Combining constitutional clauses.

• Author: Coenen, Michael
• Position: Abstract through III. The Legitimacy of Combination Analysis, p. 1067-1101

Some constitutional questions implicate multiple, overlapping provisions of the Constitutions text. In resolving these questions, the Supreme Court typically addresses each of the relevant clauses in separate and sequential fashion, taking care not to let its analysis of one clause affect its analysis of any other. But every so often the Court takes a different approach, looking to the clauses in combination rather than in isolation. The Court has sometimes suggested, for instance, that two or more rights-based provisions might require the invalidation of has also suggested that a federal law might fall too far outside the scope of Article I and too far within the scope of a rights-based provision to withstand constitutional attack. And the Court has very occasionally suggested that a congressional enactment might qualify as a necessary and proper means of enforcing multiple enumerated powers at once. In all of these cases, the Court has embraced (or at least tinkered with) forms of what I call "combination analysis"--justifying judicial outcomes by reference to multiple clauses acting together, as opposed to individual clauses acting alone.

This Article presents a systematic examination of combination analysis in U.S. constitutional law. In so doing, it seeks to make four contributions to the burgeoning scholarly literature on the subject. First, the Article collects and taxonomizes existing examples of combination analysis in U.S. Supreme Court doctrine, demonstrating that combination arguments have enjoyed a wider range of application than has thus far been supposed. Second, the Article examines the conceptual structure of combination analysis, revealing some underappreciated functional similarities between combination-based constitutional reasoning and other more commonly accepted features of public law adjudication (including, for instance, arguments based on constitutional structure and arguments based on the constitutional avoidance canon). Third, the Article sorts through the practical pros and cons of combination analysis, shedding light on the questions of whether and (if so) when courts should advance combination arguments in the course of resolving a particular case. Finally, the Article offers some preliminary guidance regarding the implementation of combination analysis, identifying in particular four different types of "combination errors" that courts should strive to avoid. What emerges from the discussion is the conclusion that combination analysis represents a real and conceptually valid method of constitutional reasoning, which, at least under some circumstances, stands to benefit the development of constitutional law.

INTRODUCTION I. WHAT IS COMBINATION ANALYSIS? II. COMBINATION ANALYSIS IN CONSTITUTIONAL LAW A. Right/Right Combinations B. Right/No-Power Combinations C. Power/Power Combinations D. Subclausal Combinations III. THE LEGITIMACY OF COMBINATION ANALYSIS A. The Additive Logic of Combination Analysis B. Doctrinal Analogues 1. Constitutional Avoidance 2. Structural Arguments IV. THE PROS AND CONS OF COMBINATION ANALYSIS A. Reasons to Combine 1. Avoiding Anomalous Results 2. Narrowness and Transparency 3. Decisional Foreshadowing B. Reasons Not to Combine 1. Textual Fidelity 2. Judicial Restraint 3. Doctrinal Complexity C. Visions of the Constitution D. Summing Things Up V. COMBINATION ERRORS A. Non-Counting Errors B. Double Counting C. Ignoring Negative Implications D. Disregarding Transactional Unity CONCLUSION INTRODUCTION

Thumb through the pages of a constitutional law casebook, and you will likely notice an organizational structure that makes heavy use of the document's clauses. One section of the book will cover the Equal Protection Clause; another will cover the Due Process Clause; another the Commerce Clause; another the Taxing Clause; and so on. This organizational scheme reflects an important feature of the Supreme Court's doctrinal output. To a substantial (though not universal) degree, discrete and separate provisions of the Constitution's text have spawned discrete and separate bodies of constitutional law. Constitutional adjudication thus involves the tasks of identifying the constitutional provision most relevant to the case, looking up the clause-specific doctrinal rules associated with that provision, and then resolving the case in accordance with those rules. In this way do abstract questions of constitutional validity often reduce down to particularized assessments of clausal consistency.

That pattern remains in place even when government action implicates multiple, separate clauses at the same time. To decide these multiple clause cases, courts frequently apply the law of each provision in sequential and independent fashion, taking care not to intermingle the different clause-specific doctrines being applied. For instance, when the Supreme Court confronted the Violence Against Women Act, it first considered the law's validity as an exercise of the commerce power and then considered its validity as an exercise of the Fourteenth Amendment's enforcement power, taking care not to let its analysis of the Commerce Clause question influence its analysis of the Enforcement Clause question (and vice versa). (1) When the Court struck down a Texas antisodomy law as a violation of the Fourteenth Amendment, the Justices divided on whether to rest the decision on the Due Process Clause or on the Equal Protection Clause, with no Justice invoking the combined authority of the two clauses together. (2) Other cases reflect a similar approach. (3) When litigants assert claims arising under multiple areas of constitutional doctrine, the strengths or weaknesses of one clause-specific claim typically have no official bearing on the strengths or weaknesses of another. (4)

But the Court has not always toed this line. In several cases--some recent, some old--it has experimented with an alternative approach, one that traverses the boundary lines that mark the clauses' separate doctrinal territories. The Court, that is, has sometimes combined constitutional clauses, deriving an overall conclusion of constitutional validity (or invalidity) from the joint decisional force of two or more constitutional provisions. Most familiarly, the Court has indicated that multiple rights-based provisions of the Constitution might sometimes require the invalidation of government action that would be permitted if each provision were considered in isolation. (5) Somewhat less familiarly, the Court has held that congressional action can fall too far outside the scope of Article I and too far within the scope of a rights-based guarantee to withstand constitutional scrutiny. (6) And very occasionally, the Court has suggested that a congressional statute--though not expressly authorized by any single enumerated power--derives its validity from multiple enumerated powers acting in the aggregate. (7) In all of these instances, the Court has employed a form of "combination analysis," justifying constitutional outcomes by reference to collections of constitutional clauses, rather than one such clause in particular.

Combination analysis is not unknown to scholars of constitutional law. But most of the existing commentary on the subject takes the form of brief ([dagger]) Assistant Professor of Law, LSU Law Center. For helpful comments on earlier drafts, I am grateful to Anna Arkin-Gallagher, Joseph Blocher, Dan Coenen, Seth Davis, John Devlin, Ray Diamond, Brannon Denning, John Devlin, David Faigman, Richard Fallon, Brandon Garrett, Heather Gerken, Phil Hackney, Jeremy Golubcow-Teglasi, John Graebe, Michael Klarman, Daryl Levinson, Ashley Lott, Dina Mishra, Eric Posner, John Rappaport, Richard Re, Chris Sherman, and Susannah Barton Tobin. Thanks also to C.J. Murray for outstanding research assistance, and to Markus Brazill, Josephine Chen, Mike Keblesh, and their colleagues at the University of Pennsylvania Law Review for invaluable editorial assistance. and targeted discussions of particular examples, offering little in the way of thorough and detailed investigations of the method in its myriad forms. (8) The bulk of the existing commentary, in fact, concerns one and the same example: The Supreme Court's landmark Free Exercise decision in Employment Division v. Smith. (9) There, in denying requests for free exercise relief, the Court suggested that the Free Exercise Clause might elsewhere operate "in conjunction with other constitutional protections" to impose a stronger set of limits than what any single clause would impose on its own. (10) That suggestion, along with several other aspects of the Smith decision, provoked numerous--and mostly negative--responses, with judges and scholars dismissing Smith's hybrid-rights rule as "unintelligible," (11) "conceptually flawed," (12) and (the ultimate barb) "completely illogical." (13) And on one level, these commentators had a point: various aspects of Smith's hybrid-rights reasoning raised vexing questions not adequately dealt with by the Court in Smith itself. (14) But insofar as the post-Smith commentary purported to address the topic of combination analysis more generally, its Smith-oriented focus limited its ability to shed full light on the subject as a whole.

This Article thus attempts to provide a broader and more systematic examination of combination analysis in constitutional law--one that includes, but also looks beyond, Smith's well-known "hybrid rights" rule. In doing so, the Article seeks to enrich existing understandings of the phenomenon in at least four ways. First, it demonstrates as a doctrinal matter that combination analysis enjoys a stronger foothold in Supreme Court case law than has generally been suggested. This is true not only in the direct sense that the Court and its Justices have relied on combination-based reasoning in several constitutional cases, but also in the indirect sense that combination-based reasoning shares...