University of Maryland Extension

What’s federalism got to do with it?

Nicole Cook, B.S., J.D., LL.M., Environmental and Agricultural, Faculty Legal Specialist, Agriculture Law Education Initiative (ALEI), University of Maryland Eastern Shore

Urban Ag home | Table of contents

The United States is governed using a system of federalism. Federalism means that both the federal and state governments have their own spheres of responsibility and authority. The federal government has a variety of powers, but its authority is limited by the U.S. Constitution. Anything outside the federal government’s constitutionally-limited authority is left for the states to govern exclusively. In areas where the federal government has authority to govern, those federal laws will, subject to some exceptions, generally override state laws. Both the federal government and state governments have authority over urban agriculture issues.

Federal authority: The three most important powers that the federal government has in relation to urban agriculture issues are the authority to regulate interstate commerce, the taxing power, and the ability to attach conditions to federal funds given to states.

Federal preemption of state laws: As mentioned above, anything outside the federal government’s constitutionally-limited authority is left for the states to govern. States have authority to pass laws regarding the health, safety, and morality of their citizens (referred to as the states’ “police powers”). The federal government has the power to preempt state and local governments from imposing laws and regulations in areas in which the federal government has constitutional authority to act. Federal preemption can either be express or implied. Express preemption occurs when a federal statute explicitly states the intention of Congress to preempt state law. For example, states are preempted by the Nutrition Education and Labeling Act (NLEA) from imposing labeling requirements for processed and packaged foods that are not identical to the labeling requirements in the Federal Food, Drug and Cosmetic Act. The NLEA gives specific examples of the actions that are preempted and those that are not. Those that are listed as preempted in the NLEA are, thus, expressly preempted. Implied preemption occurs when the language and content of the law suggests Congress intended to preempt state law, but Congress has not clearly said in the law what it intends to preempt.

State & local government: The interplay between state and local governments works slightly differently. Local governments do not have any express authority under the U.S. Constitution. Instead, local governments have only the power given to them by their state under that state’s constitution and statutes. All states have the same amount of constitutionally-derived power and authority, but determine on their own how to apportion this power between the state and local governments. Thus, while all states have the same amount of authority under the federal government, the amount of authority that states give local governments varies from state to state and sometimes from city to city within the same state. Because there is so much variation, this manual cannot lay out all of the specific authorities given to local governments in each state, but it will provide some examples of the different types of authority.

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