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How Federal Legislative Power Differs from State Legislative Power

The structure of the federal legislative branch is similar to a state legislature. However, there are crucial differences between their powers. Professor Saikrishna Prakash explains that the federal Constitution grants Congress a limited number of specific powers. Most state constitutions grant all legislative powers (consistent with the Bill of Rights) to their state legislative bodies, giving them much more authority over the citizens of their state. https://youtube.com/watch?v=TATqDetTkvg


The beginning of Article One says, “All legislative Powers herein granted are vested in Congress," and the basic point of that introductory phrase is to make it clear that Congress has the following legislative powers no more and no less. That there is not some general grant of legislative powers. What's different about the federal Constitution as opposed to state constitutions is the grant of legislative power is limited to the grants in Article One, Section Eight. And so Article One, Section 8 is not merely illustrative of what Congress can do. It's meant to be the complete list of legislative powers. There are eighteen grants listed. They list those grants in part because they want to make it clear that other things not listed aren't being granted to Congress. Under our federal Constitution the idea and the hope was that although we're granting Congress a new host of legislative powers, we're not granting them authority over family law across the nation. We're not granting them authority over criminal law across the nation. We're granting them a series of specialized authorities: commerce, patents, bankruptcy, naturalization, power to raise armies, the power to declare war, etc. So, if you look at some of the state Constitutions they actually just said the legislative power shall be vested in an assembly, in a senate. And in those systems there is no limitation, no subject matter of limitation to what those legislatures could enact. So, while the Maryland legislature has general legislative power and can pass pretty much any law that it wants to, consistent with its Bill of Rights. The US Constitution has a double layer system of limitations right? The first layer of limitations is: Does Congress have subject matter authority over the matter in question? Can Congress pass a nationwide murder statute for instance? The second layer of protection is: Is it consistent with the Bill of Rights and other implied limitations on the power of Government?

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