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POWERS OF CONGRESS DELEGATED.

101. The government of the United States being one of delegated powers, the field of its legislative authority is not unbounded. The power of congress to pass any given law is derived from and limited by the federal constitution.

The power of congress to pass any given law must, on the one hand, be found in some express grant of authority given to congress by the constitution, or necessarily implied in its terms, or be found necessary to carry into effect such powers as are there granted. And on the other hand, the act in question must not be in violation of any of the prohibitions laid upon congress by the same instrument.10 As to the ultimate determination of the limits of federal power, it has been argued that, as the government of the Union is one of delegated powers, the right to decide upon the extent of the powers granted remains with the several states or with the people, under the provisions of the tenth amendment, and has not been confided to the national government itself. But it is now settled, both by authority and precedent, that the government of the Union is to judge, in the first instance at least, of the extent of the powers granted to it, as well as of the means of their proper exercise. In practice, the constitutionality of any act of congress must be determined by the federal judiciary. And if the general sentiment of the people is not in accord with its findings, redress must be sought at the polls.11

10 Martin v. Hunter, 1 Wheat. 304, 326; Calder v. Bull, 3 Dall. 386; Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 713; Kilbourn v. Thompson, 103 U. S. 168; 2 Story, Const. § 1907.

11 See McCulloch v. Maryland, 4 Wheat. 316; Ferris v. Coover, 11 Cal. 175; 1 Story, Const. § 432.

EXCLUSIVE AND CONCURRENT POWERS.

102. Some of the powers granted to congress by the constitution are vested exclusively in that body; some others may be exercised concurrently by the states in the absence of action by the national government thereon. A power vested in congress is exclusive of all state action on the same subject when

(a) It is made so by the express language of the

constitution.

(b) Where in one part of the constitution an authority is granted to congress and in another

part the states are prohibited from exercising a like authority.

(c) Where a similar power in the states would be inconsistent with and repugnant to the authority granted to congress, that is, where the subject matter of the power is national and can be governed only by a uniform system.

103. In cases not falling under any of the foregoing heads, the states may lawfully pass laws relating to the subject of the power, unless and until congress shall take action for exercising the power with which it is invested. But in such cases of concurrent authority, when congress exercises its power it thereby supersedes and suspends all existing state legislation on the same subject, and prohibits similar state legislation until it shall again leave the field unoccupied."2

As an illustration of the first species of exclusive powers mentioned above, it is provided by the constitution that congress shall "exercise exclusive legislation in all cases whatsoever" over the district to be appropriated as the seat of government. Here the effect is to shut out not only state legislation conflicting with the regula

12 Gibbons v. Ogden, 9 Wheat. 1; McCulloch v. Maryland, 4 Wheat. 316; Houston v. Moore, 5 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Weaver v. Fegely, 29 Pa. St. 27.

tions of congress but all state legislation whatever. As an illustration of the second class of exclusive powers, it will be noticed that one of the enumerated powers of congress (but not in terms exclusive) is the power to "coin money." In another part of the constitu

This

tion it is provided that "no state shall . . . coin money." necessarily invests congress with the sole right to establish a mint. In the third place, if the subject matter of the power is of such a nature as to relate to the concerns and the prosperity of the nation as a whole, and can be properly regulated only by a uniform national law, and if any action by the several states upon it would be inconsistent with that plenary control of congress which can alone effectuate these objects, then the authority of congress is exclusive, though not made so in express words. Thus, it was formerly thought that interstate commerce was a subject on which the states themselves might make rules and regulations, in the absence of any general action of congress on the same subject. But the supreme court has recently decided otherwise. "Whenever a particular power of the general government," it is said, "is one which must necessarily be exercised by it, and congress remains silent, this is not only not a concession that the powers reserved by the states may be exercised as if the specific power had not been elsewhere reposed, but on the contrary, the only legitimate conclusion is that the general government intended that power should not be affirmatively exercised, and the action of the states cannot be permitted to effect that which would be incompatible with such intention. Hence, inasmuch as interstate commerce, consisting in the transportation, purchase, sale, and exchange of commodities, is national in its character and must be gov erned by a uniform system, so long as congress does not pass any law to regulate it, or allowing the states so to do, it thereby indicates its will that such commerce shall be free and untrammelled.” 1

"13

There is another sense in which the powers of congress may be said to be exclusive. The states cannot, by indirect attacks, prevent their being carried into effect or unduly hamper their exercise. Where any right or privilege is subject to the regulation of congress, it is not competent for state laws to impose conditions which shall interfere with the right or diminish its value.11 And on the same

13 Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681. 14 Cranson v. Smith, 37 Mich. 309.

principle, it is not within the constitutional power of a state to lay any tax upon the instruments, means, or agencies provided or selected by the general government to enable it to carry into execution its legitimate powers and functions.15

But in all cases where the powers vested in congress are not, for any of the foregoing reasons, exclusive, the states may legislate on the same subject matter. But in regard to these cases of concurrent powers, "the concurrency of the power may admit of restrictions or qualifications in its nature or exercise. In its nature, when it is capable from its general character of being applied to objects or purposes which would control, defeat, or destroy the powers of the general government. In its exercise, when there arises a conflict in the actual laws and regulations made in pursuance of the power by the general and state governments. In the former case, there is a qualification ingrafted upon the generality of the power, excluding its ap plication to such objects and purposes. In the latter case, there is (at least generally) a qualification not upon the power itself, but only upon its exercise, to the extent of the actual conflict in the operations of each." 18

Furthermore, in all such cases of concurrent authority, the enactments of the individual states can be no more than provisional; that is to say, their continuance in force depends upon the determination of congress not to exercise its own power over the subject by a general law. If congress shall choose to enter upon the domain confided to its jurisdiction, and to regulate the same by a statute, the result is that all existing state laws on the same subject are superseded and suspended, at least so far as they are inconsistent with the act of congress. The federal law does not make them invalid, if they were not so before. Neither does it repeal them. It merely assumes to itself entire control of the whole subject and leaves nothing for the state laws to operate upon. But no change of policy on the part of the state is indicated, such as would render it inconsistent to enforce the provisions of a statute which had been repealed. Hence a penalty incurred for a violation of the state law before the passage of the act of congress may be recovered after its passage.1

15 McCulloch v. Maryland, 4 Wheat. 429; Osborn v. Bank of U. S., 9 Wheat. 738; Ward v. Maryland, 12 Wall. 418.

161 Story, Const. § 447.

17 Sturgis v. Spofford, 45 N. Y. 446.

ENUMERATED POWERS OF CONGRESS.

104. The specific powers granted to congress in the first article of the constitution are as follows:

(a) To lay and collect taxes, duties, imposts, and

excises, to pay the debts and provide for the ✔

common defense and general welfare of the United States.

(b) To borrow money on the credit of the United States.

(c) To regulate commerce with foreign nations and among the several states and with the Indian tribes.

(d) To establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States.

(e) To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.

(f) To provide for the punishment of counterfeiting the securities and current coin of the United States.

(g) To establish post offices and post roads.

(h) To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

(1) To constitute tribunals inferior to the supreme

court.

(j) To define and punish piracies and felonies committed on the high seas and offenses against the law of nations.

(k) To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

BL.CONST.L.-12

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