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Ham Manifesto > Commerce Clause > Flashcards

Commerce Clause Flashcards

1
Q

fundamental federalism Q

A

what’s left of state power once delineated Federal power

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2
Q

First Bank Controversy was about __

A

can Cong. incorporate national bank or intruding on state powers

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3
Q

Hamburger thinks no middle ground between absolutely necessary ___

A

And more than just logical relationship

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4
Q

No enumerated power to incoporate bank so ___

A

is it implied?

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5
Q

Incidentally widely understood at founding to be grant of power ___

A

included powers needed to carry out

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6
Q

Jefferson opinion on what necessary means

A

strictly necessary to carry out, doesn’t mean convenient

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7
Q

Why was Jefferson concerned about a Bank

A

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

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8
Q

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

A

it would open up a boundless field of power

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9
Q

Jefferson points out that the Framers rejected ___

A

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

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10
Q

Two questions for determining if incidental power

A

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

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11
Q

Hamilton thought it was ____ to erect corps

A

incident to sovereign power

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12
Q

Hamilton thought incorp was not substantial because ___

A

just means to an end, natural relation to enumerated

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13
Q

Hamilton definition of necessary

A

more flexible than just strictly necessary

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14
Q

Hamilton critique of Jefferson

A

functionally difficult, few things would withstand

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15
Q

Outcome of First Bank debate

A

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

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16
Q

Ham problems with Jefferson Bank opinion

A

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

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17
Q

Ham problems with Hamilton

A

if just test of expediency where is the line

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18
Q

McCulloch principle

A

broad national power

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19
Q

McCulloch facts

A

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

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20
Q

McCulloch holding

A

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

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21
Q

What is the textual argument against interpreting necessary as absolutely necessary

A

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

22
Q

McCulloch reasoning

A

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

23
Q

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

A

Ham says Marbury establishes power to review

24
Q

Ham three reasons why liberty at stake in federalism cases

A

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

25
Q

Ham problems with acquiescence

A

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

26
Q

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

A

Q of liberty not structure, structure is liberty

27
Q

McCulloch says that Cong can decide what is necessary as ___

A

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

28
Q

McCulloch limit on NP

A

cannot grant substantive independent powers beyond those specifically enumerated

29
Q

McCulloch Marshall reasoning

A

(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

30
Q

Why does McCulloch say law of national govt supreme

A

(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

31
Q

Ham said point of CC was to ___ but now ___

A

prevent Fed discrimination amongst the States, balloon ready to burst

32
Q

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

A

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

33
Q

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

A

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

34
Q

Gibbons says CC includes authority to regulate ___

A

instrumentalities of trade (navigation)

35
Q

Gibbons says there is an ___ stemming from different powers

A

overlap of authority

36
Q

Gibbons is an ___ decision

A

expansive

37
Q

HAM thinks that NP is operating in Gibbons because ___

A

saying can regulate things intermingled with CC

38
Q

Darby created the ___ test

A

substantial effects

39
Q

Darby holding

A

motive doesn’t matter –> extends to intrastate that affect interstate

40
Q

Darby says that Cong. need not regulate commerce ____

A

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

41
Q

Darby overruled ___

A

Hammer

42
Q

Hammer struck down ___

A

law banning shipment of goods produced with child labor

43
Q

Hammer reasoning

A

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

44
Q

Early restrictive cases

A

Knight Co, Bailey, Schechter Poultry, Carter

45
Q

Knight Co holding

A

manufacturing not in meaning of commerce

46
Q

Knight Co was undermined by ___ which said ___

A

Champion, commerce includes restricting from interstate what it disapproves of

47
Q

Bailey holding

A

tax to get Hammer result was regulation that exceeded CC

48
Q

Schechter Poultry CC holding

A

hours/wages of intrastate related to interstate only indirectly

49
Q

Carter said __ but was repudiated by __

A

mining not commerce, Darby and Jones

50
Q

Jones holding

A

effect on interstate what matters not source of injury

51
Q

Jones downplayed ___

A

production aspect of mining

52
Q
A

Ham Manifesto (13 decks)

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