Why enumeration matters.

• Author: Primus, Richard

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 I. Continuity Tenders II. The Enumeration Principle as a Continuity Tender A. Governing the Present 1. The Unbearable Lightness of Internal Limits 2. Actually, It's Pretty Bearable B. Valuing the Past 1. The Creed 2. The Audience III. Weaponization A. Ritual in an Environment of Consensus B. Ritual in an Environment of Conflict IV. What Is to Be Done? CONCLUSION 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 enumeration-based 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 those in the Bill of Rights. But the enumeration of Congress's powers imposes virtually no meaningful constraints, nor has it in a very long time. (5)

To use a helpful set of terms, constitutional law in practice checks congressional power with process limits and with external limits but almost never with internal limits. (6) Process limits are rules and structures governing the mechanisms of legislation rather than the content of laws. They include bicameralism, presentment, and democratic elections, all of which tend to prevent Congress from enacting certain laws. (7) Internal limits, so called because they inhere in the Constitution's conferral of powers on Congress, are the limits of those powers taken on their own terms. For example, the power to govern the District of Columbia (8) cannot be used to govern Delaware, and that limit is contained within the grant of power itself, because the power granted is the power to govern the District of Columbia in particular. External limits, in contrast, find their sources outside the power-conferring provisions of the Constitution, and they function by blocking what would otherwise be valid exercises of congressional power. For example, Congress cannot conduct whites-only elections in the District of Columbia, despite Congress's enumerated power to govern the District, because the Fifteenth Amendment prohibits the practice. (9) Questions about whether a law violates some internal limit on Congress's powers thus include "Is this a tax?" and "Is this a regulation of commerce among the several states?" Questions about whether a law violates some external limit on Congress's powers, by contrast, include "Does this law abridge the freedom of speech?" and "Does this law take private property for public use without just compensation?"

Our present constitutional reality, and the one that we have inhabited for most of a century, is that the internal limits of Congress's enumerated powers play no meaningful role in constraining federal legislation. Some theorists criticize this arrangement, (10) and National Federation of Independent Business v. Sebelius (NFIB) (11) might herald a change, inasmuch as five justices in that case articulated an internal limit on the centrally important commerce power. (12) But given that even NFIB upheld the statute at issue, (13) the real import of that case might be confirmation of a longstanding status quo. We say that the enumeration of powers limits Congress, but we don't act as if it does. Or perhaps we do, but barely. (14)

It would be easy to see this state of affairs as incoherent. Either we should reform our practice to match our official theory, the idea would run, or else we should repudiate the theory and embrace the practice openly. (15) In this Article, however, I suggest a different perspective. Perhaps the status quo is more coherent than is generally appreciated. Perhaps the tension between the official idea that the federal government is a government of enumerated powers and the operative reality that the powers of Congress face virtually no internal limits serves some important purpose in the constitutional system. Maybe it is a feature and not a bug.

Note that the apparent contradiction has had remarkable staying power. For nearly eighty years, internal limits have done almost no observable work as a mechanism for limiting Congress. (16) Nonetheless, commentators across the ideological spectrum continue to describe the federal government as limited by its enumerated powers. (17) One should not too quickly dismiss three-quarters of a century as nonsense. So it is worth asking whether the status quo can be understood not as incoherent but as a paradox in the strict sense--that is, as an apparent contradiction pointing to a deeper underlying truth. In my view it can. To see how, it is necessary to think of the enumerated-powers idea not as an actionable rule for legislative behavior but as an aspect of the identity, professional and national, of American constitutional lawyers.

The description of the federal government as a government of enumerated powers, I suggest, can be understood as something we might call a continuity tender. (18) A continuity tender, as I will use the term, is an inherited statement that members of a community repeat in order to affirm their connection to the community's history, even though they may no longer hold the values or face the circumstances that made the statement sensible for some of their predecessors. In the United Kingdom, for example, Acts of Parliament are to this day prefaced with the statement "Be it enacted by the Queen's most Excellent Majesty." (19) A reader of that statement unfamiliar with the realities of British politics might infer that the Queen was an official with legislative authority. Once upon a time, that inference would have been correct. Today, it would misunderstand British politics to think of the Queen as enacting legislation in any straightforward sense. (20) Nonetheless, repeating the traditional enacting clause allows Parliament to demonstrate a loyalty that is important to its self-conception, as well as to the national identity of the polity it serves.

The cases are not identical, but it is possible to understand the axiom "the federal government is a government of enumerated powers" as a continuity tender within the culture of American law. To recite the enumeration principle is to assert that the basic structure of American government remains continuous with what was at the beginning. In a constitutional culture that values its past and reveres its Founders, that sense of continuity is valuable. (21) It helps legitimate the system, ennoble the project, and unite the practitioners. To reap those benefits, we strive to make our constitutional discourse continuous with that of the past--including by repeating the enumeration principle and presenting federal legislation as enacted under particular powers mentioned in the Constitution. We say that the Fair Labor Standards Act (22) is an exercise of the commerce power, that the federal estate tax (23) is an exercise of the taxing power, and that the Digital Millennium Copyright Act (24) is an exercise of the copyright power, rather than speaking as if federal legislation proceeded from some general authority to regulate in the public interest. But we can pretty much always find some power adequate to whatever regulatory project Congress wishes to pursue. As a practical matter, this settlement allows Congress to legislate in a way that is unconstrained by the Constitution's enumeration of powers but simultaneously permits all players in the system to continue invoking an axiom that helps maintain a sense of continuity with the American constitutional past--much as modern Parliaments legislate without worrying about the Queen's policy views but use the language of royal enactment to maintain a sense of continuity with their own national tradition.

Some readers might think that...