Publication Date

2014

Publication Title

Public Law & Legal Theory

Abstract

This Essay, part of a symposium titled “Federalism as the New Nationalism,” argues that the interpretive struggle over the meaning of American federalism has recently shifted to two textually peripheral but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. For nearly a decade, these quieter, more structurally ambiguous federal powers – the “shadow powers,” as I term them – have steadily increased in prominence. Beginning with Gonzales v. Raich (2005) and continuing through and beyond NFIB v. Sebelius (2012), the Supreme Court’s federalism jurisprudence has shifted from its once-typical form of inquiry into the scope of Congress’s commerce power, refracted through the Tenth Amendment, to become an inquiry into the transsubstantive reasons for allowing Congress to regulate at all. Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power. My claim is that the prominence of shadow powers analysis in the Court’s recent decisions is both doctrinally unprecedented and unhelpful because it fails to set meaningful standards for how federalism should work in practice. The novelty of shadow powers analysis lies in the sharp line the Court appears increasingly willing to draw between solid, if controversial, Article I powers such as the commerce power, and auxiliary Article I powers such the necessary and proper power. The invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving baseline of a narrow commerce power. This maneuvering might be productive if it were carried out explicitly, with some discussion by the Court of the reasons for preferring to adjudicate federalism at its doctrinal and textual periphery rather than at its center. But the result of the growth of shadow powers analysis has in fact been to obscure the outlines of federalism’s map – to shroud genuine (and perhaps salutary) doctrinal changes within a fog of constitutional text, insufficiently overruled precedents, and acontextual readings of foundational cases.

Number

457

Included in

Law Commons

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