The Scope of Congressional Power in McCulloch

1
The Scope of Congressional Power in McCulloch

• First issue How does the Court decide this?
  What sources of constitutional decisionmaking
  does the Court use?
• we must never forget it is a Constitution we are
  expounding. What does that mean??
• What test does the Court apply for deciding
  whether an Act of Congress is within an
  enumerated power?
• Why does the Bank meet this test?
• What wouldnt pass this test? Can Congress pass a
  national speed limit to effectuate the postal
  power?

2
The Second Issue Can Maryland Tax the Bank?

• How does the Court go about deciding this issue?
• Exactly what part of the Constitution did
  Maryland violate?

3
Modern-Day Application of McCulloch can the
States impose term limits on national
representatives?

• Why does the Majority answer NO?
• Why does the Dissent answer YES?
• How should the goals of federalism affect the
  federal/state allocation?

4
Introduction to the Commerce Clause

• Art. I.8.3 grants Congress the power to
  regulate commerceamong the several states
• What limits are there?
• Internal limits (?)
• External limits
• History of the Commerce Power
• Little used until mid-late 19th century (concerns
  about implications for slavery)
• Increasingly used by later 19th century. 2 main
  types of regulation (1) regulate an industry as
  commerce (2) bar or block something from being
  transported across state lines

5
Stage 1 of Commerce Clause Doctrine (early to
late 1800s)

• broad power, deference to Congress
• Very few test cases, a little-used power
  (pro-slavery opposition in Congress to broad
  uses)

6
Primary Stage 1 case Gibbons v. Ogden (1824)

• What is commerce?
• What limits does the Commerce Clause place on
  Congress?

7
One Limit (?) Among the States

• The Commerce Clause does NOT extend to concerns
  which are
• completely within a particular state
• which do not affect other states and
• with which it is not necessary to interfere, for
  the purpose of executing some of the general
  powers of the government (p.843)
• Is there any law Congress could pass today that
  would not meet this test?
• What is the proper role of the Court in enforcing
  limits on Congress Commerce Clause power?

8
Stage 2 Increasing Intervention and
Constitutional Crisis

• The Courts reasoning vacillates between
  Formalism and Realism
• The Courts decisions vacillate between
  Interventionist (striking down the law) and
  Non-interventionist (upholding the law)
• The Court struggles over how to police the limits
  of the Commerce Clause power
• direct vs indirect effects on commerce
• commerce vs manufacturing
• economic vs. social motive
• the need for national vs. local solution