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 embodied in Constitution.  FSM v. Oliver, 3 FSM Intrm. 469, 480 (Pon. 1988).

Nothing in language of statute, 23 FSMC 105, or in legislative history, indicates that Congress made an affirmative determination to enact nat'l legislation applicable within 12 miles of prescribed baselines.  Therefore, 23 FSMC 105 gives nat'l gov't regulatory power only outside 12 mile zone.  FSM v. Oliver, 3 FSM Intrm. 469, 480 (Pon. 1988).

Regulatory power beyond 12 miles from island baselines lies with nat'l gov't.  FSM v. Oliver, 3 FSM Intrm. 469, 479 (Pon. 1988).

Decision making concerning allocation of functions as state and nat'l roles falls most squarely within role of Congress, for Congress is most political branch of nat'l gov't and is best suited to resolve policy issues.  In re Cantero, 3 FSM Intrm. 481, 484 (Pon. 1988).

Art. XI, 8 of Constitution, providing for state court certification of issues of nat'l law, gives FSM Supreme Court appellate division another tool to oversee development of nat'l law jurisprudence, but also provides option of remand so that the state court may address issues of nat'l law.  Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 35 (App. 1989).

No jurisdiction is conferred on state courts by art. XI, 6(b) of FSM Constitution, but neither does diversity jurisdiction of 6(b) preclude state courts from acting under state law, unless or until a party to litigation invokes nat'l court jurisdiction.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 89 (App. 1989).

In course of formation of FSM, allocation of responsibilities between states and nation was such that impact of nat'l courts in criminal matters was to be in area of major crimes and as ultimate arbiter of human rights issues.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 93 (App. 1989).

Questions regarding validity of provisions of promissory notes for personal loans, executed with nat'l bank operating in each state of FSM and having in part foreign ownership, are closely connected to powers of  nat'l legislature to regulate banking, foreign and interstate commerce, and bankruptcy, and to establish usury limits, and they have a distinctly nat'l character.  FSM Supreme Court therefore will formulate and apply rules of nat'l law in assessing such issues.  Bank of Hawaii v. Jack, 4 FSM Intrm. 216, 218 (Pon. 1990).

Statutory provisions in TT Code concerning domestic relations are part of state law because domestic relations fall within powers of states and not nat'l gov't.  Pernet v. Aflague, 4 FSM Intrm. 222, 224 (Pon. 1990).

Since determination of support payments payable by a divorced husband is a matter governed by state law, FSM Supreme Court in addressing such an issue is obligated to attempt to apply pertinent state statutes in same fashion as would highest state court in pertinent jurisdiction.  Pernet v. Aflague, 4 FSM Intrm. 222, 224 (Pon. 1990).

State law provision attempting to place "original and exclusive jurisdiction" in Yap State Court cannot divest nat'l court of responsibilities placed upon it by nat'l constitution, which is "supreme law of the Federated States of Micronesia."  Gimnang v. Yap, 5 FSM Intrm. 13, 23 (App. 1991).

Under nat'l law, governor of a state is allottee for all Compact funds unless he delegates in writing his right to be allottee, so where a state statute allots such funds to legislative branch without written delegation from governor, statute violates nat'l law.  Gouland v. Joseph, 5 FSM Intrm. 263, 265 (Chk. 1992).

Nat'l court should not abstain from deciding criminal case where crime took place before effective date of 1991 amendment removing federal jurisdiction over major crimes because of firmly expressed intention by  Con Con delegates as to manner of transition from nat'l jurisdiction to state jurisdiction.  In re Ress, 5 FSM Intrm. 273, 276 (Chk. 1992).

Scheme of nat'l, constitutionally-authorized foreign investment legislation is so pervasive there is no room for state to supplement it.  Non-FSM citizen attorneys and their private practice of law are expressly subjected to nat'l legislative scheme.  Insofar as attorneys who are engaged in private practice of law and whose business activities are within scope of nat'l FIA, the state FIA is invalid.  Berman v. Pohnpei, 5 FSM Intrm. 303, 306 (Pon. 1992).

Although FSM Supreme Court has constitutional power to use its discretion to review a case from state trial court, generally, proper respect for state court requires that state appeal rights be exhausted before FSM Supreme Court would grant appellate review especially when important state interests are involved.  Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 322, 324 (App. 1992).

FSM Constitution distinguishes nat'l powers from state powers, FSM Const. art. VIII.  FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 69 (Pon. 1993).

If power is of an indisputable nat'l character such that it is beyond state's power to control, then that power is to be considered a nat'l power, even though it is not an express power granted by the Constitution.  FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 70-71 (Pon. 1993).

A state power can be concurrently nat'l to the extent that the state cannot adequately exercise that power in manner in which it is intended either by statute or by or constitutional framework for circumstances not foreseen by framers of our Constitution.  FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 72 (Pon. 1993).

To the extent that state is unable to police its waters and enforce its fishing regulations of its own, the nat'l gov't has an obligation to provide assistance.  However, to the extent that the nat'l gov't must provide assistance, the power to regulate state waters is beyond the state's control and is in fact a concurrent nat'l power.  FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).

A condition on an MMA fishing permit which prohibits fishing within 12 miles of FSM unless authorized by the state which has jurisdiction is an exercise of the nat'l government's unexpressed concurrent nat'l power.  FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).

Nothing in FSM constitutional framework suggests that a state can unilaterally avoid the effect of a valid internat'l agreement, constitutionally arrived at, between the FSM and another nation.  In re Extradition of Jano, 6 FSM Intrm. 93, 103-04 (App. 1993).

Comity, the respect of one sovereign for another, and respect for state sovereignty are important principles.  Pohnpei v. Ponape Constr. Co., 6 FSM Intrm. 221, 222-23 (App. 1993).

FSM Supreme Court will not interfere in pending state court proceeding where no authority has been cited to allow it to do so, where case has not been removed from state court, where it has not been shown that nat'l gov't is party to state court proceeding thereby putting case within FSM Supreme Court's exclusive jurisdiction, and where it has not been shown that movants are parties to the state court proceeding and thus have standing to seek nat'l court intervention.  Pohnpei v. Kailis, 6 FSM Intrm. 460, 463 (Pon. 1994).

Absence of an express grant of authority to nat'l gov't to regulate marine resources within 12 miles of island baselines indicates framers' intention that states have control over these resources.  However, state authority to regulate marine resources located within 12 miles of island baselines is primary but not exclusive.  Pohnpei v. MV Hai Hsiang #36 (I), 6 FSM Intrm. 594, 598 (Pon. 1994).

Nonexclusive constitutional grant to states of regulatory power over marine resources located within 12 miles of island baselines cannot be read as creating exclusive state court jurisdiction over marine resources within 12 mile limit.  Pohnpei v. MV Hai Hsiang #36 (I), 6 FSM Intrm. 594, 598-99 & n. 7 (Pon. 1994).

Framers of FSM Constitution favored state control over marine resources within 12 miles of island baselines.  Pohnpei v. MV Hai Hsiang #36 (I), 6 FSM Intrm. 594, 601 (Pon. 1994).

Even when nat'l court places itself in shoes of the state court and interprets state law, the state court is always the final arbiter of the meaning of a state law.  State court interpretations of state law which contradict prior rulings of nat'l courts are controlling.Pohnpei v. MV Hai Hsiang #36 (I), 6 FSM Intrm. 594, 601 (Pon. 1994).

FSM Supreme Court has exclusive jurisdiction in actions by nat'l gov't to enforce terms of fishing agreements and permits to which it is a party.  FSM v. Hai Hsiang No. 63, 7 FSM Intrm. 114, 116 (Chk. 1995).

     Section 2.  A power not expressly delegated to the national government or prohibited to the states is a state power.

Case annotations:  Primary lawmaking powers for field of torts lie with  states, not with nat'l gov't, but nat'l gov't may have an implied power to regulate tort law as part of exercise of other general powers.  Edwards v.Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988).

Powers not expressly delegated to nat'l gov't nor prohibited to the states are state powers. FSM Const. art. VIII, 2.  FSM v. Oliver, 3 FSM Intrm. 469, 473 (Pon. 1988).

Nat'l gov't has exclusive power to tax income and imports.  Power to levy other taxes, unless specifically barred by Constitution, is exclusive state power.  Sigrah v. Kosrae, 6 FSM Intrm. 168, 169-70 (App. 1993).

     Section 3.  State and local governments are prohibited from imposing taxes which restrict interstate commerce.

Case annotations:  Chuuk state tax on lessor or landowner who rents or leases land, building or housing unit, for residential, or office space, or other use is not an unconstitutional encroachment on nat'l government's exclusive power to tax income.  Truk Continental Hotel, Inc. v. Chuuk, 6 FSM Intrm. 310, 311 (Chk. 1994).

Nat'l gov't has exclusive power to tax income and imports.  Power to levy other taxes, unless specifically barred by Constitution, is exclusive state power.  Sigrah v. Kosrae, 6 FSM Intrm. 168, 169-70 (App. 1993).

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).