SUSPECT SPHERES, NOT ENUMERATED POWERS: A GUIDE FOR LEAVING THE LAMPPOST.

• Date: 01 May 2021
• Author: Primus, Richard

TABLE OF CONTENTS INTRODUCTION I. HOW INTERNAL LIMITS FAIL TO IDENTIFY RESERVED STATE POWERS A. Internal Versus External Limits B. The Limits of Textual Inference 1. "The Enumeration Presupposes Something Not Enumerated" 2. Inferences from Absences 3. The Extratextualism of "Necessary and Proper" 4. The Limits of Purpose-Based Reasoning 5. This Enumeration of Powers is No Way to Limit a Legislature C. Conclusion: Toward External Limits II. THE POSSIBILITY OF SUSPECT SPHERES A. Why Bother? Decentralization as Temperature Control B. Suspect National Legislation: A Partial Analogy to Substantive Due Process C. Suspect Spheres Versus Dual Federalism D. Suspect Spheres as Constitutional Construction III. ILLUSTRATION: THE CORPORATE NONDELEGATION DOCTRINE A. Madison and the First Bank B. Jackson and Anticorporate Constitutionalism C. Schechter Poultry and the Obvious Answer IV. TRACES OF THE CORPORATE NONDELEGATION DOCTRINE IN THE ROBERTS COURT A. The Presumption Against Preemption: Altria Group v. Good B. Mandatory Purchases: NFIB v. Sebelius 1. Under the Lamppost 2. Crossing the street CONCLUSION INTRODUCTION

Officially, the Constitution's enumeration of congressional powers marks the boundary between two domains. Within the domain of its enumerated powers, Congress may legislate, subject to limits like those in the Bill of Rights. Outside that domain, legislative power belongs exclusively to the states. (1) The official account further imagines significant space on each side of the line and, more pointedly, that the zone of exclusive state jurisdiction is bigger than the zone where Congress may act. In James Madison's oft-quoted words, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." (2)

This official picture bears little resemblance to the way American federalism actually works. In reality, Congress is not much limited by its enumerated powers, and national lawmaking is normal across a very broad swath of policymaking space. Moreover, the enumeration's failure to confine Congress to a smaller domain does not reflect some bizarre judicial inability to understand and enforce the Constitution. It is consistent with constitutional text, history, and structure, and it accords with longstanding practice. As a historical matter, it is probably a mistake to think that the guiding purpose behind the drafting of Article I, Section 8 was the limitation of federal legislative power. (3) And as a conceptual matter, the Constitution's enumeration of congressional powers is not well suited for marking limits beyond which the national government cannot go. So it should not be surprising that courts have been unable to use the enumeration as the basis for any practically successful set of rules for limiting national power. "Enumerationism," to use Professor David Schwartz's term, is a failed ideology of federalism, one that cannot explain either the content or the limits of Congress's powers. (4)

One might adjust to this reality by abandoning federalism-based limits on Congress, except for those that are specifically established in the Constitution's text. (5) But alternative adjustments are also conceivable. Instead of trying to identify what should be left to the states by making negative inferences from the list of enumerated congressional powers, perhaps constitutional decisionmakers (6) could think directly about what sorts of national lawmaking should be treated as suspect.

Many readers will be skittish about going down that road. Identifying domains in which Congress should not legislate--even above and beyond those that the Constitution textually proscribes--calls to mind the "traditional government functions" test from National League of Cities. (7) And National League of Cities was a failure. (8) In recent decades, analysts have accordingly been skeptical that courts have the institutional capacity to identify and enforce affirmative federalism-based limits beyond those spelled out in the Constitution's text. (9)

To a significant extent, we share that skepticism. We also recognize, however, that the fall of National League of Cities has coexisted with continued assertions by constitutional decisionmakers that some sorts of congressional lawmaking not proscribed by the Constitution's text are disfavored on federalism grounds. Sometimes, as in the commandeering cases, the concern is that federal law must not interfere unduly with the operations of state governments. (10) At other times, the concern has been that Congress might inappropriately federalize specific policy domains. (11)

We do not believe that all these concerns have been well-founded. Federal law is present in pretty much every policy domain--in our view, unproblematically so. Our aim in pointing out that constitutional practice robustly features arguments like these is not to endorse the view that Congress must stay its hand in any particular policy areas. Instead, the present point is about the kinds of arguments constitutional decisionmakers have typically made when advocating (categorical or presumptive) limits on federal legislation. Despite the official account, those arguments have often proceeded by identifying areas where Congress should not legislate, rather than by looking at Congress's enumerated powers and asking what is left out. For the most part, decisionmakers have long behaved--and properly so--as if Congress has the power to legislate in general, except where its legislation would bump up against some limiting principle.

To express that thought with a set of modern terms, the federalism-based limits under which Congress labors have mostly been external limits (that is, affirmative prohibitions) rather than internal limits (that is, limits inhering in the grant of powers to Congress). (12) Sometimes these external limits are enforced directly, as when a court strikes down federal law because it trenches on some unwritten state prerogative. Anticommandeering decisions like Printz v. United States provide examples. (13) Sometimes these limits are enforced in softer ways, as with clear-statement rules used to construe federal statutes narrowly. A recent example is Bond v. United States. (14) And the source of federalism-based resistance to Congress in cases like Printz and Bond is not to be found in anything about the Constitution's enumeration of congressional powers. To map the zones of resistance, one needs to treat federalism-based limits on national lawmaking as affirmative principles whose sources mostly lie outside that enumeration. Indeed, they mostly lie outside the constitutional text entirely.

This Article has two aims. The first is to show the impracticality of generating sensible limits on national lawmaking by reference to the enumerated powers of Congress. The second is to sketch a potential alternative. Rather than defining a zone of exclusive state jurisdiction consisting of whatever residuum Congress's enumerated powers do not reach, we recommend identifying "suspect spheres" in which national lawmaking should be presumptively disfavored. Those spheres need not be fixed and categorical across time: they might shift as changing conditions alter the domains in which skepticism toward national lawmaking is reasonable. The challenge, therefore, is not to identify a static list of suspect spheres but to articulate the tools that decisionmakers should use to identify legislation as suspect and then to apply the appropriate suspicion.

To be successful, such an approach must meet three criteria. First, rather than being deduced from the text of the enumeration, the content of the suspect spheres must be products of constitutional construction, rooted in political and legal experience. (15) Second, the approach must not ask courts to erect and police static limits on Congress, as National League of Cities tried to do. We imagine that most of the constraining work within this model will be done extrajudicially, by agencies and by Congress itself. (16) And when cases do come to court, we believe in judicial deference to Congress's judgment that federal law is warranted, even within suspect spheres. But perhaps courts can help prevent Congress (and the national executive) from reaching such judgments lightly. For that purpose, we envision courts using "soft" constraints like antipreemption and clear-statement canons, as well as some limits on Chevron (17) and State Farm (18) deference to executive rulemaking. In the most extreme case, where federal lawmakers regulated in a suspect sphere and were utterly unable to produce a plausible explanation for doing so, the stronger medicine of judicial review might be justified. (19) But such cases should be rare, and even if they occurred, the relevant federal actions would be held invalid only because insufficient reasons were given, not because legislation of a certain kind was off-limits.

Third and finally, a successful suspect-spheres approach would have to deliver some substantively valuable benefit of federalism. Of the various benefits that well-implemented federalism can deliver, one that is especially needed right now is reducing the stakes of national politics. (20) Bitter and accelerating conflict across the partisan divide is doing significant damage to the constitutional system. (21) Limitations on the scope of national lawmaking might reduce the temperature of that conflict--if those limitations were to offer something important to people affiliated with both major parties. Limits that appeal to only one side--say, by forbidding Congress to nationalize health care or by preempting local gun control laws without delivering something of comparable value to the other side of the aisle--would just exacerbate the conflict. Limits appealing only to one side would also be unstable, because the other side would have no incentive to respect that...