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Leading attorneys, judges reenact McCulloch v. Maryland.

Byline: Steve Lash

Attorneys for the U.S. government and Maryland squared off last week at the Supreme Court over whether the Constitution permits the state to collect taxes from the congressionally chartered national bank without its consent.

Former Acting U.S. Solicitor General Neal Katyal, pressing the federal government's defense of its bank, said the Constitution enables Congress not only to create the institution under its commerce power but to immunize it from state taxation as a "necessary and proper" measure to protect it.

"The power to tax is the power to destroy," Katyal, who served under President Barack Obama, told the high court. "Special deference should be given to Congress (for) the protection of the economy."

But former U.S. Solicitor General Gregory Garre, representing Maryland, called the national bank's establishment a constitutional overreach because it is not among Congress' enumerated powers and states have "sovereign authority" to tax businesses within their borders. He pressed the justices to rule against the federal government.

"Thank goodness we have a Supreme Court and not a supreme president," said Garre, who served under President George W. Bush.

Do not, however, expect the justices to issue a decision by the summer.

The Supreme Court already ruled on this case -- 200 years ago in its landmark McCulloch v. Maryland decision. The then-seven-member high court ruled, in an opinion by Chief Justice John Marshall, that Congress could create a national bank under its commerce authority and can pass all "necessary and proper" laws in support of Congress' enumerated constitutional powers.

Katyal and Garre put their own spin on the historic arguments, by famed attorneys Daniel Webster and Luther Martin, at a bicentennial celebration of the 1819 decision held by the Maryland State Bar Association's Litigation Section on Thursday night at Westminster Hall in Baltimore.

Serving as justices for the reenactment were Chief Judge Roger L. Gregory of the 4th U.S. Circuit Court of Appeals; Mary Ellen Barbera, chief judge of the Maryland Court of Appeals; and Maryland Court of Appeals Judge Joseph M. Getty.

Gregory noted before the re-enactment that the Supreme Court of the early 1800s was not a "hot bench," with the justices peppering attorneys with questions. Rather, lawyers were permitted essentially to make speeches, as the advocates in the real McCulloch v. Maryland case did over nine days.

Katyal and Garre did not have that luxury, as the three mock justices grilled them.

Getty greeted Katyal's appeal for deference to Congress by noting that "the states have sovereignty" and that the establishment of a national bank is not an enumerated power.

"We are eviscerating state sovereignty," Getty said.

Barbera questioned whether the creation of a national bank with immunity from taxation was truly "necessary" to Congress' commerce power.

Katyal responded that necessary means not "absolutely necessary" but merely "conducive to."

Barbera followed by asking whether a national bank could continue to exist if circumstances rendered its existence no longer necessary.

Katyal, in a nod toward more current events, conceded that changed circumstances can affect the analysis of what is necessary.

"A Bank of the United States might no longer exist," Katyal said.

"There might be a Fed," he added, drawing laughter from the audience.

Getty also drew chuckles for an allusion to Baltimore Mayor Catherine Pugh's alleged financial misdeeds when he told Katyal that the national bank's branch in the city was marked by alleged self-dealing by its private managers and thus was not necessary and proper.

Katyal responded that the high court should not consider that allegation because it was not in the court record.

Garre was similarly not spared by the "justices," as Gregory asked whether state sovereignty is trumped by the Constitution's purpose of promoting the "general welfare" of U.S. citizens.

Garre responded that the Constitution's permission for Congress to enact laws "necessary and proper" for it to carry out its enumerated powers is limited to what is truly necessary.

"Necessity is not expediency; it means you have to do it," Garre said.

A national bank is not necessary because privately run banks can also handle money, Garre added.

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Publication:Daily Record (Baltimore, MD)
Geographic Code:1U5MD
Date:Apr 29, 2019
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