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## State-Federal Tug-of-War ### The 10th Amendment The 10th Amendment to the Constitution makes sure it’s clear that any power the Constitution does not give to the federal government belongs to the states (or to the people). Is the Constitution clear about exactly which powers the federal governmen...

## State-Federal Tug-of-War ### The 10th Amendment The 10th Amendment to the Constitution makes sure it’s clear that any power the Constitution does not give to the federal government belongs to the states (or to the people). Is the Constitution clear about exactly which powers the federal government has? ### Prime-Time Power Struggle The U.S. Constitution creates a federalist system where individual state governments share power with the central, “federal” government. The Constitution lists all the powers states agreed to give to the federal government, and powers not on this list belong to the states or the people. Sound pretty straightforward? It’s not. The Founders knew it would be impossible to think of every tiny power the federal government would need, so the list they wrote in the Constitution is very basic. To cover the details, they added what we call the Necessary and Proper Clause: * The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers... States and the federal government have been arguing about what “necessary and proper” means ever since. ### No, Really… It’s Necessary Over the years, there have been lots of things the U.S. Congress has wanted to do that were not clearly identified on the Constitution’s list. In that case, Congress may find a power that is clearly on the list and explain that the action it plans to take is necessary for exercising that power. Sometimes the link between the law Congress passes and the power stated in the Constitution is obvious, but sometimes it’s kind of a stretch. Those situations involve laws that states say only they have power to pass, and states may sue the federal government, arguing that Congress has overreached by using power it doesn’t have. ### Police Power in Action: * States protect citizens by setting standards that water treatment plants must follow when dealing with sewage. ### Federal Police Power? The police power is the states’ power to protect citizens’ health and safety and to promote the “general welfare" of state citizens. To accomplish this, states may limit private rights for the good of the public at large—for example, limiting your right to drive at any speed you want so other drivers can be safe. There’s no such thing as a federal police power. Only states can make and enforce these kinds of laws, and yet we often see the federal government passing laws that seem an awful lot like exercising a police power. That’s because Congress can pass just about any law it wants as long as that law is related to one of the federal constitutional powers. If Congress can demonstrate that the law is directly related, it’s not considered overreach. ### The Reach of Congress’s Power: | | | |---|---| | Okay. | Expressed Power | | Yup. | Necessary & Proper Action | | Nope. Overreach. | Unrelated Action | ### Commerce Controversy One of the biggest sources of disagreement has come from Congress using its commerce power to justify passing laws that would otherwise fall under the states’ police powers. The Constitution gives Congress the power “to regulate commerce… among the several states.” That just means Congress has power over interstate commerce, which is trade or business activity that takes place across state lines. If something has “traveled in interstate commerce” (think shipping and transport), it is usually considered fair game for the commerce power. Over the decades, Congress has used its commerce power to pass laws about things like food safety, child labor, and civil rights.