Scope of Federal Power

Question 1

Federal Legislative Power

Answer 1

Fed Gov = gov of enumerated /listed power and NOT a gov of general police power. Fed gov must have express or implied power from constitution in order to act
- Express: enumerated in constitution (ex: power to raise taxes; power to regulate commerce)

• Implied: see McCulloch v. Maryland

State power = gov of general power (states have general police power - to regulate for health, safety and welfare)

SCOPE of federal legislative power
If an end is within the fed gov’s sphere of action, then Congress may use whatever means are convenient or useful in achieving that end

Having implied powers does not make Congress all powerful

Question 2

McCulloch v. Maryland

Answer 2

TAKEAWAY: Congress has implied powers beyond those expressly listed in the Constitution, but Congress does not have unlimited power.

If the power belongs to Congress, then Congress can infer the means (actions) to carrying it out

FACTS: MA tried to tax the bank of the US. Argued that Congress does not have the power to create a National Bank.

ISSUE:

1) Does Congress have the Constitutional power to create a national bank?
2) Does MA have the power to tax the bank?

HOLDING
Congress has the implied power to create the National bank
- Impossible to list all of fed govt’s power in text of Constitution— “We must never forget it is a constitution we are expounding.” (The Constitution is only a general outline; the Constitution should not be read like a statute.)

• Necessary & Proper Clause (MA Argument – limits Congress Power)
  
  • The N&P is not listed as a limit of Congressional Power- It is part of the enumeration of powers.
  • Something “necessary” does not mean “absolutely necessary,” otherwise Congress would be very ineffective.

4) Limiting Congress’ Implied Powers
Marshall: Congress does not have unlimited power because the purpose must be legitimate and the action must be appropriate when Congress acts under its implied power. The judicial branch will also be the check on Congress’s implied and express power.

Here, the creation of the National Bank is the ‘means’ that is sufficiently tied to the ends that are among the express power of Congress such that it can be implied. The express power to raise taxes and raise armies which lines up with the implied power to create a national bank

NOTE: What would be the consequences if MA had won and Court held that Congress does not have implied powers?
- The legislative branch would have very limited power and thus create a weaker federal government with less power (Only be able to act if explicitly delineated in Article II)

Marshall did not think that the framers, with the structure of the Constitution, intended to limit the legislative’s power on explicitly delineated powers under Article II.

Question 3

Necessary and Proper Clause

Answer 3

Article I, Section 8 of the Constitution

Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof”.