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ARTICLE VIII

Powers of Government

     Section 1.  A power expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of a state to control, is a national power.

Case annotations:  There appears nothing of an indisputably nat'l character in the power to control all lesser crimes.  FSM v. Boaz (II), 1 FSM Intrm. 28, 32 (Pon. 1981).

Constitution places diversity jurisdiction in Supreme Court, despite the fact that the issues involve matters within state or local, rather than nat'l, legislative powers.  In re Nahnsen, 1 FSM Intrm. 97, 102 (Pon. 1982).

Power to regulate probate of wills or inheritance of property is not "beyond the power of a state to control" within meaning of art. VIII, 1 of Constitution and is consequently a state power.  Nothing about the power to regulate probate of wills or inheritance of property suggests that these are beyond the power of a state to control.  In re Nahnsen, 1 FSM Intrm. 97, 107 (Pon. 1982).

State officials generally should have greater knowledge of use, local custom and expectations concerning land and personal property.  They should be better equipped than nat'l gov't to control and regulate these matters.  Framers of Constitution specifically considered this issue and felt that powers of this sort should be state powers.  In re Nahnsen, 1 FSM Intrm. 97, 107, 109 (Pon. 1982).

Allocation of judicial authority is made on basis of jurisdiction, generally without regard to whether state or nat'l powers are at issue.  In re Nahnsen, 1 FSM Intrm. 97, 108 (Pon. 1982).

Prosecution of criminals is not a power having indisputably nat'l character.  Truk v. Hartman, 1 FSM Intrm. 174, 178 (Truk 1982).

Exclusive nat'l gov't jurisdiction over major crimes is not mandated by  Constitution; such jurisdiction would be exclusive in any event only if criminal jurisdiction was a power of indisputably nat'l character.  Truk v. Hartman, 1 FSM Intrm. 174, 181 (Truk 1982).

Where jurisdiction exists by virtue of diversity of parties, FSM Supreme Court may resolve dispute despite the fact that matters squarely within legislative powers of states (e.g., probate, inheritance an land issue) may be involved.  Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 396 (Pon. 1984).

While FSM Constitution is supreme law of the land and FSM Supreme Court may under no circumstances acquiesce in unconstitutional governmental action, states should be given a full opportunity to exercise their legitimate powers in a manner consistent with commands of the Constitution without unnecessary intervention by nat'l courts.  Etpison v. Perman, 1 FSM Intrm. 405, 428 (Pon. 1984).

There is nothing absurd about a weapons control scheme that recognizes that both nat'l and state governments have an interest in controlling the possession, use and sale of weapons. While Congress and the states may eventually wish to allocate their respective roles with more precision, the current Weapons Control Act appears to provide a workable system during these early years of transition and constitutional self-government.  Joker v. FSM, 2 FSM Intrm. 38, 44 (App. 1985).

Weapons Control Act seems well attuned to recognition of shared nat'l-state interest in maintaining an orderly society and goal of cooperation in law enforcement as reflected in the Major Crimes Clause, art. IX, 2(p) of the Constitution as well as the Joint Law Enforcement Act, 12 FSMC 1201.  Joker v. FSM, 2 FSM Intrm. 38, 44 (App. 1985).

Major crimes obviously were not viewed by framers as simply a local or state problem.  The Major Crimes Clause undoubtedly reflects their judgment that the very integrity of this new nation could be threatened if major crimes could be committed with impunity in any part of the nation, with nat'l gov't forced helplessly to stand aside.  Tammow v. FSM, 2 FSM Intrm. 53, 58 (App. 1985).

Framers of Constitution stipulated that line for determining whether a crime is major be drawn on basis of severity or gravity of the crime rather than by reference to principles of federalism developed under U.S. Constitution.  Tammow v. FSM, 2 FSM Intrm. 53, 58 (App. 1985).

Members of Micronesian Constitutional Convention obviously did not believe Major Crimes Clause was improperly at odds with their general view that governmental power should be less centralized under FSM Constitution than it had been in Trust Territory days.  Tammow v. FSM, 2 FSM Intrm. 53, 59 (App. 1985).

The scope of state police powers under FSM Constitution must be determined by reference to powers of nat'l gov't under the Major Crimes Clause.  It follows that legitimate exercise of nat'l gov't power to define major crimes cannot be viewed as an unconstitutional encroachment upon police powers of the states.  Tammow v. FSM, 2 FSM Intrm. 53, 59 (App. 1985).

Power to impose taxes, duties, and tariffs based on imports is nat'l, not state, power and where Congress has exercised power and shares revenues with the states, a state may not also impose an additional import tax.  Wainit v. Truk (II), 2 FSM Intrm. 86, 88 (Truk 1985).

The nature of the expressly delegated powers in art. IX, 2, of the Constitution -  including the powers to impose taxes, to provide for nat'l defense, ratify treaties, regulate immigration and citizenship, regulate currency, foreign commerce and navigation, and to provide for a postal system -  strongly suggests that they are intended to be exclusive province of nat'l gov't, since they call for a uniform nationally coordinated approach.  Innocenti v. Wainit, 2 FSM Intrm. 173, 181-82 (App. 1986).

Pohnpei State Constitution was established under authority granted by art. VII, 2 of FSM Constitution which mandates that a state shall have a democratic constitution and also Pohnpei State Law No. 2L-131-82, 9, which mandated Pohnpei State Constitutional Convention "to draft a constitution for the State of Ponape . . . [that] shall make adequate provisions for the exercise of legislative, judicial and executive functions, and shall guarantee to all citizens of the State, a democratic form of government."  People of Kapingamarangi v. Pohnpei Legislature, 3 FSM Intrm. 5, 8-9 (Pon. S. Ct. Tr. 1985).

Congress, under 5 of art. XV, had power to provide for transition from gov't under Trusteeship to gov't under FSM Constitution.  Pohnpei v. Mack, 3 FSM Intrm. 45, 49 (Pon. S. Ct. Tr. 1987).

Kosrae Constitution contemplates that justices of FSM Supreme Court may decide cases which arise within Kosrae and fall under the original jurisdiction of Kosrae State Court.  In addition, Kosrae Constitution vests in Kosrae Chief Justice the power to include resources and justices of FSM Supreme Court as resources of Kosrae State Court, insofar as that is consistent with duties of FSM Supreme Court under FSM Constitution.  Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 97 (Kos. S. Ct. Tr. 1987).

Although nat'l law requires FSM Supreme Court to protect persons against violations of civil rights, strong considerations of federalism and local self-gov't suggest that local institutions should be given an opportunity to address local issues, even civil rights issues, especially when this can be done without placing rights of parties in serious jeopardy and when local decision may obviate need for a constitutional ruling by nat'l court.  Hadley v. Kolonia Town, 3 FSM Intrm. 101, 103 (Pon. 1987).

If a power is not enumerated in Constitution, the likelihood is that the framers intended it to be a state power, for the only unexpressed powers which may be exercised by nat'l gov't are powers of "such an indisputably nat'l character as to be beyond the power of a state to control."  FSM Const. art. VIII, 1.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 357 (Pon. 1988).

Wrongful death statutes, including $100,000 ceiling on wrongful death claims, are part of the law of the states and are not nat'l law.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988).

FSM Supreme Court decision applying state law in case before it is final and res judicata; but if in a subsequent case a state court decides same issue differently, the state decision in that subsequent case is controlling precedent and nat'l courts should apply the state court rule in future cases.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 n.22 (Pon. 1988).

A lawsuit to enforce a mortgage is an attempt to enforce a type of lien against a delinquent debtor.  Such a case bears a relationship to power to regulate "bankruptcy and insolvency," which Constitution in art. IX, 2(g), places in the nat'l Congress.  Bank of Guam v. Semes, 3 FSM Intrm. 370, 381 (Pon. 1988).

Nat'l Constitution does not prohibit state courts from hearing cases described in art. XI, 6(b) if all parties accept state court jurisdiction, but parties to a dispute within scope of art. XI, 6(b) have a constitutional rights to invoke jurisdiction of FSM Supreme Court trial division.U Corp. v. Salik, 3 FSM Intrm. 389, 392 (Pon. 1988).

Intent of framers of Constitution was that nat'l courts would handle most types of cases described in art. XI, 6(b) of Constitution and nat'l courts therefore should not lightly find a waiver of right to invoke its jurisdiction.  U Corp. v. Salik, 3 FSM Intrm. 389, 394 (Pon. 1988).

Under FSM Constitution, nat'l gov't, not state governments, assume any "right, obligation, liability, or contract of the gov't of the Trust Territory."  Salik v. U Corp. (I), 3 FSM Intrm. 404, 407 (Pon. 1988).

The fact that control over marine areas within twelve-mile zone is not mentioned in Constitution is strong indication that framers intended states to control ownership and use of marine resources within that area.  FSM v. Oliver, 3 FSM Intrm. 469, 473 (Pon. 1988).

As a general proposition, court will not lightly assume that Congress intends to assert nat'l powers which may overlap with, or encroach upon, powers allocated to states under general scheme of federalism 000" FACE="Arial,Helvetica,sans-serif">Under traditional constitutional analysis, taxpayers' efforts to recover tax moneys unlawfully extracted from them by a state may be relegated to state procedures and decision-makers so long as there is a reasonable procedure under state law whereby taxpayer may obtain meaningful relief.  Gimnang v. Yap, 5 FSM Intrm. 13, 23-24 (App. 1991).

Constitution prohibits state and local governments from imposing taxes which restrict interstate commerce.  Stinnett v. Weno, 6 FSM Intrm. 312, 313 (Chk. 1994).

Since, given social and geographic configuration of State of Chuuk and  structure of transportation services available, a travel agency would necessarily be essentially interstate commerce, a tax aimed solely at a travel agency restricts or is restrictive of interstate commerce and therefore may not be levied by a state or local gov't.  Stinnett v. Weno, 6 FSM Intrm. 312, 313-14 (Chk. 1994).