Federalism
The United States’ system of government is called federalism. Federalism, as set forth in the U.S. Constitution, divides governmental power between the federal government and each of the states. This prevents a concentrated source of governmental power in one individual or a small group of individuals. Because of federalism, the United States has one federal legal system, and each state has its own state legal system. Thus, in the United States, a plethora of legal systems all operate harmoniously at the same time.
🎞️Watch and Learn: Federalism
The Scope of Federal Law 
The government’s power to regulate comes from the U.S. 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.
🎞️Watch and Learn: The Commerce Clause
🎞️Watch and Learn: The Necessary and Proper Clause
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 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 airlines.
Federal Criminal Laws
The original intent was for the federal government to be a limited government, with the bulk of regulatory authority residing in the states. The only crimes Congress is specifically authorized to punish are piracies and felonies on the high seas, counterfeiting, and treason; however, case precedent has expanded the federal government’s power to enact criminal laws based on the commerce clause and the necessary and proper clause. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Still, there must be some connection to an issue of national character and interstate commerce, or the federal government will overstep its authority. In general, federal criminal laws target conduct that occurs on federal property or conduct involving federal employees, currency, coin, treason, national security, rights secured by the Constitution, or commerce that crosses state lines. Currently, over five hundred crimes are listed in Part I, Title 18 of the United States Code, which codifies criminal laws for the federal government.
The Scope of State Law
The U.S. 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.
State Criminal Laws
The power to enact criminal laws belongs almost exclusively to the states. This is because of the Tenth Amendment, which vests in states a police power to provide for the health, safety, and welfare of state citizens. Approximately 90 percent of all criminal laws are state, rather than federal. Often, federal crimes are also state crimes and can be prosecuted and punished by both the state and federal government without violating the principle of double jeopardy.
🔍 Example: Diversity Among State Laws
In Nevada, prostitution is legal under certain circumstances. N.R.S. § 201.354. An individual who engages in prostitution inside a licensed “house of prostitution” in Nevada is not exposed to criminal liability. However, if the same individual engages in prostitution in a different state, they may be subject to a criminal prosecution. (Prostitution will be discussed in detail in Chapter 12.)
Another illustration is that the age of consent for "sexual conduct" in Ohio is 16, Ohio Rev. Code § 2907.04(A), while the age of consent in New York is 17, N.Y. Penal Law § 130.05(3)(a). In Ohio, some sex offenses that are based on the victim's status as a minor require evidence that the defendant had knowledge of the minor's age (e.g., "when the offender knows the other person is thirteen years of age or older but less than sixteen..."), Ohio Rev. Code § 2907.04(A), but no such "knowledge" requirement exists in any of Wisconsin's versions of these crimes, Wis. Stat. §§ 948.09-948.093.
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.”
🔍 Example: Diversity Among State Laws
In Washington and several other states, an individual may possess and use marijuana for medicinal purposes with a prescription. Washington State Medicinal Marijuana Act, § 69.51A RCW. (See all states that have legalized medical and recreational marijuana here.) Federal law continues to prohibit possession and use of marijuana, and it does not distinguish between medical and recreational marijuana (however, a strictly regulated exception exists under certain circumstances for medical research). 21 U.S.C. Ch. 13 § 801 et. seq.
Because of this conflict, the federal statutes may preempt many state laws under the Supremacy Clause, although the courts have not meaningfully addressed it. To date, the federal government has not attempted direct action to prevent state legalization efforts. However, while states continue a trend of decriminalizing marijuana, the U.S. Department of Justice has continued to reaffirm that it has the power to enforce marijuana possession/use laws in states that have legalized marijuana.
Attributions and Licensing
Except where otherwise noted, this page's content is adapted from 2.1 Federalism in Introduction to Criminal Law by Tara Storm, used under CC BY-NC-SA 3.0 
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