Which of the following is a denied power to both federal and state governments?

Overview

Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern.

Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other.

United States

In the United States, the Constitution has established a system of “dual sovereignty,” under which the States have surrendered many of their powers to the Federal Government, but also retained some sovereignty. Examples of this dual sovereignty are described in the U.S. Constitution. 

Supremacy Clause

Article VI of the U.S. Constitution contains the Supremacy Clause, which reads, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This effectively means that when the laws of the federal government are in conflict with the laws of a state's government, the federal law will supersede the state law. 

Article I, Section 8

Article I, Section 8 of the Constitution describes specific powers which belong to the federal government. These powers are referred to as enumerated powers. 

Tenth Amendment

The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. Among other powers, this includes creating school systems, overseeing state courts, creating public safety systems, managing business and trade within the state, and managing local government. These powers are referred to as reserved powers. 

Concurrent Powers

Concurrent powers refer to powers that are shared by both the federal government and state governments. This includes the power to tax, build roads, and create lower courts.

Further Reading

For more on federalism, see this Florida State University Law Review article,  this Vanderbilt Law Review article, and this Stanford Law Review article. 

Resources

• U.S. Constitution
• The Federalist No. 41
• The Federalist No. 45
• McCulloch v. Maryland, 17 U.S. 316 (1819)

[Last updated in December of 2022 by the Wex Definitions Team]

The following is a general background on how state government works. Please note that each state operates according to its own constitution.

• Powers of the Federal Government
• Powers of the States
• State Constitutions
• The Legislature
• Governor
• Revenue
• Education
• State Government Vocabulary
• Bibliography

Powers Reserved for the Federal Government

The U.S. government is federal in form. The states and national government share powers, which are wholly derived from the Constitution.

From the Constitution, the national government derives

• express powers
• implied powers
• inherent powers

Article I, Section 10 of the Constitution of the United States puts limits on the powers of the states. States cannot form alliances with foreign governments, declare war, coin money, or impose duties on imports or exports.

Powers Reserved to the States

The Tenth Amendment declares, "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 to the people." In other words, states have all powers not granted to the federal government by the Constitution.

These powers have taken many different forms. States must take responsibility for areas such as:

• ownership of property
• education of inhabitants
• implementation of welfare and other benefits programs and distribution of aid
• protecting people from local threats
• maintaining a justice system
• setting up local governments such as counties and municipalities
• maintaining state highways and setting up the means of administrating local roads
• regulation of industry
• raising funds to support their activities

In many areas, states have a large role but also share administrative responsibility with local and federal governments. Highways, for example, are divided amongst the three different levels. Most states classify roads into primary, secondary, and local levels. This system determines whether the state, county, or local governments, respectively, must pay for and maintain roads. Many states have departments of transportation, which oversee and administer intrastate transportation. U.S. highways and the interstate system are administered by the national government through the U.S. Department of Transportation.

Mandates

States must also administer mandates set by the federal government. Generally these mandates contain rules which the states wouldn't normally carry out. For example, the federal government may require states to reduce air pollution, provide services for the handicapped, or require that public transportation must meet certain safety standards. The federal government is prohibited by law from setting unfunded mandates. In other words, the federal government must provide funding for programs it mandates.

Grants

Grants are an important tool used by the federal government to provide program funding to state and local governments. According to the Office of Management and Budget, federal outlays for grants to state and local governments increased from $91 billion in fiscal year 1980 (about $224 billion in 2013 constant dollars) to about $546 billion in fiscal year 2013. (See figure). Block grants give the states access to large sums of money with few specific limitations. The state must only meet the federal goals and standards. The national government can give the states either formula grants or project grants (most commonly issued).

Mandates can also pass from the state to local levels. For example, the state can set certain education standards that the local school districts must abide by. Or, states could set rules calling for specific administration of local landfills.

State Constitutions

The Basics

Each state has its own constitution which it uses as the basis for laws. All state governments are modeled after the federal government and consist of three branches: executive, legislative, and judicial. The U.S. Constitution mandates that all states uphold a "republican form" of government, although the three­-branch structure is not required.

Therefore, in basic structure state constitutions much resemble the U.S.Constitution. They contain a preamble, a bill of rights, articles that describe separation of powers between the executive, legislative and judicial branches, and a framework for setting up local governments.

Length and Specificity

State constitutions also tend to be significantly more lengthy than the U.S. Constitution. State constitutions can contain as many as 174,000 words (Alabama), and have as many as 513 amendments attached (also Alabama). Much of this length is devoted to issues or areas of interest that are outdated. Oklahoma's constitution, for example, contains provisions that describe the correct temperature to test kerosene and oil. California has sections that describe everything that may be deemed tax-exempt, including specific organizations and fruit and nut trees under four years of age.

Amendment

All state constitutions provide for a means of amendment. The process is usually initiated when the legislature proposes the amendment by a majority or supermajority vote, after which the people approve the amendment through a majority vote. Amendments can also be proposed by a constitutional convention or, in some states, through an initiative petition.

The Legislature

All states have a bicameral, or two-house legislature, except Nebraska, which has a unicameral, or single, house. Legislative salaries range from nothing (Kentucky and Montana) to $57,500 (New York) per year. In states where there is no official salary, legislators are often paid on a per diem basis (i.e. Rhode Island Legislators earn $5 per day).

The Upper House

• called the Senate.
• membership can range from 21 (Delaware) to 67 (Minnesota).
• terms usually last four years.

The Lower House

• called the House of Representatives, General Assembly, or House of Delegates (Virginia),
• membership can range from 40 (Alaska and Nevada) to 400 (New Hampshire).
• terms usually last two years.

Leadership

Like the national legislature, each house in a state legislature has a presiding officer. The Lieutenant Governor presides over the Senate, but the majority leader assumes most of the leadership roles. The house elects a Speaker who serves as its leader. Leaders of each house are responsible for recognizing speakers in debate, referring bills to committee, and presiding over deliberations.

States grant legislatures a variety of functions:

• Enact laws
• Represent the needs of their constituents
• Share budget-making responsibilities with Governor
• Confirm nominations of state officials
• House begins impeachment proceedings, Senate conducts the trial if there is an impeachment.
• Casework
• Oversight - review of the executive branch. (e.g., sunset legislation)

Citizen Legislation

Legislators don't wield the only legislative power in state government. In many states, the people can perform legislative functions directly. The ways by which these methods can be implemented vary, but they usually require a certain number of signatures on a petition. After that, the issue is put on the ballot for a general vote.

• Initiative - A way citizens can bypass the legislature and pass laws or amend the state constitution through a direct vote.
• Referendum - A way citizens can approve of statutes or constitutional changes proposed by the legislature through a direct vote.
• Recall - A way citizens can remove elected officials from office. It is allowed in 14 states and is hardly ever used.

Governor

The Governor is a state's chief executive. A governor can serve either a two or four year term. Thirty-seven states have term limits on the governor.

Roles:

• Appointments
  The Governor is chiefly responsible for making appointments to state agencies and offices. These powers include:
• The ability to appoint for specific posts in the executive branch.
• The ability to appoint to fill a vacancy caused by the death or resignation of an elected official
• Chief of State
• Chief Executive - draws up budget, also has clemency and military powers
• Veto Power
• Like the U.S. President, a governor has the right to veto bills passed by the legislature.
• Vetoes can be overridden by a two-thirds or three-fourths majority in the legislature.
• In many states, the governor has the power of a line-item veto.
• In some states, the governor has the power of an amendatory or conditional veto.

General Governor Information

Other Elected Positions Within the Executive Branch

The president and vice-president are the only elected executive positions within the federal government. State governments, however, often have other positions executive elected separately from the governor. Some examples include:

• Lieutenant Governor: Succeeds the governor in office and presides over the senate.
• Secretary of State - Takes care of public records and documents, also may have many other responsibilities.
• Attorney General - Responsible for representing the state in all court cases.
• Auditor - Makes sure that public money has been spent legally.
• Treasurer - Invests and pays out state funds.
• Superintendent of Public Instruction - Heads state department of education.

Revenue

A government’s revenue system is the entire means by which a government acquires funding. States rely on a broad range of revenue sources to fund government. On average, states generate more than one­-third of their revenues from personal income taxes and another one­-third from general sales taxes. The remaining revenues are split between excise taxes (on gasoline, cigarettes and alcohol); corporate income and franchise taxes; and taxes on business licenses, utilities, insurance premiums, severance, property and several other sources.That being said, the general character of a state or state and local revenue system is more important than the nature of any single one of its components.

The relative importance of the major revenue sources for state and local governments changed since 1971. Property taxes declined in importance, and their share was picked up mostly by state individual income taxes, charges and miscellaneous revenues. Since state revenue systems have developed gradually and tax policy is used to address multiple objectives, state revenue systems are likely to include inconsistencies.

• Insurance Trust Revenue relates to the money that the state takes in for administering programs such as retirement, unemployment compensation, and other social insurance systems.
• Services and Fees include items such as tolls, liquor sales, lottery ticket sales, income from college tuition, hospital charges and utility fees.
• State Taxes come in many different forms:

  Most states have a sales tax. The sales tax is assessed on most consumer goods in the state and ranges from 4% to 7%. Most states also have a state income tax, similar to the one used by the federal government. People can pay up to 16% of taxable income in state income taxes. Most states have a progressive sales tax. About 37% of state tax revenue is obtained through the personal income tax. Corporate income tax is also assessed on corporate income, a sum that accounts for 7% of state tax revenue. States levy taxes on motor fuels such as gasoline, diesel, and gasohol. Most of the funds go towards financing roads and transportation within the state. Sin taxes apply to alcoholic beverages and tobacco products. These taxes are named as such because they were originally intended to decrease consumption of these "undesirable" goods.Most states also have inheritance taxes, where a person pays a percentage of what he or she inherits from a deceased person.

• Lotteries

  In 2011, 43 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have adopted some sort of gambling, most in the form of instant­-winner or "drawing" lotteries. About 1 percent of state revenue comes from gambling. Lotteries can be very profitable for the state. Profits from lotteries have been used towards funding education, economic development, and environmental programs. Net income from state lotteries was over $17.75 billion in 2010.

• Debt

  Like the Federal government, state governments also have debts. In 2012, total state government debt had reached $757 billion. Debts range from about $114 million in Wyoming to over $120 billion in California.

Education

One of the largest issue areas left to the discretion of the states is education. The United States' public education system is administered mostly on the state and local levels. Elementary and Secondary schools receive funding from all the different levels of government: about 8% from the Federal Government, 50% from the State government, and 42% from local governments. State and local governments put more money toward education than any other cost. There are approximately 15,000 school districts around the country, each governed by its own school board. The people of the district vote the members of the school board into office. Generally about 15-30% of the local electorate participate in a typical school board election. Some roles of a school board:

• Administer general district policy
• Make sure the district is in tune with local interests
• Hire or fire the superintendent

The Superintendent is the head administrator within a district. His or her responsibilities include:

• Drafting the budget
• Overseeing the principals of schools within the district
• General administration within the district
• Communication with the chief state school official (CSSO).

The chief state school official is appointed by the governor and, along with other state education positions, has many responsibilities:

• distribute state funds
• establish teacher certification requirements
• define length of the school day
• defines nutritional content of school lunches
• mandate certain curricula for schools and set the school calendar

State Government Vocabulary

amendatory or conditional veto - the power to send a bill back to the legislature with suggested changes.

casework - taking care of constituents' problems; "errand-running" for particular individuals.

express powers - powers which are directly specified in the Constitution.

federal - a system in which the states and national government share responsibilities. When people talk about the federal government, they generally mean the national government, although the term often refers to the division of powers between the state and national governments.

formula grants - grants given to anyone who meets certain guidelines (grants such as those for school lunches, airports or highways).

implied powers - powers which are not explicitly stated in the constitution, but which are implied through the "necessary and proper" clause in Article I, Section 8.

inherent powers - powers which the national government naturally has to represent the country in relations with other countries.

line-item veto - the power of a governor to veto particular lines (items) in budget appropriations bills.

mandate - a requirement set by the national government to force states to perform a particular action.

presiding officer - one person who oversees the activities of a legislative house. A presiding officer can have either a major or minor leadership role in his or her house.

project grants - grants given to those who make special requests for aid.

progressive tax - a tax where people with higher incomes pay a higher percentage of taxable income in state taxes.

sunset legislation - legislation that has a specific expiration or renewal date. Sunset legislation can be used in several situations.

• It can be used to persuade legislators who do not strongly support a particular measure. When the legislation lasts only a set length of time, the "on the fence" legislators are more likely to vote for it because of its "temporary" nature.
• Some issues change rapidly (e.g., technology-related issues), and therefore legislation pertaining to these issues must be updated periodically.

supermajority - a vote which takes a quantity greater than the majority, usually 2/3 or 3/4, to pass.

term limit - a limit on the number of consecutive terms an elected official can serve.

unfunded mandate - when the federal government sets regulations for the states to follow and does not provide the states with funds to carry them out.

Sources:

gao.gov
whitehouse.gov
ncsl.org
pewtrusts.org

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