U.S. Constitution

Three governments over one business

Before a craft brewery in DeLand can pour its first pint, three governments have to say yes. A federal bureau approves the brewery before any beer is made, the state licenses it, and the city decides whether a brewery may operate on that block. Each approval comes from a different government, so an owner who wants a rule changed first has to work out whose rule it is. That question drives the activity. You take an issue you care about, find the government that holds power over it, and write to the official who can act.

The arrangement has a name. Federalism divides power between a national government and the states, and Florida’s counties and cities draw their authority from the state. The division does not run neatly by subject. The brewery owes federal rules on how its beer is taxed, state rules on who may sell it, and city rules on where it may be made, all at once. Sorting those layers is the skill the activity asks of you, and the Constitution supplies the method.

What the federal government is allowed to do

Start with the federal government, because its power has edges you can point to. Congress cannot regulate whatever it likes. It holds the powers the Constitution grants, most of them listed in Article I: to tax, to borrow money, to coin it, to raise an army, and to regulate commerce. That is the rule of enumerated and reserved powers. What the Constitution grants, Congress may do, and the Tenth Amendment (opens in a new tab) reserves the rest to the states or to the people. So the first test for any federal rule is whether a grant supports it.

That test would bite harder if one grant did not reach so far. The Commerce Clause lets Congress regulate commerce among the several states, and the Supreme Court has read those words to cover far more than goods crossing a state line. The classic stretch is the “wheat” in the Reason video Wheat, Weed, and ObamaCare (opens in a new tab). In Wickard v. Filburn (1942), an Ohio farmer planted 23 acres of wheat against a federal allotment of 11.1 acres. The Court upheld the penalty on the extra wheat, whether he sold it or used it on his own farm. One small farm barely moves the national wheat market, the Court reasoned, but many farms doing the same thing move it a great deal.

The reach has an edge, and the Court has found it. In United States v. Lopez (1995), a 5-4 majority struck down a federal ban on having a gun in a school zone, because possessing a gun there is not economic activity. Cornell’s Wex entry on the Commerce Clause (opens in a new tab) traces both lines of cases. A business sits on the Wickard side of that line. Making and selling things is economic activity. So the federal rules a business meets, from shop-floor safety to what it discharges into a river, usually rest on the commerce power. The list is a real limit and a fair starting point, but for a business it rarely ends the question.

What the states keep

State power runs the other way. Congress holds a list, while a state holds a general power to govern, limited by what the Constitution forbids or hands to Washington. The traditional name is police powers, and it covers the health, safety, morals, and general welfare of the people inside the state’s borders. The phrase has nothing to do with police officers. It is where most of the rules a business meets day to day come from.

Walk into any hair salon in Florida and you can see that power at work. The stylists hold licenses from a state board. The building sits where local zoning allows a salon, and a customer who claims to have been cheated turns to state consumer-protection law. Tallahassee uses some of that power itself and hands some to the counties and cities. Open a second salon in another state, and the owner answers to that state’s board and that state’s rules. So the regulator nearest a business is usually a state or local office. When your issue is a license, a permit, or a local ordinance, look to Tallahassee, the county, or city hall.

When two rules collide

Two governments regulating one business will sometimes pull it in opposite directions, and the Constitution breaks the tie. Article VI (opens in a new tab) makes the Constitution and the federal laws made under it the supreme law of the land, and it binds the judges in every state. From that text come the Supremacy Clause and preemption. Where a valid federal rule and a state rule truly conflict, the federal rule governs and the state rule gives way on that point.

Here is where students overreach: preemption is not automatic. A federal rule does not wipe out state law just by touching the same subject. Cornell’s Wex entry on preemption (opens in a new tab) sorts the ways it can. Congress can say so expressly: the federal food-labeling law bars states from requiring a nutrition label on most food that differs from the federal one. The two rules can genuinely conflict, as when obeying one means breaking the other. Or Congress can mean federal law to occupy a whole field, leaving the states no room to add a rule of their own, even one that agrees with it.

More often, both rules apply. Federal law sets a minimum wage, and Florida sets a higher one. The federal wage statute says outright that it excuses no one from a higher state or local minimum. So the two never conflict, and a Florida employer pays the Florida rate. That is how most apparent collisions end: the business meets both rules by meeting the stricter one.

Which branch holds it, and writing to them

Finding the right government is the first cut. The second runs inside it. Under separation of powers, the legislature makes the law, the executive branch and its agencies enforce and apply it, and the courts interpret it. The pattern repeats closer to home. Florida has its Legislature and its state agencies, and a county or city has a commission that passes ordinances and a staff that enforces them.

The branch decides who gets your letter. To change the rule itself, write to someone who can: a legislator who can introduce a bill or vote on one, or a commissioner who can put an ordinance on the agenda. If the rule is sound and the trouble is how it is enforced, write to the agency that enforces it or the official who runs that agency. A judge is the wrong audience. Courts decide the cases brought to them, and a letter is not a case.

Run both cuts on a real problem and the answer gets specific. Say the brewery wants a taproom, and the city’s zoning code does not allow one on its block. The rule is local, the city commission wrote it, and changing it is a legislative act, so the letter goes to a city commissioner. A member of Congress could not help, and neither could the state office that licensed the brewery. The Jurisdiction Sorter walks your own issue through the same two cuts, and the finders in the U.S. Constitution activity put a name on the answer. Then the letter has one job: ask that person for something their branch can do.