2. Constitutional Law I Federal Power (States Rights I) Feb. 8, 2006

3. Spring, 2005Con Law I - Manheim2 Basic Concepts of Federalism U. S. legislative power is limited to 17 areas See Art. I, § 8 (“The Congress shall have power to..”) Suggests limited gov’t of “enumerated powers” Pre - existing state legislative power unlimited Suggests governments of “general powers” Effect of federal law Where enumerated, federal power is supreme  See Art. VI, ¶ 2 (“supremacy clause”) If in excess of enumerated powers, it is void  See Tenth Amendment

4. Spring, 2005Con Law I - Manheim3 Theories of Federalism Political Theory - Decentralized Gov’t More sensitive to heterogeneous society More diffused & responsive; more democratic Historical Basis - Evolution of U.S. Gov’t States -> Articles of Confed. -> Constitution “The Framers split the atom of sovereignty”  Compromises over State sovereignty

5. Spring, 2005Con Law I - Manheim4 Federal Convention of 1787 New Jersey Plan (per William Paterson): Amend the Articles to retain state sovereignty, but to give Congress control over trade & taxes  Congress would act through the States Virginia Plan (per Edmund Randolph): Discard the Articles; create a new constitution  Congress would legislate directly, bypassing the states Connecticut Plan (per Roger Sherman): Modified Virginia plan w/ bicameral legislature  Equal state representation in Senate; proportional in House

6. Spring, 2005Con Law I - Manheim5 Why an Enumeration? State jealousies (loyalties) disfavored “indefinite” powers in national gov’t Framers thought that some matters req’d national attention Common interests of the Union (national power)  Where states were “incompetent”  Defense, safety, liberty, commerce, banking, int’l relations Separate interests of the States (state power)  Internal (police) Necessary & Proper clause Madison: to provide ample means w/in stated powers

7. Spring, 2005Con Law I - Manheim6 Questions re. Divided Powers What is the scope of federal power? Narrow vs. broad reading of federal power  So as to include/exclude the thing being regulated What residual powers do the states enjoy? Is grant of power to cong. exclusive/concurrent Can fed gov’t regulate the states? Vice versa? Are states proper objects of reg’n, like persons? Are states subject to suit for violating fed law? Does the historical practice of “state sovereign immunity” survive the constitution’s ratification?

8. Spring, 2005Con Law I - Manheim7 A little banking history Pre-constitution State banks issued coin & currency Constitution (1787) States prohibited to issue currency (Art I, § 10) Pre-const’l war debts remain valid (Art. VI, § 1) First Bank of the United States (1791) Established by Congress to pay war debt and create standard form of currency Charter lapses in 1811

9. Spring, 2005Con Law I - Manheim8 First Bank of the United States, Phil.

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11. Spring, 2005Con Law I - Manheim10 A little banking history Second Bank of the United States (1816) Congress had difficulty financing war of 1812 2d Bank chartered in 1816 Upheld in McCulloch v. Maryland (1819) and again in Osborne v. Bank of US (1824) States claimed it was an instrument of federal control & eastern commercial interests Andrew Jackson vetoes bank renewal in 1832; removes federal deposits Fed charter lapses in 1836; chartered by Penn. Bank fails in 1841

12. Spring, 2005Con Law I - Manheim11 2 nd Bank of the United States Phil. PA tickets

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14. Spring, 2005Con Law I - Manheim13 A little banking history Late 19 th Century No central bank – “free banking era” National Bank Act (1863) attempted to create uniform national currency & banking system State banks issued state & federal currency (“greenbacks”) Federal Reserve System formed in 1913

15. Spring, 2005Con Law I - Manheim14 Federal Reserve Board

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18. Spring, 2005Con Law I - Manheim17 Federal Power - Themes Federalism Federal government has limited power – enumerated in the constitution All government power not delegated to the federal government remains with states Unionists (supporters of strong central government) argue for broad federal power States-rights advocates argue for narrow federal power

19. Spring, 2005Con Law I - Manheim18 Quick Aside - Preemption preempts Under the Supremacy Clause – Art. 6, § 2 – federal law preempts (displaces) state law Broad federal power gives congress more opportunity to displace state law Narrow federal power means less federal displacement of state law Sovereignty is a zero-sum equation States' Rights (and its corollary – federal power) is the oldest and most litigated of all constitutional issues

20. Spring, 2005Con Law I - Manheim19 Source of Federal Power Article I, § 1 All legislative Powers herein granted shall be vested in a Congress of the United States....  contrast with Art. II, § 1: The executive Power shall be vested in a President of the United States...  contrast with Art. III, § 1: The judicial power of the United States shall be vested... Article I, § 8 The Congress shall have Power to... [17 clauses]

21. Spring, 2005Con Law I - Manheim20 Subjects of Federal Power Examine the 17 clauses in Art. I, § 8 Administrative items (relating to functioning of federal gov’t) National sovereignty  foreign relations  military Commerce & Finance  taxes, banking, bankruptcy, mail, intellect’l property  interstate/foreign/indian commerce clause These are the “great powers”

22. Spring, 2005Con Law I - Manheim21 McCulloch v. Maryland (1819) Can Maryland impose a tax on the Bank of the United States? May depend upon whether the act establishing the bank is constitutional v.

23. Spring, 2005Con Law I - Manheim22 Nicholas Biddle, last president of 2 nd Bank of US

24. Spring, 2005Con Law I - Manheim23 McCulloch v. Maryland (1819) Has congress power to incorporate a bank? (2 nd Bank of the United States) Not among the 17 grants of power in § 8 Theories of interpretation Textualism (strictly construed) Original Intent Dynamic Non-interpretivism

25. Spring, 2005Con Law I - Manheim24 McCulloch v. Maryland (1819) Where is the locus of sovereignty in the US The States  Supreme dominion – fed’l gov’t is subordinate  If so, delegation of powers construed narrowly In favor of the true sovereign – the States The People  Popular Sovereignty – over both state & fed’l gov’ts  If so, no preference given to state power over fed’l Not delegation of power from states, but grant from people Construction in favor of state power is not appropriate Is Marshall’s conclusion supported by history? THIS IS THE SINGLE MOST CONTENTIOUS CONSTITUTIONAL LAW QUESTION THROUGHOUT AMERICAN HISTORY

26. Spring, 2005Con Law I - Manheim25 How we got here Articles of Confederation (1781) Preserved state sovereignty, unanimous vote Weak fed'l power was major failing of Articles Annapolis convention (1786) "to take into consideration the trade of US” failed for lack of quorum, but reported:  "important defects in the System of the Federal Government... of a nature so serious as... to render the situation of the United States delicate and critical, calling for an exertion of the united Virtues and Wisdom of all the members of the Confederacy."

27. Spring, 2005Con Law I - Manheim26 Doctrine of Enumerated Powers Fed'l gov't can exercise "only the powers granted to it" "But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist." "the government of the Union, though limited in its powers, is supreme within its sphere of action" Read non-delegated powers narrowly Read delegated powers broadly

28. Spring, 2005Con Law I - Manheim27 Doctrine of Implied Powers In addition to powers expressly granted, fed gov’t may exercise "incidental power" Theoretical support for doctrine Fed'l gov't is supreme within sphere of power No exclusion of implied powers  Compare 10 th Amd w/ Articles of Confederation The powers not delegated to the United States by the Constitution, nor prohbiited by it to the States, are reserved to the States respectively, or to the people. Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

29. Spring, 2005Con Law I - Manheim28 Doctrine of Implied Powers Theoretical support for doctrine Fed'l gov't is supreme within sphere of power No exclusion of implied powers  Compare 10 th Amd w/ Articles of Confederation  Express limitation of power (§ 9; Bill of Rights) Great powers need ample means for execution Source of power  "It is a constitution we are expounding" The Migration or Importation of [slaves] shall not be prohibited by the Congress prior to 1808 Congress shall make no law respecting an establishment of religion

30. Spring, 2005Con Law I - Manheim29 Doctrine of Implied Powers Textual support for doctrine Necessary and Proper Clause  Art. I, § 8, ¶ 18: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers …" Is this a term of limitation or expansion? Must be? Could be? Who decides?

31. Spring, 2005Con Law I - Manheim30 Doctrine of Implied Powers Textual support for doctrine Necessary and Proper Clause  Art. I, § 8, ¶ 18: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers …" This clause is placed in § 8, not § 9 Congress shall have power..

32. Spring, 2005Con Law I - Manheim31 McCulloch v. Maryland (1819) Bank of the United States Incidental to which great powers?  Lay & collect taxes  Borrow money  Regulate commerce  Support armies and navies A "necessary and proper" means to any power?  If there is one and only one necessary mean, who decides what it is?  If the S.Ct, haven’t we rendered congress irrelevant?  If congress, haven't we exploded the N&P clause?

33. Spring, 2005Con Law I - Manheim32 McCulloch v. Maryland (1819) Theories of interpretation Textualism Original Intent Dynamic Non- interpretivism Marshall's Opinion N&P clause has flexible meaning structure supports broad scope Failure of Articles, avoid embarassment Early practice (1st bank) and Const "intended to endure for ages to come [and] be adapted to the various crises of human affairs" Theoretical justification for broad federal power

34. Spring, 2005Con Law I - Manheim33 Marshall’s Test “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” ENDS must be enumerated MEANS must be “plainly adapted” (reasonable) Cannot transgress prohibition in text Rational Basis test

35. Spring, 2005Con Law I - Manheim34 Jackson’s 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 to the 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?

36. Spring, 2005Con Law I - Manheim35 Federal Power - Themes Separation of Powers The powers of the federal government are subdivided into three distinct branches Each uniquely constituted, as to respond to different interests & constituencies Active use of judicial review transfers power from the political branches to the courts Restrained judicial review keeps federal courts from meddling into political affairs

37. Spring, 2005Con Law I - Manheim36 Separation of Powers How does Court’s interpretation of Necessary and Proper clause affect the separation of powers in the federal gov’t? “the degree of [the law’s] necessity is to be discussed in another place.” Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the gov’t, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial dep’t, and to tread on legislative ground.”

38. Spring, 2005Con Law I - Manheim37 Original Supreme Court – basement of the Capitol

39. Spring, 2005Con Law I - Manheim38 Maryland’s Tax on Bank of US Where do states get the power to tax? Does the const. explicitly withdraw this? See Art. I Sec. 10, par. 2 & 3. "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws …" Does the Tax conflict with federal law? Express conflicts Implied conflicts

40. Spring, 2005Con Law I - Manheim39 Supremacy & Implied Preemption Does the tax negate the federal act? “The power to tax is the power to destroy” Can’t the states be trusted to tax reasonably? Even if reasonable, does a state tax deny federal supremacy? States never possessed the right to tax the superior gov’t The const. need not negate such a right

41. Spring, 2005Con Law I - Manheim40 On Just Theory... Taxation of foreign objects Taxation without representation Non-discriminatory taxes  virtual voice theory of representation Modern rule No state taxes on federal instrumentalities Taxes permitted on employees/contractors

42. Spring, 2005Con Law I - Manheim41 Practice Questions 1. Congress enacts a law banning the cloning of human beings? Is the law constitutional? a.What enumerated power could congress use? b.Who decides if the law is necessary or proper? c.Does the law infringe upon state power? d.Which theory of interpretation would most likely uphold the law? 2.Same questions re. a federal law (not const’l amendment) defining marriage as a solemn union between persons of the opposite sex.