In the US, what is the role of and relationship between federal law and state law?

  • (This is an attempt at a canonical question about an important distinction in US law and politics that is different than many other countries. It was suggested by this comment on another question. I'm looking for a "101-level primer" not a "law-review deep dive".)

    In the US, is there a clear division of responsibility between the kinds of laws that are passed by the US Congress, compared to the laws that are passed by state legislatures? (Or even smaller jurisdictions like county boards and city councils, for that matter?)

    Is this a widely understood and agreed-upon question? Or is it controversial?

    If state and federal law appear to contradict each other, how is that resolved?

    If a state law and a federal law create different (but not contradictory) regulations about something, how do they interact? For example, if my state's minimum wage is $9.50/hr but the federal minimum wage is $7.25/hr, what is my effective minimum wage?

    Are we looking for what is the codified relationship between the two, the actual relationship between the two, or some blended third option?

    @DrunkCynic I'm mostly looking for a 101-level primer on how it works in practice, not a law-review deep-dive into Federalism and history of legal precedents. Something we can link people to when they ask "why isn't (x) a law in the US?" I'll try to simply the question a bit to make it more clear.

    Without careful scoping this question will get very broad, and very controversial, quickly. The powers of the Federal Government are enumerated in the Constitution, but many of those clauses have been debated extensively without resolution: interstate commerce, general welfare, etc.

    "is there a typical method for deciding" = the judicial branch

    @DrunkCynic Edited to streamline and narrow, let me know what you think. "There is widespread disagreement" should probably be part of a good answer, even if those disagreements aren't fully explored.

    Not sure if this is out of scope, but would it be worth adding a portion about how the US federal government will sometimes influence normal state rights by use of funding (or rather, the threat of withholding funding)? For example, the drinking age law.

    @DanSmolinske I think that's a worthwhile point to mention in an answer: "create speed limits under xx or no federal highway funds" is the other classic example.

  • reirab

    reirab Correct answer

    4 years ago

    Division of Powers Between State and Federal Governments

    There are some powers that are reserved solely to the federal government, some that can only be exercised locally or by the states, and yet others which can be (and are) exercised by all of the above.

    Powers Reserved Solely to the National (Federal) Government

    Several powers are reserved by the U.S. Constitution exclusively to the national government (commonly called the 'federal' government.)

    • Foreign relations, especially treaties
    • Coining money
    • Imposing duties on imports or exports
    • Keeping troops or ships of war during peace time
    • Engaging in war, unless actually invaded or in imminent danger

    These limitations on state governments are laid out in Article I, Section 10 of the Constitution of the United States.

    Powers Reserved to the State and Local Governments

    The Tenth Amendment to the Constitution of the United States (the last of the ten amendments known as the Bill of Rights) says:

    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.

    So, in theory, any power that isn't explicitly granted by the U.S. Constitution to the federal government is reserved to the states and not available to the federal government. The exception is when a power is not granted to the federal government and is explicitly banned by the Constitution to the state governments, in which case neither may exercise that power. The latter would include cases such as granting titles of nobility or making ex post facto laws, for example, which is not possible for any level of government in the U.S.

    In practice, however, this is more murky, as courts have occasionally allowed the federal government to exercise powers in all sorts of different things under incredibly broad interpretations of the Interstate Commerce Clause. This is why all sorts of federal laws and regulations will contain language similar to "when engaging in interstate commerce" or "for the purposes of engaging in interstate commerce," since the federal government technically has no Constitutional authority to regulate commerce within a state.

    For example, even federal drug laws are deemed to be authorized under the Commerce Clause, as they regulate commerce of the drugs. Courts have further ruled in many cases that trade within a state may be regulated where it's deemed necessary to regulate interstate trade.

    Powers Exercised at Both State and Federal Levels

    There are many areas where federal powers overlap state and/or local powers. Drug laws are again an example of this, as are many criminal laws. So long as the two do not disagree, both are applicable and cases could be prosecuted under either. The lack of a federal law does not ban a state (or even a city or county) from making a law, though the federal government could explicitly make a law banning states from making a law restricting something.

    For a more in-depth look at which government services are run and funded by which levels of government, see this answer on skeptics.SE.

    What if State and Federal Law Conflict?

    Article VI of the U.S. Constitution states that:

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    So, if state and federal law disagree on a matter where the federal government has power to make that law, the federal law wins.

    Again, however, what happens in practice can be different. In the particular example of laws regarding marijuana, there is a federal law banning its possession or sale in most cases, but some states do not impose a state law against it. In these cases, state and local law enforcement normally would not make arrests on these crimes. Federal law enforcement still could, however, under the federal laws. But the executive branch of the federal government could decide (and, in this case, has decided) to not do this. Thus, it's still technically illegal in the entire U.S., but those laws are effectively not enforced in the states that have no law against it.

    The federal government could, however, decide to resume enforcing these laws any time it wanted to and the states would have little-to-no recourse to stop it from doing so, other than attempting to argue in court that federal drug laws aren't authorized under the Constitution in the first place. This would be a difficult case for the state to win in the current legal environment of broad interpretations of the Commerce Clause.

    Additionally, if a state law and a local law conflict, it is also usually the case that the state law will preempt the local one. Unlike the federal government, state governments are not constrained to the powers enumerated in the federal constitution. In general, the only way for a local law which contradicts a state law to stand in a challenge would be for the state law to be struck down, such as if it violated some provision of the federal constitution or of that state's constitution. Otherwise, the state law will preempt the local law.

    Who decides if they really conflict?

    If a state law or local law is thought to be in violation of a federal law or the federal Constitution, it can be challenged in court as such by someone who is deemed by the court to have standing to bring the case. The courts will then rule whether or not the state law violates the federal law and, if it does, the courts will strike down the state law. If the parties still disagree, they can appeal the decision to higher appeals courts, possibly all the way up to the U.S. Supreme Court. The Supreme Court has the final say in this, as described in Article III of the U.S. Constitution.

    On the flip side, if the federal government creates a law that is thought to exceed its enumerated powers, someone with standing can challenge it in court. If the courts rule the federal law exceeds the power of the federal government, the federal law will be struck down. Again, one or more states could potentially themselves be the party with standing to bring the suit here. And again, rulings can be appealed through appellate courts, potentially up to the U.S. Supreme Court, which would have the final say as per Article III.

    Once the U.S. Supreme Court has ruled on a matter of U.S. Constitutional law, the only ways to change it are either for the Supreme Court to overturn their decision in a later ruling on a different case or for the U.S. Constitution to be amended, according to the process set out in Article V.

    What if the State or Federal Law is More Restrictive than the Other?

    If a state law is more restrictive than a federal law, but does not contradict the federal law, then the more restrictive state law applies (and the same goes for local laws.)

    In the particular mentioned example of federal vs. state (vs. local) minimum wages, the most restrictive (highest) minimum wage in a given jurisdiction would apply. So, if the federal government has a $7.25/hr minimum wage, but the state government has as $10 minimum wage, the minimum legal wage in that state is $10. If a city in that state then decides to impose a $12 minimum wage, then the minimum wage inside that city is $12.

    Is the Division of Powers Settled or Controversial?

    Some parts are very unambiguous and settled (for example, no states are going to be coining money or declaring war any time soon,) but others remain quite controversial.

    In general, those who follow an originalist philosophy of legal interpretation tend to view the legal role of the federal government in a more limited manner than those who do not. Conservatives and, especially, libertarians tend to favor originalism, while liberals tend to favor loose constructionism. As a result, conservatives and libertarians typically take a more narrow view of the legal powers of the federal government than do liberals.

    The Commerce Clause

    One of the largest points of contention is, as previously alluded to, the meaning of the Commerce Clause. Loose constructionists (mostly liberals) tend to view the powers granted to the federal government by the commerce clause much more broadly than do originalists (mostly conservatives and libertarians.)

    A relatively recent example that highlights the disagreement in regards to the Commerce Clause was National Federation of Independent Business v. Sebelius (Wiki). In this case, the federal mandate for individuals to purchase health insurance or else pay a penalty was challenged in court. The Supreme Court's interpretation of the Commerce Clause here was divided 5-4.

    Four justices (from the liberal wing of the court) held that the mandate to purchase insurance counted as a regulation of commerce under the Commerce Clause. However, the majority of the court (the 5 more conservative justices) rejected that interpretation, ruling that the Commerce Clause can't be used to force someone to unwillingly engage in commerce, but rather only to regulate existing commerce. Ultimately, however, a majority of the court upheld the penalty by ruling that it was a tax and, thus, authorized by the taxation clause.

    This case also brings up an interesting example of the differences between federal powers and state powers. While, as the court ruled, the federal government has no power to force someone to engage in commerce, due to the lack of an enumerated constitutional power allowing it to do so, this limitation applies only to the federal government. On the other hand, nearly all, if not all, states already have laws requiring the purchase of automobile insurance and these laws are not set up as a tax. So, this is an example of a power that the state governments can wield, but not the federal government.

    Comments are not for extended discussion; this conversation has been moved to chat.

    A small part of this answer is incorrect. States are explicitly allowed to coin money (and there are several Supreme Court decisions which back this up); however they do not because the federal government can impose a tax on the usage of state coinage.

    @Viktor Can you point me to one of those cases? Article I, Section 10 of the Constitution explicitly says, "No state shall... coin money." It also says that they can't "emit bills of credit."

    @reirab see for example https://en.m.wikipedia.org/wiki/Veazie_Bank_v._Fenno this case recognizes that states may issue their own bank notes, but also that the federal government may tax their use.

    @Viktor That case appears to be about bank notes rather than coins. At any rate, the ruling in that case does say, "Congress may restrain, by suitable enactments, the circulation as money of any notes not issued under its own authority."

    @reirab you are correct. I confused coin money with issue bank notes. However, it seems for a long time in our history, coins were not only made by the federal government, but simply coinage was regulated. Slightly biased source, but I think the facts in it are correct: https://www.heritage.org/constitution/articles/1/essays/42/coinage-clause

    "What if the State or Federal Law is More Restrictive than the Other?" The answer is good, but it should be pointed out that States are also allowed to grant more Freedoms and rights than the Federal Government. For example, the CA constitution recognizes "Public Private Venues" for Freedom of Speech (i.e., the halls between two stores of a Mall) where they are private property but cannot impose speech restrictions because they are publicly accessible. This is not a right afforded to the citizens of the US unless they are in California.

    @hszmv The ways those laws are written, however, is as a restriction on what the owner of the mall can do with their private property. In that regard, the federal law (or, rather, the lack thereof) is more permissive, while the California law is more restrictive.

    @reirab: There has been a SCOTUS case which held that when states recognize more rights than the Federal Government, the Federal Government cannot restrict those rights. We may be arguing the same concept from differing focal points, where you are seeing it as a restriction on the Mall Owner, where I am seeing it as a Freedom of the Mall shopper. I would say the only flaw in the former argument is you cannot restrict speech, so the mall owner still has a case. With the former, he does not, because nothing in the rules says you cannot grant more freedoms than the constitution.

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Content dated before 7/24/2021 11:53 AM