ENFORCING PRINCIPLED CONSTITUTIONAL LIMITS ON FEDERAL POWER: A NEO-FEDERALIST REFINEMENT OF JUSTICE CARDOZO'S JURISPRUDENCE.

• Date: 01 February 2019
• Author: Pushaw, Robert J., Jr.

Table of Contents Introduction 941 I. Cardozo's State Judicial Experience 945 II. Cardozo's Work as a Justice 946 A. The Commerce Clause 947 B. Taxing and Spending for the "General Welfare" 950 C. The Nondelegation Doctrine 955 III. Reviding Cardozo's "Broad but Limited" Approach 959 to Federal Power, with a Neo-Federalist Twist A. The Commerce Clause 961 1. Modern Case Law 961 2. The Neo-Federalist Alternative 966 B. The Taxing and Spending Power 967 1. The Court's Blind Deference to Congress 967 2. Some Neo-Federalist Limitations 973 C. The Nondelegation Doctrine 980 Conclusion 984 INTRODUCTION

Since 1937, the Supreme Court has not consistently developed and applied principles of constitutional law that allow robust, but genuinely limited, federal regulatory power. Liberal Justices have had little interest in such an intellectual project because they favor political, rather than judicial, review of the gargantuan administrative state. (1) Meanwhile, conservative Justices for the past three decades have repeatedly tried, without success, to devise meaningful legal restrictions on federal authority that would preserve state control over local matters. (2) Despite this failure, the three veteran conservatives (Chief Justice Roberts and Justices Thomas and Alito) will likely continue their efforts, especially since they have been joined by Neil Gorsuch and Brett Kavanaugh, two avowed defenders of traditional constitutional federalism. (3)

The Court's attempt to legally confine, but not unduly hamper, federal power would benefit from a close study of the opinions of Benjamin Cardozo, who became a Justice in 1932. (4) Justice Cardozo approved most of the progressive New Deal economic and social welfare legislation championed by Democratic President Franklin D. Roosevelt (FDR), but identified and enforced certain constitutional boundaries. (5) Cardozo's method consisted of carefully interpreting and applying challenged statutory provisions in light of Congress's overall purposes and policies, the particular facts presented, precedent, and the necessity of preserving the Constitution's basic structure. (6) He set forth constitutional standards that could be fleshed out and adapted on a case-by-case basis, rather than fixed legal rules rooted in the historical Constitution that would more concretely curb the discretion of federal judges (and the coordinate branches). (7)

Cardozo's common law approach sought to reconcile two fundamental constitutional tenets that sometimes pull in different directions. First, the Constitution establishes a democratic system in which legislative acts are presumptively valid. (8) Second, the Constitution limits the federal government. Separation of powers prohibits Congress from transferring its Article I "legislative Power[]" (9) to the executive department, and federalism forecloses any interpretation of federal powers that would effectively make them absolute and thereby destroy states' jurisdiction over local matters. (10) Justice Cardozo resolved such tensions by deferring to the federal government's broad but reasonable exercise of authority to address the Depression, while invalidating merely expedient laws that either gave Congress untrammeled power or the executive unbridled discretion, or both. (11)

Although Justice Cardozo lived long enough to witness the triumph of his generally deferential style of judicial review in 1937, his quest to impose modest restrictions on Congress died along with him the next year. (12) In hindsight, Cardozo's case-sensitive approach likely could have worked only on a Court staffed by common law masters like him. Alas, President Roosevelt appointed nine Justices between 1937 and 1943 who were not experienced judicial craftsmen, but rather ardently pro-New Deal politicians (Hugo Black, Stanley Reed, Frank Murphy, Harlan Stone, James Byrnes, and Robert Jackson) or academics (Felix Frankfurter and Wiley Rutledge), or both (William Douglas, the SEC chair and former Yale Law professor). (13) These Justices had neither the expertise nor the inclination to incrementally develop doctrines that would balance the federal government's desire to expand its regulatory scope against the need to respect constitutional constraints on federal power. (14) Instead, FDR's Court swiftly abandoned any such limits. (15)

Chief Justices Warren (1954-1969) and Burger (1969-1986) and their colleagues entrenched this precedent, (16) which has left the conservative majority on the Rehnquist and Roberts Courts with a dilemma. On the one hand, they value stability and hence seek to honor stare decisis and to protect the basic modern governmental framework (a practical necessity, however unpalatable in theory). (17) On the other hand, the professed aim of these Justices has been to expound constitutional provisions in light of their original meaning and understanding. (18) The conservatives have struck an odd compromise. They have recited the originalist mantra that the federal government is confined to its enumerated powers, yet identified only a few (and ineffective) restraints that are not based on historical constitutional materials but rather on an extremely strained reading of cases decided from 1937 to 1994. (19)

As it turns out, however, the results of many (albeit not all) of those cases can be justified on bona fide originalist principles, even though the Court's proffered rationales cannot be. (20) Therefore, the conservative Justices need not continue to distort that precedent to discover previously unnoticed "limits" that are then developed in pure common law fashion a la Cardozo. Rather, these Justices can formulate legal rules, grounded in the Constitution's text and structure as historically understood, that can be consistently applied today to permit the kind of generous yet circumscribed federal power that Cardozo endorsed. (21) This "Neo-Federalist" approach would help the conservatives resolve their conundrum. (22)

The foregoing themes will be explored in three Parts. Part I provides a brief account of the jurisprudential philosophy that Cardozo followed as a state judge, which carried over into his work as a Justice. Part II examines the Court's holdings, and Justice Cardozo's separate opinions, concerning Congress's authority to (1) "regulate Commerce ... among the several States"; (23) (2) tax and spend "for the ... general Welfare"; (24) and (3) delegate its "legislative Power[]" (25) to the executive branch. Part III criticizes FDR's appointees for eliminating legal constraints on the federal government and suggests that today's conservative Justices, in attempting to revive such limits without hamstringing the federal government, look to Cardozo's opinions for reassurance that such a balance is possible. Instead of using his pure common law methodology, however, the Court should employ Neo-Federalism to develop legal principles that are actually derived from the Constitution's text, structure, and history.

1. CARDOZO'S STATE JUDICIAL EXPERIENCE

   Cardozo ascended to the Supreme Court after earning a reputation as America's greatest judge during his service on New York's highest court. (26) Four of his achievements were especially relevant to his later work as a Justice.

   First, Cardozo brilliantly synthesized and adapted New York's common law to meet shifting industrial, commercial, and social conditions. (27) He elaborated on his approach in The Nature of the Judicial Process by acknowledging the inherent uncertainty of law--and its evolution to reflect changing ideas about social welfare and morality--without succumbing to the notion that legal judgments reflect mere political or ideological will. (28) Rather, Cardozo argued that statutes and precedent yielded legal principles that genuinely constricted judges' range of decisionmaking, but with room to adjust the law to new circumstances. (29)

   Second, and relatedly, he asserted that courts had more freedom to account for public policy considerations in constitutional--as contrasted with common law--cases. (30) Cardozo interpreted the Constitution and its implementing precedent as creating legal doctrines that were stable, yet could be modified based on the facts of each case in light of political, economic, and social realities. (31) He applied this same approach when he became a Justice. (32)

   Third, Cardozo questioned the idea that federal and state constitutional provisions prohibiting states from depriving persons of "liberty" or "property" without "due process of law" implicitly enshrined a substantive rule of freedom of contract based on laissez faire economics. (33) Rather, he urged judicial deference to reasonable state regulations designed to promote the public good (for example, by protecting workers and consumers from the negative effects of industrialization), even if doing so interfered with the previously unfettered economic rights of employers and businesses. (34) Not surprisingly, when Cardozo became a Justice, he eventually helped persuade a majority of the Court to repudiate its substantive due process jurisprudence. (35) Relatedly, Justice Cardozo challenged the laissez faire notion that Congress's regulation of interstate commerce was innately suspect because it interfered with market forces. (36)

   Fourth, Judge Cardozo held that state legislatures could delegate their legislative (rulemaking) power to expert executive agencies or private parties, as long as the legislature sought to achieve a valid public purpose and set forth the basic policy and legal standards to guide the executive's exercise of discretion. (37) As a Justice, he applied the same reasoning to congressional delegations. (38)

   In short, Cardozo had developed a sophisticated approach to adjudication by the time he arrived on the Supreme Court. (39) During his brief tenure, he emerged as a key figure in transforming constitutional law. (40)

2. CARDOZO'S WORK AS A JUSTICE

   Cardozo joined the Court shortly...