Chapter 2 – THE FEDERAL LEGISLATIVE POWER
A. INTRODUCTION: CONGRESS AND THE STATES
· Congress may act only if there is expressed or implied authority in the Constitution
· States may act unless the Constitution prohibits the action.
· Through American history, Congress’s power have been defined relative to the states.
· The division of power between Congress and the states is the focus of this chapter.
Article I – creates the federal legislative power
“All legislative powers herein granted shall be vested in a Congress of the Unites States which shall consist of a Senate and House of Representatives.”
2 Questions in Evaluating Act of Congress
1. Does Congress have the authority under the Constitution to legislate?
· This requires defining the scope of the powers granted to Congress, particularly Article I, § 8.
2. If so, does the law violate another constitutional provision or doctrine?
Such as by infringing separation of powers or interfering with individual liberties, or the 10th Amendment.
THE FRAMEWORK FOR ANALYSIS: MCCULLOCH V. MARYLAND
Defined the scope of Congress’s powers and delineating the relationship between the federal government and the states.
The issue is McCulloch is whether it is constitutional for the Sate of Maryland to tax the Bank of the United States for doing business in their state?
In 1790, Congress created the first bank of the United States, against much opposition.
It operated for 21 years until 1812, when its chapter expired.
It was recreated in 1816 due to hard economic times.
The states were upset b/c the bank called in loans owed by the state.
Several states adopted laws limiting the operation of the bank, other adopted laws prohibiting banks to operate in their state, and other states (like Maryland) taxed the banks.
McCulloch v. Maryland
Nature of Case: Action arising out of violation of a statute.
Facts: McCulloch (D), the cashier of the Baltimore branch of the U.S. Bank, issued bank notes in violation of a Maryland (P) statute providing that no bank, without authority from the state, could issue bank notes except on stamped paper issued by the state. The law specified the fees payable for the paper, and provided for penalties for violators. An act of Congress established a U.S. Bank. Δ, the U.S. Bank’s cashier for its Baltimore branch, issued bank notes without complying with the Maryland (Π) law.
Issue:
1. Does Congress have the power to incorporate a bank? Yes
2. Does a state have the power to impose fees on the operation of an institution created by Congress pursuant to its constitutional powers? No
Rule of Law:
1. Certain federal powers, giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it, are to be implied from the Necessary and Proper Clause.
2. The federal Constitution and the laws made pursuant to it are supreme and control the Constitutions and the laws of the states.
Analysis:
1. Certain federal powers, giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it, are to be implied from the Necessary and Proper Clause. The Constitution does not exclude incidental or implied powers. It does not require that everything be granted expressly and minutely described. To have so required would have entirely changed the character of the Constitution and made it into a legal code. In common usage, “necessary” frequently means convenient, useful, and essential. Considering the word’s common usage, its usage in another part of the Constitution (Article 1, § 10), and its inclusion among the powers given to Congress, rather than among the limitations upon Congress, it cannot be held to restrain Congress. As long as the end is legitimate and within the scope of the Constitution, any means which are appropriate, are plainly adapted to that end, and which are not prohibited by the Constitution, but are consistent with its spirit, are constitutional. A bank is a convenient, useful, and essential instrument for handling national finances.
2. Π is incorrect in its contention that the powers of the federal government are delegated by the States which alone are truly sovereign. The Constitution derives its authority from the people, not from the states. Here Π’s statute in effect taxes the operation of the U.S. Bank, a bank properly created within Congress’ power. The power to tax involves the power to destroy. Here it is in opposition to the supreme congressional power to create a bank. The states have no power, by taxation or otherwise, to impede, burden, or in any manner control the operations of constitutional laws enacted by Congress. The Π’s statute is, therefore, unconstitutional and void.
Class Notes:
McCulloch v. Maryland – Established Federal Immunity to State Taxation.
WHAT ROLE SHOULD CONCERN OVER PROTECTING STATES HAVE IN DEFINING CONGRESS’S POWERS?
· Should Congress’s authority, under provisions such as the Commerce Clause and the spending power and section 5 of the 14th Amend., be narrowly interpreted to leave governance solely to the states?
· Or should Congress’s powers be broadly defined w/o concern for preserving areas for state control?
· Should the 10th Amend. Be enforced by the judiciary as a limit on Congress’s powers so as to protect state governments?
· Or should the 10th Amend. be simply as a reminder that Congress can act only of it has express or implied authority, while states can act unless the Constitution prohibits their conduct?
· Courts have answered these questions vary differently through time.
Two key underlying issue:
(1
wn ships. The case was appealed to the Supreme Court. Π claimed that the federal government did not have exclusive jurisdiction over commerce; but that the states had retained power by which they could regulate commerce within their own states and that the exclusive right to operate his ships only concerned intrastate commerce. Δ contended that Congress had exclusive power to regulate interstate commerce and that New York had attempted to regulate interstate commerce by granting the exclusive right and enforcing it with the injunction.
Issue: If a state law conflicts with a congressional act regulating commerce, is the congressional act controlling? Yes.
Rule of Law: If a state law conflicts with a congressional act regulating commerce, the congressional act is controlling.
Analysis: Congress has the power to regulate navigation within the limits of every state and, therefore, the regulations which Congress passed controlling navigation within the boundaries of New York were valid. Congress was given all the power to regulate interstate commerce, although it is possible for the states to pass regulations which may affect some activity associated with interstate commerce. Regardless of the source of the state power, any time a state regulation conflicts with a federal regulation, the state regulation must yield to the federal law.
The 1980s-1937: A Limited Federal Commerce Power
· With the Industrial Revolution and the growth of the national economy, Congress began to use the Commerce Clause much more extensively to regulate businesses.
· During this time. The Court narrowly interpreted the scope of Congress’s commerce power based on an expressed concern for leaving regulatory matters to the state governments.
· Additionally, the Court applied the 10th Amendment to reserve a zone of activities for exclusive state control and invalidated federal laws that were w/in Congress’ commerce power that usurped state prerogatives.
· The Court applied 3 doctrines:
(1) It narrowly defined “commerce”
(2) It applied a restrictive conception of what is “among the states”
(3) It held that Congress violates the 10th Amendment when it regulates matters left to state governments.
· The court had adopted a laissez-faire approach; unregulated economy.
