EXCLUSIVE POWERS

The Constitution divides governmental power in two ways: between the states and the federal government, and among the three branches of the federal government. Some powers are vested exclusively in one authority, and may not be exercised by any other authority.

The exclusive powers of the federal government include not only all power over foreign affairs but also certain domestic powers that affect the whole country. Not all of the powers granted to the federal government by the Constitution are exclusive in character; some may be exercised concurrently and independently by both state and federal governments, or may be exercised by the states until Congress acts.

The Constitution makes clear the exclusive character of some powers by explicitly prohibiting the states from exercising them (such as the treaty power). In some other cases, the courts have held the grant to be exclusive when the subject of the power is national in character or requires one uniform system or plan. In some cases the states, with the express permission of Congress, may exercise an exclusive power of the national government.

The states also possess exclusive powers. Because the Constitution establishes a government of limited powers, any domestic governmental power not granted to the federal government by the Constitution and not prohibited by it to the states remains an exclusive power of the state government.

Within the federal government a power may be possessed exclusively by one of the three branches of government. The separation of powers implies that each branch of government has its exclusive sphere of power, which it can independently exercise and from which the other branches are excluded. In theory the legislative power, executive power, and judicial power each belong exclusively to one branch of government. This exclusive power is compatible with the influence of other branches over some part of its exercise. Only Congress may legislate, but legislation may be affected by the President's veto power and the power of the courts to declare statutes unconstitutional. Powers not explicitly granted to one branch have been found by the courts to belong exclusively to Congress, the President, or the courts when they are in their nature exclusively legislative, executive, or judicial.

Although the complexities of modern government require much sharing of power among governmental authorities, the constitutional principles of federalism and the separation of powers require also the maintenance of the proper exclusive spheres of power.

Glen E. Thurow
(1986)

Bibliography

Pritchett, C. Herman 1977 The American Constitution, 3d ed. Pages 150–216. New York: McGraw-Hill.