Limits On State Regulation Outline

Limits on State Regulation

1. [Recall Maryland’s tax on the U.S. Bank (declared invalid in McCulloch); Pennsylvania’s means of dealing with fugitive slaves (declared invalid in Prigg); and our short discussion of the "dormant" Commerce Clause (BLBAS pp. 730-734)] - SEE BELOW

2. M'Culloch v. Maryland - Part II (pg. 67)

   1. Issue: Whether the State of Maryland may, without violating the Constitution, tax the Maryland branch of the bank

   2. "[T]he constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them." M'Culloch v. Maryland (pp. 67-68)

      1. "From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend." M'Culloch v. Maryland (pg. 68)

      2. "These are, 1st. That a power to create implies a power to preserve: 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve: 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme." M'Culloch v. Maryland (pg. 68)

         • Express Preemption: Where a federal statute and a state statute conflict, the federal law trumps the state law. See Art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, and Thing in the Constitution or Laws of any State to the Contrary notwithstanding.")

         • Implied Preemption: Where a state law is fundamentally inconsistent with the object and purpose of the federal law, the federal law trumps. See Art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, and Thing in the Constitution or Laws of any State to the Contrary notwithstanding.")

   3. "In making this construction, no principle, not declared, can be admissible, which would defeat the legitimate operations of a supreme government." M'Culloch v. Maryland (pg. 68)

      1. "It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." M'Culloch v. Maryland (pg. 68)

   4. "As the laws of the Union are to become the supreme law of the land; as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it; the national government might, at any time, abolish the taxes imposed for state objects, upon the pretence of an interference with its own." M'Culloch v. Maryland (pg. 71)

   5. "The people of all the states have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in congress, and, by their representatives, exercise this power." M'Culloch v. Maryland (pg. 71)

      1. "When they tax the chartered institutions of the states, they tax their constituents; and these taxes must be uniform." M'Culloch v. Maryland (pg. 71)

      2. "But when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control." M'Culloch v. Maryland (pg. 71)

   6. "[T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government." M'Culloch v. Maryland (pg. 72)

      1. "This is, we think, the unavoidable consequence of that supremacy which the constitution has declared." M'Culloch v. Maryland (pg. 72)

      2. "We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void." M'Culloch v. Maryland (pg. 72)

3. Prigg v Pennsylvania (1842) (pg. 217)

   1. In Prigg, the Court determined that Art. IV, § 2, cl. 3 created a right of self-help for slaveholders of which had run away slaves. Since the Congress had spoken with the Fugitive Slave Act of 1793, Congress occupied the field of regulation with respect to run away slaves such that the Pennsylvania law, of which prescribed additional requirements to the federal law, was preempted by the federal law. However, the Court goes further than this and holds that based upon the need for uniformity in protecting this right that "the power of legislation on this subject" is "exclusive to congress." (pg. 222)

   2. Regarding interpretation, the Court noted two important things regarding the proper interpretation of Art. IV, § 2, cl. 3:

      1. First, the Court noted that historically, "the object of [Art. IV, § 2, cl. 3] was to secure to the citizens of the slave-holding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude." Prigg v Pennsylvania (pg. 219)

      2. Secondly, the Court stated that "[i]f, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode, it will attain its just end and secure its manifest purpose, it would seem upon principles of reasoning, absolutely irresistible, that the latter ought to prevail." Prigg v Pennsylvania (pg. 219)

         • "No court of justice can be authorized so to construe any clause of the constitution as to defeat its...

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