1. The American Legal System Part II Advanced Legal English 403 Dr Myra Williamson Assistant Professor of Law KiLAW Fall 2012

2. Recap In slide show #1, we looked at the powers of the federal government We learnt that the federal government has express powers and implied powers Express – clearly stated in the Constitution Implied – the powers that are not explicitly given by the Constitution itself but they are necessary and proper to execute the express powers

3. The implied powers The express powers are listed in Article 1, section 8 of the US Constitution Two of those express powers give the US Congress the ability to expand upon the express powers: To regulate inter-state commerce = “The commerce clause” Make all necessary laws to carry out all the other express powers = “all necessary means” clause, also known as “clause 18” or the “elastic clause”

4. McCulloch v Maryland 17 US 316 (1819) The US Supreme Court gave a landmark decision in the case of McCulloch v Maryland (1819) regarding the establishment of a national bank Facts: The state of Maryland tried to impede the operations of the Second Bank of the United States. The Maryland General Assembly passed a law levying a tax on all banks from outside the state of Maryland. The Second Bank of the US was the only bank then operating in Maryland but constituted outside. The Second Bank was established by the US Congress. The case came from Maryland’s highest court, where the state of Maryland had been successful Chief Justice Marshall wrote the Supreme Court’s judgment. It was a unanimous decision. Held: the US government has the right to create a national bank, even though it’s not a right that is expressly mentioned in the US Constitution. Using the “necessary and proper” clause, CJ Marshall said that it’s an implied power. Congress has implied powers that need to be related to the text of the Constitution, but need not be enumerated within the text. To fulfill its goal, the federal government may use any means the constitution does not forbid (as opposed to only what the constitution explicitly allows or only what can be proved to be necessary). State government may in no way hinder the legitimate action of the federal government (here, Maryland cannot levy a tax on the Bank of the United States). The Court held that Maryland’s tax was unconstitutional – it overturned the Maryland Court of Appeals’ decision.

5. Main points from McCulloch v Maryland Although the Constitution does not specifically give Congress the power to establish a bank, it does delegate the ability to tax and spend, and a bank is a proper and suitable instrument to assist the operations of the government in the collection and disbursement of the revenue. Therefore, because of the ‘necessary and proper’ clause, it is implied that the US congress has the power to establish a national bank. Also, federal law is supreme over state law; Maryland had no constitutional right to pass a law that conflicted with the federal law

6. Sometimes Congress goes to far… In another case, the Court held that US Congress had gone beyond its powers: United States v Lopez (1995) Facts: 12 th grade student at a high school in Texas brought a gun to school – said he was delivering it to another student for payment He was charged was violating the Gun-Free School Zones Act 1990 (a federal law) He argued that the Act was unconstitutional – the federal govt had no power to regulate schools in his state The US Supreme Court looked at the Act to see whether Congress had the Constitutional power to enact it Federal Government argued that it had the power to pass that law under the “Commerce clause” - the express power to regulate inter-state commerce. It argued that the guns had to pass from state-to-state. What is the Commerce Clause? Article 1, Section 8, clause 3: The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

7. United States v Lopez (1995) continued… Held: No! Congress had gone beyond its powers, as enumerated in the US Constitution Possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity Thus, the Supreme Court held that the Act was unconstitutional – so the law was void It was a 5-4 decision It was the first time in more than 50 years that the Supreme Court limited Congressional authority to legislate

8. Recap… We have seen that the federal government (ie Congress) has some powers to make laws It has express and implied powers It tries to interpret the implied powers broadly If it goes to far, the US Supreme Court can intervene We have looked at the “Powers of the Federal State”, now we will look at State Government

9. Powers of the State Government States have very broad powers to make laws The laws that they make apply within their state BUT they cannot make laws that conflict with federal laws Nor can they make laws that are in the exclusive area of the federal government If they do that, they would be pre-empting the federal government’s authority Pre-emption = the right of federal government to be the exclusive lawmaker in certain areas

10. Article 1, Section10 – US Constitution States CAN NOT make laws in these areas: Entering into treaties, alliances Coin money Grant letters of marque and reprisal Grant any title of nobility Pass any ex post facto law What does ex post facto law mean? It means passing a law that makes a certain act a criminal act after the act itself was committed

11. Areas for states to make laws States commonly make laws in these areas: Criminal conduct Contractual relationships Civil tort liability Business - partnerships, corporations Family law

12. Some key terms … Jurisdiction = the power or area within which a government can regulate Exclusive jurisdiction = when the power to regulate in an area belongs solely to either the federal or state government eg. Only federal government can regulate coining of money Concurrent jurisdiction = when both federal government and state government have the power to legislate in a certain area eg. Criminal laws often overlap eg. Income tax

13. State law v Federal law Sometimes, the concurrent jurisdiction can lead to conflicts A state law may conflict with a federal law Which law “wins”? The state or the federal?

14. Conflicts between state law and federal law A. Supremacy Clause – Article VI of the US Constitution states that “this Constitution, and the Laws of the US made in Pursuance thereof…shall be the Supreme Law of the Land…” So, where state law and federal law conflict, federal law wins Note also that if a state passes a law that conflicts with the US constitution, the US Supreme court can declare the law unconstitutional and unenforceable