The Scope of Federal Law

The government’s power to regulate comes from the US Constitution. The federal government derives its authority to create law from Article I, § 8, which discusses federal Congress’s exclusive or delegated powers. These include the power to regulate currency and coin, establish a post office, promote science and art by regulating the rights to discoveries and writings, declare war and raise armies, conduct foreign affairs, regulate interstate and foreign commerce, and make laws necessary and proper to execute other powers expressly granted in the Constitution. Courts have interpreted the last two powers mentioned in the commerce clause and the necessary and proper clause to be the broadest sources of federal regulatory authority.

To simplify and summarize precedent defining federal regulatory authority, federal laws are meant to regulate in two areas. First, federal laws regulate issues that concern the country, rather than just one city, county, or state. The federal government regulates in the area of foreign affairs, for example, because this affects the United States of America, not just one particular region. Second, federal laws regulate commerce, which is economic activity, that crosses from state to state. Some common examples are television broadcasts, the Internet, and any form of transportation such as the airlines.

The Scope of State Law

The US Constitution designates the states as the primary regulatory authority. This is clarified in the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or the people.” State laws are also supposed to regulate in two areas. First, state laws regulate issues of a local character or concern. A state may regulate, for example, its water ownership and use because water can be scarce and is not generally provided to other states. Second, state laws regulate issues or things that remain within a state’s border. A state generally regulates, for example, the operation of a small business whose products are only sold locally and not shipped out of the state.

Federal laws are the same in every state, but state laws differ from state to state. Something that is legal in one state may be illegal in another state. This inconsistency makes our system of federalism complicated for students (and lawyers). However, with a country as large and varied as the United States, it is sensible to allow each state to choose for itself which laws will be most suitable.

Federal Supremacy

Our legal system is divided up to conform to the principle of federalism, so a potential exists for conflict between federal law and state law. A federal law may make something illegal; a state law may insist that it is legal. Whenever a conflict occurs between federal and state law, courts must follow the federal law. This is called federal supremacy. As the Supremacy Clause of Article VI of the federal Constitution states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”