Federalism 1 Flashcards
Federalism was conceived as a way to avoid
tyranny of central government
What are the three structures of the Constitution that promote Federalism
states, specifically enumerated powers, structure of national governmetn
States are not merely __
subordinate administrative districts
Article 1,8 lists the ____
enumerated legislative powers of national government
Article 1,10 ___
limits a number of state powers
What is Supremacy Clause?
exercise of national power trumps exercise of state power (VI)
What does Tenth Amendment confirm
reserved authority of states in all matters which the Consti does not grant power to national government
What amendments grant additional power to national government
Reconstruction era
What was the purpose of electoral college
state legislatures choose how electors are chosen
The election of senators by legislatures was meant to ___
check the power of national government
The 17th amendment reduced
senator incentives to protect their state governments
The word “expressly” was dropped in 10th amendment which suggests __
there are powers not expressly delegated (implied or incidental powers)
What was principle of incidental powers accepted at the founding?
grant of a power included powers that would be means necessary to carry out granted power
What are two considerations for what incident could be fairly implied ?
proximity, size (really subordinate or such a significant power should expect stated explicitly)
Jefferson answer to is power to incorporate a bank substantial enough that must be explicitly enumerated
rejected proposal to include it suggests framers considered it substantial
Hamilton answer to is power to incorporate a bank substantial enough that must be explicitly enumerated
incorporation just means to an end so is incidental
What are the two extremes of interpreting necessary and proper?
strictly necessary (if multiple ways, none are individually necessary) vs. whatever Congress thinks is necessary (but then why would “proper” be included)
Jefferson interpretation of necessary
not equal to convient (incorporation power convenient at most)
Hamilton interpretation of necessary
can have more flexible meaning than “absolutely necessary”
McCulloch rejects idea that …
Const requires absolute necessity
Hamilton on Bank Bill argued that it is _____ to erect corporations and incorporation is __
unquestionably incident to sovereign power, merely a means to an end
Textualist counterargument to Jefferson
constructing necessary as absolutely necessary doesn’t fit the word’s plain meaning + comprehensiveness of clause supports liberal construction
Functionalist counterargument to Jefferson
narrow construction would beget endless uncertainty
Marbury holding
power to interpret Consti is Court’s alone, President and Congress can only interpret before binding Court decision
Facts of McCulloch
Congress incorporated second bank of US, Maryland attempted to levy a tax on the MD branch
McCulloch holding 1
Congress has incidental power to incorporate the Bank
McCulloch holding 2
States have no power to impeded operations of constitutional laws enacted by Congress to execute powers vested in general government (MD law unconstitutional)
McCulloch establishes that Const gives ___ not the means by which___
spheres of authority, Congress can achieve its goal
McCulloch issue 1
scope of federal legislative power
McCulloch issue 1, reasoning 1
precedential value of practice (issue of structure, not of liberty)
Hamburger critique of McCulloch not as issue of liberty
freedom of self-govt in local/state governance and by expanding federal power you diminish that
Hamburger critique of acquiesence argument in McCulloch
practice of President and Congress twice chartering a bank is relevant but not dispositive
McCulloch issue 1, reasoning 2
Consti ratified by the people not the states so Supremacy Clause
McCulloch issue 1, reasoning 3
Aim of Consti not comprehensive legal code, but basic charter that could expand so has incidental powers
McCulloch issue 1, reasoning 4
Necessary and Proper doesn’t mean absolutely necessary, Congress can decided what is necessary as long as logical nexus between ends and means
McCulloch says necessary and proper clause at end of list of enumerated powers because it is a ___
catch-all, means to carry out the preceding mechanisms (enlarge not diminish powers vested in govt)
McCulloch says ____ suggests implied powers
omission of “expressly” in 10th amendment
Issue 2 in McCulloch
Can state law interfere with operation of federal instrumentality
Issue 2 McCulloch reasoning 1
federal govt supreme within its sphere of action (including any incidental powers)
Issue 2 McCulloch reasoning 2
Indirect structural contradiction if not direct conflict (if MD power to tax federal body has power to destroy it which is incompatible with federal supremacy)