Federal system in the United States

The Constitution of the United States is a short document containing only seven articles. It was
drafted in 1787 with the express purpose of establishing a Federal government aimed at uniting
the several states. In order to properly understand the function and the scope of the federal
system as it was established by the Constitution, you have to realize that in the US the individual
citizen is the subject of two governments :

- The federal government

- And the government of the state in which he lives.

For example an American citizen living in Los Angeles, California is thus the subject of the federal
government (he has to obey the laws of the Federal Government) and the subject of the laws of
California. (he has to obey the laws of California)

The federal government is a national government; thus it is hierarchically placed above the state
governments. The federal government in the US, as it was originally conceived, entailed a
compromise:

- Each of the original 13 states agreed to concede certain powers and part of their sovereignty
to a federal government. In turn, the federal government would assure national unity,
justice, domestic tranquillity, a common defence and the general welfare of the union.
- This compromise which established the distribution of power between the federal
government and the states has been a source of great national controversy and legal debate
throughout the history of the United States.

The federal government as it was originally conceived is a government of limited powers. This means
that the federal government can exercise only those powers which are specifically granted to it by
the Constitution.

- For example, the legislative, executive and judicial branches of the federal government are
established by Article 1, Article 2 and Article 3 of the Constitution respectively.

Each article specifies the powers given to that branch and delineates the areas in which it is
competent to function.

- The authority of the federal government and its branches is limited to those powers and
areas which are specified in the constitution. The remainders of the governmental power,
that is to say the powers which are left, the powers which the Constitution does not give
specifically to the federal government are reserved to the State.
- The seven articles which constitute the text of the Constitution provide for a federal
government based on the theory of the separation of powers as originally expounded by the
French philosopher Montesquieu: the key notion be behind the separation of powers is the
idea that every government has three functions legislative executive and judicial and that the
separation and independence of each function is necessary in order to prevent the undue
concentration of power in any one branch.

The drafters of the Constitution, took Montesquieu’s theory one step further by introducing a system
of checks and balances which gives each of the three branches of the federal government power to
check and correct the excesses of the other two branches.

1. The Legislative Power:

Article 1 of the Constitution establishes the legislative branch of the federal government by vesting
the legislative power in a Congress composed of a Senate and the House of representatives. This
bicameral system mostly gives both the Senate and the House of representatives equal legislative
powers.

 Article 1 then describes the “enumerated powers” of Congress: those areas in Which Congress is
permitted to legislate. The enumerated powers are those which are specifically defined in Section 8
of

Article 1: the power of taxation, the power to regulate Commerce, the authority given to congress in
the areas of bankruptcy and immigration and naturalization for

Example.

- Also found in Section 8 is the necessary and proper clause which allows Congress to pass all
laws which are necessary and proper for the execution of its enumerated powers. This clause
not only complements the other legislative powers of Congress but in practice it has opened
knew substantive areas in which it can exercise its legislative function.
2. The Executive Power

The executive power of the federal government is vested in a president by Article 2 of the
constitution.

- The president is competent to exercise the powers which are specifically stated in Article 2.
For example, the President has the power to make treaties, to pardon offenses against the
United States, to nominate and appoint ambassadors and other public ministers, to appoint
the officers of the administration, the justices of the US supreme Court and all federal
judges. (with the approval of the Senate)
- The president also has several duties which are inherent in the office, some of which are
derived from his duty to faithfully execute the laws of the United States.
- This clause has been recognized to give the president the power to take all necessary
measures to implement national legislation and to protect the national interests entrusted to
the federal government by the Constitution. In addition, the president has the power to
conduct the nation’s foreign affairs.
3. The Judicial Power

Article 3 of the constitution establishes the judicial power of the federal government and vests it in
the Supreme Court and other inferior federal courts.

- These courts have jurisdiction over cases involving the constitution federal laws or treaties of
the United States.
- The Supreme Court itself has original jurisdiction over certain cases as specified in the
Constitution and has appellate jurisdiction in all other cases.
- Since the role of interpreting the law or declaring what the law means is traditionally vested
in the judicial branch of the government, the role of the federal courts and especially of the
Supreme Court in the development of constitutional law has been critical. An important
aspect of this role is judicial review: the review by the federal courts of legislative and
executive acts undertaken by the other branches of the federal government. Such acts may
be reviewed by the federal courts which determine their conformity or Non-conformity with
the Constitution. This is but one example of the system of checks and balances whereby the
 judicial branch reviews the acts of the executive and legislative branches in order to check
and correct the excesses of the latter.
4. The system of state governments: in order to complete the structure of the federal system in
the US it is necessary to describe the system of state governments. State governments
parallel the structure of the federal government: they provide for the legislative executive
and judicial functions of their individual constitutions. Each state has its own constitution
thus there are 50 state constitutions in the United states, plus one federal constitution the
US Constitution. State governments parallel the structure of the federal government:
- The executive power is vested in the governor of each state, the legislative power in the state
legislature and the judicial power in the state courts.
- There are at least three levels of state courts, the trial courts, the courts of appeals and a
State Supreme Court. (for example the Supreme Court of California).
- These courts generally have jurisdiction over cases involving the law of their particular state.
Over the years the state governments have witnessed an ever-increasing intrusion of the
federal government in their domain. This tension resulting from the complex interaction
between the federal and the state governments constitutes one of the main sources of legal
debate and judicial decisions in the area of American constitutional law.

How Federalism Works in USA

Let’s briefly define “Delegated Powers,” “Reserved Powers,” “Concurrent Powers” and “Implied
Powers” which explain where authority derives in a federalist system of government.

Delegated Powers are those powers specifically assigned to the Federal Government by the United
States Constitution. The U.S. Constitution lists very specific powers that the Federal Government
enjoys. The Federal Government can declare war, maintain armed forces, regulate interstate
commerce, admit new states, establish post offices, coin money, establish foreign policy, and make
all laws necessary and proper carryout out its delegated powers.

Reserved Powers are powers not specifically delegated to the Federal Government by the U.S.
Constitution, but which are “reserved’ for the State governments. Powers reserved to the states
include the power to: establish schools, establish local governments, regulate businesses within the
state, make marriage laws, and provide for public safety. States can assume all powers not delegated
to the national government or prohibited to the states. States also have “police powers.” Police
powers have nothing to do with law-enforcement or a specific police department. Police Powers
means the states can regulate for the health, safety and welfare of its citizens.

Concurrent Powers are powers that the Federal Government and the state governments have in
common or share simultaneously. These are things that both the Federal Government and the state
governments can do. Both the Federal Government and the state governments can: maintain law
and order, tax, borrow money, charter banks, establish courts, and provide for the public welfare.

Implied Powers are powers that are not specifically delegated in the U.S. Constitution, but are
understood to be necessary and allowed. The “Necessary and Proper clause” also known as the
“Elastic Clause,” from Article I, Section 8 of the U.S. Constitution gives Congress the power to make
all laws it deems necessary to make the government work well. This clause constitutionally
authorizes the vast majority of U.S. laws created by the U.S. Congress.