McCulloch v. Maryland: Notes and Questions

Note: For some background on McCulloch. read pages 122-128 of the Paulsen book (and think about our discussion of Marbury when you read the discussion, on  pages 127-128, concerning President Jackson's veto of a bill to recharter the Bank).

--Congress charters the Bank of the United States (BOUS) in 1816
--The state of Maryland levied a tax on banks operating within the state without authority from the state
--BOUS did not pay the tax
--The state of Maryland sued McCulloch, the cashier of the Baltimore branch of BOUS, to collect the unpaid taxes

Two issues:

1. Does Congress have power to incorporate a bank?

2. Is Maryland's tax on BOUS unconstitutional?

I. Does the Constitution give Congress an explicit power (an enumerated power) to create a national bank?

Take a look at Art.I, sect. 8. Anything in there about the power to charter a national bank?

No, but the Court says Congress does have power to "lay and collect taxes," to "borrow money," to "regulate commerce [with foreign nations, and among the several states, and with the Indian tribes]," and to "raise and support armies."

Okay, but not to incorporate a national bank, right?

Take a look at Art. I, sect. 8, cl. 18--the "necessary and proper clause"--Congress has an enumerated power: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

What does necessary and proper mean? Absolutely necessary? Reasonably necessary? Reasonably convenient?

Holding (p. 127):

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. 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....

Necessary means "appropriate."

In United States Comstock (not in casebook), the Court made clear that the Necessary and Proper Clause is an almost unlimited expansion of the explicitly delegated powers:

[T]he Necessary and Proper Clause grants Congress broad authority to enact federal legislation.... Accordingly, the Necessary and Proper Clause makes clear [?] that the Constitution's grants of specific federal legislative authority are accompanied by broad power to enact laws that are "convenient", or "useful"  or "conducive" to the authority's "beneficial exercise".... [W]e look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power....

Wow! Justice Scalia once referred to the Necessary and Proper Clause as "the last, best hope of those who defend ultra vires congressional action." Do you see his point?

And since this broad, almost unlimited,  power is one of the delegated powers of Congress, then the Tenth Amendment does not reserve this power to the states and the people. If Congress has broad, practically unlimited power, than the states and the people have only whatever is left after Congress goes through the buffet line as often as it wishes! Congress gets the meat and potatoes and ice cream; and the states and the people get the lima beans and the orange-colored jello.

II.May the state of Maryland levy a tax on BOUS?


The Supremacy Clause Art. VI:

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

Page 128: "The power to tax involves the power to destroy." [I can't argue with that absolute truth]

No taxation without representation (p. 129:"[W]hen 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.")

Holding p. 129:  "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."


As one commentator concludes:

Marshall's interpretation of the Necessary and Proper Clause remains the authoritative interpretation of that clause. As a consequence, Congress today is vested with broad discretion in choosing the means through which it will exercise its granted powers.

But notice that Madison argued that

Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress...The essential characteristic of the Government, as composed of limited and enumerated powers, would be destroyed, if instead of direct and incidental means, any means could be used....

A particular power may be necessary, but is it also proper?