What is the name for the system of distributing power under the Constitution?

Although the Supremacy Clause states that the Constitution, federal laws, and treaties are the “supreme law of the land,” according to the Supreme Court, it is clear that the Constitution created a federal government of limited powers. The Supreme Court has noted that “every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”

These limited powers are set forth as what are termed “enumerated powers” in Article I, Section 8 of the Constitution. These enumerated powers include, among other things, the power to levy taxes, regulate commerce, establish a uniform law of naturalization, establish federal courts (subordinate to the Supreme Court), establish and maintain a military, and declare war.

In addition, the Necessary and Proper Clause has been interpreted by the Supreme Court to define “implied powers,” those which are necessary to carry out those powers enumerated in the Constitution. In McCulloch v. Maryland, Justice John Marshall set forth the doctrine of implied powers, stating, that a government entrusted with great powers must also be entrusted with the power to execute them.

While the Constitution thus grants broad powers to the federal government, they are limited by the 10th Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As James Madison explained, “[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

These reserved powers have generally been referred to as “police powers,” such as those required for public safety, health, and welfare.

Finally, certain powers are called concurrent powers, which the states and the federal government both may exercise. These can include, for example, setting up courts, levying taxes, and spending and borrowing money. Typically, these are powers necessary for maintenance of public facilities.

As can be appreciated, one of the difficulties in the federal system is determining which entity, if any, has the power to legislate in a particular realm. In general, the problem of conflicting laws between the states and the federal government has given rise to what is called the doctrine of preemption.

Under this doctrine, based on the Supremacy Clause, if a state or local law conflicts with a federal law, the state or local law must give way (unless the federal law is itself unconstitutional, in other words, it exceeds the power of the federal government). As Justice Marshall put it in McCulloch v. Maryland, “[s]tates have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government.”

Under this doctrine, the Supreme Court has indicated that the Supremacy Clause may entail preemption of state law either by express provision, by implication, or by a conflict between federal and state law. If there is an express provision in the legislation, or if there is an explicit conflict between the state law at issue and the federal law, the state law provision is immediately invalid. Field preemption occurs when Congress legislates in a way that is comprehensive to an entire field of an issue. Impossibility preemption occurs when it would be impossible for someone to comply with both state and federal laws. Purposes and objectives preemption occurs when the purposes and objectives of the federal law would be thwarted by the state law.

The term “Separation of Powers” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another. Typically, this system divides the government into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. The United States federal government and forty states divide their governments into these three branches.

In the federal government, Article 1 of the United States Constitution establishes the Legislative Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities, is responsible for creating laws. As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines if it provides them with an “intelligible principle” to base their regulations on. For more information on the Legislative Branch, refer to “Congress.”

Article 2 of the United States Constitution establishes the Executive Branch, which consists of the President. The President approves and carries out the laws created by the Legislative Branch. For more information on the Executive Branch, refer to “Executive Branch.”

Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. The Judicial Branch interprets the laws passed by the Legislative Branch. For more information on the Judicial Branch, refer to “Judiciary.”

Separation of Powers in the United States is associated with the Checks and Balances system. The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.

The Checks and Balances System also provides the branches with some power to appoint or remove members from the other branches. Congress can impeach and convict the president for high crimes, like treason or bribery. The House of Representatives has the power to bring impeachment charges against the President; the Senate has the power to convict and remove the President from office. In addition, Supreme Court candidates are appointed by the President and are confirmed by the Senate. Judges can be removed from office by impeachment in the House of Representatives and conviction in the Senate. In this way, the system provides a measure, in addition to invalidating laws, for each branch to check the others.

What is the distribution of powers?

What are constitutional powers called?

What is federalism in the Constitution?

What is it called when power is given to the states?