Possible McCulloch theory underlying New York and Printz

• McCulloch says that if MD can single out Bank for special taxes not borne by MD citizens generally, it can unduly pressure federal government to have policy that it likes. But generally applicable taxes were okay.

• Possibly, there is a corresponding nondiscrimination limit on ability of Congress to single out states for special burdens that federal government need not bear. This theory may underlie New York and Printz.

• NY and Printz distinguished from Garcia. Garcia seems to apply mainly to generally applicable federal lawmaking; that case holds that where Congress passes a generally applicable law (e.g. minimum wage law that applies to all or nearly all businesses), the 10^th Amendment does not entitle a state’s own operations to an exemption, merely because it is a state that is being regulated along with all the other private entities. But where the federal government tries to force a state or local government to enact legislation or regulation, or tries to force state or local officials to perform particular governmental functions, this is not part of a generally-applicable federal scheme, and is instead directed specifically at the state’s basic exercise of sovereignty: the state’s right to carry out the business of government. NY and Printz say the federal government may not use such coercion.

U.S. Term Limits V. Thornton

• Stevens 1995. Nullified state law that imposed term limits on state’s representatives in Congress. Stevens held that states cannot supplement qualifications laid down in Article I.

• Significance. This case illustrates how tenuous the once-settled view of federal authority and the nature of our Union is on today’s SCt. The vote was so close! Justices who provided Thomas’ four votes remain on SC.

• Facts. Voters of Arkansas modified the Arkansas State Constitution to prohibit any person from appearing on the ballot for Congress from that state if he/she had previously served three terms in the House or two in the Senate. This provision was similar to term limit provisions that had been adopted – either by statute or state constitutional amendment – in 22 other states.

• Formalist holding. Stevens and Kennedy argued that this holding follows from fact that Congress is national institution and does not represent the states.

• Formalist C/A by Thomas. Congress is an assembly of representatives from distinct political entities, who retain reserved powers to prescribe qualifications for those representatives.

• This debate gave rise to dispute, rare in SC’s modern history, regarding nature of the federal union. Which side has better understanding of sovereignty?

• Realist perspective. Would any bad consequences result from term limits that USC sought to prevent?

• Key Questions

• To what extent do states retain sovereignty that they possessed before they joined Union?

• To what extent is a measure of retained autonomy a necessary check on federal power, in order to prevent the federal government from going beyond its enumerated powers?

• What conception of the role of individual states in making USC did Marshall rely on in McCulloch.

1. Stevens. McCulloch rejected idea that because USC was silent on question, states had reserved power to tax the bank.

2. Thomas. This makes most of McCulloch opinion surplusage, because MD would have lacked tax power even absent conflicting federal law.

3. Kennedy: cited McCulloch for proposition that “the National Government is and must be controlled by the people without collateral interference from states.”

4. Thomas C/A. But “the people of each state retained their separate political identities.” Voters of AK act as citizens of AK, not as citizens of U.S.

• Marshall’s account of meaning of ratification of 1787 USC, is given rather different readings by different justices.

1. Stevens/Kennedy: emphasized that the language that describes creation of new nation.

2. Thomas emphasized language that describes continuing importance of state boundaries.

3. In Term Limits, is Stevens or Thomas misreading McCulloch, or is Marshall’s opinion ambiguous enough to support either reading?

• Scope of each side’s opinion.

1. If states are as constrained as Stevens says, are they disabled from preventing prisoners or mental incompetents from running for Congress?

2. If Thomas is right that members of Congress are agents of their states, can states control their representatives in other ways – for example, by instructing them how to vote?