Why Enumeration Matters

Michigan Law Review Volume 115 | Issue 1 2016 Why Enumeration Matters Richard A. Primus University of Michigan Law School, Follow this and additional works at: http://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Courts Commons, and the Legislation Commons Recommended Citation Richard A. Primus, Why Enumeration Matters, 115 Mich. L. Rev. 1 (2016). Available at: http://repository.law.umich.edu/mlr/vol115/iss1/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact . WHY ENUMERATION MATTERS Richard Primus* The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen is a source of legislative authority, but there is no practical sense in which legislation depends on her. Similarly, it might misunderstand the American system to think that Congress is in practice—or ought, in practice, to be—limited by its enumerated powers (as opposed to the political process or affirmative constitutional prohibitions), even though we continue to repeat the traditional statement. One important difference between the two cases, however, is that in the British system there is no controversy about whether the Queen should enjoy legislative power. In the American system, where there is serious disagreement about whether the enumerated powers of Congress must be limiting, it is necessary to bring the ritual-continuity aspect of the maxim more clearly into view, thus explaining why we could be attached to the maxim even if it need not do important practical work in the operations of governance. Table of Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Continuity Tenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 II. The Enumeration Principle as a Continuity Tender . . . . . . 20 A. Governing the Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 1. The Unbearable Lightness of Internal Limits . . . . . . . . . . 20 2. Actually, It’s Pretty Bearable . . . . . . . . . . . . . . . . . . . . . . . . . . 25 B. Valuing the Past . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. The Creed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 2. The Audience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 III. Weaponization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 A. Ritual in an Environment of Consensus . . . . . . . . . . . . . . . . . . . . 34 * Theodore J. St. Antoine Collegiate Professor of Law, The University of Michigan Law School. Thanks to Scott Bloomberg, Evan Caminker, Daniel Crane, Jennifer Fischell, Bruce Frier, Scott Hershovitz, Don Herzog, Amy Lishinski, Claire Madill, Christopher McCrudden, Leah Mintz, Jessica Morton, Gil Seinfeld, Eli Temkin, Rachael Westmoreland, Dayna Zolle, and the participants in workshops at the University of Michigan Law School and the University of Southern California Law School. Research for this Article was funded in part by the Cook Endowment. 1 2 Michigan Law Review [Vol. 115:1 B. Ritual in an Environment of Conflict . . . . . . . . . . . . . . . . . . . . . . . 37 IV. What Is to Be Done? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Introduction The federal government is a government of enumerated powers. As a matter of official theory, the enumeration of those powers limits what Congress can do.1 As every lawyer knows, however, Congress can in practice use its enumerated powers to regulate pretty much anything that a state could regulate.2 The judiciary’s few decisions striking down federal action as exceeding Congress’s enumerated powers have not as a practical matter imposed meaningful constraints upon Congress’s legislative jurisdiction,3 and there is no compelling evidence that Congress has enforced enumerationbased limitations on itself, declining to enact laws that it otherwise favored because it believed its enumerated powers insufficient for their enactment.4 To be sure, the Constitution does and should limit what Congress can do. Federal legislation is limited by the structure of the government and its institutions, and federal legislation is also limited by affirmative prohibitions like 1. See, e.g., Bond v. United States, 134 S. Ct. 2077, 2086 (2014) (“In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.”). 2. See Pamela S. Karlan, The Supreme Court, 2011 Term—Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1, 42–43 (2012) (discussing the broad applicability of the Commerce Clause power announced in Wickard v. Filburn, 317 U.S. 111 (1942)); Gil Seinfeld, Article I, Article III, and the Limits of Enumeration, 108 Mich. L. Rev. 1389, 1391 (2010) (identifying this view as “the standard story”). 3. In United States v. Lopez, 514 U.S. 549, 567–68 (1995), and United States v. Morrison, 529 U.S. 598, 617–19 (2000), the Supreme Court did strike down federal statutes on internallimit grounds. But the internal limit articulated in those cases does not, in practice, prevent Congress from pursuing any regulatory agenda that it has the political will to implement. See infra Section II.A. 4. It is not hard to find examples of members of Congress arguing against bills on these grounds. See, e.g., 156 Cong. Rec. 4112, 4117–18, 4134, 4137 (2010) (recording various representatives’ arguments that the Affordable Care Act would be unconstitutional because it exceeds Congress’s powers). It is just hard to find examples of that argument winning out. To be sure, Congress should, and routinely does, consider whether a particular policy need should be addressed federally rather than locally (or cooperatively), and it often decides against federal regulation. See, e.g., 146 Cong. Rec. 16,059 (2000) (characterizing the Innocent Chil (...truncated)