enumerated_power

8/7/2019 enumerated_power

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Constitutional Law I

Federal Power

(States Rights I)

Feb. 8, 2006


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Spring, 2005 Con Law I - Manheim 3

Theories of Federalism

Political Theory - Decentralized Govt More sensitive to heterogeneous society

More diffused & responsive; more democratic

Historical Basis - Evolution ofU.S. Govt States -> Articles of Confed. -> Constitution

The Framers splitthe atom of sovereignty

Compromises overState sovereignty


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Federal Convention of 1787

New Jersey Plan (per William Paterson):Amend the Articles to retain state sovereignty,

butto give Congress control overtrade & taxes Congress would actthroughthe States

Virginia Plan (per Edmund Randolph):

Discard the Articles; create a new constitution Congress would legislate directly, bypassingthe states

ConnecticutPlan (per RogerSherman):Modified Virginia plan w/ bicameral legislature Equal state representationinSenate; proportional in

House


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Why an Enumeration?

State jealousies (loyalties) disfavoredindefinite powers innational govt

Framers thoughtthatsome matters reqd

national attention Commoninterests ofthe Union (national power)

Where states were incompetent

Defense, safety, liberty, commerce, banking, intl relations

Separate interests ofthe States (state power)

Internal (police)

Necessary & Properclause

Madison: to provide ample means w/in stated powers


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Questions re. Divided Powers

Whatis the scope of federal power? Narrow vs. broad reading of federal power

So as to include/exclude the thing beingregulated

Whatresidual powers do the states enjoy?

Is grantofpowerto cong. exclusive/concurrent

Can fed govtregulate the states? Vice versa?

Are states proper objects ofregn, like persons?

Are states subjectto suit forviolating fed law?

Does the historical practice of state sovereignimmunity survive the constitutions ratification?


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A little bankinghistory

Pre-constitution State banks issued coin & currency

Constitution (1787)

States prohibited to issue currency (ArtI, 10) Pre-constl war debts remainvalid (Art. VI, 1)

FirstBank ofthe United States (1791)

Established by Congress to pay war debtandcreate standard form ofcurrency

Charter lapses in 1811


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Spring, 2005 Con Law I - Manheim 8First Bank of the United States, Phil.


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Second Bank ofthe United States (1816) Congress had difficulty financing war of 1812

2d Bankchartered in 1816

Upheld in McCulloch v. Maryland (1819) andagainin Osborne v. Bank ofUS (1824)

States claimed itwas aninstrumentof federalcontrol & easterncommercial interests

Andrew Jackson vetoes bankrenewal in 1832;removes federal deposits

Fed charter lapses in 1836; chartered by Penn.

Bank fails in 1841


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2nd Bankof theUnitedStatesPhil. PA

tickets


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Late 19th Century No central bank free banking era

National Bank Act(1863) attemptedto create uniformnational currency& banking system

State banks issuedstate & federal currency (greenbacks)

Federal Reserve System formed in 1913


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Spring, 2005 Con Law I - Manheim 14Federal Reserve Board


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Federal Power - Themes

Federalism Federal governmenthas limited power

enumerated inthe constitution

All governmentpowernotdelegated to thefederal governmentremains with states

Unionists (supporters ofstrongcentral

government) argue forbroad federal power

States-rights advocatesargue fornarrow federal

power


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Quick Aside - Preemption

Underthe Supremacy Clause Art. 6, 2 federal law preemptspreempts (displaces) state law

Broad federal powergives congress moreopportunityto displace state law

Narrow federal powermeans less federaldisplacementof state law

Sovereigntyis a zero-sum equation

States' Rights (and its corollary federalpower) is the oldestand most litigated ofall constitutional issues


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Subjects of Federal Power

Examine the 17 clauses in Art. I, 8Administrative items (relatingto functioning of

federal govt)

National sovereignty

foreignrelationsmilitary

Commerce & Finance taxes, banking, bankruptcy, mail, intellectl property

interstate/foreign/indiancommerce clauseThese are the greatpowers


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McCulloch v. Maryland (1819)

Can Marylandimpose a tax

onthe Bank ofthe UnitedStates? Maydependupon whetherthe act

establishingthe bankis constitutional

v.


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Nicholas Biddle, lastpresidentof 2nd Bank ofUS


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Has congress powerto incorporate abank? (2nd Bank ofthe UnitedStates)

Notamongthe 17 grants ofpowerin 8

Theories ofinterpretation Textualism (strictly construed)

OriginalIntent

Dynamic

Non-interpretivism


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Where is the locus of sovereigntyinthe US The States

Supreme dominion fedlgovtis subordinate

If so, delegation ofpowers construednarrowly

In favor ofthe true sovereign the States

The People

PopularSovereignty over both state & fedlgovts

If so, no preference givento state power over fedl

Notdelegation ofpower from states, butgrant frompeople

Constructionin favor of state poweris notappropriate

Is Marshalls conclusion supportedbyhistory?

THIS IS THE SINGLE

MOST

CONTE

NT

IOUSCONSTITUTIONALLAW QUESTIONTHROUGHOUT

AMERICAN HISTORY


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Doctrine of Enumerated Powers

Fed'l gov'tcan exercise "onlythe powersgranted to it"

"Butthe questionrespectingthe extentofthepowers actuallygranted, is perpetually arising,

and will probablycontinue to arise, so long asour system shall exist."

"the governmentofthe Union, though limitedinits powers, is supreme withinits sphere ofaction"

Read non-delegated powers narrowlyRead delegated powers broadly


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Doctrine of Implied Powers

In additionto powers expresslygranted,fed govtmay exercise "incidental power"

Theoretical support for doctrine

Fed'l gov'tis supreme within sphere ofpower No exclusion ofimplied powers

Compare 10thAmd w/Articles of Confederation

The powers notdelegated to the

United States bythe Constitution,norprohbiited byitto the States,are reserved to the Statesrespectively, orto the people.

EachState retains its sovereignty,

freedom and independence, andeverypower, jurisdiction and right,whichis notbythis confederationexpressly delegated to the UnitedStates, in Congress assembled.


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Theoretical support for doctrine Fed'l gov'tis supreme within sphere ofpower

No exclusion ofimplied powers

Compare 10thAmd w/ Articles of Confederation

Express limitation ofpower ( 9; Bill of Rights)

Greatpowers need ample means for execution

Source ofpower

"Itis a constitution we are expounding"

The Migration or Importation of[slaves] shall notbe prohibitedbythe Congress priorto 1808

Congress shall make nolaw respecting anestablishmentofreligion


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Textual support for doctrine Necessary and Proper Clause

Art. I, 8, 18:

"To make all Laws which shallbe

necessaryand properforcarrying intoExecutionthe foregoing Powers"

Is this a term of

limitation orexpansion?

Mustbe?Could be?

Who decides?


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Textual support for doctrine Necessary and Proper Clause

Art. I, 8, 18:

"To make allLawswhichshallbe

necessaryand properforcarrying intoExecutionthe foregoing Powers"

Thisclause isplaced in 8, not 9

Congressshallhave power ..


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Bank ofthe UnitedStates Incidentalto whichgreatpowers?

Lay & collecttaxes

Borrow money

Regulate commerce

Supportarmies andnavies

A "necessary andproper" means to anypower?

Ifthere is one andonly one necessarymean, whodecides whatitis?

Ifthe S.Ct, haventwe renderedcongress irrelevant?

If congress, haven'twe explodedthe N&P clause?


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Theories ofinterpretation

Textualism

OriginalIntent

Dynamic Non-

interpretivism

Marshall's Opinion N&P clause has flexible meaning

structure supports broadscope

Failure of Articles, avoidembarassment

Earlypractice (1stbank) andConst"intendedto endure forages to come [and]be adaptedto the various crises ofhuman

affairs" Theoretical justification for

broad federalpower


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Marshalls Test

Letthe endbe legitimate, letitbe withinthescope ofthe constitution, andall means whichare appropriate, which are plainly adaptedtothatend, which are notprohibited, butconsist

withthe letter andspiritofthe constitution, areconstitutional

ENDS mustbe enumerated

MEANS mustbe plainly adapted(reasonable) Cannottransgress prohibition intext

Rational Basis test


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Jacksons Veto Message (1832)A bank of the United States is in many

respects convenient for the Government and

for the people. [Yet] some of the powers and

privileges possessed by the existing bank are

unauthorized by the Constitution, subversive

of the rights of the States, and dangerous tothe liberties of the people. I sincerely regret

that in the act before me I can perceive none

of those modifications of the bank charter

which are necessary, in my opinion, to make it

compatible with justice, with sound policy, or

with the Constitution of our country.

How can he declare the bank unnecessary after McCulloch?


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Federal Power - Themes

Separation of Powers The powers ofthe federal governmentare

subdivided into three distinctbranches

Eachuniquelyconstituted, as to respond todifferentinterests & constituencies

Active use of judicialreview transfers power

fromthe politicalbranches to the courts

Restrained judicialreview keeps federalcourts frommeddling

into political affairs


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Separation of Powers

How does Courts interpretation ofNecessary and Properclause affecttheseparation ofpowers inthe federal govt? the degree of [the laws] necessity is to be

discussed inanother place.

Where the law is notprohibited, and is reallycalculatedto effectany ofthe objects entrusted to the govt, toundertake here to inquire into the degree ofits

necessity, would be to pass the line whichcircumscribes the judicial dept, and to tread onlegislative ground.


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Original Supreme Court basement of the Capitol


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Marylands Tax on Bank ofUS

Where do states getthe powerto tax?Does the const. explicitly withdraw this?

See Art. I Sec. 10, par. 2 & 3.

"No State shall, withoutthe ConsentoftheCongress, lay any Imposts or Duties on Imports orExports, exceptwhatmay be absolutelynecessaryfor executingits inspection laws "

Does the Tax conflictwith federal law? Express conflicts

Implied conflicts


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On JustTheory ...

Taxation of foreign objects Taxation withoutrepresentation

Non-discriminatorytaxes

virtual voice theory ofrepresentation

Modernrule

No state taxes on federal instrumentalities

Taxes permitted on employees/contractors


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Practice Questions

1. Congress enacts a law banningthe cloning ofhuman beings? Is the law constitutional?a. Whatenumerated powercould congress use?

b. Who decides ifthe law is necessary orproper?

c. Does the law infringe upon state power?d. Whichtheory ofinterpretation would most likely

uphold the law?

2. Same questions re. a federal law (notconstl

amendment) definingmarriage as a solemnunion betweenpersons ofthe opposite sex.

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