Reserved powers are governmental powers that are not explicitly prohibited or granted by law to any branch of government, and, therefore which tend to be devolved to the states.
One example of a reserved power in the United States is the power to regulate elections. The Constitution grants the federal government the power to regulate the “time, place, and manner” of federal elections but leaves the regulation of state and local elections to the states.
This allows each state to have its unique election laws, such as voter ID requirements and early voting periods (Keyssar, 2009).
Reserved powers, as outlined in the United States Constitution, refer to the powers retained by the states.
The 10th Amendment of the Constitution states that any powers not delegated to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people (U.S. Const. amend. X).
The concept of reserved powers is a fundamental aspect of federalism, a system of government in which power is divided between a central authority and constituent political units (Elazar, 1984).
The division of power established by the Constitution is crucial to the functioning of federalism. It allows states to govern themselves and make laws suited to the needs of their citizens (Ryan, 2011).
Furthermore, reserved powers allow states to act as laboratories of democracy (New State Ice Co. v. Liebmann), where they can experiment with different policies and approaches to governance without interference from the federal government.
This allows for a diversity of policies and ideas and encourages states to learn from each other’s successes and failures (Tarr, 2001).
The reserved powers of the states are not absolute, and there are limits to what states can do.
- The Supremacy Clause of the Constitution establishes that federal laws and treaties are supreme over state laws.
- The Commerce Clause grants the federal government the power to regulate interstate commerce.
- The 14th Amendment extends certain federal protections to individuals within the states, such as the right to due process and equal protection under the law.
As a result of these clauses and amendments, some powers do tend to be shared by both, which are known as concurrent powers.
The regulation of marriage is considered a power that is reserved for the states under the 10th Amendment (U.S. Const. amend. X).
However, the federal government does have some authority over marriage laws in certain situations, such as when the laws of a state conflict with federal laws or the Constitution.
Additionally, The Supreme Court’s case law from Loving v. Virginia (1967) overturned laws banning interracial marriage and thus established that the federal government has a role in ensuring that state marriage laws do not discriminate based on race.
In recent years, the Supreme Court’s decision in Obergefell v. Hodges (2015) established that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment (U.S. Const. amend. XIV).
Each state has its own laws and regulations governing divorce, including the grounds for divorce, the distribution of property and assets, and the payment of alimony.
However, the federal government can and does play a role in divorce laws through laws such as the Employee Retirement Income Security Act (ERISA), which regulates the division of certain types of retirement plans during a divorce.
The power to establish local governments is primarily the responsibility of individual states in the United States.
The power to create and organize political subdivisions, such as counties and municipalities, is considered a power reserved to the states under the 10th amendment of the United States Constitution.
Each state has its own laws and constitution that govern the creation, organization, and operation of local governments within the state.
The provision of fire safety is a responsibility reserved to the states, because it is not mentioned as a federal responsibility in the Constitution.
Each state has its own laws and regulations about fire safety and fire safety departments are established by individual state governments.
Licenses for professionals are primarily the responsibility of individual states in the United States.
The regulation of professional licenses is not mentioned in the United States Constitution, so it is considered a reserved power for the states under the 10th Amendment (U.S. Const. amend. X).
Individual states have their own regulatory agencies and laws that govern the licensing of various professions, such as doctors, lawyers, engineers, teachers, and so on.
However, the federal government can and does regulate certain professions, such as those that involve national security or that have an impact on interstate commerce. Additionally, professions that are regulated by the federal government may have to comply with federal laws and regulations in addition to state laws and regulations.
The regulation of corporations is not mentioned in the United States Constitution, so it is considered a power reserved to the individual states.
The federal government can and does play a role in the regulation of corporations through laws such as the Securities and Exchange Commission (SEC), which regulates securities markets and enforces federal securities laws, and the Federal Trade Commission (FTC), which enforces antitrust and consumer protection laws.
Speed limit laws are primarily the responsibility of individual states in the United States.
The regulation of speed limits is not mentioned in the United States Constitution, so it is considered a power that is reserved for the states under the 10th Amendment.
However, the federal government does have some authority over speed limit laws in certain situations, such as when the laws of a state conflict with federal laws or the Constitution, or when the federal government provides funding for a state’s highways.
In these instances, it can set certain conditions on how those highways are used, including setting speed limits.
Additionally, The National Maximum Speed Law (NMSL) was a federal law in the United States that prohibited speed limits higher than 55 miles per hour (89 km/h) on federal-aid highways.
The law was passed by the U.S. Congress in 1974 and repealed by the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Pub. L. 100–17, 101 Stat. 132).
Individual states can regulate commerce within their borders but they can’t do so in a way that would unduly burden or discriminate against interstate commerce.
For example, if a state law would effectively block the flow of goods or services across state lines, it would likely be considered unconstitutional.
The provision of police protection is not a federal responsibility, hence it is considered a power reserved to the states.
Each individual state has its own laws and regulations governing the operation of the police force.
Other nations, such as Australia and Canada, have similar arrangements; but, Canada has a federal police force (the RCMP) which is in place when a jurisdiction has not established its own regulated police force.
The regulation of education is considered a reserved power under the 10th Amendment (U.S Const. amend. X).
Each state has its department of education and laws that govern the operation of public schools and the certification of teachers.
However, the federal government can and does play a role in education through funding and regulations.
The federal government provides funding for education through programs such as the Individuals with Disabilities Education Act (IDEA) which provides funding for students with disabilities.
Additionally, the federal government regulates education through laws such as the No Child Left Behind Act (NCLB) and the Every Student Succeeds Act (ESSA), which set standards for academic performance and accountability for public schools.
While the regulation of schools is primarily a power reserved for the states, the federal government does play a role through funding and regulations that affect the operation of schools.
Other Types of Constitutional Powers
- 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).
In the United States, reserved powers are those powers that are not explicitly granted to the federal government and therefore reserved to the states.
As the 10th Amendment of the Constitution states, any powers not delegated to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people (U.S. Const. amend. X).
It is important to note that the reserved powers of the states are not absolute. Federalist political systems consider the balance between the federal and regional governments to be a crucial aspect of effective government.
The concept of reserved powers is not limited to the United States and can be found in other federal systems of government around the world. Examples include Canada, Australia, the United Kingdom, and several more.
Elazar, D. J. (1984). American Federalism: A View from the States (Subsequent edition). Harpercollins College Div.
Keyssar, A. (2009). The Right to Vote: The Contested History of Democracy in the United States (Revised edition). Basic Books.
Loving v. Virginia, 388 U.S. 1 (1967)
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)
Obergefell v. Hodges, 576 U.S. 644 (2015)
Ryan, P. E. (2011). Federalism and the Tug of War Within. Oxford University Press.
Tarr, G. A. (2001). Laboratories of Democracy? Brandeis, Federalism, and Scientific Management. Publius, 31(1), 37–46.