Limits On State Regulation - Constitutional Law I

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 obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them." Prigg v Pennsylvania (pg. 219)

   3. The Court therefore determined that the right to self-help must be recognized.

      1. "The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, or restrain." Prigg v Pennsylvania (pg. 220)

      2. "[T]he owner of the slave is clothed with entire authority, in every state of the Union, to seize and recapture his slave, whenever he can do it, without any breach of the peace or illegal violence." Prigg v Pennsylvania (pg. 220)

   4. The Court then noted that "[i]f . . . the constitution guarantees the right, and if it requires the delivery upon the claim of the owner . . . , the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. . . ." Prigg v Pennsylvania (pg. 220)

      • But, the Court goes even further and states that "the natural, if not necessary, conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution. . . ." Prigg v Pennsylvania (pp. 221)

   5. Field Preemption

      1. "[I]f Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be, that the state legislatures have a right to interfere, and as it were, by way of compliment to the legislation of congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose." Prigg v Pennsylvania (pg. 221)

      2. "In such a case, the legislation of congress, in what it does prescribe, manifestly indicates, that it does not intend that there shall be any further legislation to act upon the subject." Prigg v Pennsylvania (pg. 221)

         • "Its silence as to what it does not do, is as expressive of what its intention is, as the direct provisions made by it. . . ." Prigg v Pennsylvania (pg. 221)

      3. "[W]here congress has exercised a power oner a particular subject given them by the constitution, it is not competent for state legislation to add to the provisions of congress upon that subject; for that the will of congress upon the whole subject is as clearly established by what it has not declared, as by what it has expressed." Prigg v Pennsylvania (pg. 221)

   6. The Court ultimately held that the Pennsylvania law was preempted by the federal statute and further that "the power of legislation on this subject" is "exclusive to congress." The Court noted that the States "in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves" but that the use of the general police power in this area would be wholly impermissible insofar as any state regulation is "permitted to interfere with, or to obstruct, the just rights of the owner to reclaim his slave, derived from the constitution of the United States, or with the remedies by congress to aid and enforce the same." Prigg v Pennsylvania (pg. 223)

4. The Dormant Commerce Clause

   1. In General

      1. The so-called "dormant" Commerce Clause was developed by the Court to restrain states from enforcing laws that burdened interstate commerce

      2. The textual foundations of the dormant commerce clause:

         • The Commerce Clause empowers Congress to...