought so when it passed the Affordable Care Act in 2010. Many state leaders believed, however, that it did not. Consequently, they filed suit to prevent the Affordable Care Act from taking effect. The Supreme Court of the United States held in a 2012 case that the Constitution did in fact delegate that
power to Congress. To be precise, in Article I, section 8, clause 1 of the Constitution Congress has the delegated power to lay and collect taxes. In Clause 18, the Constitution gives Congress the power to
make all laws necessary and proper to carry into execution the foregoing powers – that is, the powers enumerated in the previous 17 clauses, including Congress power to lay and collect
taxes in clause 1. The Court saw the individual mandate for health care as a feature of the
tax code since individuals choosing not to obtain health care coverage are subject to
a tax penalty under the provisions of the Affordable Care Act. By the Court’s reasoning, the power to establish the health care coverage mandate is implied by Congress’ authority
to lay and collect taxes. Complicated? You bet. The apparently contradictory objectives contained in the 10th Amendment and Article I, section 8, clause 18 serve as the basis for much of
the historical debate over the division of powers between the national and state government in the American federal system. There are a number of other provisions of
the United States Constitution dealing with federalism. What follows is a brief delineation of those provisions, without audio explanation or commentary.

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