The Judicial Function in Constitutional Cases

By Lauren Wells,2014-11-26 12:39
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The Judicial Function in Constitutional Cases



    I. The Nature and Sources of Supreme Court Authority

    A. The Establishment of Judicial Review: Marbury v. Madison (1803) ? Supreme Court is the Final

    Arbiter of what is Constitutional through the Process of Judicial Review (i.e. determining whether the

    law is constitutional)

     1. Case History and Background Information

    a. History of Judicial Review

    (1) In England, Parliament is the final decision make there is no concept of judicial

    review st(2) At 1 in the colonial US, there was a tendency to place enormous power in the

    legislative branch due to a fear of the King and judiciary (non-elected), thought was

    that judicial issues would be decided by the upper branch

    (3) Backlash against this legislators were self oriented and very democratic (e.g.

    forgiving debts) in post Declaration of Independence US, there had to be a check on

    the legislature so that no one branch dominates

    (4) Judiciary would be the one to decide if the legislature acted in a way inconsistent

    with the organic nature of the gov‟t i.e. the Constitution thus judiciary decides


     b. 2 Camps at Discord

    (1) Split between the Federalists and the Republicans/Jeffersonians had different

    concepts on how the gov‟t should function

     (a) Federalists: strong central rights

     (b) Jeffersonians: stronger state‟s rights, decentralized democracy

    (2) Alien & Sedition Act: Federalists make it a crime to criticize the gov‟t - can‟t

    speak badly of the government or jail and fines

    (a) Jeffersonians upset, wanted it to be declared unconstitutional, were ready

    to adopt the concept of judicial review of constitutionality, feel that they have

    a more of a chance with the judiciary (more independent, life tenure, don‟t

    have to be re-elected, can‟t lower salary)

    (3) Jefferson elected president in 1800 by Congress Burr & Jefferson got the same

    amount of electoral votes, thrown in HoR who elect Jefferson and takes office on


     c Instant Case History

    (1) Marshall becomes Chief Justice in 2/1801 and had also signed Marbury‟s

    commission in question in the case while he was also Secretary of State

    (2) President Adams on the way out goes to work in 2/1801

    (a) Midnight Judges Act: reduces SC size from 6 judges to 5 to prevent

    Jefferson from filling empty slot

    (b) Organic Act of DC: appoints 16 circuit court judges name throughout

    February , which really ticks off Jefferson

    (3) John Marshall and his brother James craft the commissions for the new judges;

    did it all night but told by Jefferson that they had to stop at midnight on 3/4/1801

    (4) The Plaintiff judges had been nominated and confirmed, but they did not have

    their commissions delivered in time

     d. Procedural Context

     (1) Marbury thinks that he should be a judge; Jefferson disagrees


     (2) Marbury takes the case directly to the SC

    (a) ? 13 of the Midnight Judges Act afforded original jurisdiction to the SC to

    issue a writ of mandamus to person holding office to deliver the commission

    (b) Note: Original jurisdiction means that its possible to have a trial in front of

    the 9 SC justices (1 appointed as a master)

    (3) Conflict of Interest? Marshall had signed the commission and now had to decide

    the case; also James Marshall had filed an affidavit essentially saying that he was a


     e. Jeffersonian Press on the Federalists Marshall Under Great Pressure

    (1) Jeffersonian take over Congress and now are against the notion of judicial review

    since it‟s the only branch that they don‟t control

    (2) Impeachment of Federalist Justices - Pickering of NH (alcoholism=high crimes

    and misdemeanors), wanted to impeach 5 SC justices

    (3) Repealed Midnight Judges Act - dumped 16 justices and decided that there should

    be 6 SC justices

    (4) Canceled the 1802 SC session Marbury was brought in 1801 and decided in


    (5) SC issues show cause order to Madison (now Sec. of State) to ask why its not a

    mistake; he just doesn‟t bother to show up

    2. Marshall‟s Holding: Constitution is Supreme and Invalidates Conflicting/Contradictory

    Action [he goes about this in an indirect manner]

    a. Does Marbury have a right to the commission? Yes, when the commission is signed the

    appointment is made

    b. Does Marbury have a remedy? Yes

    (1) Political Act? If delivering/withholding the commission is a discretionary,

    political act then there is no remedy; based on the Constitution the judiciary won‟t get

    involved in executive discretion because the judiciary doesn‟t want to intrude on their


    (2) No Discretion Involved - discretion already exercised by the nomination and

    confirmation of the candidate; right accrued - executive has no discretion to withhold

    it now

    (3) Mandamus (judicial order to take an affirmative act) is the proper remedy c. Can the Court Issue It? No, Original Jurisdiction under the Judiciary Act of 1789 in Unconstitutional

    (1) ? 13 of the Judiciary Act of 1789 states that the SC can issue a mandamus to

    persons holding office through original jurisdiction w/o going to any lower court first

    (a) Marshall‟s interpretation is questionable (he stuck the rabbit in the hat)

    (b) Marshall thinks that Jefferson is wrong but at the same time he is setting it

    up to rule in Jefferson‟s favor because he doesn‟t want to interfere with the


    (2) Constitution specifically delineates SC‟s original jurisdiction; The Judiciary Act

    of 1789 is expanding the SC‟s original jurisdiction to add things not originally there;

    therefore the act is contradictory

    d. Can the Court Void the Law? Yes, the Constitution is Superior in Nature and

    Conflicting Congressional Action is Invalidated (Last Word)

    (1) Justification for Constitution‟s Supremacy


    (a) Oaths to Constitution judges take oaths to uphold the Constitution; it

    would be immoral if they took an oath but then ruled in favor of conflicting


    (b) Specific examples in the Constitution where change is not permitted

    treason, tariffs, taxes

    (c) Article VI in stating the “supreme law of the land” mentions the

    Constitution first; so it ranks over all other laws made in pursuance 3. Main Point: Marbury v. Madison establishes the concept that the Supreme Court is the final

    arbiter of what is constitutional through judicial review “it is emphatically the province and duty

    of the judicial department to say what the law is”

    a. Bottom Line - Unless constitutionally amended or the SC later reverses itself, that‟s it

    when the SC speaks

    (1) Statute can‟t overturn a constitutional ruling - Dickerson (2000) - 1968 statute

    couldn‟t overturn Miranda warning which is a constitutional rule

    c. Pragmatic Constraint SC does not have an army to enforce its decisions; if its decision

    is not followed then its tough for the court to enforce it

     (2) Cooper (1958) Eisenhower had to federalize the AR national guard

     d. Justification for SC as Final Arbiter

     (1) by nature of written Constitution

     (2) historical argument - legislative abuses of power

     4. **Highlights Of Marbury v. Madison**

    a. Rules in Jefferson/Madison‟s favor by not requiring delivery of the commission but at the

    same time says that they are wrong (Marbury could go to a district court)

    b. Establishes the Doctrine of Judicial Review Marshall previously was powerless but now

    has power w/o doing anything

    c. Illustrates concern over Exercising Affirmative Authority SC relies on their prestige in a

    tight & restrictive way since they don‟t have an army to enforce their rulings

    d. Notes that the Executive Branch has some degree of Unreviewable Discretion (but

    delivery of the commission was not discretionary)

     5. Presidential Thoughts on Judicial Review

    a. Reflex is to abide by SC decisions, but practically they have no police force so they don‟t

    want the president to turn on them since they have no way to back it up

    (1) When Warren Court decided the revolutionary Miranda case, people wanted to

    impeach Warren and replace him with a textualist

    b. Presidents have questioned SC‟s role as final arbiter of the Constitution

    (1) Nixon SC can decide what they want but I don‟t have to listen to it

    (2) Linclon SC decisions are binding in the instant case, but the rules may change

    c. Professor Greenberger‟s take

    (1) SC can rule and a party may have to do something, but you can still say that the

    ruling is wrong

    (2) If a later case involves facts that are even slightly distinguishable, don‟t ignore the

    court, but go back to the court with new, different facts (Roosevelt on Gold Clause)

    (3) SC also can overrule itself (Plessy v. Ferguson)

     B. Authority to Review State Court Judgments

    1. SC Can Review State Court Decisions If It Involves Federal Law Interpretations (Constitution, Fed. Statutes, Treaties); State Is Supreme On State Law Issues


    a. Martin v. Hunter‟s Lessee (1816) VA took land in 1783 under state law, under treaty

    (federal law) the land was found not to be seizable, Marshall recused himself in this situation because of his contract to buy part of it, Justice Story (Republican from MA) decides the case and now wants uniform, strong federal laws due to the War of 1812 and New England‟s threats to succeede

    (1) Rejected the challenge to constitutionality of ? 25 of the Judiciary Act of 1789,

    which allowed SC review of the highest state court decisions on federal law issues

    (2) Holding: Treaty ruled over VA Law (VA wanted to disregard this holding)

    (3) Reasoning:

    (a) Necessity of Uniformity in Constitutional Decisions can‟t have states

    going one way and the SC the other

    (b) State Court Worries judges‟ attachments/prejudices/jealousies might

    obstruct the regular administration of justice, as a general rule state court

    judges feel much more pressure than federal judges with lifetime tenure

    2. SC can review the validity of state laws in criminal proceedings

    a. Cohens v. Virginia (1821) Cohen brothers convicted in Norfolk of selling District of Columbia lottery tickets in violation of VA laws, Cohens claimed that they were immune from state laws in selling congressionally authorized lottery tickets under the supremacy clause, SC had the constitutional authority to review state judgements because the “judicial power extends to all cases arising under the constitution or a law of the United States, whoever the parties may be”

     C. Political Limitations On Judicial Review Congressional Court Stripping

    1. Congress Can Strip SC‟s Appellate Jurisdiction (Congress can‟t alter original jurisdiction);

    unclear how far Congress can go in this regard (SC does charge forward)

    a. Art. III ? 2: The SC has appellate jurisdiction “with such exceptions and under such regulations as Congress shall make”

    b. Ex Parte McCardle (1869) military gov‟ts imposed in Post Reconstruction South, D is a

    newspaper editor jailed for violating reconstruction laws, brings a habeas corpus claim under 1867 reconstruction act which offered habeas corpus to one restrained in violation of the Constitution and appeals to the SC, D claims that the reconstruction acts were unconstitutional, SC sustains jurisdiction but before they can rule Congress passes 1868 act which repealed SC‟s jurisdiction because Congress was worried that whole reconstruction would be found unconstitutional

    (1) McCardle carried whole weight of reconstruction with him to the SC; President

    Johnson has already been impeached for his opposition

    (2) Congress amended the statute to say that the court couldn‟t here the case – can

    they do this?

    (3) Holding: SC Lacks Jurisdiction this is an appellate jurisdiction case; exception

    made by Congress to strip appellate jurisdiction, that‟s it!

    (a) Chase was looking for a way to get out of deciding the legitimacy of


    c. Alternative: bring original petition straight to the SC; this isn‟t really “original

    jurisdiction” (not in the original jurisdiction clause) because some authority has put them in that situation but also not stripped appellate jurisdiction from circuit court


    d. Exception are limited in scope to the specific instance exception would only apply to

    habeas corpus appeals from the circuit courts under the 1868 act; Congress can‟t suspend it

    completely under Art. I ? 9

     2. Limits on Court Stripping Power

     a. Once court rules a right exists, Congress can‟t then strip jurisdiction

    (1) US v. Klein (1872) property appropriated cause of disloyalty not recoverable,

    court rules that pardon satisfies the requirement that claimant was not a supporter of

    the rebellion and can‟t take his property, Congress then says that a pardon is evidence

    of disloyalty resulting in loss of property and strips jurisdiction, court finds an

    inappropriate use of exceptions power once court ruled that he had a right Congress

    can‟t go back and strip jurisdiction

     b. Can‟t change jurisdiction to re-open final judgements (Plaudt v. Spendthrift 1995)

    3. Modern Stance on Court Stripping: Congress Is Very Careful With Court Stripping Of

    Federal Appellate Jurisdiction

     a. During the 60s, Ex Parte McCardle was considered not good law

    b. Not all avenues are ever shut off federal courts may be closed, but state decision on

    federal law must be left open as avenue to the SC ndrd(1) Felker v. Turpin (1996) Congress curtails review of 2 or 3 habeas corpus

    motion under 1996 Anti-Terrorism Act, if circuit rules against them then can‟t go to

    the SC, not shut off completely still file this “original” petition filed in the first

    instance in the SC (really an exercise of appellate jurisdiction)

     4. Indirect Ways Congress Can Strip Jurisdiction

    a. Amendments tough way to control judiciary, 2/3 of both houses and ? of the states must

    give OK, only 4 amendments have been used to overrule SC decisions, also 2/3 of the states

    can create a Constitutional Convention (Art. V) which is not limited to any specific purpose

     b. Impeachment

     c. Set court size and meeting times

    d. Selection process of justices president nominates and senate approves, tremendous

    power but candidates can turn out surprisingly, tendency to undervalue independence of

    tenure (Bush and Souter, Roosevelt and Frankfurter)

     D. Court Imposed Limitations on Judicial Review (Constitutional & Prudential)

     1. Nonjusticiability Of Political Questions (Political Question Doctrine)

     a. 2 Strands of Modern Political Question Doctrine

    (1) Constitutional Role of Another Branch: some matters are textually or

    structurally committed to the unreviewable discretion of the political branches

     (a) judicially manageable standard may play a role in this determination

    (2) Prudential Concerns: some otherwise legal question ought to be avoided to

    prevent controversy/embarrassment i.e. essentially out of wisdom we won‟t get


     b. Republican Representation Context

    (1) Guaranty Clause Violation (Art. IV ? 4) Raises a Nonjusticiable Political


     (a) Application of Doctrine

    Strand 1: Congress‟s role to determine republican nature of government

    Strand 2: Not prudent for the court to rearrange state legislature seats


    (b) Luther v. Borden (1849) Strand 1 Political Question, 2 parties claiming

    to be the rightful gov‟t, SC won‟t get involved in that cause it‟s a republican

    form of gov‟t/Guaranty Clause issue, President or Congress can decide, if the

    court decides it will be chaos

    (c) Colegrove v. Green (1946) Strand 2 Political Question, Challenge to the

    IL district drawing for US House of Rep in that the cities didn‟t get their fair

    share, court finds that it is a mistake for them to get involved in controversial

    political matter th(2) Equal Protection Violation (14 Amendment) does NOT Raise a Nonjusticiable

    Political Question

     (a) Equal Protection has judicially manageable standards

    (b) Warren Court (1960s) is the most aggressively liberal court

    (c) Baker v. Carr (1962) Not a Political Question

    (1) TN assembly had not reapportioned since 1901 which hurts the

    poor and minorities in the cities, court confronted political question

    doctrine, SC looks to equal protection clause rather than challenging

    the guaranty clause rule, aggressively liberal court holds that equal

    protection is a judicially manageable standards and strikes down TN‟s

    assembly apportionment

     (d) Reynolds v. Sims (1964) sets out “one person one vote” standard

    (3) Result: Republican Representation Questions are Justiciable; liberal court will be extensively involved in redistricting controversies

    c. Warren Court Represents the Highwater Mark for Disregard for the Political Question


    (1) Seating Members of the House of Representatives is NOT a Nonjusticiable political question

    (a) Powell v. McCormack (1969) House won‟t seat flamboyant member of

    the House for the current session, Art. I ? 5 states that each house is to judge

    its own members, Warren court looks to the specific enumerated requirements

    of Art. 1 ? 2 cl. 1 and gave little deference to the political question doctrine,

    court holds that barring Powell is unconstitutional, very controversial decision

     liberal court telling liberal party that they couldn‟t bar him

     d. Rehnquist Resuscitates the Political Question Doctrine

    (1) Unilateral Presidential Termination of a Treaty is a Nonjusticiable Political Question, Strand 1

    (a) Goldwater v. Carter (1979) Carter pulls US out of a treaty obligation,

    Constitution is silent, court reverts back to the doctrine and holds that its up to

    the legislative and executive branch to solve it

     (2) Impeachment Proceeding is a Nonjusticiable Political Question

    (a) Nixon v. US (1993) circuit court judge impeached, tried by the senate

    who will vote but evidence was reviewed by a committee, majority finds

    nonjusticiable political question as “try” is not a judicially manageable

    standard and its up to the Legislative branch to do it

    (1). White thinks that it is justiciable but that the requirement of a trial

    was fulfilled


    e. But Contested Presidential Election is NOT a Nonjusticiable Political Question Bush v.

    Gore (2000)

    (1) Equal Protection is Justiciable (Baker) Bush raises issue that ballots were

    counted differently in different counties in violation of equal protection so the SC

    steps right into the fray

    (a) are the guaranty clause (nonjusticiable) and equal protection (justiciable)

    really all that different?

    (2) *No Precedential Value (“ticket to ride for that train only”) – court would have to

    get involved in every election

    (3) Problem: court spent much political capital in this decision when they could have

    just applied the political question doctrine

    2. Case or Controversy Requirements: Art. 3 ? 2 “judicial power shall extend” to a list of

    enumerated “cases” and “controversies”; there must be a real life issue in every case

    a. Rule Against Advisory Opinions: If there is a question about the constitutionality of something, but nothing has actually happened yet, the SC will not get involved

    (1) Washington had questions about treaties, through Jefferson he sought to inquire

    with the court about certain issues so he didn‟t embarrass himself, who better to turn

    to for advice than the SC?

    (a) Office of Legal Counsel within the Department of Justice advises the

    president; Solicitor General argues for the US in front of the SC

    (b) This conforms to the way the rest of the world works i.e lawyer advises &

    court decides

    (2) SC says that nothing had actually happened yet; did not involve an actual “case”

    so it wouldn‟t get involved

    (a) some states expressly include in their constitutions that the state supreme

    court can issue advisory opinions

    (b) many foreign governments who have modeled the US constitution allow

    advisory opinions

    (3) Justification: only hearing one side of the issue so there is no balance of facts; in

    “cases and controversies” there is incentive for both sides to bring their best

    arguments in order to win

    b. Standing To Litigate: 2 Sets Of Requirments Constitutional & Prudential

    (anytime in fed court pursuing rights must always satisfy the standing requirement)

    (1) Constitutional Requirements: use these first, more important

     (a) Injury-in-fact: P has suffered personally some actual or threatened injury

     (b) Causation: Injury can be traced fairly to the challenged action

     (c) Redressability: Injury can be redressed by a favorable decision

    (2) Prudential Considerations: totally unpredictable, loosey-goosey rd(a) Ban on 3 Party Claims: P must assert his own legal rights, can‟t rest his rdclaim on the interests of 3 parties

    (b) Ban on Generalized Grievances: No abstract questions of wide public


    (c) „Zone of Interest‟: Complaint must fall within the zone of interest to be

    protected by the statute or constitutional guarantee


    (3) Main Point: Learn the tools of argument and apply the right things these cases

    can come out anyway; the doctrine applied changes sometimes from week to week as it weaves back and forth, there is not a computer-like algorithmic certainty (4) Historical Context took the court a long time to enunciate the doctrine

    (a) Little citation to authority when explaining the doctrine of standing;

    traceable mainly to great volume of post-Depression legislation

    (b) Previously people didn‟t think that they could redress issues covered by

    these new laws; organizations would go into court to protect “everybody‟s

    rights” by presenting generalized problems w/o reference to specific injured


    (c) Standing doctrine became a protection against anyone walking in who is

    unhappy with the way the world works but who is unaffected or lacks specific

    clients; also protection against just announced “groups” suing

    (d) Groups with members hurt can come in and sue for them

    (5) Housing Context must show All 3 Constitutional Requirements; must show Ps with urgent problems

    (a) Warth v. Seldin (1975) Ps claim that Penfield‟s ordinance barred

    low/middle income residents from getting housing in the town, court looks for

    someone who actually tried to buy or build there and were barred, court holds

    that even if Ps proved injury-in-fact that causation and redressability remain

    an issue due to the fact that it was a lucrative, wealthy area even if Ps

    wanted to move and builders wanted to build there the Ps might no be able to

    afford to live there because of the economics of the area

    (b) Arlington Heights (1977) race discrimination claim against the suburb‟s

    refusal to rezone a tract of land to permit higher density housing; Ps showed

    an actual, detailed housing plan and real clients with injury (6) Citizen Suit Provision still must show the 3 constitutional requirements of standing (not an insurmountable obstacle)

    (a) Lujan v. Defenders of Wildlife (1992) for purposes of the endangered

    species act federal agencies had to consult with the secretary of the interior to

    make sure that agency action will not jeopardize endangered species,

    originally it applies abroad a year later they cut it back to just the US, Ps

    brought claim under their “animal nexus” theory but had no concrete plans to

    return to the affected areas, no standing

     (1). Scalia says there are ways Ps could show Injury-In-Fact

     -worked with or observed a particular animal threatened

     -worked with a particular species in very area threatened

    but that it goes beyond the limit that anyone who observes an

    endangered species anywhere in the world is appreciably harmed by

    some project with which he has no more specific connection

    (2). Citizen suit provision (interested party concerned with improper

    activity under the statute has jurisdiction to sue in fed. court) but still

    must show injury-in-fact or they are just trying to second guess the

    executive‟s decision

    (b) Friends of the Earth (2000) satisfies injury-in-fact by finding Ps who

    claim that pollution from a wastewater treatment plant prevented them from


    fishing, camping, and swimming near an allegedly unharmed river, Ps are

    injured and show causation and its redressable under the clean water act

    (7) Bottom Line on Standing: find someone who is actually affected somewhere to

    meet the test; groups bring suits all the time and standing is usually not a problem

    (a) good lawyer will draft a complaint which shows evidence that actual

    people wanted to move in and that there was a way that they could afford it

    (b) there are networks to find clients for groups involved in important issues STRUCTURE OF GOVERNMENT: VERTICAL SEPARATION NATION & STATES


    II. General Principles of National Powers and Local Activities

     A. Sources of National Power

    1. Articles of Confederation not a workable document, Federal Government couldn‟t operate, too

    much discretion to the states

     a. Congress couldn‟t tax – had to rely on the states for money

    b. Congress had no interstate commerce power hard to get business flowing due to state


    c. Reservation clause: all powers not “expressly” given to Congress are left to the state

     2. Constitution starts all over

    a. Art. 1 ? 8: Enumerates Specific Congressional Powers e.g. regulation of commerce,

    taxing, raising an army

    b. Necessary & Proper Clause of Art.1 ? 8: “to make all laws which shall be necessary and

    proper for carrying into execution the foregoing powers” – limit power to those absolutely

    necessary? or more broad?

    c. Art.1 ? 9: express limits placed on Congress e.g attainder, habeas corpus thd. States Never Really Mentioned Except In The 10 Amendment: “powers not delegated

    to the US by the Constitution, nor prohibited by it to the states, are reserved to the States

    respectively, or to the people”

    (1) drops “express” from the Articles of Confederation to mean that the federal

    government has implied powers

    B. Scope of National Power: McCulloch v. Maryland (1819) ? **Necessary & Proper Clause Grants

    Implied Powers to Effectuate the Express Powers of Congress (Means/Ends Test)**

     1. History of the Bank

    a. Congress in 1791 enacts legislation creating the National Bank, Washington knew about

    the tension involved, does Congress have the power?

    (1) Jefferson: NO takes power away from the states, dangerous, no authority for it

    read the necessary and proper clause narrowly to in regards to other implied powers

    (2) Hamilton: YES need implied powers (such as creating the bank) to accomplish

    the enumerated powers of congress under art.1 ? 8 of the constitution

     b. Bank becomes a cause celeb federalists are happy, good for building the economy

     c. In 1811 the republicans don‟t renew the charter

    d. In 1815 Madison does a u-turn and asks for a bank as a result of the War of 1812, needed

    money to raise and support the war, new legislation is passed in 1816 and the bank is


    (1) note: when the republicans get power, their limited ideas of gov‟t become

    immaterial and they shy away from strict constructionist positions


    nde. In 1832 Jackson vetoes the 2 banks recharter doesn‟t think that its constitutional, court

    can‟t review a veto

    f. In 1913 the Federal Reserve Bank is created which essentially fulfills Hamilton‟s ideal

    functions control interest rates, audits, flow of money nd 2.Maryland v. McCulloch: constitutionality of the 2 charter in 1816 at issue

    a. Initially very popular in 1816 (cheap $) until the depression of 1818 forced the bank to call in loans from state banks who had to repay unexpectedly

    b. States decide to tax the national bank as a result

    c. McCulloch was the “cashier” at the Baltimore branch – he ran the bank corruptly by

    loaning out recklessly and was indicted in Maryland

    d. Issue of the constitutionality of the bank goes to the SC in the worst possible posture

    3. Main Point: Marshall concludes that the Necessary & Proper Clause grants Implied Powers to

    Effectuate the Express Powers of Congress

     a. Issue #1: Can Congress Incorporate a Bank? -YES

    b. Legal Realism: legislation extensively debated for 20 years and enacted twice, very people who were opposed to it now support it, strange to find it unconstitutional now c. Means-End Analysis: congress has all these powers/responsibilities under the constitution, must have the means to get to these ends (enumerated powers) or its as restrictive as a code

    (1) It‟s a constitution – living, breathing, enduring, adaptable thing

    d. Necessary and Proper Clause: grants the implied powers of the means to accomplish the enumerated ends; it‟s not a limit on power

     (1) located in Art. 1 ? 8 grant of powers

     (2) if it was a limitation it would be in Art.1 ? 9 restrictions

    e. People (who formed the Constitution) As Sovereign: not the states federal government

    power can‟t be subordinate; how can the federal government not have a bank and be dependent in the states to carry out its powers thf. 10 Amendement in dropping “expressly” indicates that congress has implied powers

     4. Test of Necessary & Proper Power Not An Absolute Power

    a. Means-End Test: Pinpoint back to the specific express power involved (commerce, tax)

    b. Pretext Test: “Threshhold of Rationality” Approach

    (1) Congress can‟t under the pretext of executing its power accomplish things not

    entrusted to the government

    (2) Judicial Deference Given once court determines that use of implied power

    passes a threshold of rationality (i.e. legitimate purpose) the court will not inquire into

    the degree of necessity; court saying it will look into it a little bit but that it only must

    meet a minimum requirement

     5. Other Point: States Don‟t Have the Ability to Tax the Federal Government

     a. Issue #2: Can MD Tax the National Bank? NO

    b. One Party Can‟t Have Power Over the Whole - “Power to tax involves the power to

    destroy”: the check on this power is the political check of voting, only MD residents can check the MD legislature‟s power to tax, but in this case MD is taxing everyone

     (1) states shouldn‟t have the ability to tax the federal gov‟t out of existence

    (2) citizens of one state would not allow the legislature of another state to tax them c. Alternative Ad Hoc Legislation barring taxation of the federal government by the states d. Opposing Argument (for states‟ ability to tax fed): power to tax is concurrent in that both

    the states and fed have it, nothing says that states can‟t tax the federal gov‟t

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