Reserved powers, residual powers, or residuary powers are the powers that are neither prohibited nor explicitly given by law to any organ of government
. The doctrine of popular sovereignty
(in republics) or parliamentary sovereignty
(in constitutional monarchies) assumed that governments have the authority to legislate over any area that has not been explicitly forbidden by a prior agreement, such as a constitution
, or human rights instrument
Federations and confederacies
In countries with multiple orders of government, such as federations
, the powers of the central government versus the regional governments as spelled out in the basic law or constitution. The issue arises on the order of government that should have the power to legislate over anything that is not explicit listed? Such powers, as well as general power of competence
, are given because it is impractical to detail in legislation every act allowed to be carried out by the state.
Reserved powers are given to different orders of the government in different federations and confederations. Both types are distinguished by the fact that a "confederacy" is typically thought of as giving very few powers to the centre, with many reserved powers held by the member states. In history, confederacies have usually been loose alliances of tribal chiefdoms or small monarchies. Sovereignty was always held be the councils of chiefs, dukes etc.
Modern federations have arisen only since the adoption of popularly-elected governments, when the question becomes which of two elected assemblies should prevail if both claim jurisdiction over one piece of land. Contrary to popular American myth, the idea of two co-existing orders of government was neither invented by the Founding Fathers
nor taken from the Iroquois League
. After all, the colonial legislatures and the British parliament had co-existed for more than a century.
The American experience influenced all subsequent federations, however, because of innovation in the idea of assigning a list of particular powers to the central government and giving the reserve powers to the states. Initially after independence, in the Articles of Confederation
, the central authority was quite weak. The second attempt, the Constitution of the United States
, which was created in 1787 and ratified the following year, gave more listed powers to the centre but ultimately kept the residual powers in the states.
, the reserved powers lie with the states, as inspired by the US model. Chapter 5 of the 1901 Constitution of Australia
states: "Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be."
, the reserved powers lie with the federal government per Section 92 of the Consitution Act 1867
. This is explicitly done to be the opposite of the United States, as the Fathers of Confederation
(notably Thomas D'Arcy McGee
) thought that the concepts of states' rights
and annulment had caused the American Civil War
The framers of Canada's British North America Act, 1867
purposefully reversed the American decision and gave the residual powers to the central government (Section 91 of the ''Constitution Act, 1867''
), as they blamed the former choice for causing the American Civil War
. All subsequent federations have looked at previous examples when they drafted their list of powers and decided to which order of government to give the residual powers.
The European Union
has the principle of conferral
, the Constitution of 1824
gave the reserve powers and the power of the purse
to the states.
In the United States
, the Tenth Amendment
of the Constitution states that any power not explicitly granted to the federal government
lies solely in the states.
However, since World War II
, the Supreme Court
has consistently ruled against cases challenging the powers of Congress
, with exceptions during the Rehnquist Court
In effect, the Supreme Court has decided that Congress has the power to determine the scope of its own authority.
* Dillon's Rule
* Everything which is not forbidden is allowed