To understand the states, we have to correct one of the most common assumptions in modern government:

The states do not receive their authority from the federal government.

The federal government receives its authority from the Constitution.

And the Constitution was created by a people already organized into states.

That historical order matters.

The Federal Government Has Delegated Powers

The Tenth Amendment says:

“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.”

That is not merely a statement about administrative responsibility.

It describes the basic distribution of governmental authority.

The federal government possesses delegated powers.

The states retain authority that was never surrendered to the federal government, subject to the constitutional limitations placed upon them.

This principle is easily traced from the ancient Ethelred agreement, through the English liberty charters, from the independence of the colonies, through the Articles of Confederation, into the Constitution itself.

“Few and Defined” Versus “Numerous and Indefinite”

James Madison gave one of the clearest descriptions in Federalist No. 45.

The powers delegated to the federal government, he wrote, are “few and defined.”

Those remaining with the states are “numerous and indefinite.”

Madison further distinguished – federal powers principally concern external or national objects, while state authority extends broadly to matters affecting the ordinary lives, liberties, property, internal order, improvement, and prosperity of the people.

That is nearly the reverse of how many Americans experience government today.

We increasingly assume Washington possesses general authority and the states exercise whatever Washington leaves to them.

The constitutional design begins from the opposite premise.

States Are Not Federal Departments

A governor is not an employee of the President.

A state legislature is not a local branch of Congress.

States possess constitutional standing and responsibilities of their own.

That is why federalism matters.

It divides political power geographically as well as institutionally.

The federal government is checked not only by three federal branches but also by governments existing outside the federal structure.

But State Power Is Not Unlimited

This point is essential.

The Tenth Amendment does not say:

Anything the federal government cannot do, the state government may do without limitation.

We should reject that simplistic conclusion.

The Tenth deals with powers.

The Ninth Amendment deals with retained rights.

State governments remain governments, and governments do not possess legitimate authority to destroy rights simply because that authority was not delegated to Washington.

The entire constitutional structure exists to preserve liberty.

Federalism is a means to that end, not an excuse for unlimited state power.

States Also Have a Protective Role

The states are not simply recipients of reserved authority.

They are part of the constitutional machinery designed to check federal expansion.

If every constitutional dispute must ultimately be decided exclusively by the federal government, then the federal government becomes the judge of the limits of its own authority.

The states provide an institutional check outside that system: The people acting through their states.

The states possess the governmental machinery, but the people remain sovereign.

So What Authority Belongs to the States?

A great deal.

Not because the federal government generously permits it.

Because the federal government was never given everything in the first place.

The Constitution delegates particular powers to Washington.

Other governmental powers remain with the states or the people, while the rights of the people continue to limit government at every level.

That is the architecture of American federalism: a limited federal government, sovereign states exercising retained authority, and a people whose rights exist before either one.

Americans increasingly speak about the President as if he were the national ruler.

He is not.

The Constitution did not replace King George III with an elected American king.

It created something fundamentally different: a limited executive.

Article II of the American Constitution gives the President fewer unilateral powers than modern political culture often assumes.

The President Executes Law – He Does Not Make It

The Constitution separates governmental powers deliberately.

Congress legislates.

The executive executes.

The judiciary decides cases and applies the law.

That separation exists because concentrating legislative, executive, and judicial power in the same hands is the very structure of tyranny the framers were trying to prevent.

The President therefore does not possess a general lawmaking power.

That is why an executive order cannot constitutionally function as a substitute for legislation.

The President can direct the operations of the executive branch within lawful executive authority.

He cannot create powers the Constitution never gave him.

Commander in Chief Does Not Mean Power to Start Wars

Article II makes the President Commander in Chief of the armed forces.

But the Constitution separately gives Congress the authority to declare war, raise and support armies, provide and maintain a navy, and make rules governing the armed forces. This division is deliberate.

Commanding a military once lawfully engaged is not the same thing as possessing unilateral authority to decide when the nation goes to war.

The framers had lived under kings.

They understood the danger of allowing one person to command the military, control the treasury, make law, and decide when war would begin.

So, they divided those powers.

Treaties and Appointments Are Shared Powers

The President can negotiate treaties.

But treaties require the advice and consent of the Senate.

The President nominates ambassadors, judges, and other officers.

But major appointments likewise involve the Senate.

Again, the pattern is intentional.

Important presidential powers are often concurrent powers: authority that cannot be exercised completely by the President acting alone.

That does not make the President weak.

It makes the office constitutionally limited and accountable.

The President Is Not Sovereign Over the States

The President is not the political sovereign of fifty states.

He is the chief executive officer of the federal government.

The states do not work for him.

Governors are not his subordinates.

State legislatures do not receive their authority from the White House.

The constitutional structure simply does not create that chain of command.

What About Executive Orders?

Executive orders can be legitimate when they direct executive officers in carrying out constitutional and statutory duties.

They become constitutionally problematic when they are treated as if the President possesses his own independent legislative power.

A President cannot lawfully do by executive order what the Constitution requires Congress to do by legislation.

Otherwise separation of powers becomes meaningless.

Presidents Are Not Kings

This may be the simplest way to understand Article II.

The framers were not trying to design the most powerful President possible.

They were trying to create an executive strong enough to perform executive functions without recreating monarchy.

That is why the office is surrounded by divided authority, Senate participation, congressional control of money, congressional war powers, elections, impeachment, and a written Constitution.

Political parties often forget this principle when their preferred candidate occupies the White House.

But constitutional limits do not change with elections.

A President does not acquire more constitutional authority because we like him, trust him, or agree with what he wants to accomplish.

The question is always the same:

What power did the Constitution actually delegate to this office?

CONTINUE YOUR CONSTITUTIONAL EDUCATION

We hear the phrase all the time:

“Federal law is the supreme law of the land.”

But that is not actually what the Constitution says.

Article VI says:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land.”

— U.S. Constitution, Article VI, Clause 2

Those three words “in Pursuance thereof” make all the difference.

The Constitution Comes First

The Supremacy Clause establishes an order.

First comes the Constitution.

Then come federal laws made in pursuance of that Constitution.

So Congress does not possess unlimited authority merely because it is Congress. A federal law becomes supreme within the constitutional system when Congress is exercising power that the people actually delegated to the federal government.

That is fundamentally different from saying:

Federal law always beats state law.

If that were true, there would be very little purpose in having a Constitution that enumerates and limits federal power.

Congress could simply legislate on anything it wished and then declare its own legislation supreme.

That would make Congress the supreme authority.

But the Constitution says the opposite.

The Constitution is supreme.

Federal Power Is Delegated Power

The federal government was created with particular powers for particular purposes.

James Madison famously described those federal powers as “few and defined,” while the powers remaining with the states were “numerous and indefinite.”

The Tenth Amendment reinforces the same rule:

“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.”

If a power has not been delegated to the federal government, the federal government cannot manufacture that authority simply by passing a statute.

So What Happens When Federal and State Law Conflict?

The first question should not be:

Which government passed the law?

The first question should be:

What power did the Constitution delegate?

If Congress is acting within a constitutionally delegated power, then a conflicting state law cannot override that valid federal exercise.

But if the federal government acts outside the authority delegated to it, calling its action “federal law” does not magically amend the Constitution.

Alexander Hamilton’s explains in Federalist No. 78: an act of delegated authority contrary to the commission from which that authority comes cannot be valid.

A government created by a Constitution cannot logically possess authority greater than the Constitution that created it.

This Is Why the States Matter

The states were never intended to function as fifty administrative districts of Washington, D.C.

They retained substantial authority of their own.

That is why disputes over federal supremacy cannot simply be reduced to:

“The federal government says it has the power, therefore it has the power.”

That reasoning allows the federal government to define the extent of its own authority.

And once government possesses the exclusive right to determine the limits of its own power, those limits cease to be meaningful.

So When Is Federal Law Supreme?

The answer is written directly into the Constitution:

When it is made in pursuance of the Constitution.

Not merely because Congress passed it.

Not merely because the President signed it.

Not merely because a federal agency issued a regulation.

And not merely because a federal court approved it.

The Constitution is the standard against which every exercise of federal power must be applied.

Federal law is supreme when the federal government is exercising authority actually delegated to it by the supreme law, the Constitution itself.