What's the difference between the state and federal government?
The United States features a division of powers between the fifty states and the national government. This division of power is called federalism. Both governments are similar in form and act directly on their respective citizens, but they occupy different spheres of responsibility.
When the United States was founded, and through most of the nineteenth century, the locus of most government activity was the states. The federal government maintained the army and navy, delivered the mail, and did little else. That balance between state and national governments has been substantially changed, if not reversed, with the federal government entering more and more areas that were formerly the province of the states.
The states and the national government are very similar in form. All fifty-one governments are divided into the three familiar branches: legislative, executive, and judicial. Forty-nine of the fifty states have bicameral (two house) legislatures like Congress, Nebraska being the exception. But the state governments often differ from the national government in important respects. For example, all executive branch officers of the national government are essentially agents of the president, assisting him in carrying out his constitutional responsibility to “take care that the laws be faithfully executed.” In the states, by contrast, certain executive officers, such as the attorney general or state comptroller, are often independently elected officers not dependent on the governor for their authority.
The national government is a government of limited powers. It may exercise only those powers granted to it by the Constitution. By contrast, the state governments pre-date the Constitution and therefore do not derive their powers from the Constitution. They are, however, subject to limitations imposed by the Constitution. Some of these restrictions are found in the original Constitution, such as the prohibition on bills of attainder (conviction of crime by legislative action), ex post facto laws (laws punishing an act that was not illegal when committed), or laws impairing the obligation of contracts in Article I, section 10. Others have been added by the amendments to the Constitution, such as the requirements that no state deny any person the right to vote because of race, color, or previous condition of servitude, or sex, contained in the Fifteenth and Nineteenth Amendments. The Courts have also found implicit limitations. For example, the Constitution in Article I, section 8, grants Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Supreme Court has interpreted this grant of power as imposing an implicit limitation on the power of the states to enact legislation that affects interstate commerce.
Whereas the national government is a government of limited powers, the state governments exercise the three great powers of government: police, taxation, and eminent domain. The police power is the most extensive of these powers. It is the power to legislate to promote the health, safety, morals, and welfare of the people. The power of taxation is the power to compel exactions from the populace for the support of the government. And the power of eminent domain is the power to seize property, upon payment of fair compensation, for government use. The federal government exercises the latter two powers. But the national government does not enjoy the police power. Because of expansive definitions of its delegated powers, such as its power to regulate interstate commerce, however, the federal government has been able to enact much police power type legislation. The regulation of food and drugs is an example of a police power–type regulation enacted pursuant to Congress’s power over interstate commerce.
Both governments enact and enforce criminal laws. Sometimes these laws conflict, and conduct that is illegal under the law of one government is legal under the law of the other. For example, marijuana is classified as a schedule I controlled substance under federal law and is illegal to possess or distribute. On the other hand, several states, including California, have made possession and use of marijuana legal. Theoretically, Californians who take advantage of their state law to possess marijuana can be prosecuted in federal court. The federal Department of Justice has, however, declined thus far to prosecute such violations in states where marijuana possession is permitted. That is a policy decision, however, and is subject to change at the discretion of the president and the attorney general.
Under the federal system, the states and the federal government are each supreme in their own spheres. But in case of a conflict, federal law triumphs by virtue of the Supremacy Clause in Article VI of the Constitution. That clause says that the Constitution, the laws enacted pursuant to the Constitution, and treaties made under the authority of the United States are the supreme law of the land and thus take precedence over contrary state laws. This precedence applies where there is an explicit conflict between state and federal laws, as well as to certain situations when federal law preempts even non-inconsistent state law because the subject requires national uniformity.
In sum, the states, although much diminished, still exercise important governmental powers. They are independent actors and not merely administrative organs of the federal government. The national government has expanded well beyond the scope envisioned by the framers of the Constitution by liberal interpretation of the powers granted Congress in Article I and has probably supplanted the states as the agency of government most important to the average person. But the recent decision in the Obamacare case, limiting the interstate commerce power, suggests a halt to the ever-expanding scope of those powers, if not an actual retrenchment. Federalism may be on life support, but it still survives.
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