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Flashcards in LEGISLATIVE POWER Deck (17):

All legislative powers herein granted shall be vested in a Congress of the United States.

Which article

• Art. I, §1


Art I Sec I Test

• Constitutionality of congress:

Two questions to ask when Congress tries to legislate

1. Does Congress have the authority under the Constitution to legislate?

2.Does the law violate another constitutional provision or doctrine?


Federal Legislative Power:

......Amendment says:

Congress may act only if there is.....

whereas sates may act.........

10th Amendment

Congress may act only if there is express or implied authority in the Constitution, whereas sates may act unless the Const. prohibits the action.


• Art. I, §1:   ..............Powers

and what does article I sec I say

All legislative powers herein granted shall be vested in a Congress of the United States.


Congress's Enumerated Power:

Where are they located in general?

Article I, § 8


Congress's Enumerated Powers:


Where are these located specifically?

• Commerce Clause
• Taxing and Spending Clause
• War Powers Clause


• Commerce Clause (Art. I, § 8, Clause 3)
• Taxing and Spending Clause  (Art. I, § 8, Clause 1)
• War Powers Clause  (Art. I, § 8, Clause 11)


Necessary & Proper Clause:

Where is it located?

What does it say?

Article I, §8, Clause 18:

Congress has the power to choose the appropriate means to accomplish its enumerated powers.

Nothing in the constitution prohibits implied or incidental powers if the end be legitimate and within the scope of the enumerated powers (Confers congressional discretion)


Necessary & Proper Clause:


• Test: Legitimate Ends & Means

• Plainly adapted to

• Not prohibited

• Consistent with letter spirit of the Constitution 


• Supremacy Clause

Constitution is the supreme law of the land and always trumps state power – federal govt. supreme over state govt.’s

U.S. Constitution, federal statutes, and U.S. Treaties are "the supreme law of the land."


• 10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


• 14th Amendment, § 5

The Congress shall have power to enforce, by appropriate legislation, the provisions of the 14th Amendment


McCulloch v. Maryland:

Maryland tries to tax the first US Bank, then sues it when bank refuses to be taxed.  Key Takeaways:

i. Supremacy Clause: Constitution is the supreme law of the land and always trumps state power – federal govt. supreme over state govt.’s

ii. Congress allowed to create a Federal Bank due to their enumerated power to impose taxes, regulate commerce. – Bank is a necessary and proper means to those ends. 

“Nec. And proper” clause becomes a rather broad authorization of power for congress as a result.

iii. J. Marshall holds a state cannot tax a federal agency (bank) b/c “the power to tax is the power to destroy” and states do not have that power over federal govt.


McCulloch v. Maryland:

How does court reject the Compact Theory?

(State consent determines whether Federal power is properly exercised)

Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution.

• Court rejects Compact Theory through the Supremacy Clause

• The States through their citizens have already ratified the constitution, which authorized the action thus the Supremacy Clause is binding

o State’s cannot interfere with federal action such that it would hinder/burden/interfere by taxing

• There is no separate agreement between the State and Federal governments, the States were bound when their people ratified. 


Compact Theory

Maryland Tries to argue:

States retain ultimate dominion over govt.,

Constitution is just an agreement between fed and states and states contain ultimate sovereignty

States can judge for themselves whether or not fed is outside their established powers

State is saying its up to the sates to decided if they can create a bank

Each state ratification of constitution used as support



Why did Marshall not set forth acceptable taxing system?

Bank of US has no representation in state legislature to draw back the tax like residents of a state do.

Representational defects in allowing state to tax a bank
Those defects would be present in any tax

Structural concern as well as workload, would be unmanageable to set up system of taxation for every state


Two Principles from McCulloch

1. The federal government/law is supreme over the state govt/law.
• States cannot burden or interfere with federal operation by imposing taxes

2. Congress has enumerated powers under art 1 but has authority to chose the means and methods to carry out those powers from the “necessary and proper” clause
• Necessary and prop clause: gives congress discretion on the proper way to execute those powers