Fed. Pwrs

1. Four Fund'al Precepts
   1. Jud. Rev.: Limiting Arb. Pwr
   2. Fed'sm: Div'ing Pwr by State & Fed
   3. Sep of Pwr (S/P): Div'ing Pwrs Horizontally
   4. Checks & Balances
      1. Exception of S/P
      2. Const. assigns 2 1 branch a pwr which should B on the other branch
2. Fed.'sm
   1. Martin v. Hunter's Lessee concept that Fed. has the last word
   2. Rationale 4 Fed'sm
      1. Needed 1 econ. unit w/o trade wars among states
      2. Had prob's of factions, spec. int's in state level but harder 2 org. in Wash. b/c of cost & distance
      3. Check on state's race 2 bottom where during New Deal, states had low health & safety stand's so fed. took over
      4. Check on group dynamics of org'ing into collective entities (Nazi ex.) & being acct'able
   3. Prob's of Fed'sm Modernly
      1. Both 1 econ. unit & state faction prob's antiquated now & fed. also susceptible 2 factions
      2. Fed. not have lots of contact w/rest of USA so acct'ability is missing
   4. Explicit & Implicit Pwr in Const.
      1. Const. limit Fed. pwr by listing in Art I, §8
      2. States have 10th amend. pwr of stuff not in Const.
      3. BUT Cong. can do what's not listed in Art I, §8 b/c of Nec. & Proper Clause which doesn't give Cong. unlimited pwr though
3. McCulloh v. MD
   1. Facts
      1. MD statute said no bank est'ed in MD w/o auth. of MD 2 issue notes / w/o paying tax
      2. Cashier of US Bank charged of issuing notes w/o paying tax
   2. MD State Arg's
      1. States R sov. b/c made the Const.
      2. Pwr delegated 2 state by 10th amend.
      3. Const's spirit 2 get away from monarchy & let states do whatever
      4. Nec. means indispensable
   3. Marshall Fed. Arg.: Broad Const. w/Implied Pwrs in Nec. & Proper Clause
      1. People made Const. so they R the source of pwr
      2. Const. & Civil Codes not interp'ed same b/c Const. wouldn't work so Nec. & Proper Claused invoked
      3. Const. must adapt 2 changed circ's & X so broad construction
      4. Nec. means convenient (conv.), approp., & rsbl so fed. can work
      5. Mean must rel. 2 end. 4 Nec. & Proper Clause
         1. Cong. must have some foregoing pwr / Const. hook 2 invoke Nec. & Proper
         2. But foregoing pwrs broadly phrased

Treaty Pwr

1. Hierarchy of Pwrs
   1. Const > Treaty / Fed. Statute > State Statute
      1. Const. prevails over inconsistent treaty
      2. Fed. statute trumps State by Sup. Clause
      3. Treaty trumps state statute
         1. Fed.'s rt. 2 make treaty not state
         2. But fed. enactment of treaty must B valid (Gibbons v. Ogden's antecedent quest. of if Cong. had pwr)
         3. Need Sen. approval
2. Missouri v. Holland (Bird statute then bird treaty case)
   1. Valid as Treaty But Invalid as Statute
      1. Sen. & Pres. form treaty, then Const. limitations R lwr w/treaties
      2. Concern on valid treaty but invalid statutes & going around 10th amend. & maybe Biill of Rts (B/R)
   2. Bricker Amend. Response
      1. Treaty conflicting w/Const., then no effect but lost by 1 vote in Sen.
      2. Sup Ct then said after that this case not such broad holding
3. Reid v. Covert
   1. Treaty Can't Overcome Const. Limitation
      1. Holland Case not so braod b/c states & people expressly delegated 2 fed. govt on that issue by 10th amend.
      2. Rest. says this case correct & treaty violating Const. is void
   2. Prob's of Precedence
      1. Only challenged exec. agmt by Pres from NATO here not treaty
      2. Only plurality which has no precedental effect & dictum in that plurality
      3. No firm C/L basis
4. No Treaty Ever Struck Down As Const'ly Invalid
5. Last in X Doc.
   1. Resolves Conflict Btwn Statutes / Treaties
      1. Two statutes in conflict can't B reconciled / Cong. intent ambiguous, then last in X statute is the law
      2. Treaty interchangeable w/statutes w/in domestic stuff
6. Self Exec'ing Treaty
   1. Def.
      1. Law of the land w/o any further leg.
   2. Sei Fujii Case
      1. UN Charter provisions not self executing
      2. Sup. Clause says treaties R law but not all part of treaties R law of the land
   3. Whitney Case
      1. Marshall said some provisions of some treaties not effective until Cong. implements them
   4. Reqt's
      1. Not look @ treaty lang. b/c 2 vague but look @ leg. history like message of Sec. of State 2 pres. & other specif. kind of leg. history
      2. Pres. ratifies even if Sen. consent (Reagon ex. of not ratifying SALT)
      3. Look @ domestic intent, not foreign (for.) intent

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