CHAPTER THREE • FEdERAlISM 51
Concurrent Powers
Powers held jointly by
the national and state
governments.
Supremacy Clause
The constitutional
provision that makes
the Constitution and
federal laws superior to
all conflicting state and
local laws.support for increased regulation by the national govern
ment, the Tenth Amendment tends to recede into the
background. When the tide turns the other way (in favor
of states’ rights), the Tenth Amendment is resurrected to
justify arguments supporting the states.Prohibited Powers
The Constitution prohibits or denies a number of powers
to the national government. For example, the national
government has expressly been denied the power to
impose taxes on goods sold to other countries (exports).
Moreover, any power not granted expressly or implicitly
to the federal government by the Constitution is prohib
ited to it. For example, many legal experts believe that
the national government could not create a national
divorce law system without a constitutional amendment.
The states are also denied certain powers. For example,
no state is allowed to enter into a treaty on its own with
another country.Concurrent Powers
In certain areas, the states share concurrent powers
with the national government. Most concurrent powers
are not specifically listed in the Constitution; they are only implied. An example of a con
current power is the power to tax. The types of taxation are divided between the levels of
government. For example, states may not levy a tariff (a set of taxes on imported goods).
Only the national government may do this. Neither government may tax the facilities of
the other. If the state governments did not have the power to tax, they would not be able
to function other than on a ceremonial basis.
Additional concurrent powers include the power to borrow funds, to establish
courts, and to charter banks and corporations. To a limited extent, the national gov
ernment exercises police power, and to the extent that it does, police power is also a
concurrent power. Concurrent powers exercised by the states are normally limited to the
geographic area of each state and to those functions not granted by the Constitution
exclusively to the national government. Examples of functions exclusive to the national
government are the coinage of money and the negotiation of treaties.The Supremacy Clause
The supremacy of the national constitution over subnational laws and actions is estab
lished in the supremacy clause of the Constitution. The supremacy clause (Article VI,
Clause 2) states the following:This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties 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.In other words, states cannot use their reserved or concurrent powers to thwart national
policies. All national and state officers, including judges, must be bound by oath toA same-sex couple participates in a sit-in at the
county clerk’s office in San Francisco in February 2013. The
couple is demanding that the clerk issue them a marriage
license. What is the current state of the law on same-sex
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