Reserved Powers

by:

In the U.S. Constitution, certain specific powers are granted to the federal government. The Constitution reserves all other powers to the states. These are known as “reserved powers.” The reserved powers clause is not found in the body of the Constitution itself, but is part of the Tenth Amendment. To explore this concept, consider the following reserved powers definition.

Definition of Reserved Powers

Noun

  1. A political power that is reserved exclusively to a particular political authority.
  2. Tenth Amendment reservation of political powers, not specifically granted to the federal government, to the states.

Origin

December 15, 1791       Ratification of the Tenth Amendment to the U.S. Constitution

What Are Reserved Powers

The United States Constitution specifically grants certain powers or authority to the federal government. In an effort to prevent the newly formed government from stepping outside its authority, or abusing its powers, an amendment to the Constitution was made specifying that all powers not specifically granted to Congress or the President are reserved for the states, or the people, alone.

The concept of reserved powers is rooted in the fact that people are closer to, and feel a loyalty to, their state governments. This was especially true when the Constitution was framed, as most people lived their entire lives within a small area of 20 miles or so.

The Tenth Amendment helped to clarify how much the nebulous federal government held over the people, and which powers would be governed by the people’s home states. In basic terms, any powers not specifically given, or “enumerated,” to the federal government, are within the authority of the individual states.

Reserved Powers Examples:

Every day, Nate stands in front of the local Post Office, panhandling and sometimes picking pockets of the many busy people coming and going. One day, Nate is caught attempting to steal an expensive watch, and he is arrested. Because the crime was committed on the grounds of the U.S. Post Office, the federal prosecutor charges him with the theft.

Nate’s attorney points out that Nate’s pastime of stealing items from Post Office patrons does not reach the level of federal prosecution, as he did not commit the crime against the federal agency. Nate’s attorney further argues that prosecuting such crimes intrudes on the reserved powers of each state to maintain law and order.

The 10th Amendment

The 10th Amendment, to the Constitution is closely related to a provision found in the Articles of Confederation, which state:

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

After the ratification of the U.S. Constitution, Thomas Tudor Tucker and Elbridge Gerry, both state representatives to Congress, proposed the idea of establishing amendments that would limit the powers of the federal government to those expressed in the Constitution. This concept would have denied the federal government any implied powers.

However, James Madison opposed this idea, as he believed that a government limited indefinitely to the powers specifically listed in the Constitution could become ineffective. He argued that implied powers are necessary, and he opposed the amendments.

When the 10th Amendment was ratified, it did not contain the word “expressly,” and therefore did not reject implied powers as stated in the Necessary and Proper Clause. What the 10th Amendment did specify is that all powers not granted to Congress are “reserved” for the states, as it reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This final version of the 10th Amendment was ratified and added to the U.S. Constitution on December 15, 1791.

Other Types of Constitutional Powers

The framers of the Constitution wished to avoid the tyranny the colonists had fled. They did so by specifically dividing political powers in the body of the Constitution. Each grant of power is necessary for the various levels of government to function in harmony, and serves to ensure the people continue to live free of oppression.

Implied Powers

Implied powers are the powers held by congress and the president, even though they are not mentioned in the Constitution. These powers, though they are not specified, are necessary in order for the three branches of government to carry out its responsibilities under the enumerated, or stated, powers. Implied powers may also be referred to as “inherent powers,” and are most often exercised in instances of national emergency.

implied powers example:

Article I, Section 8, Clause 14 of the U.S. Constitution grants Congress the express power to regulate the armed forces, as it states:

“The Congress shall have Power To … make Rules for the Government and Regulation of the land and naval Forces.”

As the nation grew, and volunteer rates for maintaining a capable army and navy dropped, Congress found a need to institute a draft. Although the Constitution does not explicitly give Congress authority to compel citizens to serve in the armed forces, this authority is implied in its power to regulate and govern such forces.

Enumerated Powers

Enumerated Powers are those powers specifically spelled out in the Constitution. These include the powers of Congress, as well as the Powers of the President. These include such powers as those granted in Article I, Section 8:

  • To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States
  • To borrow Money on the credit of the United States
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
  • To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States

Concurrent Powers

Concurrent powers are those that are shared by the state and federal governments. These powers are necessary to the fluid function of the governments on both levels, and can be exercised separately at the same time, in the same region, and among the same groups of people.

For example, citizens of a state may be subject to both federal and state taxes, and both levels of government may maintain their own court systems. In the event of a conflict between state and federal powers, federal laws generally supersede those of the states.

Denied Powers

Not only does the Constitution delegate and divide powers, it denies certain powers to prevent both the federal and state governments from overstepping their bounds. Denied powers are found in Article I, Sections 9 and 10. These include prohibiting the federal government from taxing the exports of any state, or conferring titles of nobility. In addition, the states cannot make treaties or alliances with foreign countries.

denied powers example:

The U.S. and the newly formed Country A are approaching a state of war. The governor of State B realizes that his people have something to offer Country A, in the form of a certain vegetation that Country A’s people use in large quantities. The Governor wishes to enter into a treaty with Country A in which the state supplies the vegetation in exchange for a promise that no hostilities will be committed within the state’s borders. The U.S. Constitution clearly denies the states the authority to make treaties or alliances with foreign countries.

Real Example of Reserved Powers Challenge

In 2011, Carol Bond discovered her husband was having an affair, and that she had gotten the woman, Myrlinda Hayes pregnant. Bond told Hayes, “I am going to make your life a living hell.” A short time later, Bond, who was a laboratory technician, stole the chemicals 10-chlorophenoxarsine and chemical potassium dichromate from work. Over the course of several months, Bond made at least two dozen attempts to poison Hayes, by smearing the poisons on her car door handles, doorknobs, and other surfaces at Hayes’ home. Hayes did suffer chemical burns to her hand, and traces of the chemicals were found at her home.

Bond was charged with stealing mail, and with violating the Chemical Weapons Convention Implementation Act of 1998, both of which are federal crimes. A jury found Bond guilty, and she was sentenced to six years in prison. Bond appealed her case on the basis that applying the violation of the federal weapons treaty violated the 10th Amendment, in that the intent of the treaty was to deal with terrorists and rogue state governments, not individual citizens. The appellate court ruled against Bond, and the case was taken to the U.S. Supreme Court.

Bond’s attorneys argued before the Court that the federal prosecutors had overstepped their 10th Amendment bounds, and that Bond should have been charged by the state instead. In this example of reserved powers and authority, the Supreme Court ruled unanimously that the federal prosecutors had indeed intruded on police authority reserved for the states.

Related Legal Terms and Issues

  • Amendment – The modification, correction, addition to, or deletion from, a legal document.
  • Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.
  • Authority – The right or power to make decisions, to give orders, or to control something or someone.
  • Bill of Rights – The first ten amendments to the U.S. Constitution.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Congress – The legislative branch of the United States federal government, composed of the House of Representatives and the Senate.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.