Alison LaCroix, “The Shadow Powers of Article I”
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Alison LaCroix, “The Shadow Powers of Article I”


ALISON LACROIX: OK. Well, hello, everyone. I know many of you already. But those of you I haven’t
met yet, I’m Alison LaCroix, and I teach legal history,
constitutional law, federal courts,
and civil procedure here at the law school. My topic today is
the Shadow Powers of Article I, which I actually
just like is a phrase, so I’m going to try to say
it as many times as possible because I think it has a
certain evocative quality, but I also think
it goes to a larger point I’d like to make
about federalism doctrine. So the talk is based
on a paper I recently published in the
Yale Law Journal, and that was part of a
symposium of some people who wanted to think about
federalism in different ways from how it’s conventionally
thought about in commentary and by the Supreme Court. And my take on it was trying
to think about it as something richer than the usual
national power, state power dichotomy, which is helpful
but only gets us so far. Another point was moving away
from a state sovereignty model, given that you can find
lots of commentators who talk about federalism
who say, well, everybody knows the states are
not really sovereign. They have certain
areas of autonomy, but it’s not a very
helpful concept to think about it in
terms of sovereignty. And so some of these
other commentators emphasize things like
cooperative federalism, or they say federalism is
all about decentralization. I don’t go that far,
but my take on this was to try to figure
out if we could still think about federalism in a way
that takes the states seriously as political, as juridical
entities with distinct powers and identities,
but that fits them into the doctrine in a way
that maybe would give us more answers– or tests
anyway, clearer tests– than we have so far. And here, I diverge from
some of the other members of the symposium,
which is interesting. You never want everyone
in a symposium to agree. That’s just boring. Where I thought that
we shouldn’t actually say the states are agents
of the federal government. And maybe that’s being a
historian or other aspects of my work, but it was a
surprise to me, in a sense, that some people who think of
themselves as federalists also think the states
should be useful to the federal government. That’s their purpose. I tend to think of federalism
as a species of nationalism, which is in some ways
unique to America. So I’ll talk more
about that at the end. But the first
question, what do I mean by the shadow
powers of Article I? Well, the paper was
originally motivated by doctrinal developments I’d
notice teaching Con Law 1. And those developments
gained new salience after the Supreme Court decided
the health care case, NFIB versus Sebelius in 2012. And the doctrinal
development was this, the Supreme Court
seemed to be talking a lot more about the
Necessary and Proper Clause and the General Welfare Clause. And so the General
Welfare Clause is a kind of collective entity,
but it contains, of course, the taxing power and
the spending power. So these are these funny
clauses that– for those of you you’ve taken Con Law
1 know– they have this kind of strange status. They’re in Article 1. 1 is actually Clause 1
of Article 1, Section 8. The other is Clause 18
of Article 1, Section 8. So they’re sort of the head
and the foot of Section 8, but they’re
structurally ambiguous. And it’s often a question
in the case law– and this has been
true going back to the very early
days– about how do we think about their
place with the other powers of Article 1, which we tend
to call the enumerated powers? The general welfare
power gets kind of treated as an
enumerated power. Taxing, spending, OK,
those are enumerated. But there’s often the sense
that the necessary and proper power’s in this gray area. It’s not really enumerated. So they’re not standard, but
they’re also not implied. So sometimes people read
McCulloch versus Maryland, 1819, the Court’s first cut
at the Necessary and Proper Clause, and say, oh, well,
these are implied powers. Well, how can they be
implied if they are actually listed in the words of
Article 1, Section 8? I mean, I get where
they’re coming from here– and I’ll talk a little
more about what Marshall was doing– but they’re
not these sort of lesser implied powers. They’re in there. So another way to think of
the necessary and proper power in particular, which is my
main shadow power– the General Welfare Clause, again,
taxing and spending powers are related– but the
necessary and proper power refers itself to carrying into
execution the foregoing powers of Article I. So raising
armies, commerce, all those. So therefore, by its own terms,
the Necessary and Proper Clause is connected with other sources
of congressional authority. So it’s a funny
one, in that it is connected at some level
of tax and structure to the other powers. The others seem to
stand on their own. So again, it’s an
enumerated power, but I would say the
enumeration happens at a different level from
the other Article I powers. So another way to think about
it is the necessary and proper power doesn’t have a subject
matter or a scope restriction. It potentially
touches all domains of congressional regulation. In some cases, it touches the
executive and the judiciary, but it doesn’t itself
describe such a domain. So this sounds like a recipe
for very clear doctrine, right? All of this of
course, wonderful. Then the taxing and spending
powers, the General Welfare Clause powers, they’re
a little different. They are enumerated. They are independent. They don’t have to be
attached to some other power in the way the necessary
and proper power does. We have some limits
coming out of case law. It has to be in pursuit
of the common defense and the general
welfare, not coercive. But otherwise, it’s
pretty much more of a straightforward
application. So in Com Law 1
sometimes we diagram this, where the necessary
and proper power has to be attached to one of
these primary Article 1 powers. And general welfare loose
pretty much stands on its own. But since 2005– so this is part
of the argument in the piece– these two types of shadow
power, necessary and proper and general welfare, have
become doctrinal battle grounds for the Supreme Court
in federalism cases, but in a stealthy way,
which makes them shadowy. It seems like nothing’s
really happening, or something’s happening at
the periphery of the doctrine. And then all of a sudden, these
clauses are front and center and we have to sort of ask,
well, how did this happen? So I think their
return to the center of the debate in the
Court is an opportunity to figure something out
about our federal structure, something important. But first, we have
to kind of clear away this thicket of
doctrine and reasoning. So the key claim that
I’m making in the paper is that the Court has
recently shifted the terms of the federalism debate. So once upon a
time– and this is what we tend to think of as
the new federalism of the 1980s and ’90s, starting under
the Rehnquist Court, but it actually goes
back farther than that. But the standard form
of new federalism looked at the 10th
Amendment and said, the 10th Amendment is
a freestanding limit on what the federal government
can do to the states. The 10th Amendment
is in the text, and it’s a reservation
of a sphere of sovereignty to the state. So that’s sort of the old
version of Supreme Court federalism. The newer version that I
think has been coming out since about 2005 focuses
on what you might think of as the flip
side, which is, well, what’s Congress doing? So Congress regulates, and we
might care about federalism in terms of what is this
doing to the states? Is this interfering with some
local sphere of authority? But we might also say, let’s put
aside the states for a minute. The best way to tell if
there’s a federalism limit here is look at Article 1. The enumeration principle isn’t
itself a federalism principle. So here, we can think of
Hammer versus Dagenhart, everybody’s favorite Commerce
Clause case from 1918. Right? I know, everybody was just
reading it seconds ago. But just to refresh your memory,
so the majority of the Court strikes down the Federal
Child Labor Act and says, it violates the 10th Amendment,
that this is interfering with local activities. If states want to
have child labor, there’s no way for
Congress to reach that. But there’s a dissent
by Justice Holmes. And Justice Holmes
says, “I should have thought that the
most conspicuous decisions of this Court had made it clear
that the power to regulate commerce and other
constitutional powers could not be cut down or
qualified by the fact that it might interfere
with the carrying out of the domestic
policy of any state.” So another way to
phrase what Holmes says is, if you care about
federalism– of course, we all do– the best way to
limit or to test what Congress is doing is see if it
fits within Article 1, instead of saying
the 10th Amendment is this kind of independent,
freestanding limit on Article 1. So now, I think
the Court is moving back to starting its federalism
analysis in a kind of Article 1 congressional power register
instead of a state side, 10th Amendment sort of
trump card register. So this is a subtle distinction,
but it becomes important. The focus of the
Article 1 inquiry now is then these shadow powers. So they’re looking at
congressional power more. And when they look at
congressional power, they look at the Necessary and
Proper and the General Welfare Clause. But there’s a paradox in this. So you might think, oh
well, you know, Holmes, that was the leading
edge of everybody basically letting Congress
do whatever it wanted under the commerce power. And so this is actually
another way of saying, if you look at the
Article 1 side, you’re going to
basically say Congress can do whatever it wants. But that’s not
what’s happening now. So the Court is back to looking
at the congressional side, using shadow powers analysis. But the paradoxical result
is that these clauses, which from the beginning people
have seen as potentially unfounded and
limitless, are actually operating as limits on
congressional power. So this is another way in
which they are shadowy. I got many questions
along the way, every time I present this paper,
and from the editors of the Law Journal. In what way are they shadowy? Well, they’re shadowy
in lots of ways. So one is they’re structurally
difficult to get a handle on. But here’s the other
shadowy way they operate, which is they seem
expansive, and yet they are deployed by the
Court in a way that limits congressional power. And that’s a difference
from those doctrinal shifts back in the New Deal period,
where people tended to say– and you still see this in
the federalism literature– the reason to start with
the 10th Amendment analysis is that’s the only way
to get any kind of limit. Otherwise, it’s sort
of anything goes. Congress can do
whatever it wants. Now, the growth of the
shadow powers analysis has tended to narrow
the permissible scope of congressional
regulatory power. So it’s a limitation. It’s a technique of
limiting the overall quantum of congressional power. Now, my critique
of what the Court’s doing– another way in
which it’s shadowy, right? We don’t really
like shadowy things. We maybe like
talking about them, but it’s not doctrinally
the most salutary effect. So my critique isn’t
about the direction of the Court’s analysis. I’m not saying the problem
here is they’re striking down federal statutes. My critique is not about
this ultimate quantum of congressional power issue. My critique is that the rise
of this species of analysis is doctrinally unprecedented,
although not presented as such. And it’s functionally unhelpful. It makes it very
difficult to know when do we think Congress
will overstep its boundaries, and when won’t it? It doesn’t really set
meaningful standards for how federalism should
operate in practice. Another problem is
the novelty here. So this is another
interesting thing in a Court where the majority often
adopts an originalist modality of interpretation, yet here
they are, I would argue, doing something very novel
doctrinally with how they’re using all of these
precedents and, indeed, constitutional text. So you end up with
the situation where there are these kind of
solid Article 1 powers. This is underneath the
doctrine, as it stands today. You’d really like,
if you’re Congress, to say, we’re regulating under
one of our strong Article 1 powers, like the commerce power. Now, that’s strong
in a kind of well, but it has these other issues. But it seems robust. But then these auxiliary
Article 1 powers, like necessary and
proper, they’re a little bit more tenuous. And that’s as a result
of the doctrine. So in recent doctrine, the
focus on the shadow powers has allowed the Court to
maneuver within its federalism analysis, but in
a way that appears to maintain the commitment
to this apparently unmoving baseline. So this is where I would
say the originalism comes in with a sense that they
cite the founders debates, they cite the
Constitutional Convention. And there’s a sense that this
is an unmoving baseline– nothing’s being overruled here–
when, in fact, there’s actually something going on. It’s just more concealed. So they’re
adjudicating federalism at the textual, doctrinal,
structural periphery, and that distorts the doctrine. The good news here is
that it’s an opportunity to think about a central
federalism question, perhaps the central federalism
question, which is, is it possible to
conceive of the states as having significance while
also recognizing Holmes’s point in his Hammer dissent? I mean, this happened
at the symposium over and over, where
people say, well, once you make it an
Article 1 analysis, once you start by asking
what are Congress’s powers, you’ve basically said goodbye
to any meaningful federalism. There are no limits. And I don’t think that’s true. But let me go through some of
the discussion of the cases to make that point. OK. So the cases since 2005
are a mixed bag on this. And I think people weren’t
really sure what was happening with necessary and proper. And having started teaching
some of this material right after one of these cases,
I can testify to that fact. You read commentary on
Gonzales versus Raich, 2005 and there was this
sense of let’s wait and see where this one goes. So that’s the case
where the Court upholds Congress’s regulation
and criminalization of medical marijuana, even when
it was approved by the states. And that’s still
a good precedent, even though then there’s this
question about enforcement that we have now. So that’s 2005. And in Raich, Justice Scalia
wrote a concurrence that really puzzled people at the time. And I’ll talk a
bit more about it. But it basically started this
necessary and proper shift in the doctrine. Then there were cases in 2010. There was a case called
US versus Comstock, where the Supreme Court upheld
federal civil commitment of sex offenders who were already
in federal custody, citing the necessary
and proper power. And this is when people
started to think, oh, there’s a necessary and
proper body of doctrine. And, you know, if you like the
Marshall Court and McCulloch in the 1800s, you would
of course think, cool. That’s fun, because we get
to talk about these cases. But there was also
a doctrinal question of where is this coming from? Is this new? Is this old? How do we think about this? Then in 2012, the health care
case, NFIB versus Sebelius, really brought this out. So the Supreme Court upheld the
individual mandate provision of the ACA under
the taxing power– so that’s under one of the
shadow powers– but not the commerce power, and not
the necessary and proper power. So they really delineated
among these different Article 1 powers. And then finally, this case in
2013 that is less discussed, US versus Kebodeaux,
where, again, the Court upheld federal post
Court Marshall sex offender registration
requirements. So it was a lot
like Comstock, where you had people who were
already in some sort of federal custody,
and the Court said, yeah, you can extend their
confinement or their commitment under these federal statutes. So those were the recent cases. And then, of course, the
original necessary and proper cases here in the background,
McCulloch versus Maryland, 1819. So in McCulloch, of
course, the Court upheld the constitutionality of
the Second Bank of the United States as a valid exercise
of congressional power. McCulloch, though, is both the
source of a lot of the doctrine and a source of a lot of the
confusion that we now have. So in McCulloch,
Chief Justice Marshall sketched this very
broad, but not unlimited, necessary and proper power. And he described it at times as
an incidental or implied power. So, you know, everyone
probably has seen this. You sort of read the
shorthand of McCulloch and it’s, well, they
can establish a bank. Well, really? Where’s the power in Article
1 to establish a bank? It’s not exactly in there. But, you know, if
you add up the power to regulate interstate commerce,
armies and navies, coin money, crimes. Where are the crimes? Well, OK, they’re
kind of in there too. But then Congress can
establish the bank. So it’s shaped subsequent
doctrinal developments in profound ways. Now, it’s possible
to read Marshall as saying that these
primary powers, relevant to the establishment
of the bank– so again, commerce, taxing, war, raising
armies and navies– necessarily include the powers
of their execution. And this is the real
implied powers point. Note we have not even gotten
to the Necessary and Proper Clause. So in this view– and I think
this was Marshall’s view– even without the necessary and proper
power being expressively listed in Article 1,
Congress had the power to execute its
enumerated powers. And so Marshall and others at
the time, you can find evidence and sources were people
say, this is basically a restatement of what we know
to be a common law principle, that a power necessarily implies
the means of its execution. Late 18th century common
law jurisprudence easily conceived of primary powers
as containing this power to execute, so this was
unproblematic to Marshall and many. But the very fact that
that unproblematic led them not to articulated it in a way
that we might now find helpful. Now, the Constitution
makes that principle explicit in the Necessary
and Proper Clause. So this is why I think
McCulloch, sometimes it’s puzzling. Where’s the implication? It’s right there in the text. Well, before he even got
to necessary and proper, Marshall said this
is all permissible. Necessary and proper is
an explicit– Akhil Amar refers to it as it’s like a
restatement or a ratification of what’s already
there as a power. So for much of the
early 20th century, the necessary and proper power
made regular appearances, and relatively
uncontroversial appearances, in Supreme Court doctrine,
operating in tandem with the commerce power. And this is something we
don’t spend a lot of time on these days. But there’s case after case
where the Supreme Court upholds congressional
regulation, and then it sort of blurs the commerce
and the necessary and proper in a way that today we
would think you can’t do. So here’s a couple of examples. There’s an important
line of cases upholding congressional
regulation of railroad rates. There’s a line of cases
about milk prices and Labor Standards, where
they don’t separate the commerce and the
necessary and proper analysis. So the Court
discusses regulations of interstate commerce. But then when they get to
the always tricky question of intrastate regulation, they
say things like the regulation is upheld. And you think, why? It’s not interstate. It’s intrastate. And the Court says, “It’s
an appropriate means to attainment of a legitimate
end of executing the commerce power.” Now, they don’t cite
necessary and proper. So again, the citation norms of
earlier Supreme Courts, that’s a different topic. This was not that long ago. But they don’t
say, oh, now we’re in necessary and proper land. They use this language that’s
actually somewhat interesting. “Necessary and appropriate,”
they often say. I guess appropriate
sounded better than proper. Maybe it was less limiting. There’s sort of
precedent for using both. But they talk about it as,
yeah, of course Congress could establish
this kind of means to reach its constitutional end. So you see in these 1920s,
’30s cases conceptual melding of the two types of power. And that goes on into the
New Deal era and beyond. It’s a doctrinal
problem though for us, because now we look
back and we think, oh, given what’s
happened since 2005, it’s important to separate
necessary and proper from commerce. And now, how do we unravel
which power was doing the work, now that we think
of them as distinct? So if you look back at the
milk cases, Wrightwood Dairy, and it’s all just sort of
melded together in a way that Chief Justice Marshall
would have found familiar, but that today, I think,
we do find hard to unravel. So OK, now the recent cases. So Raich was the one I mentioned
with medical marijuana, and that’s 2005. Since then, the Court
has really highlighted a series of doctrinal
consequences that follow from Marshall’s
you might say cleverness, or you might say opacity,
or both, in McCulloch. So what do I mean by this? Well, in McCulloch,
Marshall again uses this implied
powers language, suggesting maybe
you don’t even need necessary and proper
to establish the bank. But luckily, we have
necessary and proper, he says. And Marshall uses this
analysis to support this idea of federal
power as– as he puts it– “supreme within its sphere.” So once you identify federal
power as operating properly, it has to be “Supreme
within its sphere.” And this is a statement about
the enumeration principle. It’s also a statement about the
Union as they understood it. More recently, so here’s another
take on necessary and proper. Justice Scalia in 1997,
in the Printz case, referred to arguments based on
the Necessary and Proper Clause as “the last, best hope of
those who would defend ultra vires congressional action.” So that’s a little different. That sounds a little bit like,
you can try it if you want, but people will
be very skeptical that you are now skating on
the thin ice of something beyond enumerated power. So why does this conceptual
uncertainty about, especially the Necessary and Proper
Clause, but there’s a related species with General
Welfare, why does this matter? Well, it matters
because of how it interacts with judicial
federalism as a whole. So I argue that in periods
of judicial deference to congressional legislation,
under the primary powers– and the classic case example of
this is between 1937 and 1995. The Court’s pretty
deferential to Congress. In those periods,
the fuzzy status of the necessary and proper
power is difficult to discern. Maybe it gets expanded a bit. As the commerce
power expands, so does the necessary
and proper power. But in periods of
intensified judicial scrutiny of this legislation, there’s
a very different result. And we see this today
with a discussion again, the return to the congressional
power side of the federalism equation, a concern that
we’re looking at something like, as Chief Justice Roberts
termed it in a recent opinion, a federal police power. So we don’t want that. There’s no constitutional
basis for thinking Congress has a kind
of freestanding policy-making power. It has to be under one of the
enumerated heads of power. But there’s this concern,
again, about the overall size of congressional regulation. So in periods of intensified
judicial scrutiny of federalism– and
we’re in one now– there’s a different
result because of the status of the
Necessary and Proper Clause. So when the Court narrows
the commerce power, as it has done since
1995, the relationship between that primary
power and the auxiliary necessary and proper power
matters a great deal. OK so let’s look at Raich. This is the kind of
original text on this. So in Raich, as I mentioned,
Justice Scalia concurred. So the Court upheld the federal
Controlled Substances Act and said, even though California
has this medical marijuana statute, the federal act
criminalizing possession of even small amounts
of homegrown marijuana still stands. So Justice Scalia concurred,
and this concurrence that people read, and re-read,
and have continued to re-read. And in this concurrence
Justice Scalia recast much of the 20th
century commerce power doctrine as turning, in fact, on the
necessary and proper power. So he says, in
lots of situations obviously Congress is regulating
under its commerce power when you’re talking
about railroads, or you’re talking about
instrumentalities of commerce, or you’re talking about
things actually moving across state lines. But in the regulatory area of
activities that substantially affect interstate
commerce, Justice Scalia said the real source
of Congress’s power there is actually the Necessary
and Proper Clause, not the Commerce Clause. And this is the one
that, for a while, people didn’t quite know
what to make of this. And there was this
sense of what’s Justice Scalia doing here? There’s something he’s
kind of setting out here. It’s not entirely
clear from this case. But it does seem to suggest that
the necessary and proper power on the one hand is potentially
expansive, because it justifies all of this
intrastate regulation. On the other hand,
there’s a sense that it’s a step
removed from a sort of real congressional power. It’s questionable in some way. So the first response
to Raich– and this was in a lot of the
commentary– was, is Justice Scalia opening
up a broader reading of the necessary
and proper power? And a lot of people felt
like that couldn’t be right, because his general
kind of take is not to expand congressional power. But even before the
health care case– I remember having
conversations before that case was decided here in the
hallways and elsewhere– and commentators and
academics saying, well, it seems like
it’s just Raich. Intrastate market,
in health care, interstate market that
the intrastate activity is connected to, broad reading
of necessary and proper. And then the Supreme Court
in the health care case said no, it’s taxing power but
not the necessary and proper power. So in subsequent
cases after Raich, other justices picked up on this
necessary and proper analysis, they applied it
in other contexts, and they used it to uphold
congressional regulation. So it looked like a body of
necessary and proper doctrine was developing for the
first time since McCulloch. And again, it was kind of
doctrinally interesting. It was exciting the
think, oh, there are areas of doctrine
that ebb and flow, and we’re seeing
the return of one. But it was still
pretty unsettled. So then came these other
cases that I mentioned, Comstock in 2010 and
Kebodeaux in 2013. And in Comstock in
particular– this is, again, the one about
ongoing civil commitment of people who have finished
their federal prison terms. So the Court upheld the
ongoing civil commitment. And here was the argument. The Court said, we are relying
on the necessary and proper power in upholding this federal
civil commitment for persons convicted of federal
sex offenses. And Justice Breyer
writing for the Court says, “This statute
is a valid extension of Congress’s
authority to establish federal criminal law.” Now, you press on that one
a little bit, of course, and there’s no enumerated
power to establish federal criminal law. So now we have these
layers of implied powers, and there was a
lot of resistance from other quarters of the
Court to this basically saying, the chain of implied powers
can’t extend infinitely. So if you’re saying, this is
implied from an implied power, and ultimately the power to
establish federal criminal law, which no one really
questions, rests on some combination, again,
of the commerce power, taxing power, the
levying war, and so on. So Justice Breyer
basically waves this away. And he says, it doesn’t
matter how many layers of implied powers you have. This bothers people
then and still. Justice Kennedy concurred, and
he said– I think helpfully– but he said, the analysis
under necessary and proper doesn’t depend on
the number of links in the congressional
power chain, but on the strength
of the chain. So there is a sort
of metaphysics of the strength of the chain,
but not the number of links. But you kind of get it,
that he’s saying, look, there’s a strong chain here
connecting Congress’s authority to establish federal
criminal law to permit ongoing civil commitment. And the hook the Court
looked to, here and then in the subsequent
case, Kebodeaux, also about federal sex
crime statutes, was something about a nexus
between the prisoners being held in federal custody. So they almost shift
to this idea of, well, does there have to be
some federal nexus? Is it interstate? Well, there’s a person who’s
being held in federal custody. So it actually is
attaching at the level of the body of the
individual, which I think is very unlike a lot
of areas of the doctrine. I mean, you’re not
saying here, well, this is a separate offense against
the interstate federal criminal law. Nothing like that. It’s this idea that the person’s
already in federal custody, so they themselves have
connections to federal power. So there’s this area now of
these necessary and proper cases about, again,
individuals already in some form of federal
custody being held extensively. But the interesting
thing in Comstock– two interesting things–
first, Justice Scalia dissents from what
you could argue was his own necessary
and proper revolution. And this is when people really–
more symposia start brewing. What’s going on here? So Justice Scalia and
Justice Thomas dissent, and they say, look,
the connection to any enumerated power is
just too attenuated here. So then people
really are stumped. Right? There’s the sense that
whatever he was doing in Raich, it seems like it’s done now. But it’s not done,
because Kebodeaux and these other
cases– so now there’s this body of necessary and
proper law about individuals held in federal custody. And it’s in some ways this
byway of the doctrine. On the other hand, it
goes to this question about how do we think
of necessary and proper and the other shadow powers,
the general welfare powers, in connection with
the enumerated powers? And they seem like they’re
inferior in some way. So the final point
that I’ll make on that is that there’s doctrinal
distortion caused by the shadow powers analysis. And you can see this in the
health care case, as well. That the Court, in its opinion
on the individual mandate, went through in separate
parts the commerce power, and they say, no, it doesn’t
satisfy the Commerce Clause. Well, what about
necessary and proper? So as an artifact
of everything that had been going on since
2005, the Court actually had a separate section
of the opinion focusing on the necessary and
proper power, even having already decided
the commerce power. Now, they do sort
of say, well, we’ve already decided it doesn’t
fit under the commerce power, but now that we have a body of
necessary and proper doctrine, let’s look at this. No, it’s not necessary
and proper either, even though, again– think
back to Scalia and Raich– a lot of people said, well,
a local market in health care is obviously connected
to an interstate market. We should care about that. And the Courts says,
no, it’s too attenuated. So the final piece of this that
I think is really interesting is you can see the shadow of
the commerce power doctrine controlling when and how the
necessary and proper doctrine comes in and comes
out of the doctrine. And this is most
evident in Comstock. So again, federal
civil commitment. At oral argument,
everyone circles around the commerce power. Well, we know we’re
kind of talking about necessary and
proper here, but gee, what about the commerce power? Can we just think about
that for a minute? There seems to be this desire
on the part of the justices to think about it. And they keep pushing the
advocates to talk about this and say, is that
an analog, is it distinct from
necessary and proper, do we have to uphold both,
or could we just do one? So Justice Kennedy pressed then
Solicitor General Elena Kagan to make the commerce
power argument for the civil
commitment statute. So Justice Kennedy says, you’re
not making the commerce power argument. Why isn’t the government making
the commerce power argument? Trap, I think probably if a
justice is sort of saying, here’s an easy argument for you. Why don’t you make it? And then Solicitor General
Kagan says, the government has never argued the
Commerce Cause here. And it hasn’t done so because
of the Morrison Precedent. So there’s this sort of
very careful language. And the Morrison Precedent
is US versus Morrison, 2000, which along with
Lopez really said, look, Congress’s commerce
power is limited. The Court will
strike down statutes. And Morrison was about the
Violence Against Women Act. So even when they’re
pressed on it, the government, the
Solicitor General’s office says– I mean, I read
that as a statement of we might like to make the
commerce power argument, we might think this
is a better argument, but we just know it
is a loser because we don’t want to ask
the Court to overrule Lopez, Morrison, these
cases that stand for limits on the commerce power. So the government in Comstock
doesn’t challenge those cases. And the Court upholds
the regulation under necessary
and proper, but it creates this very strange
result in the doctrine, where there are these–
I mean, this happens in other areas of
constitutional doctrine too, where there’s sort of
a precedent out there for lots of logistical
litigation strategy reasons. People don’t want
to challenge it. They make arguments
under other areas. And it creates these kind of
interesting doctrinal results, where you might
think this is not a natural power under
which to situate this congressional regulation. And that’s where
it stands today. I mean, I think it’s
interesting to think– it’s not crazy to think– the
government thought no way do we want to fight Comstock on the
terrain of, hey, let’s overrule Lopez and Morrison. Right? They’re just not doing that. And you can understand it. But then you get
this tributary area of doctrine of
necessary and proper. So this law leads to what
I think of as a paradox, that Marshall sets out this
broad reading of Necessary and Proper and the General
Welfare Clause in McCulloch, a very broad reading
of Article 1, according to which all
primary powers include the means for exercising them. And that makes it
possible for later Courts to restrict the reach of the
necessary and proper power because they say its derivative
of the commerce power, and it’s a kind of lesser
or more questionable type of power. So in doing this, what the
recent Courts have done is, yes, shrink the
permissible domain of congressional regulation
except in these areas like the civil commitment,
where you already have someone in federal custody. So that seems to
satisfy a kind of nexus. But the Necessary
and Proper Clause is not at all the
font of federal police power that has occasionally
troubled commentators. Instead, it’s a sub rosa
doctrinal hurdle to regulation, that we think of it
as a lesser power. It’s a separate head of
power, but as soon as you say, this is a regulation under
necessary and proper, one response is going
to be, boy, that’s kind of not a great argument,
because unless you can point to some nexus of the individual,
this looks like a sub Article 1 power, sort of lesser one
in the hierarchy, when, in fact, the opposite is true. It’s an enumerated power. It contains connections
to all these other powers. And there’s no evidence
to think that it’s lesser. So another idea about
what’s going on too is that the main doctrine
reaches a dead end. How many more
arguments can people have with current Court, in
the current political climate, about the commerce power? Maybe not many. And so then what happens
is the doctrine shifts to ancillary areas
to get purchase on how federalism should work. And maybe in 10 or 15 years, the
commerce power will come back. But for now, this is where we
have to fight these fights. That’s possible. So let me just say one
final thing about how to think about all of this
in terms of federalism, which is– This is
obviously, potentially, a very disheartening
story, because we think, look, they just sort
of shift back and forth from congressional
side to state side. And they’re not really
talking about what they should be talking about. And there’s a dismal
scene for federalism on the whole in
the Supreme Court. Well, I think not necessarily,
if one takes another aspect of McCulloch seriously. And, you know, McCulloch,
I mean, it’s early. It’s not the founding. But people tend to
treat it as if it were on a level with
founding documents. And then this is
McCulloch enunciating an idea of the Union. So Marshall talks a lot
about this in McCulloch. He has this famous line.
“The government of the Union, though limited in its powers,
is supreme within its sphere.” So American federalism
has historically assumed a meaningful
scope of operations in which the powers of the
union-level of government, not the states, will operate. And there are precedents for
both the Necessary and Proper Clause and the
General Welfare Clause in pre-founding, colonial era,
revolutionary era arguments about centralized
legislative authority, and the domains in
which different levels of legislative authority
should operate. So here’s some antecedents. 1765, before the war,
before the Constitution, during the debate
over the Stamp Act. Daniel Dulany,
who was a Maryland lawyer and pamphleteer,
critiques the Stamp Act. Now, we often think, oh, they
just don’t like the Stamp Act. Maybe it was all economics. They didn’t want to pay taxes. Surely that was some of it. Or we just think they hated
Parliament, hated it, wanted the imperial yoke
lifted off them, the Hanoverian boot
removed, et cetera. Well yeah, some of that’s true. But when you look at the
actual language they used, it’s a lot more nuanced. So Dulany’s critique of
the Stamp Act was to say, only the colonies’ own
legislatures, which they had, have the power to
levy internal taxes. So we’re OK with taxation. It’s just where it comes from. And if it’s internal
to the colony, what we might think of as
intrastate, then it has to come from the
colonial legislature. But Parliament can tax. It’s just those taxes have
to be about the interests of the whole empire. So something about,
well, we need to tax the people who grow
certain kinds of crops in Massachusetts
because we’re thinking about the people who grow
those crops in the Caribbean. And we in Parliament have some
sense of the overall nature of the empire. So Dulany says in this
pamphlet, “May not then the line be distinctly unjustly
drawn between such acts as are necessary or proper
for preserving or securing the dependence of the
colonies, and such as are not necessary
or proper for that very important purpose.” So there’s often a
lot of hand-wringing about why didn’t they tell us
in the Philadelphia Convention? They use these common words. What do they mean? And does it mean everything,
or is it just common parlance? Well, here they are using
it, proto revolutionaries, to describe the sphere of
parliamentary regulation. And they say the
legislation has to satisfy this test of necessity or
propriety in order to be valid. But if it does,
then Parliament can regulate for the whole empire. An empire is a species of union. So another example,
John Dickinson writing a couple of years
later in 1767 in his Letters From a Farmer, he invokes the
concept of the general welfare of the empire as a permissible
justification for Parliament to tax the colonies. So he says, using taxation
to regulate the empire, to restrain the commerce
of one part that was injurious to
another, and thus to promote the general
welfare was fine, because it was general. The problem, though, he
said, was taxation that was just for raising a revenue. That’s impermissible,
which is also a funny reversal of
what sometimes comes up in modern doctrine, where
you’re taxing to regulate? That’s fine. You’re taxing just
to raise money? Well no. Wait a minute. We don’t like that. And the Court kind
of has worked through since the New Deal period. So I think this
union idea suggests that federalism and nationalism,
when you’re talking about it in the context of American
constitutional law, are not actually that far apart. But a reason to adopt the Holmes
approach– look at Article 1, look at whether Congress is
really within its sphere, and take the enumeration
principle seriously– is that it gives us insight into
how a union needs to operate, which also assumes
that there will be some things that the
union-level government and legislature
can’t touch things, that are internal to the
colonies, now states. So I think there’s hope. The shadow powers
are shadowy, but I do think union
may give the Court or give us some purchase on how
to make sense of this doctrine. So I’m going to stop there, but
I’m happy to take questions. Yeah. STUDENT: So you were
talking about the shadow of people changing the
doctrine without saying what they’re doing. Do you think that that’s
inevitable in a system that values precedent? And if not, would you
rather them be explicit? And does that devalue
the current stability? ALISON LACROIX: Yeah. I mean, it’s definitely
a delicate balance, because I don’t think our
system would lend itself– and we wouldn’t like it–
if they were constantly overruling themselves. That’s another reason that
Hammer is an interesting case, because they did, in
the end, overrule it. But what I think is notable
is in the doctrinal area of the commerce power, the Court
is so resistant to overruling. So other than Hammer, they’ve
never overruled anything. Even though, I mean,
if you take Com Law 1, you know there’s
this moment of 1995, US versus Lopez
changes everything. Oh, they must have
overruled a bunch of things. No, they didn’t. But they do read it in ways
that is not always, I think, faithful. So Lopez has re-readings
of Wickard versus Filburn and re-readings of
McCulloch, that– if you go back and look
at those cases– are not really what
those cases said. And I think that’s a problem,
because yeah, McCulloch, is a great case. It kind of contains
a multitudes. But I mean, it talks
about substantial effect. It talks about effect. And it says, even if
the commerce is local, you can regulate. That’s not what Lopez says. So I get that they
don’t want to overrule things, and their stability
costs and concerns. But I think that a little
more clarity and willingness to overrule would
probably be helpful, instead of wrestling
in the categories and then acting like
nothing’s really happening, when all of us
read it and think, something’s happening here. It’s not that
nothing’s changing. Yeah, Katie. STUDENT: You talked a
fair bit about the scope of the Necessary
and Proper Clause, and I was wonder to what
extent have courts or litigants treated justifications for the
scope of that and the General Welfare Clause differently? Because it seems like at
least on the face of them, the Necessary and
Proper Clause is perhaps more apparently derivative than
the General Welfare Clause. ALISON LACROIX: Yeah. STUDENT: So I was wondering
if that is something that has been discussed
recently in the recent cases, and whether different
arguments regarding scope have been put forth between the
two different clauses because of that. ALISON LACROIX: I think when
people– say you’re definitely right that even if you are
doing a textual reading of the Necessary
and Proper Clause, it implicates other
provisions of the text. And the general welfare power,
taxing and spending, doesn’t. You can just read it on its
own, and it’s pretty clear. And I think part
of the– I mean, there was this early debate
about the General Welfare Clause in the founding
period and then again in the early 20th
century, where people wondered whether it was like
the Necessary and Proper Clause. So was it just a kind of
freestanding source of Congress to regulate in the name
of the general welfare? And that was periodically
raised, I think, more as a scare tactic a sort
of no one’s discovered it, and you can just regulate
for the general welfare. You know, I think
no one seriously was making that argument. But there were these
questions about, OK, so is it a freestanding
power in that way? Which starts to sound a little
more necessary and propet-ish, because it’s very broad. Is it that Congress can only–
and this was the real debate that the Court came back to in
the 20th century too– is it that you can only tax and spend
if you’re Congress in pursuit of other enumerated powers? And that, again,
would have made it look like necessary and proper. So you can tax and
spend, Congress, but only if you tie it to the
commerce power, the raising armies and navies. And in US versus Butler
the Court says, no, no, no. As long as it’s
taxing and spending for the general
welfare, they can do it. So I think in those early
cases people made arguments about breadth saying it’s
like necessary and proper, but also worrying about if
it’s like necessary and proper, then it’s not freestanding. And then you have to fight
the enumerated powers fight. Now I think– and this comes out
a lot in the health decision– that the Supreme Court
just sort of says, look, the taxing power is
the taxing power. It’s pretty straightforward,
which of course caused 100 symposiums to
bloom about the taxing power. How come we haven’t really
looked at the taxing power? And of course, people
you tax said, of course we looked at the taxing power. But the spending
power side of it came more into controversy
after the health care case too, because I didn’t
really talk about that, but that’s where the Supreme
Court said, you can’t threaten to take away existing health
care funds if the states don’t do what they’re supposed
to do with Medicaid, because it’s coercive. And so, again, I mean, I think
it’s shadowy in that there was this coercion inquiry, that you
could sort of find in earlier cases, but the Court
brought it back in Sebelius, and then really focuses on it. And I think a lot of people
ended up saying, well, but we thought there were
lots of spending power cases that had said coercion,
but probably not. It’s not really a real limit. So yeah, I think. litigants have made
those arguments. I think the scope question
of necessary and proper and general welfare is pretty
settled, except that they have this quality of being not
the real core Article 1 powers. Yeah. STUDENT: Thank you for this
spectacular tour de force. ALISON LACROIX:
Well, you’re welcome. STUDENT: I was
wondering– you alluded in the beginning to
your disagreement with [INAUDIBLE] in the Yale
Symposium [INAUDIBLE] notion that it ought to be agents
of federal government. [INAUDIBLE] And I was
wondering if you could say more about that and,
sort of, how that ties into the scope of this
Necessary and Proper Clause? ALISON LACROIX: Yeah. So the scholars who’ve written
the most in that vein, who were also in the symposium,
are Heather Gerken at Yale, Jessica Bulman-Pozen
at Columbia, and to some degree Abbe Gluck at Yale. But I really think of Gerken
and Bulman-Pozen in this vein. And so the ones who, I
think, say federalism exists in the service
of nationalism. And so they have
written together and they’ve written separately. But Heather Gerken’s argument
is the states get power from being the servants
of the federal government, and they should sort of
appreciate that and understand that that’s a locus
of their power which is totally different
from 18th or 19th century understandings of sovereignty. And that when they carry
out federal power– so this is getting into more
of Bulman-Pozen’s work– they have the opportunity
to resist federal power. They have the opportunity
to make federal policy on the ground. And then where
Abbe Gluck comes in is to talk about all the ways in
which states actually implement federal programs all the time,
and the high-level Supreme Court doctrine doesn’t
capture any of that. So this is like, I mean,
health care is a big one. Education, some immigration
and criminal enforcement, where the states, you know, if
you just read the Supreme Court reports, you’d think the
states are never commandeered. They never carry out
federal programs. They are sort of inviolate. And this line of scholarships
says, well, not exactly. There’s much more cooperative
federalism going on than the Court would hold. So I think that’s right. And I do think the Court– if
you look only at Supreme Court doctrine– you get the sense
that cooperative federalism is suspect, and it’s all
laden with coercion, and it should never be allowed. And you look at reality,
and there’s actually a lot of it going on. But I’m not as
convinced of the states have power by being used as the
servants of congressional will. Just because maybe, again,
this is being a historian, but I just think there’s
something essentially– there’s a state quality
about the American states. Maybe it’s not true in
other federal systems. So there are a lot of
scholars of federalism who say federalism’s really
about decentralization. If you look at other
systems, why are Americans so hung up on this? But I would think, well,
Americans are hung up on it in part just because of
the facts of American history. And you don’t have to say, you
know, states’ rights to say, well, the states
have some core area, and we don’t quite
know what it is. But it needs to be preserved. And the Founders didn’t
tell us what it was in it, but they told us
it was important. So yeah, I mean this is a
really– I think all of them are terrific scholars. And the other person in the
symposium, Cristina Rodriguez, writes a lot on immigration law. And so it’s sort of people
coming at federalism from different
angles and federalism in practice, which
I think is helpful when you are glazed over
with this sort of, it’s the 10th Amendment,
no, it’s the kind of standard federalism
arguments that you get from the Supreme Court. Yeah. STUDENT: You may think you’re
right about this shadow power. ALISON LACROIX: Yeah. STUDENT: This gives advocates
the opportunity looking at other enumerated
powers to try to sort of back away
from some doctrines using necessary and proper
to kind of get shadows to stock other aspects? Do you see that [INAUDIBLE]? ALISON LACROIX: By
calling them into question and saying this is a
sort of shadowy area? Somewhat. I mean, I do think the
foundational shadow power is necessary and proper. And taxing and
spending, in some ways, have gone through
what you’ve described where it seems like, oh, is
it like necessary and proper or not? Well, we have to
think about that. There’s always
this question about will there be provisions
that come back into being justiciable or
controversial in a way they haven’t been. And then will we sort
of feel like they are subordinate
to other ones that have developed in a robust way? I mean, every now
and then people say, the republican form of
government clause, you know, that’s coming back. Stay tuned. And it may. I mean, people were saying this
about, when I was in law school it was sort of news that the
Commerce Clause was back. So yeah. It was a long time ago. So I think that the answer
is I could see someone making an argument and
saying, look, the problem here is that we’re using the doctrine
in ways it’s not designed to, because we’re avoiding some core
question about total quantum of congressional power,
about the Commerce Clause. And so then it
would be, I think, a fair critique to
say you’re doing that. You are using the
wrong argument here. But yeah, some of
that just depends on the play of the doctrine. PROFESSOR: That’s
all we have time for. ALISON LACROIX: OK. Thank you very much. [APPLAUSE]

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