Chapter 2: How Is Power Shared in the U.S. Government?

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This chapter will explain how our government is organized and how power is balanced in different ways. It will cover the concepts of federalism as well as the three branches of government. For more details on the birth of the U.S. Constitution and the origin of federalism in our country, see A Very Brief History of Federalism in the United States in the Appendix.

Federalism: The Relationship Between State and Federal Law

What is federalism?

The United States has a federalist form of government, which means that power is divided between the federal government in Washington, D.C., and individual state governments around the country.

It can be helpful to think of power being divided like the layers of a cake, with the federal government at the highest level. A marble cake, specifically, can be a good illustration since the boundaries of federal, state, and local power are sometimes mixed or unclear.

Image from https://www.civiceducationva.org/federalism6.php

The Constitution

The U.S. Constitution established a national-level federal government that was given powers that the states would no longer have individually. Most of these powers are listed in Article I, Section 8 of the Constitution. These include powers like the ability to declare war, to regulate commerce with foreign nations and among the states, to establish post offices and roads, to set rules for immigration and naturalization, and to collect taxes to provide for the common defense and general welfare of the United States.

The Constitution also set rules for how more states would be added to the nation, how states would be represented in the federal government, and how states interact with each other.

To strike an appropriate balance between the powers of the state and federal governments, the Tenth Amendment to the Constitution was added. The Tenth Amendment is the last amendment included in the Bill of Rights and it explicitly says that “[t]he 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.” This ensured that the states continued to have the power to make their own individual laws, so long as their laws did not interfere with powers delegated to the federal government.

The Pennsylvania Constitution serves as the foundation of the Pennsylvania (PA) state government. The first version was adopted in 1776. A few key differences between the federal and PA state constitutions are highlighted in this flyer from the Administrative Office of Pennsylvania Courts. More information about the Constitution of Pennsylvania can be found at www.paconstitution.org.

The interplay between state and federal laws

All citizens (and some non-citizens) have certain rights under federal law and state law. The U.S. Constitution, particularly the Bill of Rights and the 14^th Amendment, guarantees rights of citizenship that state governments cannot deny or restrict. Federal Supreme Court decisions build on this, determining whether state laws and state court decisions are constitutional or not. Federal constitutional rights are a floor, but not the ceiling. States may be able to create rights for their citizens that go further than the rights afforded by the federal government, but they cannot provide fewer rights than the Constitution allows. If a state tries to restrict someone’s constitutional rights, the federal courts may find those attempts unconstitutional and strike them down. Federal courts also have the ability to review federal laws to make sure they comply with the Constitution as well.

Similarly, states cannot create laws that interfere with the federal government’s ability to exercise its powers, especially the “enumerated powers” that are listed in the Constitution. For example, states are not allowed to print their own money or enter treaties independently with foreign nations because both those powers belong to the federal government only.

The federal government does not create laws about every issue. Most of the laws that affect day-to-day life are instead created by the states. This includes laws about things like business formation (partnerships, LLCs, corporations), trusts and estates (wills and inheritance), family law (marriage, divorce, child custody and support), property rights (real estate transactions, leasing), education, and elections.

Branches of Government & Separation of Powers

What are the different branches of government?

The U.S. Constitution divides the federal government into three branches to make sure no individual or group will have too much power. This concept is often called Separation of Powers.

State and local (municipal) governments are also organized into three branches, similar to how the federal government is organized. Here’s a quick look at the three branches of government at the federal, state (PA), and local (Philadelphia) levels:

Legislative branch – Passes bills into law (creates statutes)
- U.S. Congress – includes the House of Representatives and the Senate
- Pennsylvania General Assembly – includes the state House of Representatives and the state Senate
- Philadelphia City Council
Executive branch – Carries out and enforces laws; Creates rules & regulations
- US. President, Vice President, Cabinet, most federal agencies
- Pennsylvania Governor, Lieutenant Governor, Cabinet and Executive Officials, certain state agencies
- Philadelphia Mayor, Mayor’s Office, certain city agencies/departments
Judicial branch – Evaluates and interprets laws; Creates case law
- U.S. Supreme Court, U.S. Court of Appeals (Circuit Courts), U.S. District Courts
- PA Supreme Court, PA Commonwealth Court, PA Superior Court, PA Court of Common Pleas
- Philadelphia Municipal Court

Each branch of government can change acts of the other branches. For example:

The president can veto legislation created by Congress and nominates heads of federal agencies.
Congress confirms or rejects the president’s nominees and can remove the president from office in exceptional circumstances.
The Justices of the Supreme Court, who can overturn unconstitutional laws, are nominated by the president and confirmed by the Senate.

This ability of each branch to respond to the actions of the other branches is called the system of checks and balances.

Previous: Chapter 1: What Is the Law?

Next: Part 2: Finding the Law