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Concurrent powers

Concurrent powers refer to the authorities in a federal system, such as that of the United States, that may be exercised independently by both the national government and the constituent state governments, enabling overlapping jurisdiction without constitutional prohibition on either level.^[1] These powers derive implicitly from the enumerated federal authorities in Article I, Section 8 of the U.S. Constitution—such as laying taxes and establishing post offices—which do not explicitly bar concurrent state action, while the Tenth Amendment reserves to the states or the people all powers not delegated to the federal government nor prohibited to the states. In practice, concurrent powers facilitate cooperative governance but often generate tensions resolved by the Supremacy Clause in Article VI, which prioritizes federal law in direct conflicts, a mechanism that has expanded federal dominance through doctrines like preemption. Key examples of concurrent powers include the levying and collection of taxes, borrowing money, chartering banks and corporations, establishing and maintaining lower courts, building roads and infrastructure, and enacting laws for public health, safety, and welfare.^[1] Both levels of government may regulate intrastate commerce aspects or enforce criminal laws in overlapping domains, though federal exercises often preempt state variations, as seen in areas like environmental regulation or labor standards where national uniformity prevails over local experimentation.^[2] This shared authority underscores the dual sovereignty inherent in American federalism, designed to balance centralized efficiency with decentralized accountability, yet it has fueled ongoing debates over encroachment, with states historically resisting federal overreach through nullification efforts or litigation, reflecting the framers' intent to diffuse power and avert consolidated tyranny.^[3]

Definition and Foundations

Core Definition

Concurrent powers in the United States federal system are authorities that both the national government and state governments may exercise simultaneously, provided they are not expressly reserved exclusively to one level or prohibited to the other.^[4] These powers arise from the constitutional framework where the federal government operates under delegated powers enumerated in Article I, Section 8, while the Tenth Amendment reserves non-delegated powers to the states or the people, leaving an overlap for shared functions not deemed inherently national or local.^[5] Unlike exclusive federal powers such as coining money or regulating interstate commerce, concurrent powers permit dual sovereignty, though federal law preempts conflicting state action under the Supremacy Clause in Article VI. The concept ensures functional governance across diverse jurisdictions, allowing states to address local needs while the federal government pursues national objectives, but it requires coordination to avoid duplication or conflict; for instance, both levels can levy taxes on income, with federal rates applying alongside state variations as of fiscal year 2023 data showing combined effective rates averaging 24.5% for median earners.^[6] Primary examples include the power to tax and spend for public welfare, borrow money, establish courts, and enact laws for public health and safety, as inferred from constitutional provisions and upheld in cases like McCulloch v. Maryland (1819), where the Supreme Court affirmed implied concurrent authority in necessary and proper execution of enumerated powers.^[7]^[8] This shared domain contrasts with reserved state powers like intrastate regulation, fostering a balance that has persisted since ratification of the Constitution on March 4, 1789, though federal expansion via commerce clause interpretations has occasionally strained concurrency.

Distinction from Delegated and Reserved Powers

Concurrent powers represent areas of authority exercised simultaneously by both federal and state governments within a federal system such as that established by the U.S. Constitution, including taxation, borrowing money, and establishing courts of inferior jurisdiction.^[1] These differ from delegated powers, which are explicitly enumerated in Article I, Section 8 of the Constitution and granted solely to the federal government, encompassing functions like coining money, declaring war, and regulating interstate and foreign commerce.^[9] While some delegated powers are exclusive—precluding state involvement due to constitutional prohibitions or inherent federal necessity—concurrent powers arise where delegated authorities overlap with states' inherent or reserved competencies, allowing parallel exercise absent direct conflict.^[10] Reserved powers, codified in the Tenth Amendment ratified on December 15, 1791, consist of all authorities neither delegated to the federal government nor expressly denied to the states, vesting them in the states or the people.^[11] This includes traditional state functions such as local police powers, public education, and intrastate business regulation, which federal authority cannot invade without specific constitutional authorization or amendment.^[12] Unlike concurrent powers, reserved powers maintain state exclusivity, shielding domains like marriage licensing and land use zoning from federal overreach, though federal spending incentives or commerce clause interpretations have occasionally tested these boundaries in practice.^[1] The fundamental distinctions underscore federalism's vertical division: delegated powers define federal competence, with concurrency permitting cooperative or competitive dual governance; reserved powers preserve state autonomy in non-federal spheres.^[13] Conflicts in concurrent areas are typically resolved via federal preemption under the Supremacy Clause, whereas reserved powers remain insulated unless states voluntarily cede ground, ensuring neither level monopolizes sovereignty entirely.^[14] This framework, rooted in the Constitution's enumerated limits, prevents total centralization while enabling national unity.^[5]

Historical Context

Constitutional Origins

The U.S. Constitution, drafted at the Philadelphia Convention from May 25 to September 17, 1787, established concurrent powers implicitly through its federal structure, granting the national government enumerated authorities in Article I, Section 8 while leaving many traditional state prerogatives intact absent explicit exclusivity or prohibition. Powers such as laying and collecting taxes, borrowing money, and regulating intrastate aspects of commerce were vested in Congress but not barred to states, enabling overlap to sustain both levels of government amid the weaknesses exposed by the Articles of Confederation, which had overly constrained federal capacity.^[9]^[10] This design reflected compromises among delegates like James Madison and Roger Sherman, who advocated limited national authority to preserve state vitality while addressing collective action problems like interstate trade disputes. Alexander Hamilton articulated the concurrent nature of certain powers in Federalist No. 32, published January 3, 1788, arguing that while duties on imports and exports were exclusively federal to prevent discriminatory state tariffs, "the power of imposing taxes on all articles other than exports and imports" constituted "a concurrent and coequal authority in the United States and in the States."^[15] Hamilton's reasoning stemmed from the Constitution's silence on state prohibitions for internal taxation, excises, and similar levies, ensuring states retained fiscal independence essential for local governance—a principle echoed in convention debates where Anti-Federalist concerns over federal overreach prompted assurances of retained state competencies.^[10] James Madison reinforced this framework in Federalist No. 45, published January 26, 1788, emphasizing that federal powers were "few and defined," pertaining to external affairs and common concerns, whereas state powers remained "numerous and indefinite," encompassing internal administration where concurrency applied unless federal law preempted.^[16] The Tenth Amendment, proposed September 25, 1789, and ratified December 15, 1791, codified this reservation: "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," clarifying that undelegated or non-exclusive federal domains preserved state exercise of parallel authorities like chartering corporations or maintaining militias for internal order.^[5] This amendment addressed ratification-era fears of implied federal monopoly, solidifying concurrency as a bulwark against centralized dominance.

Post-Constitution Evolution

In the early 19th century, the U.S. Supreme Court established foundational principles for concurrent powers through decisions affirming federal supremacy while acknowledging state roles. McCulloch v. Maryland (1819) upheld Congress's implied powers under the Necessary and Proper Clause to charter a national bank, a function concurrent with state banking authority, and struck down a state tax on federal operations as unconstitutional interference.^[17] This ruling, authored by Chief Justice John Marshall, emphasized that states lack authority to impede valid federal exercises of concurrent powers. Similarly, Gibbons v. Ogden (1824) interpreted the Commerce Clause to grant Congress plenary control over interstate commerce, preempting conflicting state regulations while permitting states to regulate purely intrastate activities, thus delineating boundaries in this shared domain. The Civil War and Reconstruction eras marked an initial expansion of federal concurrent authority, particularly in civil rights enforcement. Ratification of the 14th Amendment in 1868 empowered Congress to legislate concurrently with states on citizenship, due process, and equal protection, overriding state discriminatory laws through enforcement acts like the Civil Rights Act of 1875. This shifted the balance amid national crises, though enforcement waned post-1877 as dual federalism reemerged, limiting federal overreach into state police powers until the 20th century.^[18] The Great Depression catalyzed a transition from dual to cooperative federalism, with New Deal legislation vastly broadening federal involvement in concurrent areas like economic regulation and welfare. The Supreme Court's 1937 "switch in time" in cases such as NLRB v. Jones & Laughlin Steel Corp. sustained federal labor standards under the Commerce Clause, rejecting prior substantive due process limits and enabling overlapping federal-state administration in industry and agriculture. Federal grants-in-aid surged from $69 million in 1913 to over $3 billion by 1940, fostering intergovernmental partnerships in highways, education, and public health, where states implemented national policies with federal funding.^[19] Post-World War II developments entrenched cooperative federalism, with federal spending on concurrent programs reaching 15% of state budgets by the 1960s, expanding into civil rights via the Civil Rights Act of 1964 and environmental regulation under the Clean Air Act of 1970.^[20] The 1980s New Federalism initiatives under President Reagan devolved some control through block grants, reducing categorical mandates from 80% of aid in 1978 to under 20% by 1984, aiming to enhance state flexibility in shared domains.^[21] Recent Supreme Court rulings have imposed limits, as in United States v. Lopez (1995), which invalidated a federal gun possession ban near schools for exceeding Commerce Clause bounds on non-economic activities traditionally reserved to states, and Printz v. United States (1997), prohibiting federal commandeering of state officials for background checks under the Brady Act.^[22] These decisions reflect periodic reassertions of federalism constraints amid ongoing tensions over preemption in healthcare and immigration.

Specific Examples

Taxation and Fiscal Powers

In the United States federal system, taxation constitutes a core concurrent power, enabling both the federal government and state governments to impose and collect taxes independently, subject to constitutional limitations. Article I, Section 8 of the U.S. Constitution grants Congress the authority "to lay and collect Taxes, Duties, Imposts and Excises" to provide for the common defense, general welfare, and payment of debts.^[23] States retain residual taxing authority under the Tenth Amendment, as powers not delegated to the federal government nor prohibited to the states are reserved to the states or the people. This concurrency allows overlapping levies, such as federal income taxes alongside state income or sales taxes on the same economic activity, without inherent constitutional prohibition against multiple taxation layers.^[24] Fiscal powers, including borrowing and spending derived from taxation revenues, similarly overlap. The federal government may borrow money on its credit and spend for the general welfare, as affirmed in the Taxing and Spending Clause.^[25] States possess analogous capacities, issuing bonds for infrastructure or public services and expending funds on local priorities, though federal borrowing operates on a national scale without state veto.^[26] Historical framers, as discussed in Federalist No. 32, viewed taxation as "manifestly a concurrent and coequal authority" between sovereigns, except where federal exclusivity applies, such as customs duties.^[27] Conflicts arise when state taxes impede federal operations, invoking the Supremacy Clause. In McCulloch v. Maryland (1819), the Supreme Court invalidated Maryland's tax on the Second Bank of the United States, reasoning that "the power to tax involves the power to destroy" and states cannot tax federal instrumentalities, as federal law supersedes conflicting state measures.^[8]^[17] This principle extends to prohibiting state taxes on federal lands or employees in certain contexts, though Congress may consent to limited state taxation in federal enclaves.^[23] Conversely, federal taxes rarely encroach on core state functions, but doctrines like intergovernmental tax immunity prevent federal taxation of state entities performing essential governmental roles.^[28] Practical examples illustrate this balance: the federal government enacted the 16th Amendment in 1913, authorizing unapportioned income taxes yielding over $4.9 trillion in fiscal year 2023 revenues.^[29] States, in turn, generated approximately $1.2 trillion from sales, property, and income taxes in 2022, funding education and transportation without federal preemption in non-conflicting domains.^[30] Such duality supports fiscal federalism but invites disputes, as seen in ongoing debates over state challenges to federal tax credits influencing local economies.^[31]

Lawmaking and Enforcement

Both the federal government and state governments exercise concurrent powers to enact legislation defining offenses and prescribing penalties in areas of overlapping authority, such as public health, safety, and certain criminal activities, provided state laws do not conflict with federal statutes under the Supremacy Clause. This shared legislative competence stems from the federal government's enumerated powers in Article I, Section 8 of the U.S. Constitution—such as regulating commerce among the states—and the states' reserved police powers under the Tenth Amendment, enabling independent but potentially supplementary lawmaking. For instance, both levels may criminalize environmental violations; the federal Clean Water Act of 1972 (33 U.S.C. § 1251 et seq.) prohibits pollutant discharges into navigable waters, while states enact complementary statutes enforcing stricter standards where permitted, with over 40 states maintaining their own water quality agencies as of 2023. Enforcement of these laws involves concurrent jurisdiction, where federal and state authorities may investigate, prosecute, and adjudicate violations independently or cooperatively, particularly in criminal matters.^[32] State courts generally retain concurrent jurisdiction over federal claims unless Congress explicitly grants exclusive federal jurisdiction, as affirmed by the Supreme Court, requiring states to provide remedies for federal rights absent procedural bars.^[33] A key mechanism is the dual sovereignty doctrine, which permits successive federal and state prosecutions for the same conduct if it violates separate sovereign interests, as the offenses are distinct despite factual overlap; this was upheld 5-4 in Gamble v. United States (587 U.S. 678, 2019), rejecting arguments that the Fifth Amendment's Double Jeopardy Clause prohibits such actions post-state acquittal.^[34] Practical examples include drug trafficking cases, where the federal Controlled Substances Act (21 U.S.C. § 801 et seq.) and state analogs allow joint task forces like those under the High Intensity Drug Trafficking Areas program, involving federal agencies such as the DEA alongside state police, resulting in over 1,000 such operations annually as of 2022. This concurrency promotes layered accountability but invites tensions, as federal preemption—via express statutory language or implied field occupation—can nullify state enforcement efforts, as seen in Arizona v. United States (567 U.S. 387, 2012), where provisions of Arizona's S.B. 1070 were invalidated for intruding on federal immigration enforcement exclusivity. Conversely, cooperative arrangements, such as states administering federal environmental permits under delegated authority from the EPA since the 1970s, demonstrate effective dual enforcement without displacement. Overall, these powers ensure comprehensive coverage of societal harms while preserving state autonomy in non-conflicting domains.

Infrastructure and Public Welfare

Both the federal and state governments hold authority to construct, maintain, and regulate infrastructure, reflecting concurrent powers derived from the Commerce Clause for interstate matters and state police powers for internal improvements. The federal government primarily funds large-scale projects through grants and loans, while states handle execution and ownership. For example, under the Federal-Aid Highway Act of 1956, which authorized the Interstate Highway System, the federal government provided up to 90% of construction costs via the Highway Trust Fund, but states bore responsibility for planning, building, maintaining, and operating the 47,000 miles of interstate highways.^[35]^[36] As of 2023, states own all interstate roads and manage daily operations, with federal oversight limited to safety standards and funding eligibility.^[35] More recent federal initiatives, such as the Infrastructure Investment and Jobs Act of 2021, allocate about $350 billion over five years for highway programs, distributed as formula grants to states that must provide matching funds and comply with federal environmental and procurement rules.^[37] States supplement these with their own revenues from fuel taxes and bonds, exercising discretion over local roads, bridges, and transit systems that constitute over 90% of the nation's public roadway mileage.^[38] This division allows states to prioritize regional needs, such as rural bridge repairs, while federal involvement ensures national connectivity, though tensions arise when federal conditions impose administrative burdens on states.^[38] Public welfare represents another domain of concurrent authority, where the federal government spends under the General Welfare Clause to support nationwide programs, and states apply reserved powers to safeguard health, safety, and morals through tailored services. Medicaid, enacted in 1965 as Title XIX of the Social Security Act, exemplifies this partnership: jointly financed by federal matching payments (averaging 60% of costs nationally, varying by state per capita income from 50% to 78%) and administered by states that set eligibility thresholds, benefit packages, and provider reimbursements within federal guidelines.^[39]^[40] In fiscal year 2023, Medicaid covered over 80 million low-income Americans, with states managing delivery through fee-for-service or managed care models and innovating expansions under the Affordable Care Act, such as work requirements in some jurisdictions.^[40] States independently fund and operate complementary welfare systems, including Temporary Assistance for Needy Families (TANF) block grants, which devolved federal welfare reform in 1996 to allow state experimentation with time limits and job training.^[14] Both levels also coordinate on public health infrastructure, such as vaccination campaigns, where federal agencies like the CDC provide guidance and funding, but states enforce quarantines and licensing under inherent authority. This overlap fosters flexibility but invites disputes over federal mandates, as seen in state challenges to uniform standards that overlook local demographics.^[39]

Operational Mechanisms

Supremacy Clause Application

The Supremacy Clause, enshrined in Article VI, Clause 2 of the U.S. Constitution, declares that the Constitution, federal laws enacted pursuant to its authority, and treaties constitute the "supreme Law of the Land," obligating state judges to adhere to them over any conflicting state constitutional provisions or statutes. In domains of concurrent powers—such as taxation, commerce regulation, and law enforcement—where both federal and state governments possess constitutional authority to legislate, the Clause operates as a conflict-resolution mechanism, ensuring federal enactments displace incompatible state measures to prevent dual sovereignty from undermining national uniformity.^[41] This application does not negate state authority absent conflict but enforces a hierarchical order, with courts tasked as arbiters to identify and nullify state actions that obstruct federal objectives. Federal preemption under the Supremacy Clause manifests through three primary doctrines in concurrent power contexts. Express preemption occurs when Congress explicitly declares its intent to supersede state law, as in the Employee Retirement Income Security Act of 1974 (ERISA), which preempts state regulation of employee benefit plans in areas like taxation and welfare administration.^[42] Implied field preemption arises when federal regulation is so comprehensive that it implies exclusive occupancy of the regulatory field, leaving no room for state supplementation; for instance, in interstate commerce—a concurrent power—federal licensing under the Federal Aviation Administration has preempted state pilot certification requirements.^[43] Conflict preemption applies when compliance with both federal and state laws proves impossible or when state law frustrates federal purposes, as upheld in cases involving environmental standards where federal Clean Air Act permits override stricter state emissions rules that hinder national energy policy goals.^[42] Landmark Supreme Court decisions illustrate the Clause's practical enforcement in concurrent spheres. In McCulloch v. Maryland (1819), the Court invalidated a state tax on the Second Bank of the United States, a federal instrumentality, ruling that states cannot impede federal operations through taxation—a concurrent power—since "the power to tax involves the power to destroy," thereby affirming federal supremacy without implying blanket immunity but targeting discriminatory burdens.^[44] Similarly, Gibbons v. Ogden (1824) struck down a New York steamboat monopoly conflicting with federal commerce licensing, establishing that concurrent commercial regulation yields to federal authority when states encroach on interstate activities, with Chief Justice Marshall emphasizing the Clause's role in preventing fragmented national markets. More recently, in Murphy v. National Collegiate Athletic Association (2018), the Court declined preemption of state sports betting laws, finding no direct conflict with the Professional and Amateur Sports Protection Act's (PASPA) prohibition on state sponsorship, as PASPA commanded inaction rather than imposing a uniform federal regime in the concurrent arena of gambling regulation. This framework promotes operational harmony in shared powers by requiring clear evidence of congressional intent for preemption, often presuming against it in traditional state domains like health and safety to preserve federalism's balance.^[42] Courts apply a two-step analysis: ascertaining federal intent through statutory text, structure, and history, then evaluating conflict's nature, ensuring Supremacy Clause invocation aligns with enumerated powers rather than expansive federal claims.^[45] In taxation, for example, states retain broad concurrent authority but cannot impose levies that discriminate against federal entities or entities engaged in federal functions, as reaffirmed in United States v. City of New York (1941), where a municipal tax on federal property sales was voided for frustrating revenue collection uniformity.^[41] Such applications underscore the Clause's causal role in averting intergovernmental deadlock, though they invite litigation when federal statutes ambiguously intersect state exercises of concurrent authority.

Conflict Resolution and Preemption

In the exercise of concurrent powers, conflicts arise when federal and state laws impose incompatible requirements or when state regulations hinder the accomplishment of federal objectives. The Supremacy Clause of the U.S. Constitution, found in Article VI, Clause 2, establishes federal law as the "supreme Law of the Land," rendering void any state law that directly contradicts it.^[42] This principle ensures uniformity in areas of national interest while allowing states latitude until a federal enactment intervenes. Courts resolve such conflicts through the doctrine of preemption, which displaces state law to prevent dual sovereignty from producing irreconcilable outcomes.^[46] Preemption manifests in two primary forms: express and implied. Express preemption occurs when Congress explicitly declares in a statute its intent to supersede state law, as seen in provisions like the Employee Retirement Income Security Act (ERISA) of 1974, which states that its regulations "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan."^[47] In these instances, judicial inquiry focuses narrowly on the scope of the preemptive language, without presuming congressional intent beyond the text. Implied preemption, by contrast, arises absent explicit language and subdivides into field preemption—where federal regulation is so pervasive as to imply exclusive federal occupation of the regulatory domain—and conflict preemption, where compliance with both laws is impossible or state law obstructs federal purposes.^[46] The Supreme Court has applied conflict preemption in cases like Crosby v. National Foreign Trade Council (2000), invalidating a Massachusetts law targeting Burma due to its interference with federal sanctions.^[47] Judicial interpretation of preemption emphasizes congressional intent, gleaned from statutory text, structure, and purpose, rather than broad policy preferences. A presumption against preemption applies in traditional state domains like health and safety, requiring clear evidence of federal intent to displace state authority, as articulated in Wyeth v. Levine (2009), where the Court upheld state tort liability for pharmaceuticals absent explicit preemption in federal labeling laws.^[46] This restraint preserves federalism by limiting preemption to genuine conflicts, though critics argue it can lead to inconsistent application, particularly in evolving fields like environmental regulation or interstate commerce. In concurrent powers such as taxation or commerce, preemption thus functions as a targeted override mechanism, subordinating state measures only to the extent necessary for federal supremacy without wholesale exclusion of state involvement.^[42]

Controversies and Tensions

Federal Expansionism Critiques

Critics of federal expansionism contend that the national government's encroachment into concurrent powers has systematically undermined the constitutional balance of federalism, transforming shared authorities into predominantly federal domains through expansive interpretations of enumerated powers. This view holds that such overreach contravenes the Tenth Amendment, which reserves undelegated powers to the states or the people, thereby eroding state autonomy and local experimentation in areas like regulation and welfare.^[48]^[14] Organizations such as the Heritage Foundation argue that federal intrusions, including unfunded mandates and regulatory preemptions, diminish political accountability by shifting responsibility from states to distant bureaucrats, fostering inefficiency and reduced civic engagement.^[49] A pivotal example of this expansion lies in the Commerce Clause jurisprudence, particularly the 1942 Supreme Court decision in Wickard v. Filburn, where the Court upheld federal penalties on a farmer for growing wheat for personal use on the grounds that it substantially affected interstate commerce by reducing market demand.^[50] Critics, including originalist scholars, decry this ruling as a departure from the Framers' intent to limit federal regulation to interstate activities, enabling Congress to reach purely intrastate and non-commercial conduct under the guise of aggregate economic impact.^[14] This precedent, they assert, laid the groundwork for broader federal control over agriculture, labor, and environmental policies traditionally managed at the state level, exemplifying how concurrent powers have been federalized absent explicit constitutional warrant.^[51] Further critiques target the administrative state's role in expanding federal authority via concurrent powers, such as through agency interpretations that preempt state laws on issues like education and health. The doctrine of Printz v. United States (1997) struck down provisions of the Brady Act requiring state officials to conduct background checks, reinforcing anti-commandeering principles under the Tenth Amendment to prevent federal coercion of state resources.^[52] Yet, detractors note persistent overreach persists, as seen in mandates like Medicaid expansion under the Affordable Care Act, where the Court in NFIB v. Sebelius (2012) invalidated coercive threats to states' budgets as violating federalism principles, highlighting how fiscal leverage distorts concurrent fiscal powers.^[14] Recent Supreme Court rulings signal partial retrenchment, with decisions like West Virginia v. EPA (2022) invoking the major questions doctrine to curb agency assertions of vast regulatory authority without clear congressional intent, and the 2024 overruling of Chevron deference in Loper Bright Enterprises v. Raimondo, which ended judicial deference to agency statutory interpretations and aimed to restore congressional primacy over administrative expansions into state domains.^[53] Conservative legal analysts, including those from the Federalist Society tradition, praise these as corrections to decades of deference that allowed executive agencies to encroach on concurrent powers in environmental and labor regulation, though they warn that entrenched bureaucracies continue to test limits through novel doctrines.^[49] Overall, these critiques emphasize that unchecked federalism erosion risks converting the republic into a centralized leviathan, detached from the localized governance envisioned in the Constitution.

State Resistance and Nullification Debates

The doctrine of nullification, positing that states possess the authority to declare federal laws unconstitutional and void within their borders, emerged in response to perceived encroachments on state sovereignty in areas of concurrent powers such as taxation and commerce regulation. Originating in the Kentucky Resolutions of 1798, authored anonymously by Thomas Jefferson, the theory framed the Constitution as a compact among sovereign states, enabling individual states to interpose against unconstitutional federal acts without requiring collective action. This view contrasted with James Madison's Virginia Resolutions of the same year, which emphasized state declarations but stopped short of unilateral nullification, advocating instead for interstate remedies. The Nullification Crisis of 1832 exemplified these debates when South Carolina enacted an ordinance declaring the federal tariffs of 1828 and 1832 null and void within the state, citing violations of concurrent taxing powers that disproportionately burdened southern exporters. President Andrew Jackson countered with a proclamation asserting the Supremacy Clause's primacy, rejecting nullification as incompatible with the Union's indivisible nature and threatening military enforcement via the Force Bill.^[54] ^[55] The crisis resolved through compromise with the Tariff of 1833, but it intensified sectional tensions over federal authority in fiscal matters, foreshadowing broader conflicts. South Carolina's actions drew support from states' rights advocates but condemnation from unionists, who argued that nullification undermined the constitutional framework by substituting state judgment for federal processes. The U.S. Supreme Court has consistently rejected formal nullification, affirming federal supremacy in concurrent powers while preserving state autonomy through limits on federal coercion. In Ableman v. Booth (1859), the Court invalidated a Wisconsin state court's attempt to nullify the Fugitive Slave Act via habeas corpus interference, holding that states cannot obstruct federal enforcement in areas like interstate rendition, which overlap with state lawmaking powers.^[56] This principle extended to modern contexts via the anti-commandeering doctrine, established in New York v. United States (1992) and Printz v. United States (1997), where the Court ruled that Congress cannot compel states to implement federal regulatory schemes, such as background checks under the Brady Act or waste disposal mandates—both implicating concurrent powers in law enforcement and public welfare. ^[22] These decisions permit states to resist by withholding resources or personnel, distinguishing non-cooperation from outright invalidation. Contemporary debates revive nullification rhetoric amid disputes over immigration enforcement, cannabis regulation, and firearms control, where states exercise concurrent powers to defy federal directives. For instance, numerous states have enacted sanctuary policies limiting cooperation with federal immigration detainers, effectively resisting enforcement of concurrent border-related authorities without formally nullifying statutes.^[57] Similarly, over 30 states have legalized medical or recreational marijuana since 1996, directing state resources away from federal prohibition despite the Controlled Substances Act's supremacy in drug regulation—a concurrent domain involving lawmaking and public health. Proponents, often invoking the Tenth Amendment, contend such resistance restores federalism's balance against expansive interpretations of commerce and spending powers; critics, including federal courts, warn it erodes uniformity and invites anarchy, as seen in rulings upholding preemption in conflicts like Arizona's SB 1070 immigration law. While formal nullification remains doctrinally untenable, these practices highlight ongoing tensions, with empirical evidence showing variable federal enforcement tolerance influenced by political alignment rather than strict constitutional mandates.

Recent Developments and Cases

In Loper Bright Enterprises v. Raimondo (June 28, 2024), the Supreme Court overturned the Chevron doctrine, which had required courts to defer to federal agencies' reasonable interpretations of ambiguous statutes.^[58] This ruling curtails agencies' ability to expand federal regulatory reach into domains traditionally shared with states, such as environmental protection and fisheries management, by mandating independent judicial interpretation of laws.^[58] The decision preserves states' concurrent authority to enact complementary regulations without automatic federal preemption via agency rulemaking, addressing long-standing concerns over administrative overreach in overlapping jurisdictions.^[59] During the 2024-2025 term, ending June 27, 2025, the Court issued multiple rulings reinforcing state powers against federal encroachments in concurrent areas like environmental regulation and public health. In City and County of San Francisco v. EPA (5-4, 2025), the Court restricted the Environmental Protection Agency's imposition of broad end-result mandates under the Clean Water Act on states and localities, limiting federal dictates in water quality management where states hold concurrent enforcement roles.^[60] Similarly, Oklahoma v. EPA (8-0, 2025) ruled that EPA disapprovals of state implementation plans under the Clean Air Act must be challenged in regional circuits rather than the D.C. Circuit, easing states' access to venue for contesting federal overrides of their concurrent air pollution controls.^[60] In United States v. Skrmetti (6-3, 2025), the Court upheld Tennessee's prohibition on certain medical treatments for minors, applying rational basis review and affirming states' primary authority to regulate healthcare practices—a concurrent power not preempted by federal equal protection claims.^[60] These environmental and health cases reflect a pattern of narrowing federal agency discretion, allowing states greater latitude in exercising shared powers without conflicting federal impositions. Earlier, Sackett v. EPA (May 25, 2023) curtailed federal jurisdiction over "waters of the United States" under the Clean Water Act, excluding many intrastate wetlands from federal oversight and bolstering states' concurrent land-use and water regulation. Procedural limits on federal-state litigation also emerged, as in Trump v. CASA, Inc. (6-3, 2025), where the Court curbed federal district courts' use of nationwide injunctions against executive actions, directing states to pursue targeted challenges that respect concurrent enforcement dynamics.^[60] In Nuclear Regulatory Commission v. Texas (6-3, 2025), standing requirements barred Texas from post-hoc suits against federal nuclear licensing, emphasizing timely state participation in processes affecting concurrent energy regulation.^[60] Collectively, these decisions signal a judicial restraint on federal expansion, prioritizing enumerated powers and state sovereignty in overlapping domains amid ongoing tensions over preemption.^[61]

Implications and Evaluations

Advantages for Federalism

Concurrent powers bolster federalism by distributing authority over essential functions like taxation, lawmaking, and infrastructure, enabling both federal and state governments to contribute without one dominating the other. This shared jurisdiction promotes resilience, as redundancy in governance—such as dual systems for courts and borrowing—allows for complementary actions that enhance overall stability and adaptability to crises, evidenced by coordinated responses in public health emergencies where states implement localized measures alongside federal guidelines.^[62]^[63] A primary advantage lies in fostering policy innovation, with states functioning as testing grounds for approaches in concurrent domains like environmental protection and welfare programs. Successful state-level experiments, such as varying tax structures or regulatory frameworks, can diffuse nationally if proven effective, mitigating the risks of uniform federal policies that overlook regional variances. This dynamic, often termed "laboratories of democracy," encourages competition among states to refine governance models, ultimately elevating national standards through empirical trial and error rather than top-down mandates.^[64]^[65] Furthermore, concurrent powers diffuse political power, serving as a check against central overreach and fostering accountability at multiple levels. By requiring intergovernmental coordination in areas like road construction and election regulation, federalism under concurrent powers incentivizes negotiation and compromise, accommodating diverse regional needs—such as urban versus rural priorities—while maintaining national cohesion. Empirical data from U.S. fiscal federalism shows that this division correlates with higher citizen engagement, as localized control in shared powers heightens responsiveness to constituent demands.^[66]^[64]^[2]

Criticisms and Potential Reforms

Critics of concurrent powers contend that overlapping federal and state authority generates administrative inefficiencies, as governments and private entities must navigate duplicative regulations and compliance requirements, elevating costs without commensurate benefits. For example, in areas like taxation and law enforcement, dual jurisdictions can result in redundant bureaucracies and conflicting standards, complicating enforcement and increasing litigation.^[4]^[67] This fragmentation has been particularly evident in regulatory domains such as environmental protection, where federal mandates administered by states under cooperative arrangements lead to inconsistent implementation across jurisdictions, fostering uncertainty for interstate commerce.^[68] Another major critique centers on the erosion of state sovereignty through federal preemption and conditional funding mechanisms, which transform concurrent powers into tools for indirect federal dominance. In cooperative federalism, states often execute federal policies—such as Medicaid expansions—via grants with attached conditions, effectively compelling compliance under threat of fiscal penalties, as seen in the 2012 Supreme Court case National Federation of Independent Business v. Sebelius, where coercive funding pressures were partially invalidated.^[14]^[68] Such dynamics exacerbate partisan tensions, with state resistance to federal directives, as during the COVID-19 pandemic over public health measures, highlighting how overlaps enable policy gridlock and venue-shopping by interest groups.^[2]^[69] Moreover, inconsistent state-level application of shared powers can produce unequal citizen outcomes, undermining national uniformity in critical areas like criminal justice or welfare.^[70] Potential reforms focus on delineating powers more sharply to minimize overlaps, including legislative consolidation of categorical grants into block grants, which would afford states greater flexibility in spending without federal micromanagement—a strategy pursued in the 1981 Omnibus Budget Reconciliation Act under Reagan's New Federalism initiative, reducing over 100 categorical programs to nine block grants.^[71] Advocates also propose stricter judicial scrutiny of Commerce Clause interpretations to curtail expansive federal incursions into traditionally state domains, thereby preserving dual sovereignty as originally envisioned.^[14] Additionally, procedural innovations like coordinated rulemaking could streamline cooperative efforts by mandating federal-state consultation prior to overlapping regulations, though implementation would require congressional action to address entrenched incentives for expansion.^[72] These reforms aim to restore causal clarity in authority allocation, reducing rent-seeking opportunities inherent in ambiguity while retaining federalism's experimental advantages.^[73]

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3.1: Federalism as a Structure for Power - Social Sci LibreTexts
Jul 17, 2023 · These concurrent powers include regulating elections, taxing and borrowing money, and establishing courts. National and state governments both ...
[8]
McCulloch v. Maryland | Oyez
A case in which the Court decided that the Second Bank of the United States could not be taxed by the state of Maryland, declaring that the government of ...
[9]
Article I Section 8 | Constitution Annotated | Library of Congress
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare ...Congressional War Powers · ArtI.S8.1 · Overview of Declare War ClauseMissing: concurrent | Show results with:concurrent
[10]
[PDF] Exclusive and Concurrent Powers in the Federal Constitution
The other taxing powers, that is power to levy taxes and excises are concurrent since there are no constitutional prohi- bitions on the States, the power is ...
[11]
Constitution of the United States - Senate.gov
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be ...
[12]
[PDF] 10th Amendment US Constitution--Reserved Powers - GovInfo
The 10th Amendment reserves powers not delegated to the US to the states or people, confirming that powers not granted to the US were reserved.Missing: concurrent | Show results with:concurrent<|separator|>
[13]
The Division of Powers – American Government (2e)
The Tenth Amendment affirms the states' reserved powers: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, ...
[14]
Federalism-Based Limitations on Congressional Power: An Overview
Jan 31, 2023 · The Constitution explicitly grants Congress a set of carefully defined enumerated powers, while reserving most other legislative powers to the ...
[15]
The Federalist Papers : No. 32 - Avalon Project
The power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United ...Missing: shared | Show results with:shared
[16]
Federalist No 45 - The Avalon Project
The Federalist Papers : No. 45 The Alleged Danger From the Powers of the Union to the State Governments Considered For the Independent Fournal.
[17]
McCulloch v. Maryland | 17 U.S. 316 (1819)
The State governments have no right to tax any of the constitutional means employed by the Government of the Union to execute its constitutional powers. The ...
[18]
Foundations of U.S. Federalism - Judicature
The antecedents of American federalism trace to colonial days, when the concept of divided sovereign power began to take shape. At the beginning of the ...
[19]
The Evolution of Cooperative Federalism | Tulane Law
Apr 15, 2021 · In this article, we'll examine the history of cooperative federalism while looking at how environmental federalism continues to alter power distribution.
[20]
American Federalism, 1776 to 1997: Significant Events
The period from 1789 to 1901 has been termed the era of Dual Federalism. It has been characterized as a era during which there was little collaboration between ...
[21]
2.4: Expanded Federal Government- The Stages of Federalism
Nov 18, 2021 · Scholars tend to divide the history of federalism into three eras: dual federalism (1789– 1933); cooperative federalism (1933–1981); and New Federalism (1981– ...
[22]
Printz v. United States | 521 U.S. 898 (1997)
Printz v. United States: The federal government violated the Tenth Amendment when Congress required state and local officials to perform background checks ...Missing: key | Show results with:key
[23]
Taxing Authority in Federal Areas | Congress.gov
May 11, 2022 · The federal government and state governments exercise concurrent powers of taxation within the United States. The Constitution authorizes ...
[24]
[PDF] Taxing Authority in Federal Areas - Congress.gov
May 11, 2022 · The federal government and state governments exercise concurrent taxing powers within the. United States. Article I, Section 8, ...
[25]
The Federal Taxing Power: A Primer | Congress.gov
Dec 9, 2024 · The Taxing and Spending Clause authorizes Congress to lay taxes for federal debts, the common defense, and the general welfare.
[26]
[PDF] Evolution of U.S. Fiscal Federalism - Government Accountability Office
Under the Constitution, the U.S. Congress received the power "to lay and collect taxes. duties, imposts and excises, to pay the debts and provide for the ...
[27]
Federalist Papers: Primary Documents in American History
Aug 29, 2025 · I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal ...
[28]
McCulloch v. Maryland (1819) | Wex - Law.Cornell.Edu
McCulloch v. Maryland (1819) is the US Supreme Court case that defined the scope of the federal legislative power and the federal government's relationship ...
[29]
[PDF] 22-800 Moore v. United States (06/20/2024) - Supreme Court
Jun 20, 2024 · The Amendment provides: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment ...
[30]
Evolution of U.S. Fiscal Federalism - GAO
Thus the Federal Government had concurrent jurisdiction with the States in nearly all fields of taxation. The Civil War had the effect of weakening the role of ...
[31]
Federalism and the Taxing Power | Ruth Mason | 879641 - UVA Law
This Article draws on the spending power literature to illuminate the analogous federalism concerns raised by expansive use of the taxing power.
[32]
concurrent jurisdiction | Wex | US Law | LII / Legal Information Institute
Most notably, in the United States federal courts and state courts have concurrent jurisdiction to hear many types of actions. Similarly, a state court of ...
[33]
ArtIII.S1.6.4 State Court Jurisdiction to Enforce Federal Law
The Supreme Court has ruled that state courts generally must hear federal law claims unless state law bars a state court from hearing a federal claim.
[34]
Dual Sovereignty Doctrine | U.S. Constitution Annotated | US Law
The dual sovereignty doctrine states that two sovereignties, with different laws, can prosecute the same conduct, as each has its own offense.Missing: concurrent | Show results with:concurrent
[35]
Interstate Frequently Asked Questions | FHWA
Jun 30, 2023 · The Federal Government made Interstate Construction funds available to the State highway/transportation agencies, which built the Interstates.
[36]
Congress Approves the Federal-Aid Highway Act - Senate.gov
The Eisenhower administration proposed financing the interstate highway system through a federal bond issue, and expected state and local governments to ...
[37]
Infrastructure Investment and Jobs Act - Funding
The Infrastructure Investment and Jobs Act (IIJA) (Public Law 117-58) provides approximately $350 billion for Federal highway programs over a five-year period.Missing: roles | Show results with:roles
[38]
Infrastructure Investment and the Federal Government | Congress.gov
May 20, 2025 · The federal government invests in infrastructure through direct spending, grants, loans, and tax preferences, mainly in transportation and ...
[39]
Medicaid - Health, United States - CDC
Jun 9, 2025 · Medicaid is a state–federal partnership jointly funded by the states and federal government and administered by the states according to ...
[40]
Medicaid Financing: The Basics - KFF
Jan 29, 2025 · Medicaid financing is shared by states and the federal government with a guarantee to states for federal matching payments with no pre-set limit ...
[41]
Supremacy Clause | Wex | US Law | LII / Legal Information Institute
The Supremacy Clause, under Article VI of the U.S. Constitution, states that federal law generally takes precedence over conflicting state laws.
[42]
preemption | Wex | US Law | LII / Legal Information Institute
The preemption doctrine is the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict ...
[43]
Federal Preemption and State Authority to Deter the Presence of ...
May 6, 2025 · The Supremacy Clause of the U.S. Constitution (Article VI, clause 2) states that the Constitution, treaties, and federal law "shall be the ...
[44]
The Supremacy Clause - U.S. Constitution - FindLaw
McCulloch v. Maryland ... In McCulloch v. Maryland, the U.S. Supreme Court cemented the supremacy clause as the controlling authority in constitutional law.
[45]
ArtVI.C2.1 Overview of Supremacy Clause - Constitution Annotated
The Supremacy Clause was a response to problems with the Articles of Confederation (the Articles), which governed the United States from 1781 to 1789.
[46]
Federal Preemption: A Legal Primer - Congress.gov
May 18, 2023 · In implied preemption cases, the Court has identified two subcategories of implied preemption: field preemption and conflict preemption.
[47]
[PDF] The Law of Preemption - National Association of Attorneys General
Under normal federal preemption doctrines, state laws may apply on federal lands or in areas of federal interest except to the extent they conflict with ...
[48]
Interpretation: The Tenth Amendment | Constitution Center
The Tenth Amendment warns against using a list of rights to infer powers in the national government that were not granted.
[49]
Federalism in Crisis: Urgent Action Required to Preserve Self ...
Nov 30, 2021 · The federal government's excessive intrusion into states' affairs undermines political accountability, policy innovation, and civic participation.Missing: critiques | Show results with:critiques
[50]
Wickard v. Filburn - Oyez
Filburn, a farmer, was penalized for growing extra wheat. The court ruled the Commerce Clause allows regulation of intrastate activity if it has a substantial ...
[51]
Wickard v. Filburn | 317 U.S. 111 (1942)
The primary holding of Wickard v. Filburn is that an activity does not need a direct effect on interstate commerce if the effect is substantial and economic.
[52]
[PDF] Printz v. United States: Tenth Amendment Limitations on Federal ...
Printz v. United States addressed the Tenth Amendment, limiting federal access to state mechanisms by striking a Brady Act provision, and held that federal ...
[53]
Supreme Court Decision Limiting the Authority of Federal Agencies ...
Jul 1, 2024 · On June 28, 2024, the U.S. Supreme Court overturned a longstanding legal precedent that required federal courts to defer to reasonable ...
[54]
The Nullification Crisis | Andrew Jackson's Hermitage
That Ordinance declared the Tariff Acts of 1828 and 1832 unconstitutional and null and void within the borders of the state. Nullification Proclamation.
[55]
Nullification Proclamation: Primary Documents in American History
Feb 21, 2020 · On December 10, 1832, President Andrew Jackson issued a Proclamation to the People of South Carolina (also known as the “Nullification Proclamation”)
[56]
Ableman v. Booth (1859) - Federal Judicial Center |
Ableman v. Booth raised questions about the power of northern state courts to resist this unpopular law using the writ of habeas corpus.
[57]
Yes, States Can Nullify Some Federal Laws, Not All | Cato Institute
Mar 18, 2013 · In 1859, the Supreme Court rejected nullification in Ableman v. Booth. Booth had frustrated recapture of a slave in violation of the ...
[58]
[PDF] 22-451 Loper Bright Enterprises v. Raimondo (06/28/2024)
Jun 28, 2024 · Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its ...Missing: key | Show results with:key
[59]
Loper Bright and the End of the Chevron Doctrine
Dec 17, 2024 · In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron and held that, regardless of whether statutory language is ambiguous, courts must ...Missing: federalism | Show results with:federalism
[60]
Five Supreme Court rulings that changed the balance of power ...
Aug 19, 2025 · Five Supreme Court rulings that changed the balance of power between states and the federal government; Republican supermajority at stake in Aug ...
[61]
Overview of federalism implications in decisions from the 2024-25 ...
Aug 13, 2025 · The Supreme Court's decisions in the last term altered how federal and state powers interact and the balance of power between them. While ...Missing: concurrent 2020-2025
[62]
How, and when, federalism is good for public health
Sep 5, 2024 · Federalism lets states stay close to the people they serve. Making decisions on the state level has other advantages for public health as well.
[63]
Concurrent Powers | Definition & Examples - Lesson - Study.com
Examples of Concurrent Powers · The federal government levies income tax and national sales tax on goods in accordance with the Constitution. · State governments ...
[64]
Advantages and Disadvantages of Federalism | American Government
The benefits of federalism are that it can encourage political participation, give states an incentive to engage in policy innovation, and accommodate diverse ...
[65]
Principles of Federalism - (AP US Government) - Fiveable
Federalism encourages experimentation with policies at the state level, allowing states to serve as 'laboratories of democracy' for new ideas and reforms.
[66]
Rights, Powers, Dual Sovereignty, and Federalism | Cato Institute
the Framers' ingenious system of shared authority between federal and state ...
[67]
Why federalism has become risky for American democracy | Brookings
Sep 23, 2022 · It appears federalism is entering an intolerant terrain that threatens democracy itself. There is a power reshuffling that likely will have profound ...
[68]
[PDF] Federalism as a Safeguard of the Separation of Powers
States frequently administer federal law, yet scholars have largely over- looked how the practice of cooperative federalism affects the balance of power.<|separator|>
[69]
Partisanship Drives State Agencies' Resistance to Federal Regulation
May 7, 2018 · The vertical fragmentation of regulatory authority in the U.S. political system creates numerous opportunities for conflict between federal and ...
[70]
The Democratic Drawbacks of Federalism | Second Rate Democracy
The answer is that while federalism may have some political advantages, it creates unequal treatment of citizens, increases the power of special interests, ...
[71]
[PDF] Emerging Issues in American Federalism
New Federalism reforms, a stop-and-go situation with regard to grants has cre- ated great volatility in the working fed- eral system. Government "closest to ...
[72]
[PDF] Coordinated Rulemaking and Cooperative Federalism's ...
The Article begins to elaborate cooperative federalism's unseen administrative apparatus by focusing on its distinctive form of legislative rulemaking, the ...<|control11|><|separator|>
[73]
[PDF] Competing for the People's Affection: Federalism's Forgotten ...
From its inception in the Revolutionary era, the formal structure of. American federalism has created not so much a set of mandates as a set of possibilities ..