The federalism in the US - repartition of the powers

HOW DOES WORK THE FEDERALISM

The Constitution of 1787 has introduced a bipolar division of the powers, granting skills of attribution to the Congress and the federal government, and recognizing a residual competence to States.

We can separate these powers into 3 categories: the delegated powers, the reserved powers and the shared powers.

SUBPART 1: THE DELEGATED POWERS

Indeed, we attribute delegated powers to the central government. These divide into three categories:

• The explicit powers (Article I, section 8). We speak of enumerated powers:

• Fiscal powers: To lay and collect Taxes
• Military power: To provide for the common Defence of the USA
• International power: To declare War

• The implicit powers (Article I, section 8, clause 18). We make a reference to this clause under the classic name of “necessary and proper clause”. This clause authorizes the Congress to pass any law which would be necessary to bring to a successful conclusion of the functions which were devolved to him by virtue of the article I section 8.
• The inherent powers, necessary to the existence and the functioning of the federal authorities.

SUBPART 2: THE RESERVED POWERS

• At the same time, and in a residual way, States have reserved powers, by virtue of the Xth Amendment (which is a part of the Bill of Right of December 1791), which provides that “the powers not delegated in the United States by the Constitution nor prohibited by it to States, are reserved to the States respectively, or to the People”
• In other words, the federal government has a principle competence and the states an exception competence: every subject that are not mentioned in the Article I, section 8 are delegated to the States.
• For instance, we can quote the power to set time, place and manner of elections, to take measures for public health, establish local governments, or to regulate commerce with a state

SUBPART 3: THE SHARED POWERS

• Finally, the rival powers, or shared powers, call to an analysis which has to measure the relevance and the opportunity of the intervention. This has to take in consideration the nature and the stakes of the question.
• In order to organize the repartition of these powers, the Constitution has dedicated two principles:

• On the one hand, we have the Denied powers (Article I, sections 8 and 9): there is an impervious border between competences which would not be exercised by the government to the detriment of States (for instance to prefer one maritime port of one state), and conversely the powers which would not be exercised by States instead of the government (in example, to subscribe to an international treaty).
• On the other hand, we have the Supremacy Clause (Article VI, 2nd clause: “the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made shall be the supreme Law of the Land”): the federal power benefit from a superiority: the federal level must be preferred in case of conflict with some states. The Constitution is the supreme law of the land and federal laws is superior to state laws. It has been confirmed in the McMulloch v. Maryland Supreme Court decision in 1819: the federal law is superior to state laws

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