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Advanced Legal English 403. The American Legal System Part II. Dr Myra Williamson Assistant Professor of Law KiLAW Fall 2012. Recap. In slide show #1, we looked at the powers of the federal government We learnt that the federal government has express powers and implied powers

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Advanced legal english 403

Advanced Legal English403

The American Legal System

Part II

Dr Myra Williamson

Assistant Professor of Law KiLAW Fall 2012


  • In slide show #1, we looked at the powers of the federal government

  • We learnt that the federal government has express powers and implied powers

  • Express – clearly stated in the Constitution

  • Implied – the powers that are not explicitly given by the Constitution itself but they are necessary and proper to execute the express powers

The implied powers
The implied powers

  • The express powers are listed in Article 1, section 8 of the US Constitution

  • Two of those express powers give the US Congress the ability to expand upon the express powers:

    • To regulate inter-state commerce = “The commerce clause”

    • Make all necessary laws to carry out all the other express powers = “all necessary means” clause, also known as “clause 18” or the “elastic clause”

Mcculloch v maryland 17 us 316 1819
McCulloch v Maryland 17 US 316 (1819)

  • The US Supreme Court gave a landmark decision in the case of McCulloch v Maryland (1819) regarding the establishment of a national bank

    • Facts: The state of Maryland tried to impede the operations of the Second Bank of the United States. The Maryland General Assembly passed a law levying a tax on all banks from outside the state of Maryland. The Second Bank of the US was the only bank then operating in Maryland but constituted outside. The Second Bank was established by the US Congress.

    • The case came from Maryland’s highest court, where the state of Maryland had been successful

    • Chief Justice Marshall wrote the Supreme Court’s judgment. It was a unanimous decision.

    • Held: the US government has the right to create a national bank, even though it’s not a right that is expressly mentioned in the US Constitution.

    • Using the “necessary and proper” clause, CJ Marshall said that it’s an implied power.

    • Congress has implied powers that need to be related to the text of the Constitution, but need not be enumerated within the text.

    • To fulfill its goal, the federal government may use any means the constitution does not forbid (as opposed to only what the constitution explicitly allows or only what can be proved to be necessary). State government may in no way hinder the legitimate action of the federal government (here, Maryland cannot levy a tax on the Bank of the United States).

    • The Court held that Maryland’s tax was unconstitutional – it overturned the Maryland Court of Appeals’ decision.

Main points from mcculloch v maryland
Main points from McCulloch v Maryland

  • Although the Constitution does not specifically give Congress the power to establish a bank, it does delegate the ability to tax and spend, and a bank is a proper and suitable instrument to assist the operations of the government in the collection and disbursement of the revenue. Therefore, because of the ‘necessary and proper’ clause, it is implied that the US congress has the power to establish a national bank.

  • Also, federal law is supreme over state law; Maryland had no constitutional right to pass a law that conflicted with the federal law

Sometimes congress goes to far
Sometimes Congress goes to far…

  • In another case, the Court held that US Congress had gone beyond its powers:

    United States v Lopez (1995)

  • Facts: 12th grade student at a high school in Texas brought a gun to school – said he was delivering it to another student for payment

  • He was charged was violating the Gun-Free School Zones Act 1990 (a federal law)

  • He argued that the Act was unconstitutional – the federal govt had no power to regulate schools in his state

  • The US Supreme Court looked at the Act to see whether Congress had the Constitutional power to enact it

  • Federal Government argued that it had the power to pass that law under the “Commerce clause” - the express power to regulate inter-state commerce. It argued that the guns had to pass from state-to-state.

  • What is the Commerce Clause? Article 1, Section 8, clause 3: The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

United states v lopez 1995 continued
United States v Lopez (1995) continued…


  • No! Congress had gone beyond its powers, as enumeratedin the US Constitution

  • Possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity

  • Thus, the Supreme Court held that the Act was unconstitutional – so the law was void

  • It was a 5-4 decision

  • It was the first time in more than 50 years that the Supreme Court limited Congressional authority to legislate


  • We have seen that the federal government (ie Congress) has some powers to make laws

  • It has express and implied powers

  • It tries to interpret the implied powers broadly

  • If it goes to far, the US Supreme Court can intervene

  • We have looked at the “Powers of the Federal State”, now we will look at State Government

Powers of the state government
Powers of the State Government

  • States have very broad powers to make laws

  • The laws that they make apply within their state

  • BUT they cannot make laws that conflict with federal laws

  • Nor can they make laws that are in the exclusive area of the federal government

  • If they do that, they would be pre-empting the federal government’s authority

  • Pre-emption = the right of federal government to be the exclusive lawmaker in certain areas

Article 1 section10 us constitution
Article 1, Section10 – US Constitution

States CAN NOT make laws in these areas:

  • Entering into treaties, alliances

  • Coin money

  • Grant letters of marque and reprisal

  • Grant any title of nobility

  • Pass any ex post facto law

    What does ex post facto law mean?

    It means passing a law that makes a certain act a criminal act after the act itself was committed

Areas for states to make laws
Areas for states to make laws

States commonly make laws in these areas:

  • Criminal conduct

  • Contractual relationships

  • Civil tort liability

  • Business - partnerships, corporations

  • Family law

Some key terms
Some key terms …

  • Jurisdiction = the power or area within which a government can regulate

  • Exclusive jurisdiction = when the power to regulate in an area belongs solely to either the federal or state government

    • eg. Only federal government can regulate coining of money

  • Concurrent jurisdiction = when both federal government and state government have the power to legislate in a certain area

    • eg. Criminal laws often overlap

    • eg. Income tax

State law v federal law
State law v Federal law

Sometimes, the concurrent jurisdiction can lead to conflicts

A state law may conflict with a federal law

Which law “wins”? The state or the federal?

Conflicts between state law and federal law
Conflicts between state law and federal law

  • Supremacy Clause – Article VI of the US Constitution states that “this Constitution, and the Laws of the US made in Pursuance thereof…shall be the Supreme Law of the Land…”

    So, where state law and federal law conflict, federal law wins

    Note also that if a state passes a law that conflicts with the US constitution, the US Supreme court can declare the law unconstitutional and unenforceable