The concept of concurrent powers refers to the sharing of powers between the federal government and its constituent political units, such as states or provinces.
These powers can be exercised simultaneously by two or more levels of government within the same territory, concerning the same body of citizens, and regarding the same subject matter.
In contrast to concurrent powers, we also have reserved and exclusive powers:
- Reserved powers are not possessed by the federal government.
- Exclusive powers are prohibited to be possessed by the states or require federal permission.
As the word “concurrent” (happening at the same time) suggests, the concept of concurrent powers refers to the powers that are shared by both the federal government and each of its constituent political units, such as states or provinces.
In a federal system, federal law is supreme and may preempt state or provincial laws in cases of conflict.
As a result, concurrent powers can be divided into two categories:
- Powers that are not generally subject to federal preemption (such as the power to tax private citizens), and
- Powers that are subject to federal preemption, meaning the federal government’s jurisdiction overrides that of the state or province (Zimmerman, 2014, p. 78).
This distinction is important as it ensures that federal law prevails in cases of conflicting laws while still allowing for a degree of autonomy for the states in certain areas.
In the U.S., people pay taxes to both the federal and state governments. This is because each has the power to impose taxes.
The power to tax also implies the power of the federal and state governments to spend this money on general welfare.
The federal government can levy excise taxes, sales taxes on goods, and income taxes on individuals.
As Article I, Section 8 of the U.S. Constitution states, the Congress shall have the power 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; but all Duties, Imposts and Excises shall be uniform throughout the United States”(U.S. Const. art. I, § 8, cl. 1)
The state governments can similarly impose general sales taxes, excise taxes, property taxes, and so on.
In the United States, Congress has the explicit power to pass laws at the federal level.
As the Constitution states, the Congress shall have the power:
“to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”(U.S. Const. art. I, § 8, cl. 18)
The states, on the other hand, have the power to pass laws that fall under the state’s power.
Both federal and state governments play a role in education. The federal government grants the rights of all Americans to free and quality education.
It also provides funding for public schools. The federal government can also pass national-level legislation regarding education.
The state government is primarily responsible for controlling school standards. It can create laws about how schools operate and what budgets they need.
Both federal and state governments play a role in spending. The power to spend money for the general welfare is a concurrent one.
The federal government spends funds on social security, medicine, military equipment, building construction, research, education, and so on.
State expenditures, on the other hand, are typically split into six categories: K-12 education, university education, social welfare, healthcare, public safety, and public transportation.
The federal government generally has the power to make laws and regulations related to bankruptcy through legislation such as the U.S. Bankruptcy Code.
These laws establish the process and procedures for filing for bankruptcy, the rights and responsibilities of the debtor, and the rights and responsibilities of the creditors.
The state governments also have the power to make laws and regulations related to bankruptcy, but they must be consistent with the federal laws.
As mentioned above, individual states in the U.S. have the power to create their own laws.
It follows that these states must also be able to create judicial entities that would monitor the enforcement of these laws.
Because of this, states have the power to establish courts which use the state constitution to enforce state laws. Federal courts, on the other hand, are supreme to these state courts and make rulings on the basis of the federal Constitution.
The Supreme Court is the highest authority in these matters, so in cases of state-level conflict, the Supreme Court might get involved.
Both levels of government have the authority to implement policies and programs that try to promote and protect the health of citizens within their jurisdiction.
State governments are primarily responsible for implementing public health policies and programs at the state level, including the regulation of healthcare providers and facilities and the oversight of public health emergencies.
The federal government also has the power to implement public health policies and programs at the federal level, including the regulation of food safety and the oversight of national public health emergencies such as pandemics.
Both levels of government have the authority to regulate and supervise financial institutions and banking practices within their jurisdiction, although the specific powers for banking are often split.
The federal government typically has the power to regulate banks through laws and regulatory agencies, such as the Federal Reserve and the Office of the Comptroller of the Currency, responsible for overseeing the safety and soundness of the banking system, as well as protecting consumers.
The state governments also have the power to regulate banks through state-chartered banks and state-level regulatory agencies such as the State Banking Departments.
The federal government and the regional governments of the United States have the power to regulate natural resources within their respective jurisdictions.
The state governments are responsible for regulating natural resources at the state level.
The federal government, on the other hand, has the power to regulate natural resources at the national level through entities such as the Environmental Protection Agency (EPA).
One of the most famous landmark decisions of The Supreme Court was Roe v. Wade (1973). The Court ruled that the right to reproductive rights was constitutional.
It struck down many federal and state laws on the matter. However, both federal and state governments continue to have the power to regulate reproduction.
Furthermore, in June 2022, the Supreme Court overruled Roe v. Wade because reproductive rights was not rooted in America’s traditions.
This view was disputed by many, but since then, policies about reproductive rights have been in the hands of each state rather than the supreme court.
The right to choose is protected by several states today but illegal in others.
The concept of concurrent powers is exemplified by powers such as taxation and the regulation of bankruptcy laws.
As Alexander Hamilton explains in The Federalist #32, state governments retain all rights of sovereignty that are not exclusively delegated to the federal government through the Constitution (Hamilton, 1788).
In American constitutional law, concurrent powers are distinct from reserved powers, implied powers, and expressed powers.
To understand what concurrent powers and how they differ from other types of powers granted by the Constitution, we must define each of these:
- Reserved powers are those that belong to the state governments (U.S. Const. amend. X).
- Concurrent powers refers to the powers that are shared by both the federal government and states (U.S. Const. amend. X).
- Implied powers refers to powers that Congress can legitimately exercise but are not explicitly granted to it by the Constitution. These powers are, nevertheless, deemed “necessary and proper” (U.S. Const. art. I, § 8).
- Expressed powers (also known as enumerated, explicit, or delegated powers) of the U.S. Congress are the powers granted to the federal government of the U.S. by the Constitution (U.S. Const. art. I, § 8).
Concurrent powers are a vital component of federal systems, allowing for a balance of power between different levels of government and promoting effective and efficient governance. These powers are shared by both the federal government and the constituent political units and are essential for the functioning of a federal system.
Federal law may preempt state or provincial laws in cases of conflict, but this distinction ensures that federal law prevails while still allowing for a degree of autonomy for the states. The concurrent powers may vary depending on the country and may not always be easy to define, but they remain an essential aspect of federal systems.
Hamilton, A. (1788). The Same Subject Continued: Concerning the General Power of Taxation. The Daily Advertiser. https://guides.loc.gov/federalist-papers/text-31-40#s-lg-box-wrapper-25493386
Roe v. Wade, 410 U.S. 113 (1973).
Zimmerman, J. F. (2014). The Initiative: Citizen Lawmaking, Second Edition. State University of New York Press.