The power of the national government: Marbury, McCulloch, Gibbons, U.S. v. Nixon

Example 1

1. This is McCulloch v. Maryland (1819). The case put two questions to the Court, and the second depends on the first.
2. First question: did Congress have the power to create the Bank at all? Chief Justice John Marshall said yes. Under the necessary and proper clause, “necessary” means useful or appropriate, not absolutely needed, and a bank was a reasonable way to carry out the powers to tax and to borrow.
3. So the Bank was created under a valid national law. Now the second question: could Maryland tax it?
4. The supremacy clause, in Article VI, makes the Constitution and the national laws made under it “the supreme Law of the Land.” When the national government acts within its powers, a state may not block it.
5. Marshall then showed how a tax could block it. If a state may tax something, it may set the tax as high as it likes, and so tax it out of existence. In his words, “the power to tax involves the power to destroy.”
6. Marshall was careful about the limit. Maryland could still tax the Bank’s land and buildings, the same way it taxed everyone else’s. What it could not do was aim a tax at the operations of the national government.

Answer: Because of the supremacy clause: the Bank was created under a valid national law, and a state tax aimed at it could be used to destroy it. “The power to tax involves the power to destroy.”

Example 2

1. Start with the clue that seems easiest, the name. Marshall wrote the opinions in three of the four cases: Marbury v. Madison (1803), McCulloch v. Maryland (1819), and Gibbons v. Ogden (1824). So his name rules out only United States v. Nixon (1974). It does not settle the question.
2. Now look at what was struck down. It was part of a law passed by Congress, the national legislature.
3. In McCulloch, the Court upheld a law of Congress, the one creating the Bank, and struck down a Maryland law. In Gibbons, the Court upheld a law of Congress, the licensing act of 1793, and struck down part of a New York law. Neither one struck down a law of Congress.
4. In Marbury, the Court ruled that Section 13 of the Judiciary Act of 1789, a law of Congress, tried to give the Court more power to hear cases first than Article III allows. Congress cannot change the Constitution by passing an ordinary law, so that section was unconstitutional.
5. That is the first time the Court claimed the power of judicial review: the power of the courts to strike down a law that goes against the Constitution.

Answer: Marbury v. Madison (1803)