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M'Culloch V. MD (1819)
• First of our cases to talk about the powers of the legislature
• Oral arguments took 9 days
• John Marshall court!
• Supremacy Clause--Article VI, Paragraph 2
• Necessary and Proper Clause--Article I, Section 8, Paragraph 18
• 10th Amendment
• Two big issues
○ Can a state tax a federal identity?!
• MD imposed a tax on the Bank of the United States (early Federal Reserve)
○ Can the federal government create the Bank of the United States?!
• Necessary and Proper Clause, Article I Sec. 8 doesn't mention this power
• Bank of the United States
○ "Crude beginnings of the Federal Reserve
○ "Lots of corruption
• Very powerful members in the bank, bought and sold members of Congress • MD created a
tax on banks
○ Bank of the United States issued notes (bonds, etc) • Didn't pay taxes on those issued notes
• Article I Sec VIII lists all powers of Congress
○ "Lists quite a lot of things
○ "Doesn't say anything about a Bank
○ "Does Congress have the power to do such a thing?
• The end has the Necessary and Proper Clause
• Banks are usually helpful for managing debts and loans
• Is it necessary?!
• Might not be absolutely, but that's not what it says
• What does necessary mean?!
• Convenient, useful, simpler
• Necessary and Proper Clause
○ "The Elastic Clause
○ "Flexible provision that gives Congress implied powers to carry out powers
listed in Article I Sec VIII
○ "If Congress can show some connection between the policy they impose and a
power in that section, the law is constitutional.
• The Affordable Care Act: Nothing explicitly grans them the ability to regulate healthcare,
but goes under the ability to promote the general welfare of the United States ○ This is often
used to apply the Interstate Commerce Clause to laws
• Isn't almost everything involved in interstate commerce these days? • 1964 Congress passed
a Civil Rights law
○ "Public Accommodations could not discriminate based on race
○ "How could Congress do this?
• Places of public accommodations are often involved in interstate commerce
• So, can the state tax the federal government?
○ "The power to tax is the power to destroy
○ "The Supremacy Clause of the Constitution, Article VI Para. II
○ "The state doesn't have the power to control laws passed by the federal
• The 10th Amendment states that the federal government has implied powers