Concurrent Powers

Author:Edward J. Erler

Page 484

In THE FEDERALIST, JAMES MADISON, wrote that in fashioning the federal relationship "the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous circumstances." These sacrifices which produced a "compound republic, partaking both of the national and federal character" were "rendered indispensable" by what Madison termed "the peculiarity of our political situation." An important feature of the compound republic is the idea of concurrent powers.

Concurrent powers are those exercised independently in the same field of legislation by both federal and state governments, as in the case of the power to tax or to make BANKRUPTCY laws. As ALEXANDER HAMILTON explained in The Federalist #32, "the State governments would clearly retain all the rights of SOVEREIGNTY which they before had, and which were not, by that act, exclusively delegated to the United States." Hamilton goes on to explain that this "alienation" would exist in three cases only: where there is in express terms an exclusive delegation of authority to the federal government, as in the case of the seat of government; where authority is granted in one place to the federal government and prohibited to the states in another, as in the case of IMPOSTS; and where a power is granted to the federal government "to which a similar authority in the States would be absolutely and totally contradictory and repugnant, as in the case of prescribing naturalization rules." This last, Hamilton notes, would not comprehend the exercise of concurrent powers which "might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." The only explicit mention of concurrent power in the Constitution occurred in the ill-fated EIGHTEENTH AMENDMENT which provided that "the Congress and the several States shall have concurrent power to enforce this article."

The story of concurrent power in modern American constitutional history has largely been the story of federal PREEMPTION. The concurrent authority of the states is always subordinate to the superior authority of the federal government and generally can be exercised by the states only where the federal government has not occupied the field, or where Congress has given the states permission to exercise concurrent powers. Thus in MCCULLOCH V. MARYLAND (1819), Maryland's...

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