The elastic clause and the supremacy clause: McCulloch v. Maryland

Example 1

1. Ask what kind of question this is. Congress did something that is not on its list of powers, in order to carry out powers that are on the list.
2. The clause that allows that is the last clause of Article I, Section 8. It lets Congress make “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” (Foregoing means the ones that came before.)
3. That is the necessary and proper clause. Because it lets the powers of Congress stretch, it is also called the elastic clause. The powers that come from it are called implied powers.
4. It is not the supremacy clause. The supremacy clause, in Article VI, decides which law wins when a valid federal law and a state law conflict. It does not add to the powers of Congress.

Answer: The necessary and proper clause (the elastic clause)

Example 2

1. Remember that the case had two questions. The first: could Congress create the Bank? The Court said yes. This is the second: could Maryland tax it?
2. Chief Justice John Marshall started from the first answer. The Bank was created under a valid national law. Under the supremacy clause, a valid national law is “the supreme Law of the Land,” and a state may not block it.
3. Then he showed why a tax would block it. If a state can tax something, it can set the tax as high as it likes, and so it can tax that thing out of existence. In his words, “the power to tax involves the power to destroy.” (Involves here means includes, carries with it.)
4. So Maryland could not tax the Bank. A state may not aim a tax at the operations of the national government. It could still tax the Bank’s land and buildings, the same way it taxed everyone else’s.

Answer: No. Maryland could not tax the Bank, because the power to tax involves the power to destroy, and a valid national law is supreme.