Commerce Clause

Question 1

fundamental federalism Q

Answer 1

what’s left of state power once delineated Federal power

Question 2

First Bank Controversy was about __

Answer 2

can Cong. incorporate national bank or intruding on state powers

Question 3

Hamburger thinks no middle ground between absolutely necessary ___

Answer 3

And more than just logical relationship

Question 4

No enumerated power to incoporate bank so ___

Answer 4

is it implied?

Question 5

Incidentally widely understood at founding to be grant of power ___

Answer 5

included powers needed to carry out

Question 6

Jefferson opinion on what necessary means

Answer 6

strictly necessary to carry out, doesn’t mean convenient

Question 7

Why was Jefferson concerned about a Bank

Answer 7

conflict with idea of agrarian society (2) fears of corruption and would answer to moneyed elite

Question 8

Jefferson though that if Cong. did something not delegated then ___

Answer 8

it would open up a boundless field of power

Question 9

Jefferson points out that the Framers rejected ___

Answer 9

proposal to include incorporation as enumerated power (was about canal building corps), suggests too substantial

Question 10

Two questions for determining if incidental power

Answer 10

(1) Proximity - how close to granted power (2) Size - subordinate to granted power or so significant Framers would’ve spelled it out

Question 11

Hamilton thought it was ____ to erect corps

Answer 11

incident to sovereign power

Question 12

Hamilton thought incorp was not substantial because ___

Answer 12

just means to an end, natural relation to enumerated

Question 13

Hamilton definition of necessary

Answer 13

more flexible than just strictly necessary

Question 14

Hamilton critique of Jefferson

Answer 14

functionally difficult, few things would withstand

Question 15

Outcome of First Bank debate

Answer 15

natural and obvious relation between Bank and regulating trade/borrowing money so necessary to effect enumerated power

Question 16

Ham problems with Jefferson Bank opinion

Answer 16

necessary textually doesn’t mean absolutely necessary (2) comprehensiveness of clause supports liberal construction

Question 17

Ham problems with Hamilton

Answer 17

if just test of expediency where is the line

Question 18

McCulloch principle

Answer 18

broad national power

Question 19

McCulloch facts

Answer 19

trying to tax any non-MD charted bank (including federal)

Question 20

McCulloch holding

Answer 20

Cong. can establish Bank because can choose means to execute ends and MD can’t tax because states can’t impeded Fed carrying out

Question 21

What is the textual argument against interpreting necessary as absolutely necessary

Answer 21

another part of Consti says “absolutely necessary” so if meant that redundant

Question 22

McCulloch reasoning

Answer 22

no enumerated power to create Bank but nothing preventing implied power (2) np clause meant to enlarge powers not restrict (3) Consti gives spheres of authority not means by which Cong. can achieve those goals

Question 23

Do authoritarian decisions of political branches carry weight for judicial power?

Answer 23

Ham says Marbury establishes power to review

Question 24

Ham three reasons why liberty at stake in federalism cases

Answer 24

(1) freedom of self govt diminish beyond state (2) those with power get stronger over time

Question 25

Ham problems with acquiescence

Answer 25

(1) wait too long give up rights like AP? (2) dangerous to let majority establish binding precedent

Question 26

Marshall in McCulloch says that acquiescence wouldn't have authority if __ but Ham thinks___

Answer 26

Q of liberty not structure, structure is liberty

Question 27

McCulloch says that Cong can decide what is necessary as ___

Answer 27

long as logical nexus between ends and means, NP at end of enumerated clause because it is a catch all, meant to enlarge not diminish powers in Govt

Question 28

McCulloch limit on NP

Answer 28

cannot grant substantive independent powers beyond those specifically enumerated

Question 29

McCulloch Marshall reasoning

Answer 29

(1) acquiescence authority because Q of structure (2)law of national govt supreme (3) Consti as expounding not a code (4) NP doesn't mean absolutely necessary (5) If MD power to tax federal entity it has power to destroy it

Question 30

Why does McCulloch say law of national govt supreme

Answer 30

(1) Consti ratified by people (not states) (2) Supreme within its sphere of action (including incidental powers) (3) by acquiescing people have supreme right to declare meaning

Question 31

Ham said point of CC was to ___ but now ___

Answer 31

prevent Fed discrimination amongst the States, balloon ready to burst

Question 32

No real limit on what CC can do because SC worried about tension between ___

Answer 32

letting govt be effective/good vs. giving general police power/undermining federalism

Question 33

Gibbons says commerce can go ____ but among the severl means ___

Answer 33

into interior of the State, must be commerce affecting more states than one

Question 34

Gibbons says CC includes authority to regulate ___

Answer 34

instrumentalities of trade (navigation)

Question 35

Gibbons says there is an ___ stemming from different powers

Answer 35

overlap of authority

Question 36

Gibbons is an ___ decision

Answer 36

expansive

Question 37

HAM thinks that NP is operating in Gibbons because ___

Answer 37

saying can regulate things intermingled with CC

Question 38

Darby created the ___ test

Answer 38

substantial effects

Question 39

Darby holding

Answer 39

motive doesn't matter --> extends to intrastate that affect interstate

Question 40

Darby says that Cong. need not regulate commerce ____

Answer 40

solely for sake of commerce (power to reg commerce absolute)

Question 41

Darby overruled ___

Answer 41

Hammer

Question 42

Hammer struck down ___

Answer 42

law banning shipment of goods produced with child labor

Question 43

Hammer reasoning

Answer 43

(1) goods themselves are harmless (2) use of interstate travel not creating harmful result, unlike lottery and trafficking cases

Question 44

Early restrictive cases

Answer 44

Knight Co, Bailey, Schechter Poultry, Carter

Question 45

Knight Co holding

Answer 45

manufacturing not in meaning of commerce

Question 46

Knight Co was undermined by ___ which said ___

Answer 46

Champion, commerce includes restricting from interstate what it disapproves of

Question 47

Bailey holding

Answer 47

tax to get Hammer result was regulation that exceeded CC

Question 48

Schechter Poultry CC holding

Answer 48

hours/wages of intrastate related to interstate only indirectly

Question 49

Carter said __ but was repudiated by __

Answer 49

mining not commerce, Darby and Jones

Question 50

Jones holding

Answer 50

effect on interstate what matters not source of injury

Question 51

Jones downplayed ___

Answer 51

production aspect of mining