powerful national government possessing broad powers, with the Court willing to offer whatcould seem like total deference to decisions of Congress.
get very close to idea of
- stems from idea that the states createdthe federal govt. (still relevant today, Regan seems to have suggested itrecently)
The most important argument about state sovereignty and the relevancethereof were written in the late 1700s. The
Virginia and KentuckyResolutions
, written by Madison and Jefferson respectively
Inherent v. implied powers
: This is the canonical example of the Court’s willingness to discernimplied powers beyond those specified in the text. The point of calling them implied is that theyare indeed linked to the textually assigned powers and serve as means to the ends spelled out inthe text.
: powers that are written directly into the Const., although meaning isdebatable
closely related to an express power, in conjunction with one, implied off text
Doesn’t depend on the text or connection (the power to make the design of the flag)
The Chinese Exclusion Case
– The government, through the action of the legislativedepartment, can exclude aliens from its territory is a proposition not open tocontroversya.This is a power necessary to maintain sovereignty, but even that is restricted by the Const. – “restricted in their exercise by the Const. and considerations of public policy and justice which control, more or less, the conduct of civilizednations
US v. Curtiss-Wright Export:
“Rulers come and go; govts end and forms of govtchange; but sovereignty survives. Do not need an affirmative grant of power in theConn to give the federal govt powers of external sovereignty, it was already there.”a.federal govt foreign powers are plenary, not limited. b.Union got this power from the King (who had it before the war) not the States
iii.McCulloch v. Maryland (PART II):
The Const. and the laws made in pursuance thereof are SUPREME; they override theconstitutions and laws of the several States, and cannot be controlled by them.2.The power to create implies a power to preserve;3.That a power to destroy, if wielded by a different hand, is hostile to, and incompatiblewith these powers to create and to preserve;4.That where this repugnancy exists, that authority which is supreme must control, notyield to to that over which it is supreme. But the very terms of this argument admit thatthe sovereignty of the State, in the article of taxation itself, is subordinate to , and may be controlled by the constitution of the United States … it is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modifyevery power vested in subordinate governments, as to exempt its own operations fromtheir own influence.
C)The President Interpreter
Andrew Jackson & The Demise of the Second Bank
: Jackson presented a fundamental issue of theallocation of constitutional decision making authority amongst the branches of the government.i.“A bank is constitutional, but the province of the Legislature to determine whether this or aa particular power, privilege or exemption is ‘necessary and proper’ to enable the bank todischarge its duties to the government and from their decision there is no appeal to thecourts of justice. Rather legislature and executive will decide so.ii.We don’t only have to look to the judiciary for precedent – President can interpret also b.There are circumstances where the president may appropriately decline to enforce a statute that heviews as unconstitutional.i.However, if it is probably that the Court would find it constitutional, he should enforce it.ii.If he doesn’t think it’s Constitutional, and he thinks that the Court would agree, he shoulddecline enforcement