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February 13, 2024

McCulloch v. Maryland: One-Stop Shopping for Textual Interpretive Methods

By: Leah Spero

In 1819, Chief Justice John Marshall recognized in McCulloch v. Maryland, 17 U.S. 316, 405 (1819), that “the extent of the powers actually granted” to the Federal government by the constitution “is perpetually arising, and will probably continue to arise, as long as our system shall exist.”  The question before the Court in McCulloch was whether Congress had the power to incorporate a federal bank.  Id. at 401.  In answering that question, the Court articulated fundamental principles about the broad scope of the federal government’s implied powers and its supremacy over the states in its sphere of action, as well as textual methods for interpreting the constitution.  McCulloch has been cited over 400 times by the Supreme Court since then, and over 3,500 times by other courts.  But as Chief Justice Marshall suspected, McCulloch did not put to rest disagreements about the extent of the federal government’s power—nor disagreements about interpretative methods for constitutional provisions.

At the AJEI summit in November, panel members Neil Siegel (Professor of Constitutional Law at Duke Law School), Justice Laurie McKinnon (Montana Supreme Court), Judge Michelle Childs (U.S. Court of Appeals for the D.C. Circuit), and Cynthia Keely Timms (Chair of the Appellate Practice Group at Locke Lord), discussed McCulloch and its legacy, although it is not until one reads the decision itself that its importance and force of reasoning can be fully appreciated.  The panel began with the background of the case: the State of Maryland decided to tax all banks within the state that were not chartered by the state legislature, including the Second National Bank of the United States.  When the National Bank refused to pay the tax, Maryland sued the Bank’s cashier, James McCulloch.  The state courts upheld the tax, but the U.S. Supreme Court held that the tax was unconstitutional because states have no power to burden the constitutional operations of the federal government.

McCulloch presented two distinct issues: first, whether Congress had the power to incorporate a National Bank and, second, whether Maryland could tax a branch of the National Bank without violating the constitution.  McCulloch, 17 U.S. at 400, 425.  On the first issue, the Court observed that resolution of the issue by the government itself “ought not be lightly disregarded,” because the first Congress elected under the constitution had vigorously debated the constitutionality of the bank and ultimately chartered it, reflecting its collective view of the power given to it.  Id. at 401–402.  Next, the Court soundly rejected Maryland’s argument that States are sovereigns that delegate power to the federal government, which “must be exercised in subordination to the States.”  Id. at 402.  To the contrary, the federal “government proceeds directly from the people,” and “[i]n form and in substance emanates from them.”  Id. at 404–405.  “Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”  Id.  While the Court acknowledged that the federal government’s powers are enumerated and limited under the constitution, the Court emphasized that the federal government “is supreme within its sphere of action.”  Id. at 405. 

The Court then took an expansive view of the federal government’s powers, express and implied.  McCulloch, 17 U.S. at 405–424.  The Court reasoned that the enumerated powers in the constitution necessarily include all powers that can be implied from them.  Id.  Nothing in the constitution “excludes incidental or implied powers.”  Id. at 406.  And notably, the 10th Amendment, which was meant to be a check on the expanse of federal power, simply declares that the powers “not delegated to the United States . . . are reserved to the States or to the people.”  Id. at 406–407.  The framers rejected the use of the phrase “expressly delegated,” which had led to “embarrassments” when it was included in the predecessor articles of confederation.  Id.

Moreover, the constitution does not enumerate every power of the federal government for good reason.  The constitution provides high-level pronouncements: “its great outlines” and “important objects.”  McCulloch, 17 U.S. at 407.  But it could never be expected “to contain an accurate detail of all the subdivisions of which its great powers admit, and of all the means by which they may be carried into execution,” id. at 407, because doing so would lead to “the prolixity of a legal code” and would not “be understood by the public.”  Id.  By design, the constitution left the means of exercising the government’s broad powers to each generation’s new ideas of how best to do so because the framers expected the document to remain flexible “for ages to come . . . to be adapted to the various crises of human affairs.”  Id. at 415. 

However, the constitution did not simply leave its implied powers “to general reasoning”; instead, it includes the necessary and proper clause.  McCulloch, 17 U.S. at 412–413.  This clause specifies that Congress has the power “of making ‘all laws which shall be necessary and proper, for carrying into execution the foregoing powers and all other powers vested by this constitution, in the government of the United States, or in any department thereof.’”  Id.  Although the word “necessary” could be read to mean laws that are absolutely necessary, the Court noted that “in the common affairs of the world, [and] in approved authors, . . . it frequently imports no more than that one thing is convenient, or useful, or essential to another.”  Id. at 413–414.  Words must be construed in terms of “the subject, the context, and the intention of the person using them.”  Id. at 414.  And for the necessary and proper clause, the “subject is the execution of those great powers on which the welfare of a nation essentially depends,” and the “intention of those who gave these powers” must have been “to insure, as far as human prudence could insure, their beneficial execution.” 415. 

Taken in this context, the necessary and proper clause “must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.”  McCulloch, 17 U.S. at 420.  “[A]ll means which are appropriate, which are plainly adapted to [a legitimate] end, which are not prohibited, but are consistent with the letter and spirit of the constitution, are constitutional.”  Id. at 421.  Further, the degree to which means are “necessary” is a political issue and not a judicial one for the courts.  Id. at 423.

Turning to the particular act of Congress at issue, the McCulloch court concluded that Congress acted within its implied powers to create the National Bank and branches of that bank.  McCulloch, 17 U.S. at 424–425.  “Although, among the enumerated powers of the government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.”  Id. at 407.  These “powers given to the government imply the ordinary means of execution.”  Id. at 409.  For example, the enumerated powers of “raising revenue and applying it to the national purposes . . . imply the power of conveying money from place to place . . . and of employing the usual means of conveyance.”  Id.

On the second issue of Maryland’s right to tax the federal bank, the Court worried that the power to tax is the power to destroy.  McCulloch, 17 U.S. at 428.  “The only security against abuse of this power,” is the pressure that constituents can exercise on their elected officials, and there is no such safeguard against states overtaxing the federal government.  Id.  Every state would have an incentive to overtax the various instruments of the federal government, including the mail, the mint, patent rights, and even the judicial process.  Id. at 432.  However, “States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress . . . .”  Id. at 436.

At the time of the decision, Chief Justice Marshall recognized the import of the McCulloch case.  He noted that “[n]o tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision.”  McCulloch, 17 U.S. at 400.  As Professor Siegel summarized, McCulloch became the most important decision rendered about the scope of the federal government’s powers.  If Maryland had prevailed, the federal government would not be able to conduct many of its modern functions.  The implied powers of the government allow it to compel jury service, pass criminal statutes, and deport non-citizens, just to start.

Several principles from McCulloch continue to be cited by the Supreme Court.  For instance, the constitution was worded broadly “‘to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’”  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022) (quoting McCulloch, 17 U.S. at 415); see also Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2325 (2022) (Breyer, J., dissenting).  And while the word “necessary” means “essential” in its strictest sense, “in ordinary speech, the term is often used more loosely to refer to something that is merely important or strongly desired.”  Ayestas v. Davis, 138 S. Ct. 1080, 1093 (2018) (citing McCulloch, 17 U.S. 316 at 414–415).

Further, “when the Federal Government acts in the exercise of its own proper authority, it has a wide choice of the mechanisms and means to adopt.”  United States v. Windsor, 570 U.S. 744, 764–65 (2013) (citing McCulloch, 17 U.S. at 421); see also United States v. Kebodeaux, 570 U.S. 387, 394 (2013) (same).  The constitution “prohibit[s] States from interfering with or controlling the operations of the Federal Government”—by taxation or otherwise.  United States v. Washington, 142 S. Ct. 1976, 1983–1984 (2022) (citing McCulloch, 17 U.S. at 436).  And in interpreting the constitution’s pronouncements about the structure of the government, the government’s own practices are taken into consideration.  Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1659 (2020) (citing McCulloch, 17 U.S. at 415); see also Puerto Rico v. Sánchez Valle, 579 U.S. 59, 91 (2016) (Breyer, J., dissenting). 

Yet disagreements persist about what powers can be implied from the constitution.  Despite McCulloch’s embrace of robust implied powers, the case has been cited more recently by some Justices for placing limitations on the federal government.  See, e.g., Allen v. Milligan, 143 S. Ct. 1487, 1539 (2023) (Thomas, J., dissenting); Chiafalo v. Washington, 140 S. Ct. 2316, 2333–2334 (2020) (Thomas, J., concurring); Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2037–2038 (2020) (Thomas, J., dissenting); Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 595 U.S. 109, 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring); California v. Texas, 141 S. Ct. 2104, 2135 (2021) (Alito, J., dissenting).  It has also been suggested recently that any implied power must be “by necessary implication,” Haaland v. Brackeen, 599 U.S. 255, 143 S. Ct. 1609, 1662 (2023) (Thomas, J., dissenting), even though McCulloch viewed it as a legislative function, not a judicial one, to “inquire into the degree of . . . necessity.”  McCulloch, 17 U.S. at 423.  As Chief Justice Marshall predicted, debates about the scope of federal powers will “continue to arise, as long as our system shall exist.”  Id. at 405.

Leah Spero

San Francisco, CA

Leah Spero practices and teaches appellate law in San Francisco.

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