The limits of enumeration.

• Author: Primus, Richard
• Position: Introduction through II. Structure, p. 576-613

ARTICLE CONTENTS INTRODUCTION I. TWO IDEAS A. The Enumeration Principle B. The Internal-Limits Canon C. The Internal-Limits Canon as Non Sequitur II. STRUCTURE A. The Limits of Internal Limits B. Federalism Without Internal Limits C. Attitudinal Formation and the Internal-Limits Canon III. HISTORY A. How Important Were Internal Limits to the Founders? B. Enumeration as a Means IV. TEXT A. The Tenth Amendment B. Article I CONCLUSION INTRODUCTION

"The enumeration presupposes something not enumerated."

--Chief Justice John Marshall, Gibbons v. Ogden (1)

The federal government is a government of limited and enumerated powers. Every law student learns this formula. And so close on its heels that it sometimes seems to be the same idea, another principle follows: there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights. For ease of reference, we can call the first idea the enumeration principle, and, for reasons to be explained just below, we can call the second idea the internal-limits canon. So long as it is properly understood, the enumeration principle is a sound tenet of American constitutional law. But the internal-limits canon is not. The purpose of this Article is to explain why the internal-limits canon, for all its familiarity and broad acceptance, is wrong.

In referring to the idea under consideration as the internal-limits canon, I draw on a useful typology that divides limits on congressional power into three kinds. (2) Internal limits are the boundaries of Congress's powers taken on their own terms. For example, the power to govern the District of Columbia (3) can be used to write a fire code for the District of Columbia, but it cannot be used to write a fire code for Delaware. This limit is "internal" to the power itself, meaning that the limit inheres in the definition of the power. External limits, in contrast, are affirmative prohibitions that prevent Congress from doing things that would otherwise be permissible exercises of its powers. Thus, the Fifteenth Amendment prevents Congress from conducting whites-only elections in the District of Columbia, despite Congress's power to govern the District. The rule against racial discrimination in voting is not conceptually part of the power to govern the District; before the adoption of the Fifteenth Amendment, Congress could use that power to conduct racially restrictive elections. The Fifteenth Amendment creates a separate constitutional rule that pushes back against the grant of power and thus limits that power "externally." (4) Finally, there are process limits, such as the bicameral legislature, the requirement of presidential presentment, and frequent democratic elections. Unlike external limits, process limits do not place particular substantive outcomes wholly out of reach. But they raise the cost of federal action, thus diminishing the likelihood that Congress will do any particular thing, especially any particular thing that might arouse substantial opposition. (5)

Process limits and external limits are consequential forces constraining modern federal governance. Internal limits are not. Indeed, for much of the twentieth century, many people suspected that internal limits had lost all practical significance. (6) Judicial doctrine constrained Congress on the basis of prohibitions like those in the Bill of Rights, but broad constructions of the Commerce Clause made it hard to identify enforceable limits on Congress short of those affirmative prohibitions. (7) At the level of principle, though, the idea that the Constitution demands a meaningful set of internal limits lived on. (8) Defenders of federal statutes have always needed to answer the question, "If Congress can do that, what can't Congress do, other than the things the Constitution specifically forbids?" (9) That question played a famously large role in National Federation of Independent Business v. Sebelius (NFIB). (10) And in the wake of NFIB, constitutional lawyers wonder whether the internal-limits canon--that is, the principle that the powers of Congress must be construed as meaningfully constrained by internal limits--might be deployed in seriously consequential ways. (11)

Now is the time, therefore, for a frontal debunking of the internal-limits canon. It is my aim in this Article to show, despite longstanding orthodoxy to the contrary, that Congress's powers might in practice authorize the enactment of any legislation that would be justified by a grant of general regulatory authority. "Might" is an important part of the claim. In my view, whether the powers of Congress have as great a scope in practice as a general police power is a matter of contingency, not a matter of principle. The question can only be answered by examining the powers and applying them sensibly to the social world. But in the course of that analysis, no constitutional principle bars the conclusion that Congress's enumerated powers in practice authorize as much as a police power would.

Measured by the conventions of constitutional discourse, rejecting the internal-limits canon would be a radical step. A familiar trope among constitutional lawyers would deem it an obvious mistake. "Of course the powers of Congress are inherently limiting," this argument says. "After all, the powers of Congress are specifically enumerated in the Constitution. If Congress had general legislative power, the Constitution would have said that, rather than providing a list of particular powers. That's what Chief Justice John Marshall meant in Gibbons v. Ogden when he said that the enumeration presupposes something not enumerated." (12)

Now it happens that this familiar way of invoking Marshall's Gibbons dictum may not get the great Chief Justice quite right, in part because it misses a nuance in the word "presupposes." (13) But more importantly, it isn't true that enumerations of specific authorities are always more limiting than general authorizations would be. Yes, specific lists are probably specific for a reason, at least most of the time, and "Congress can do these eighteen things" (14) might seem like a funny way of authorizing Congress to legislate however it thinks best, subject to the limits of the political process and the affirmative prohibitions specified elsewhere in the Constitution. But as a conceptual rule, the claim that enumerated authorizations are always more limiting in practice than general authorizations is too sweeping. Consider this example: is "you can have chocolate, vanilla, or strawberry ice cream for dessert" more limiting in practice than the general authorization "you can have ice cream for dessert"? The answer on any given day might be yes or it might be no. It depends on the contents of the freezer. (15)

Obviously this enumeration differs from the Article I enumeration in many ways, but it should bring the basic point into view: whether a list of specific authorizations is in practice more limiting than a general authorization depends on facts about that particular enumeration and the circumstances in which it is applied. So the mere fact that the Constitution includes an enumeration of congressional powers cannot demonstrate that the internal limits of those powers leave Congress unable to regulate something that a police power would let Congress reach. If the powers of Congress must be construed as collectively less extensive than a police power, it has to be for some other reason.

Prevailing constitutional opinion furnishes three such reasons, sounding in the traditional categories of text, history, and structure. As a textual matter, the argument runs, Article I and the Tenth Amendment both indicate that the enumerated powers are internally limited. (16) Historically, the Founders saw the enumeration as a device for limiting Congress. (17) Structurally, a federal police power would let Congress eclipse the state governments and destroy the federal system. (18) These arguments have some plausibility, and they enjoy a long pedigree in constitutional thought. But on their merits, they are less than compelling.

The textual grounding for the internal-limits canon, I suggest, is powerful if one already believes that congressional power must be internally limited. But without that presumption, the text is more easily read to permit Congress's enumerated powers to go wherever they might lead. (19) As a matter of history, most of the Founders did see enumeration as a strategy for limiting (and invigorating) the federal government. But enumerating the powers of Congress was only one of the Founders' strategies for limiting federal power, and fidelity to their design does not require forcing that strategy to do the job if it does not work very well and other constitutional strategies are more up to the task. (20) Finally, the federal structure of American government has long been maintained not by internal limits on Congress's powers but by a combination of external limits, process limits, and the practical conditions that shape interactions between federal and state officials. (21) There is no reason to believe that these devices deliver optimal federalism, partly because there is no reason to believe that any set of tools could yield that outcome. But there is also no reason to think that a better brand of federalism would result if some consequential set of internal limits were added to the mix. In sum, internal limits are not mandated by the text of the Constitution, not required by fidelity to the Founding, and neither necessary nor materially helpful for promoting federalism.

So am I saying that Congress is authorized to do whatever it wants? Of course not. For one thing, the whole panoply of external constitutional limits is firmly in place. Congress may not establish Christianity, (22) abolish jury trial, (23) commandeer a state legislature, (24) or unilaterally combine the two Carolinas into a single state. (25) Nor am I...