1. Do Now: Take out your Venn Diagram and complete it on the board. Delegated Powers Reserved Powers Concurrent Powers

2. Growth of Power Supremacy Implied Powers Commerce Clause

3. Supremacy Clause According to Article VI Clause 2 (“The Supremacy Clause”), the supreme law of the land is: The U.S. Constitution Laws of the national government (when consistent with the Constitution) Treaties (which can only be made by the national government) It was a struggle at the beginning. Could the federal courts even imposes the Supremacy Clause onto the states?

4. Supremacy Martin v. Hunter’s Lessee (1816) Facts of the Case: Lord Fairfax, who held land in Virginia, was a Loyalist during the Revolutionary War. He fled to England and when he died in 1781, he left his land to his nephew, Denny Martin. The following year, the Virginia legislature confiscated all Loyalist property. They sold a portion of the Fairfax property to David Hunter. However, in 1794, the Jay Treaty, which was an agreement between Great Britain and the United States, promised the British that all property that was confiscated from Loyalists during the war would be returned. So Martin sued Hunter for the property to which he was entitled. Question: Are states subject to treaties by the federal government? Decision: Yes. While Virginia does have sovereign over its land, treaties made by the U.S. government are supreme law of the land, as stated in Article VI Clause 2. Therefore, Virginia, as well as all states, must abide by it.

5. Supremacy Secession Can states secede from the Union? No. It would invalidate the Supremacy Clause.

6. Implied Powers Define Article I Section 8 Clause 18 Powers that are reasonably inferred by enumerated powers The Elastic Clause has been used to increase the power of the federal government.

7. Implied Powers McCulloch v. Maryland (1819) Facts of the Case: Congress established the Second Bank of the United States in 1816. Many states opposed a National Bank, since there is no provision within the U.S. Constitution that allows for the federal government to establish a bank. Maryland was one of these states and did not want a branch of the National Bank to open in their state. So in 1818, Maryland passed a tax on any non-Maryland bank of $15,000 a year. The tax was aimed at the National Bank. James McCulloch, the cashier of the Baltimore branch of the National Bank, refused to pay the tax. So he was arrested. Question: Did Congress really have the constitutional authority to establish a national bank? Was Maryland allowed to tax a federal entity?

8. Implied Powers McCulloch v. Maryland (1819) - continued Decision: Yes. Chief Justice John Marshall wrote, “Although, among the enumerated powers of government, we do not find the word ‘bank,’… we find the great powers to lay and collect taxes, to borrow money; to regulate commerce… Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” While Congress does not explicitly have the power to create a national bank, through the “necessary and proper” clause via Congress’ power to tax, borrow money, and regulate commerce, Congress can create a national bank.

9. Implied Powers McCulloch v. Maryland (1819) - continued Decision (continued): No. For a state to tax a federal entity would place the state above the federal government. Chief Justice Marshall wrote, “…that the government of the United States, though limited in its power, is supreme within its sphere of action.” The federal government does not have much power. But it is supreme in the power that it does have. Since both states and the federal government are allowed to create banks, the federal bank must trump the state bank.

10. Commerce Clause Define Article I Section 8 Clause 3 Gives Congress the power “to regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Congress has used the Commerce Clause to expand its power; they have been both successful and unsuccessful.

11. Commerce Clause Gibbons v. Ogden (1824) Facts of the Case: The state of New York gave Aaron Ogden an exclusive license to operate steamboat ferries between New Jersey and New York city on the Hudson River. This mean that no one else may run steamboats on the same route. Thomas Gibbons, another steamboat operator, received permission from the federal government to run his two ferries along Ogden’s route on the Hudson River. So Ogden sued, claiming that his state license trumps Gibbon’s federal license. Question: Who controls the trade route along the Hudson River?

12. Commerce Clause Gibbons v. Ogden (1824) - continued Decision: Congress. Chief Justice Marshall, using the “necessary and proper” clause, interpreted the Commerce Clause of the U.S. Constitution to mean that Congress controls the navigation between the states. If Congress was charged with controlling trade among the states, as the Commerce Clause says, then the means by which states trade with each other must also fall within Congress’ power. So Gibbons won. Gibbons set the stage for future expansion of congressional power over commercial activity. So does that mean that all activities that occur between the states must fall within Congressional power?

13. Commerce Clause Southern Pacific Co. v. Arizona (1945) Facts of the Case: Arizona passed a law in 1912 that limited the number of cars a train may pull. The purpose of the law was to decrease the number of train accidents. Southern Pacific Company operated trains through Arizona, Texas, and New Mexico. Following the Arizona law would cost them an additional one million dollars a year. Furthermore, the other states did not put such restrictions on railroad companies. So they chose not to follow the Arizona law, who then fined them. Southern Pacific sued Arizona, claiming that their law was unconstitutional. Question: Was the Arizona law unconstitutional – encroach on federal jurisdiction?

14. Commerce Clause Southern Pacific Co. v. Arizona (1945) - continued Decision: Yes. Congress has jurisdiction on any trade that crosses state lines. So when Arizona passed its law limiting train cars, it affected trade in the other states it traded with, encroaching on federal jurisdiction. It was therefore unconstitutional. So states are not allowed to pass laws that affect trade with other states because that power belongs to the federal government.

15. Commerce Clause Heart of Atlanta Motel v. U.S. (1964) Facts of the Case: In 1964 Congress passed the Civil Rights Act which forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating the Civil Rights Act. Question: Did Congress exceed its Commerce Clause powers by depriving motels of the right to choose their own customers? Decision: No. The Court noted that the interstate flow of goods and people fell under the Commerce Clause. Using the Commerce Clause, Congress justified their ability to enforce some civil rights legislation. This expanded the power of the federal government.

16. Commerce Clause Carter v. Carter Coal Company (1936) Facts of the Case: In an attempt to get states to comply with environmental regulation concerning the production of coal, Congress passed an act in 1935 that required all coal mines to pay a 15% tax on coal that was produced. If a mine complied with federal regulations on coal production, they would get 90% of the tax refunded. James W. Carter was a shareholder of the Carter Coal Company. He did not want the company to pay the tax because he felt it was unconstitutional. Question: Can Congress use the Commerce Clause to regulate the production of coal within a state? Decision: No. The Commerce Clause does not cover production because production is not commerce. Congress tried to use the Commerce Clause to expand its power over production but the Supreme Court disagreed and struck it down.

17. Conclusion The Supremacy Clause of the U.S. Constitution establishes the supremacy of the national government. Congress has used the “necessary and proper” clause to increase their power. Congress has also used the Commerce Clause to increase their power. However, the Supreme Court has pushed back in some situations.