Commerce Clause Flashcards
fundamental federalism Q
what’s left of state power once delineated Federal power
First Bank Controversy was about __
can Cong. incorporate national bank or intruding on state powers
Hamburger thinks no middle ground between absolutely necessary ___
And more than just logical relationship
No enumerated power to incoporate bank so ___
is it implied?
Incidentally widely understood at founding to be grant of power ___
included powers needed to carry out
Jefferson opinion on what necessary means
strictly necessary to carry out, doesn’t mean convenient
Why was Jefferson concerned about a Bank
conflict with idea of agrarian society (2) fears of corruption and would answer to moneyed elite
Jefferson though that if Cong. did something not delegated then ___
it would open up a boundless field of power
Jefferson points out that the Framers rejected ___
proposal to include incorporation as enumerated power (was about canal building corps), suggests too substantial
Two questions for determining if incidental power
(1) Proximity - how close to granted power (2) Size - subordinate to granted power or so significant Framers would’ve spelled it out
Hamilton thought it was ____ to erect corps
incident to sovereign power
Hamilton thought incorp was not substantial because ___
just means to an end, natural relation to enumerated
Hamilton definition of necessary
more flexible than just strictly necessary
Hamilton critique of Jefferson
functionally difficult, few things would withstand
Outcome of First Bank debate
natural and obvious relation between Bank and regulating trade/borrowing money so necessary to effect enumerated power
Ham problems with Jefferson Bank opinion
necessary textually doesn’t mean absolutely necessary (2) comprehensiveness of clause supports liberal construction
Ham problems with Hamilton
if just test of expediency where is the line
McCulloch principle
broad national power
McCulloch facts
trying to tax any non-MD charted bank (including federal)
McCulloch holding
Cong. can establish Bank because can choose means to execute ends and MD can’t tax because states can’t impeded Fed carrying out
What is the textual argument against interpreting necessary as absolutely necessary
another part of Consti says “absolutely necessary” so if meant that redundant
McCulloch reasoning
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
Do authoritarian decisions of political branches carry weight for judicial power?
Ham says Marbury establishes power to review
Ham three reasons why liberty at stake in federalism cases
(1) freedom of self govt diminish beyond state (2) those with power get stronger over time
Ham problems with acquiescence
(1) wait too long give up rights like AP? (2) dangerous to let majority establish binding precedent
Marshall in McCulloch says that acquiescence wouldn’t have authority if __ but Ham thinks___
Q of liberty not structure, structure is liberty
McCulloch says that Cong can decide what is necessary as ___
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
McCulloch limit on NP
cannot grant substantive independent powers beyond those specifically enumerated
McCulloch Marshall reasoning
(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
Why does McCulloch say law of national govt supreme
(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
Ham said point of CC was to ___ but now ___
prevent Fed discrimination amongst the States, balloon ready to burst
No real limit on what CC can do because SC worried about tension between ___
letting govt be effective/good vs. giving general police power/undermining federalism
Gibbons says commerce can go ____ but among the severl means ___
into interior of the State, must be commerce affecting more states than one
Gibbons says CC includes authority to regulate ___
instrumentalities of trade (navigation)
Gibbons says there is an ___ stemming from different powers
overlap of authority
Gibbons is an ___ decision
expansive
HAM thinks that NP is operating in Gibbons because ___
saying can regulate things intermingled with CC
Darby created the ___ test
substantial effects
Darby holding
motive doesn’t matter –> extends to intrastate that affect interstate
Darby says that Cong. need not regulate commerce ____
solely for sake of commerce (power to reg commerce absolute)
Darby overruled ___
Hammer
Hammer struck down ___
law banning shipment of goods produced with child labor
Hammer reasoning
(1) goods themselves are harmless (2) use of interstate travel not creating harmful result, unlike lottery and trafficking cases
Early restrictive cases
Knight Co, Bailey, Schechter Poultry, Carter
Knight Co holding
manufacturing not in meaning of commerce
Knight Co was undermined by ___ which said ___
Champion, commerce includes restricting from interstate what it disapproves of
Bailey holding
tax to get Hammer result was regulation that exceeded CC
Schechter Poultry CC holding
hours/wages of intrastate related to interstate only indirectly
Carter said __ but was repudiated by __
mining not commerce, Darby and Jones
Jones holding
effect on interstate what matters not source of injury
Jones downplayed ___
production aspect of mining
