St. Thomas Law Review
Article Title
Federal-State Relations: The Allocation and Distribution of Powers of Government in the United States
Abstract
A brief presentation of the allocation and distribution of powers of government of the United States and those of the various states of the United States might not pose much of a challenge when addressing American judges, law professors and lawyers. A presentation even to a distinguished group of jurists not entirely familiar with the dual common law systems that prevail in the United States under its system of both federal and state jurisdiction is a different matter. Notwithstanding popular broad statements that "more and more power is now concentrated in Washington," meaning the federal or national government, and that the sovereignty of the States has been diminished, the dual jurisdiction of the federal and state governments is still a vital reality. In the language of a case decided by the Supreme Court of the United States on May 28, 2002: "[d]ual sovereignty is a defining feature of our Nation's constitutional blueprint .... States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal government. Rather, they entered the Union with their sovereignty intact. In general terms, it would be difficult to deny that certain recent decisions of the Supreme Court have increased the governmental power of the states at the expense of the federal or national government. The limitations that these recent cases have placed on the power of Congress and the federal or national government are such as to make this subject an important area of study and examination. The limitations upon the powers of Congress to legislate for the nation, and the expansion of the immunity from suit of the states based upon the doctrine of state sovereign immunity, give the subject of federalism in the United States a reinvigorated degree of importance. One need not be an American constitutional scholar to know that the United States Constitution delegates specific powers to Congress, and that the Tenth Amendment to the Constitution expressly provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the [s]tates, are reserved to the [s]tates respectively, or to the people." Surely, it is a matter of common knowledge that there exists, in the United States, both Federal and State Governments and Courts. It is also well known that the States of the Union existed before the Federal Government. It is a historic fact that the founders of the Republic at the Constitutional Convention, in the name of "the People of the United States," wanted "to form a more perfect Union" and established a federal government of enumerated powers. The fundamental question that was posed is: What are the limits or boundaries of the powers of the newly established federal Union and its courts, and what are the powers of the states? It is crystal clear that the United States is a Federal Union consisting of both federal and state governments. Hence, the powers and limits of each require a knowledge of the text of the Constitution of the United States as well as the seminal and important decisions of the Supreme Court of the United States that have interpreted and applied the words and language of the United States Constitution in the cases that have come before the Court since the founding of the Republic. A study of the power of judicial review by the Supreme Court of the United States will reveal that the Court cannot be viewed merely as a Court, i.e., as a judicial organ applying the law to the legal questions that it must resolve in the exercise of its jurisdiction. Although the Court is, of course, a judicial body, it is more under the American form of government that has evolved under the United States Constitution. The United States Constitution allocates and confers the powers of government upon three branches of government, and the United States Supreme Court is one of the three enumerated branches. Whether the power or role of the Court has or has not been beneficial, and in keeping with the intended concept of the framers of the Constitution, it is unrealistic to deny that the Court has served as a part of the American governmental process. Indeed, one is reminded of the observation of the incisive thinker, Alexis de Tocqueville, who, in his Democracy in America, observed that in America "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." In the process of deciding whether a law or action of either the federal or state government is or is not lawful or valid, the Court, in effect and reality, decides what are the powers that may or may not be exercised by the federal and state governments. Hence, it is the Court that resolves the question whether certain powers may be exercised, and by which government - the Federal Union or the states. The passage of time has shown that the role of the Court, commencing with the great Chief Justice John Marshall, while serving as a judicial tribunal, has also served as a branch of the American governmental process. Hence, any study of the role of the Supreme Court, since the founding of the nation, will reveal that the Supreme Court has served as a branch of government, sharing power with the President, the executive branch, and the Congress, the legislative branch.