Concurrent Powers

Concurrent powers refer to political powers that are shared by both the state and federal governments. A number of powers are given to the federal government by the U.S. Constitution, without barring those same powers to each individual state. Such powers as establishing a court system, taxation, and regulating elections are common examples of concurrent powers of federal and state government.

Concurrent powers provide for the needs at each level of government in order to keep people safe, deter criminal activities, support the economy, and prevent and punish criminal behavior. To explore this concept, consider the following concurrent powers definition.

Definition of Concurrent Powers

Noun

1. Political or legislative powers, exercised independently or simultaneously, by both federal and state governments.

Origin

U.S. Constitution

What are Concurrent Powers

Concurrent powers are powers enjoyed by both the state and federal government. These powers may be exercised simultaneously, in the same area, and among the same group of citizens. For instance, residents of most states are required to pay both federal and state taxes. This is because taxation is a subject of concurrent powers. In the event there is a conflict of powers held concurrently by the state and federal government, federal law and powers supersede state law and powers.

The point of concurrent powers is that there are many actions necessary to governmental operation at both the state and federal level. These include such services as maintenance and operation of the government itself, maintaining public facilities and roads, and maintaining fire departments and law enforcement. These things cost money, and this is the reason for taxation. While some people feel it is unfair or unconstitutional to essentially be taxed twice, concurrent powers afforded by the Constitution enables each governmental body providing such services to collect taxes from the citizens within the jurisdiction.

Another way of providing services to a large and growing nation, when taxes collected are not enough, is for the government to borrow money. Borrowing money affects taxpaying citizens, as this money must eventually be repaid to the lenders, and this is often accomplished by charging higher taxes. Borrowing money is another power afforded by concurrent powers.

concurrent powers examples:

John Jones becomes angry about the amount of taxes he is forced to pay, both on his income, and on his assets, such as the properties he owns. John files a civil lawsuit against the government, claiming that it is unconstitutional to tax him twice on the same assets. John would be unsuccessful in such a suit, as the Constitution specifically gives the federal and state governments concurrent powers to tax citizens, in order to facilitate the operation of the governments at various levels.

The U.S. Constitution and Concurrent Powers

The framers of the Constitution believed that a division of powers was necessary to prevent a new national government from taking over by denying powers to the states. Though the United States Constitution does not explicitly mention that the state and federal government should enjoy concurrent powers, it does imply their existence.

Alexander Hamilton addressed the growing unease over the possibility that the formation of a federal government might open the door to oppressive use of a superior power, when he wrote in the Federalist Papers No. 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. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.”

Hamilton went on to explain how the new union (federal government) must have authority to deal with issues of a national importance, but without suppressing or contradicting the governments of the individual states.

Other Types of Powers Granted by the U.S. Constitution

The U.S. Constitution was created with the intent of ensuring that the colonists would never again experience the tyranny of the government from which they escaped. In order to eliminate the temptation of a federal government to usurp the power of individual states, a specific division of powers was written into the Constitution. While the document addresses certain specified powers, it also lists certain denied powers, and makes provision for unanticipated needs with implied powers.

• Reserved Powers – Rather than attempting to list every power or authority the states might have, the Constitution deals with the issue by giving states broad discretion, with all powers that are not specifically granted to the federal government remaining with the states. Such reserved powers include the management of state governments, the power to run elections, and the power to create educational systems and institutions.
• Delegated Powers – Delegated powers are those powers specifically listed as belonging to the federal government. Delegated powers are specified in Article I, Section 8 of the U.S. Constitution, and include powers to produce money, regulate interstate commerce, and maintain a postal system.
• Denied Powers – Denied powers differ from the other types, as they specifically prohibit the federal government from doing certain things. Denied powers are listed in Article 1, Sections 9 and 10 of the Constitution. Powers denied to the federal government include the imposition of taxes on states’ exports, and the authority to confer titles of nobility. Powers denied to state governments include the production of money, and the making of foreign treaties or declaring war.
• Implied Powers – It was inconceivable that the framers of the Constitution would be able to think of every power or authority that would be needed as the new government went forward, so they addressed the issue in Article I, Section 8 of the Constitution, which authorizes Congress “…to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

Landmark Supreme Court Ruling on Delegated Powers

In 1824, the U.S. Supreme Court reviewed, for the first time, the Commerce Clause, contained in Article I, Section 8 of the U.S. Constitution. This came as a result of a dispute between two steamship franchises ferrying people between New Jersey and New York City. In 1808, the New York Legislature had granted to Aaron Ogden exclusive privilege to operate steamship ferries on the route across the Hudson River, for the period of 20 years.

Competitor Thomas Gibbons operated two ferries along the same route, prompting Ogden to seek an injunction from the New York courts, citing his exclusive right to operate. During trial, Gibbons claimed a right to operate on the interstate route, and that the state of New York had no authority to regulate interstate costal commerce, due to a 1793 congressional act. The court found in favor of Ogden, ordering Gibbons to cease operating along that route. Subsequent appeals to the state appellate and Supreme court failed, so Gibbons took the matter to the U.S. Supreme court.

The U.S. Supreme Court ruled that the state’s grant of exclusive rights to operate on the route between the states violated the federal licensing act of 1793, and that the Commerce Clause of the U.S. Constitution delegated the power to regulate commerce “among the several states,” to Congress. For the first time in history, the Court interpreted the term “commerce” as including not only items traded or transported between the states, but also the transportation, trade routes, and navigation among the states.

By this decision, the Supreme Court held that Congress may pass any law regulating commerce that is not wholly confined within the boundaries of a single state. In addition, the Court ruled that this right is exclusive held by the federal government, and not held as a concurrent power with the states. The judgment in favor of Ogden was overturned, and the Court’s decision in Gibbons v. Ogden guided Congress’ expanding power over interstate commercial activity across the nation.

Related Legal Terms and Issues

• Authority – The right or power to make decisions, to give orders, or to control something or someone.
• Bill of Rights – First 10 amendments in the Constitution of the United States. These amendments cover the fundamental rights afforded to people such as freedom of speech and right to assemble.
• Enumerated – Mention something one by one if counting.
• Injunction – A court order preventing an individual or entity from beginning or continuing an action.