Anyway, the national bank was bad in pretty much every way possible, so the court's vindication of the bank was courageous/outrageous. It continued to operate; it had a 20 year charter. That term ended under Jackson, a rural populist who disliked the bank and wanted to end it. Jackson actually terminated the bank early, under the AG's advice (Roger Tawney, later Chief Justice) that the president wasn't necessarily bound by SCOTUS rulings. Tawney wrote the unchallenged holder of the title WORST case ever: Dredd Scott.
Anyway, so is the bank constitutional?
The court says the bank is constitutional. As usual for Marshall, it's a tour de force. So, first the court must decide whether the bank is constitutional in the first place, and then if so, can MD tax it?
This is a discriminatory tax: state banks and federally chartered (but not federally owned) banks are not subject to it. It's just aimed at driving the bank out of business in MD.
The saying "power to tax is the power to destroy" is from Daniel Webster. He had voted against the bank in congress, but then he was hired as the attorney on behalf of the bank, so he changed his tune. In those days, appellate practice was way more oral than written (opposite of today). This was like 10 days of oral argument. Webster was rather full of himself after this argument, it would seem.
So why should MD not be able to tax a lawful federal agency?
The much harder part is the bank side: is the bank constitutional? Marshall was extremely dominant-- he made all the justices stay in the same rooming house. Even when the Jeffersonians came into power, decisions were still unanimous for the most part. And Marshall assigned all the big opinions to himself. Since Rhenquist, especially, the chief justices have tried to assign things more randomly. So he says the bank is constitutional.
Why is the bank constitutional?
And not constitutional?
Overview of Public Works Project to * Point is this is a highly debated subject still today * Creation of a Federal Road system was a debate as to weather the govt had this power or money to do this (President Madison thought it did not have this power) * President Monroe thought it did not have power, however the court debated this and told him he did have this power * Gibson v. Odgen : Issue is weather NY could grant a monopoly on trade across the Hudson? Court held that navigation is power grounded in the constitutional power granted to federal govt. This is not written in constitution like banks, but ruled it is commerce and therefore fits under. Went as far as to say that only the federal could regulate interstate commerce. * Cooley v. Philadephia : Court limited powers of federal gov't. City law and Federal Law. 3 kinds of law Purely local : Congress can act, Purely National : Congress can act, and mixed : then both can act. Court NEVER defined these categories though. * Paul Case- Commerce clause is the test = trade and is not insurance. This is why insurance is not regulated by federal law : not in constition. * Log case : Court held federal gov't could regulate logs in a stream, because interstate commerce, but if still on land could not. * Railroad also ruled was commerce so could regulate * Manufacture ruled not commerce, so can not regulate. Means to make something not trade it. Processing of goods also fall into this category. * Labor contracts are not commerce in 1908. * Child labor regulations is not commerce in 1918. * Federal gov't decided to tax child labor, because taxing is a power. Court said no, this is still regulating labor and is not commerce, so can not regulate. * President Roosevelt was elected to interrupt the depression : New Deal was the plan. The big cases came through at end of his term 1935. - Panama case was to create a monopoly of oil so price went up with inflation instead of deflation : Court held against this that congress did not have the power. Came down on Black Monday with two other cases. - Mortgage case : Gov't can not force banks to hold mortgages that are not being paid for 5 years according to Court - Appointee case : Court said president can't fire an appointee. - These were the push over the edge for the gov't dealing with the courts. - Carter v. Carter : brought mining tax as a regulation, thus not commerce. Court ruled is not commerce so federal gov't does not have power. However, the court decision was close on this 5 to 4 vs. the usual 9 to 0 or 8 to 1. - Overall this is the court telling the gov't in 1936 that they can regulate interstate commerce, but not local. - This is the Court frustrating gov't and President creates court packing plan. Does not go through, but works in achieving the result wanted. - Farmer case : Court says for it to be interstate commerce it has to go across state lines. Farmer said he was using it at home and Gov't argued this affected interstate because he did not buy interstate wheat. |
The poultry company argues that chickens come into the warehouse in Brooklyn, are dealt with, and re-distributed in Brooklyn. There is nothing interstate about it. The government argues that this is an emergency, and in an emergency, the government's power expands to deal with it. The court says that actually during emergencies is when we need restraint the most. Also, the non-delegation doctrine: this is the second and last case where it shows up (Panama (?) Hot Oil was the first).
Cardozo: "unconfined and vagrant."
And plus, congress doesn't have the authority to do this: it's not interstate! A lot of the chickens come from outside New York (96%). But how does the butcher know which chickens are interstate versus intrastate? In any event there's no direct effect on interstate commerce.
Learned Hand dealt with this in 2nd Cir. on the way up, and he also found against the government: "if you find immediacy here, then you can find it almost everywhere."
Why bother putting that in there? Possibly, he is trying to affect future decisions. He agrees that the effect is substantial in this case, but he is setting up for later on to say that the government is going too far. Possibly he is seeding the record, so he has something to cite later on.
So congress has gotten lazy, and pretty much just asserts interstate commerce is the basis for whatever (even things that could be accomplished under other authority). But this isn't interstate commerce, so the justification for the law crumbles. Rhenquist took this case (perhaps in order to cite Hodell). It's a 5-4 decision.
"We start with first principles." This is a warning that something is coming... Anyway, federalism is the principle in question here. We don't want congress to have the authority to take over each and every thing: there must be some stuff reserved to the states. The court usually doesn't say why it alludes to federalism when it does so. Federalism prevents tyranny, so it must be preserved.
When a court changes terminology (i.e., shedding the direct/indirect test), it means there has been a policy change, even though it is not saying what the policy is.
OK so how do we define "substantial?" The court defines three categories where congress can regulate behavior under the interstate commerce clause: channels (not defined, but probably things like rivers, railroads, etc.), instrumentalities (not clear what this means, but probably things like railroad cars and goods that are actually in interstate commerce), and things with a substatial relation. Well the first two, says the court, are obviously not present, so we just need to decide if this is a substantial relation.
Even a trivial local event might be regulable, if it's tied to some more global initiative (e.g., locally grown marijuana can be regulated under a scheme to regulate the drug trade generally, as in Wright). But this ain't that. Also, the states have primary authority for defining and enforcing criminal law, so federalism applies with double vigor, since this deals with the intersection of criminal and educational law, both of which are state issues.
Conress is getting sloppy and arrogant: there's nothing in the record that justifies this being interstate commerce. And even if they had said something, we'd still have to find it acceptable (Breyer, dissenting, says that if congress gives a reason, then that reason needs merely to be rational).
So why is this so insubstantial? As Souter points out, the line between substantial and insubstantial will always be arbitrary. Thomas says Souter is right, but that doesn't mean that we should just call everything constitutional: it will be controversial, but we're here to carry out the constitution, and sometimes that's a hard job.
And anyway, if we pile inference upon inference, then everything is interstate commerce. And if that's the case, why enumerate those 17 powers of congress in Art. I § 8.
Kennedy and O'Connor point out that federalism serves another function: to promote progress in the law by allowing experimentation. So usurping state rules in gun and state issues would not be a good idea.
Souter basically warns that we're headed for confrontation once again.
Our guy today finds for the dissent: he wants to protect children from guns, and a state may be derelict in its duty to the children (who can't vote). Their parents can vote of course, but what do we mean when we trot out the rationale that some states are derelict in their duties? All states feel slightly this way about all other states, and northern states often use this reasoning to criticize southern states. But which is more responsive to the people: a remote federal government, or a state legislature? A state legislature that doesn't give the people what they want will be voted out of office.
And there are other alternatives to criminal law for keeping guns out of school. Maybe other remedies are better than this: confiscation, some counseling, etc. Also the school gun problem is bigger in some areas than others: why should one size fit all? So if we don't have 100% certainty that federal criminal law is the best solution, why foreclose experimentation?
We certainly don't want to relay on prosecutorial discretion: we get equal protection worries.
Still, who can do the best study of the effect of guns in schools? Congress: they are better funded, better informed, etc. We should encourage them to regulate what they see fit.
Uniformity is nice, too: if we've got a federal law, we know what the law is. There's a compelling drive for uniform laws, so we don't have to figure all sorts of details out from state to state.
If we're worried about tyranny, the federal government has other restraints: separation of powers, a bicameral legislature, the committee allocation of congressional powers, elections. All of these protect against the accumulation of power in one branch of the government.
Plus, our perception of the need for federal power changes over time: the civil war, McCulloch, the war of 1812: all of these reflected a continuing desire for an expansion of federal power. And in a nuclear world, when the president can lay waste to the planet, federal power is obviously beyond what the founders could have envisioned. Communications advances unite us in new ways, too: the federal power is no longer awkwardly remote. Federalism is maybe an anachronism.
Two other forces centralizing power: