Chapter 3

FEDERALISM AND FEDERAL POWER GENERALLY

In this brief chapter, we examine the following concepts:

•     Federal system: The U.S. has a federal system. The national government, and the government of each of the states, coexist.
•     Federal government has limited powers: The federal government is one of limited, enumerated, powers. That is, the three branches of the federal government may only assert those powers specifically granted by the U.S. Constitution.
  •     “Necessary and Proper” Clause: However, Congress does have the power to make all laws that are “necessary and proper” for carrying out its enumerated powers. So if Congress is seeking an objective that falls within the specifically enumerated powers, Congress may use any means that is rationally related to the objective being sought, and that is not specifically forbidden by the Constitution.

I. THE CONCEPT OF FEDERALISM

A. Nature of federalism:  The United States has a federalist system. That is, the national government, and the government of each of the states, coexist. This chapter, and the several that follow, are devoted to the implications of this fact. Thus we will be examining the limits on federal power imposed in favor of state power, and conversely the limits on state power in favor of federal power.

B. Federal government has limited powers:  The fundamental attribute of federal power under the U.S. Constitution is that the federal government is one of limited, enumerated, powers. That is, the three branches of the federal government can only assert those powers specifically granted by the U.S. Constitution.

1. Comparison with state power:  This limited-power concept should be contrasted with the nature of state power. The power of state governments might be called “inherent” — a state government, at least as far as the federal Constitution is concerned, holds a general “police power”, i.e., the power to protect the health, safety or general welfare of state residents. An action by a state government is valid under federal law unless it violates some specific limitation imposed by the U.S. Constitution. A federal action, by contrast, must fall within one of the enumerated powers listed in the Constitution.