Concurrent Powers

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CONCURRENT POWERS

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 concurrent power of taxation had to give way when the state sought to tax a federal instrumentality, because such a tax was utterly repugnant to federal supremacy.

In the years since McCulloch the Supreme Court has devised an intricate system for determining when a federal exercise of power has implicitly or explicitly worked to diminish or extinguish the concurrent powers of the states. The federal government's steady expansion of power over the years has, of course, placed more restrictions on concurrent action by the states as, in more and more areas, the federal government has occupied the whole field of legislation.

The Court's decision in Pacific and Electric Company v. Energy Resources Commission (1983) provides a useful summary of the factors that determine whether federal preemption may be said to have taken place: whether Congress is acting within constitutional limits and explicitly states its intention to preempt state authority; whether the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress intended for the state to be excluded from concurrent regulation; whether, even though the regulation of Congress is not pervasive, the operation of concurrent powers on the part of the state would actually conflict with federal law; and whether, in the absence of pervasive legislation, state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. It is not difficult to see that most of the states' concurrent powers today exist at the forbearance of the federal legislature. This result was not entirely anticipated by the Framers of the Constitution; but it was the inevitable consequence of the centripetal forces embodied in the national features of the compound republic.

Edward J. Erler
(1986)