Con. Law Powers: McCulloch & Dormant Commerce Clause Forum

[dougroberts]

What is the difference between

McCulloch v. Maryland (state taxing federal bank; held unconstitutional as states cannot negate valid federal actions, where Congress has nec. & proper power to make a bank for borrowing money enumerated power, and thus state cannot tax, or negate, it).

- and -

Dormant/Negative Commerce Clause
Where state cannot burden interstate commerce.

In McCulloch, couldn't creating a bank be considered an exercise of the commerce clause, and thus state like MD cannot tax this bank because doing so would burden interstate commerce?

[Renzo]

What is the difference between

McCulloch v. Maryland (state taxing federal bank; held unconstitutional as states cannot negate valid federal actions, where Congress has nec. & proper power to make a bank for borrowing money enumerated power, and thus state cannot tax, or negate, it).

- and -

Dormant/Negative Commerce Clause
Where state cannot burden interstate commerce.

In McCulloch, couldn't creating a bank be considered an exercise of the commerce clause, and thus state like MD cannot tax this bank because doing so would burden interstate commerce?

At the time McCulloch was decided, there wasn't any Commerce Clause jurisprudence. And the CC jurisprudence that developed soon thereafter (like Gibbons) indicates that "commerce" was thought of almost entirely as chattel moving from place to place. Since manufacturing, mining, agriculture, and insurance were all outside of the scope of "commerce" as it was then understood, my bet would be that banking is also outside the scope as it was then understood.

[dougroberts]

What is the difference between

McCulloch v. Maryland (state taxing federal bank; held unconstitutional as states cannot negate valid federal actions, where Congress has nec. & proper power to make a bank for borrowing money enumerated power, and thus state cannot tax, or negate, it).

- and -

Dormant/Negative Commerce Clause
Where state cannot burden interstate commerce.

In McCulloch, couldn't creating a bank be considered an exercise of the commerce clause, and thus state like MD cannot tax this bank because doing so would burden interstate commerce?

At the time McCulloch was decided, there wasn't any Commerce Clause jurisprudence. And the CC jurisprudence that developed soon thereafter (like Gibbons) indicates that "commerce" was thought of almost entirely as chattel moving from place to place. Since manufacturing, mining, agriculture, and insurance were all outside of the scope of "commerce" as it was then understood, my bet would be that banking is also outside the scope as it was then understood.

Ok, that is what I thought. But what if one a present-day exam, some federal activity (say, size limits on trucks) is considered interstate commerce. Then would you use a dormant commerce clause analysis saying state cannot burden this interstate commerce activity (based on balancing test) OR would you say that under McCulloch, state cannot negate valid federal activities like regulating truck size which is valid under Commerce Clause?

[Renzo]

What is the difference between

McCulloch v. Maryland (state taxing federal bank; held unconstitutional as states cannot negate valid federal actions, where Congress has nec. & proper power to make a bank for borrowing money enumerated power, and thus state cannot tax, or negate, it).

- and -

Dormant/Negative Commerce Clause
Where state cannot burden interstate commerce.

In McCulloch, couldn't creating a bank be considered an exercise of the commerce clause, and thus state like MD cannot tax this bank because doing so would burden interstate commerce?

At the time McCulloch was decided, there wasn't any Commerce Clause jurisprudence. And the CC jurisprudence that developed soon thereafter (like Gibbons) indicates that "commerce" was thought of almost entirely as chattel moving from place to place. Since manufacturing, mining, agriculture, and insurance were all outside of the scope of "commerce" as it was then understood, my bet would be that banking is also outside the scope as it was then understood.

Ok, that is what I thought. But what if one a present-day exam, some federal activity (say, size limits on trucks) is considered interstate commerce. Then would you use a dormant commerce clause analysis saying state cannot burden this interstate commerce activity (based on balancing test) OR would you say that under McCulloch, state cannot negate valid federal activities like regulating truck size which is valid under Commerce Clause?

McCulloch mostly just tells us that the N&P clause enlarges Federal power instead of limiting it, and that once the Federal gov't acts, the state can't counter-act. There's no real applicability in the absence of federal action.

For thinking through dormant CC issues, I'd first figure out if the federal gov't has acted. If it has, it preempts and invalidates any state action in that sphere (this is where McCulloch comes in). If there's been no federal action, then figure out if the state regulation facially discriminates against out-of-staters (like charging out of state commercial fishing boats a higher licensing fee)--if so, it's invalid under Privileges and Immunities. If there's no facial state-on-state discrimination, do the Pike balancing to see if it "burdens interstate commerce"