Monday, September 18, 2006


Analysis of Powers Enumerated to Congress

It is best to read this blog from the oldest post to this, the newest, so scroll down and read the oldest post first, as each one builds upon the next.

You may recall earlier the debate between the Enumerated Powers advocates and the Bill of Rights advocates. Regardless of who won, it is important to remember that the Congress may pass laws allowing it to: 1) Lay and collect taxes; 2) provide for the defense of the nation; 3) borrow money; 4) Control commerce with other countries and among the several states; 5) Control bankruptcy and immigration; 6) Set up post offices; 7) control intellectual property like patents and copyrights; 8) Declare war; and 9) Make laws “necessary and proper” for the carrying out of the above-mentioned powers. There are some other powers here and there given to Congress, but these are the most important for now.

When analyzing the constitutionality of any law, you would be wise to first look to see if the law is an exercise of one of these powers.

A. “Necessary and Proper”

That last one, number nine, is what worried a lot of the Enumerated Powers advocates and the Bill of Rights advocates. It is a “catch all” power that might just swallow the entire idea of Enumerated Powers if we don’t watch out. Just how far could the Congress go in passing laws “necessary and proper” to those listed above? We find out in the case of McCulloch v. Maryland (1819), 17 U.S. 316, at least as far as the early ideas of Enumerated Powers went.

1. McCulloch v. Maryland (1819), 17 U.S. 316.

a. The Facts Of The Case

Congress passed a law setting up a National Bank in 1816. This bank wasn’t too popular with many voters as there was a lot of corruption in it. Certain states also saw it as infringing upon the power of the States and passed laws at the state level designed to get rid of it. One of these laws was passed by Maryland, and purported to tax any bank in Maryland’s jurisdiction which was not chartered by the Maryland legislature. The U.S. Bank’s cashier, Mr. McCullogh, would not pay the tax, and so Maryland sued him in the U.S. Supreme Court.

b. The Legal Arguments

Maryland argued that the Congress got its power to act from the states. But Justice Marshall disagreed and said that the power came directly from the people, not from the states. With that argument by the way side, the first thing that Justice Marshall had to determine was where the Congress got the power to set up a bank. He ruled that Article I, Section 8, allowed Congress to pass laws to regulate interstate commerce. While the power to set up a bank was not expressly listed, it existed implicitly from the express grant in the Interstate Commerce Clause.

The creation of the bank was necessary and proper for achieving the aim of regulating Interstate Commerce. Justice Marshall ruled that the word “necessary” did not mean completely necessary. Congress need only go about accomplishing one of its enumerated powers in a manner “rationally related” to the achievement of that enumerated power, then that was all that was necessary.

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