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 10thAmendment 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.
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.