Powers Of The States

Recently, I finished a 3-part series on the powers of government.  This series covered the powers of the legislative branch, the judicial branch, and the executive branch of the federal government.  However, these powers do not include the other powers granted to government by the Constitution.  The 10th Amendment in the Bill of Rights grants one other form of power to a form of government: the individual states.

The 10th Amendment states:

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, let’s break it down into powers that are not granted to the federal government that would pass along to the state governments:

– Build and maintain roads
– Collect taxes
– Educate inhabitants
– Make and enforce laws
– General welfare expenses
– Ratify Constitutional amendments
– Issue licenses
– Regulate business within the state
– And so on…

Several of the items on that list have been taken over by the federal government, along with others not listed.  Education has only become federally regulated since 1960 and, even more so, with the No Child Left Behind Act and the newer Every Student Succeeds Act.  With these two acts, the federal government has decided that they can do a better job of regulating the education system than the state governments, but the problem is that the Constitution didn’t provide that power to the federal government.

Another pie that the federal government has stuck its proverbial finger into is minimum wage.  It has never been granted the power to regulate wages.  The history of minimum wage is quite interesting, with multiple Supreme Court cases invalidating and later upholding the minimum wage laws in 1941.  Since then, the federal government has taken that power and has run with it, increasing minimum wage as often as it sees fit.  It would be possible to return to a strict Constitutional approach to minimum wage with another Supreme Court decision, but it would likely be very unpopular with a portion of the country who feel that the federal government should tell the states how they should govern.  States still continue to regulate the minimum wage as they see fit, but their minimum wage must be at least the same as the federal minimum, if not higher.

The United States of America was originally created with the idea that the federal government has a limited power and that each individual state would have as much or more power than the federal government.  This is happening in some instances, while in others like education and minimum wage, it is not.  For example, the medical and recreational marijuana laws that some states have passed are bucking the federal law prohibiting the possession and use of marijuana.

James Madison wrote in The Federalist No. 45:

The powers delegated by the proposed Constitution to the Federal Government are few and defined.  Those which are to remain in the State Governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce.  The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.

Each year, the federal government takes more and more power from the states and gives it to itself.  The only way for this transfer and takeover of power to end is for the states to keep those powers through court action and likely a Supreme Court ruling.  Right now, however, the Supreme Court justices are not largely on the side of states’ rights over federal powers.  Until states insist on their powers remaining within their own control, you can expect the federal government to continue to grab for more and more authority.

Jason – Three Patriots










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Powers of the Supreme Court

So far, we have covered the powers granted by the US Constitution to the legislative branch (read here) and the executive branch (read here), which leaves just one final branch—the judicial branch of government.  Once again, let’s start by defining what the judicial branch entails.  The judicial branch is headed by the US Supreme Court with the lower level civil and criminal courts below it.  Broadly, the purpose of the judicial system is the interpret and apply the law.  Typically, most court cases begin in the lower courts with judges applying their own interpretation of the laws and the Constitution.  No matter the outcome of the lower court’s ruling, the losing party can appeal that decision to a higher court—all the way up to the US Supreme Court.  At that point in time, the justices of the Supreme Court will look at all the cases that have made it to the highest court and will decide if they will hear the case or leave the ruling of the lower courts in effect.

If the justices believe the case is worth hearing, arguments before the court are scheduled from October to April each year.  The court hears arguments, asks questions, and sometimes, includes their own opinions in the questioning.  Later, they come to a conclusion on the constitutionality of each case with a vote or series of votes.  All 9 justices (odd number to decrease possibility of a tie) will vote based on their interpretation of the laws and the Constitution.  Then, one of the justices will write a majority opinion, and one or more will write a dissenting opinion if the decision is not unanimous.  By the end of June, all cases heard by the court will be ruled upon by the justices, and the majority and dissenting opinions are released.  At this point in time, the court’s ruling is final…unless the Constitution is amended, or the court reconsiders its opinion and changes it (which is extremely rare).

Article III of the Constitution states what powers the Supreme Court is allowed:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;– to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

Interestingly enough, the Constitution does not grant the power of judicial review (where the constitutionality of laws is interpreted), but that power has been in practice since the early 1800s without any legitimate challenge to the authority.

Let’s take a real world example to provide some context here.  In 2010, President Obama signed the Patient Protection and Affordable Care Act (aka Obamacare) into law.  Part of that legislation included a mandate that all people have health insurance or pay a penalty when they file their taxes each year.  Many argued that this mandate was unconstitutional and outside of the powers granted to Congress in the Constitution.  A lawsuit was filed against the mandate in Florida, and the District Court agreed that it was not constitutional.  The government appealed that decision to the 3-judge panel of the 11th District Court of Appeals, who agreed with the lower court 2-1 that the mandate was unconstitutional.  The government then appealed that decision to the US Supreme Court, and arguments were heard in March 2012.

The Supreme Court was divided on its ruling, but in a 5-4 decision, it stated that the individual mandate was constitutional by declaring it a tax rather than a penalty.

This 5-4 ruling by the Court is somewhat unprecedented.  It actually changed the law that was passed by Congress and signed by the President rather than deciding if it was constitutional.  The original powers granted to the Supreme Court in the Constitution do not allow them power to change laws; that power is given only to the legislative branch.

History has very few instances where the court has overstepped its power to rule…at least, until the last decade or so.  Most recently, another example of judicial overreach has hit the news.  In 2015, the Court ruled that the ban on gay marriage was not only unconstitutional, but they also legalized it in every state, ignoring what the individual state had to say about it.  This is another incidence where the Court’s power was seen by many to be abused beyond what it was given.

If the court thought that the laws of the US or a state were not in compliance with the Constitution, they have every right to remove it, but they have not been given a power to make their own laws after invalidating another.  They are also not allowed to rewrite a law so that it becomes constitutional; that is the responsibility of the legislature.  In such a case, the Court should give its ruling to invalidate a law, and then, Congress can decide what it wants to do with the issue at hand.

There is a fine line between using and abusing powers granted by the Constitution, and lately, the Court has been teetering on the wrong side of its granted powers. As with the legislative and executive branches, the extra powers that the judiciary has taken upon itself will be very difficult to remove due to the precedence that has been set for future justices and judges.

Supreme Court Chief Justice

Jason – Three Patriots



[1] https://www.supremecourt.gov/

[2] https://constitutioncenter.org/interactive-constitution/articles/article-iii

[3] http://obamacarefacts.com/supreme-court-obamacare/

[4] https://www.whitehouse.gov/1600/judicial-branch

[5] http://www.brighthubeducation.com/history-homework-help/56250-powers-granted-to-the-judicial-branch-article-3-us-constitution/

[6] http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/


Powers of Congress

We have discussed several issues lately concerning government and specific roles that it plays in our lives, but all of this has left me thinking, “What is the actual role of government?” So, today I’m starting a mini-series blog on the powers of government.  In order to answer that question, we need to go back to ninth grade Civics class for a lesson.  The United States of America is a constitutional republic (not a democracy as is often misunderstood).  The powers given to the government are given and limited by the Constitution.  So, in order to know what the role of government is, we need to go back to the Constitution to determine which powers it gives and which powers it limits.

The Preamble of the Constitution sets up the powers in:

“…in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”

So, in that text, we see 5 points of power:

  1. Establish Justice – law
  2. Insure domestic tranquility – peace in the country’s borders
  3. Defense – protect from invasion
  4. General welfare – well-being of the citizens (notice this does not say social welfare as many want to interpret)
  5. Liberty – ensure freedoms and protect from tyranny

The Constitution then goes on to specify the powers it grants and those that it limits.  Today, I want to talk about the legislative branch of government, which means the House of Representatives and the Senate (aka Congress).  The legislative branch is commonly known to “make the laws.”  Specifically, Article I, Section 8 sets up those powers for Congress (we will discuss the other 2 branches of government in a future post).   From this, we see that Congress gives numerous provisions including collecting taxes, borrowing money, making money, declaring war, etc. (see [4] in sources for full text).  Nowhere in Article I do we find any powers to set up social security, healthcare, and many of the other welfare state functions that Congress has taken upon itself in the past century or so.  Interestingly enough, the Bill of Rights of the Constitution specifically addresses powers that are not explicitly granted to Congress in the Constitution with the Tenth Amendment.

“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.”

Congress has taken the liberty to increase its governance to extremely broad terms.  This infinite interpretation of the congressional powers has increased spending on programs by an alarming amount.  While many of these programs sound like a great program and may even accomplish a lot of good in the country, these social programs implemented by and paid for through congressional action is beyond the powers given to it.  For example, the social programs implemented in the early and middle 20th century accounted for a little over 23 percent of the overall US budget in 1962.  Today, that number has grown well above 63 percent of the overall budget (63.3 percent when last recorded in 2011 – with the increase in the welfare system under President Obama, that number has to be significantly higher now).

What this all boils down to is that issues related to welfare, healthcare, and other social services are not powers given to Congress but, instead, are powers that they took upon themselves to make.  These assumed powers are costing the taxpayers trillions of dollars each year, and they are going largely unchecked.

I know of many noble, worthy causes and programs that have been funded by the government’s increasing focus on social programs.  While I will not go into specifics on individual programs, many of them will be completely sufficient with a reduction in budget or even the elimination of federal funding.  A majority of them are 501(c) non-profit organizations that have the ability to attract donations with tax-deductions.  I believe that the American people have a desire to fund these types organizations and, when presented with a need, would be more than willing to step up and fill that need.  Telethons across the country have reached goals of millions of dollars in a single day.  Present the American people with a just cause, and watch it obtain funding for the next year or more every time.

In the meantime, let’s get government back to what it was originally intended to do and away from becoming what our Founding Fathers never envisioned.

Jason – Three Patriots



[1] https://constitutioncenter.org/interactive-constitution/preamble/giving-meaning-to-the-preamble-by-erwin-chemerinsky/interp/37

[2] https://patriotpost.us/commentary/11449

[3] https://www.usconstitution.net/xconst_A1Sec8.html

[4] http://www.independent.org/newsroom/article.asp?id=2085