The shadow powers of article I

Yale Law Journal

Volumn 123, Issue 6, 2014, Pages 2044-2093

  Lacroix, Alison L ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 84898655473     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (239)

1. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM 6-9 (2010) (discussing the foundational federal principle of multiplicity).
2. THE FEDERALIST NO. 39, at 257 (James Madison) (Jacob E. Cooke ed., 1961) (describing the constitutional system as "partly federal, and partly national").
3. At least three additional and important textual and doctrinal sites of federalism doctrine should be mentioned: state sovereign immunity under the Eleventh Amendment; the Reconstruction amendments, especially section 5 of the Fourteenth Amendment; and abstention doctrines that rely on principles of equity and "Our Federalism."
4. Younger V. Harris, 401 U.S. 37+44 (1971).
5. U.S. CONST. amend. X.
6. New York v. United States, 505 U.S. 144+157 (1992) ("The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.")
7. Nat'l League of Cities v. Usery, 426 U.S. 833, 852 (1976) (describing "the States' freedom to structure integral operations in areas of traditional governmental functions"), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)
8. Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429 (2002)
9. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998)
10. Larry D. Kramer, The Supreme Court 2000 Term-Foreword: We the Court, 115 HARV. L. REV. 4 (2001).
11. New York, 505 U.S. 144
12. Usery, 426 U.S. 833
13. Ann Althouse, Variations on a Theory of Normative Federalism: A Supreme Court Dialogue, 42 DUKE L.J. 979 (1993)
14. Sotirios A. Barber, National League of Cities v. Usery: New Meaning for the Tenth Amendment?, 1976 SUP. CT. REV. 161 (1976).
15. New York, 505 U.S. at 145.
16. Hammer v. Dagenhart, 247 U.S. 251, 274 (1918), overruled in part by United States v. Darby, 312 U.S. 100 (1941)
17. Judith Resnik, The Internationalism of American Federalism: Missouri and Holland, 73 MO. L. REV. 1105+1119-21 (2009) (advising caution when distinguishing between the "national" and the "local").
18. Darby, 312 U.S. at 124
19. Margaret Hu, Reverse-Commandeering, 46 U.C. DAVIS L. REV. 535+549 (2012) (discussing the Court's treatment of the Tenth Amendment as a "tautology" or a "truism").
20. Hammer, 247 U.S. 251.
21. Hammer, 247 Id. at 275 (emphasis added).
22. Hammer, 247Id. at 278 (Holmes, J., dissenting) (emphasis added).
23. Darby, 312 U.S. 100. On 1937 and the "switch in time," see ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 117-19 (Sanford Levinson ed., 5th ed. 2010).
24. U.S. CONST art. I, § 8, cl. 2
25. United States v. Lopez, 514 U.S. 549 (1995).
26. Lopez, 514 U.S. at 577 (Kennedy, J., concurring).
27. New York v. United States, 505 U.S. 144, 182 (1992) (stating that "[t]he constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States")
28. Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1 (1950)
29. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998).
30. New York, 505 U.S. at 194 (White, J., dissenting) (arguing that the Low-Level Radioactive Waste Policy Amendments Act of 1985 was "very much the product of cooperative federalism, in which the States bargained among themselves to achieve compromises for Congress to sanction")
31. SOTIRIOS A. BARBER, THE FALLACIES OF STATES' RIGHTS 30-32 (2013) (equating "dual federalism" with "states' rights federalism" and critiquing both as insufficiently attentive to the nation's public good). An important and growing body of scholarship provides a richer analysis of concurrent power.
32. Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 COLUM. L. REV. 459+459 (2012) (arguing that state administration of federal law "counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power")
33. Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256 (2009) (discussing the ways in which states can resist federal policy).
34. Lopez, 514 U.S. at 577 (Kennedy, J., concurring) ("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory." (emphasis added))
35. Robert Post, Federalism in the Taft Court Era: Can it Be "Revived"?, 51 DUKE L.J. 1513+1527 (2002) ("For generations the Court had conceived the constitutional values of federalism as served by the maintenance of separate and incompatible spheres of state and federal authority.").
36. Nat'l League of Cities v. Usery, 426 U.S. 833, 852 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
37. Id. at 845 (quoting Coyle v. Smith, 221 U.S. 559, 695 (1911)).
38. Lane Cnty. v. Oregon, 74 U.S. 71+76 (1868) ("[I]n many articles of the Constitution the necessary existence of the states.is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated.are reserved."). The paradigmatic example of invalid federal incursion on the sovereign power of the "States qua States" comes in the "anticommandeering" realm, in which the Court has held that Congress may not compel state legislatures or executive officials to carry out federal programs.
39. Printz v. United States, 521 U.S. 898, 925 (1997) ("[T]he Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."). Moreover, as recent scholarship demonstrates, the on-the-ground conditions of federalism sometimes diverge significantly from the Court's sharply defined scheme.
40. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534 (2011).
41. U.S. CONST. art. I, § 8, cl. 18.
42. U.S. CONST. art. I, § 8, cl. 1.
43. Jack M. Balkin, Commerce, 109 MICH L. REV. 1 (2010).
44. 545 U.S. 1 (2005) (upholding penalties against the production and use of home-grown medicinal marijuana under the federal Controlled Substances Act).
45. 560 U.S. 126 (2010) (upholding federal civil commitment of sex offenders already in federal custody).
46. 132 S. Ct. 2566 (2012) (upholding the individual mandate provision of the Patient Protection and Affordable Care Act but invalidating the Medicaid expansion provision).
47. 133 S. Ct. 2496 (2013) (upholding federal post-court-martial sex-offender registration requirements).
48. Fallon, supra note 5, at 430 (internal quotation marks omitted) (noting widespread scholarly focus on the Court's federalism case law)
49. Jackson, supra note 5, at 2181-2182 (1998) (discussing the Court's "federalist revival").
50. United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).
51. ERIN RYAN, FEDERALISM AND THE TUG OF WAR WITHIN 97 (2012) (discussing the emergence of "New Federalism" theories, "first as a political movement in the 1970s and 1980s, and then as the judicial revolution of the 1990s")
52. Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629+1648-50 (2006) (describing the benefits of federalism)
53. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1+51-64 (2004) (evaluating the Court's treatment of "the values that motivate our attachment to federalism in the first place").
54. Hammer v. Dagenhart, 247 U.S. 251, 277 (1918) (Holmes, J., dissenting) (stating that "if an act is within the powers specifically conferred upon Congress.it is not made any less constitutional because of the indirect effects that it may have, however obvious it may be that it will have those effects"), overruled in part by United States v. Darby, 312 U.S. 100 (1941).
55. Id. at 281 (stating that Congress "may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries the State encounters the public policy of the United States which it is for Congress to express")
56. Edward S. Corwin, The Spending Power of Congress-Apropos the Maternity Act, 36 HARV. L. REV. 548+550 (1923) (arguing that the "very phraseology" of the Tenth Amendment "makes clear its inapplicability as a test of the scope of the delegated powers of the national government").
57. United States v. Kebodeaux, 133 S. Ct. 2496, 2507 (2013) (Roberts, C.J., concurring in the judgment) ("I worry that incautious readers will think they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power.").
58. Nat'l League of Cities v. Usery, 426 U.S. 833, 855 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 549-54 (1985).
59. U.S. CONST. art. I, § 8, cl. 2.
60. Heart of Atlanta Motel v. United States, 379 U.S. 241, 278 (1964) (Black, J., concurring) (noting, in upholding Title II of the Civil Rights Act of 1964 as an exercise of the commerce power rather than Congress's power under Section 5 of the Fourteenth Amendment, that "nothing in the Civil Rights Cases,.which invalidated the Civil Rights Act of 1875, gives the slightest support to the argument that Congress is without power under the Commerce Clause to enact the present legislation").
61. 17 U.S. 316 (1819).
62. U.S. CONST. art. I, § 8, cl. 18.
63. Printz v. United States, 521 U.S. 898, 931 n.15 (1997) (describing the Tenth Amendment as one of "the Constitution's guarantees of federalism"); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 579 (1985) (Powell, J., dissenting) (stating that congressional overreach under the commerce power would "devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment")
64. Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 DUKE L.J. 75+78 n.15 (2001) (describing the Tenth Amendment, along with the Eleventh Amendment, as "provisions clearly meant to limit the central government's authority").
65. DANIEL DULANY, CONSIDERATIONS ON THE PROPRIETY OF IMPOSING TAXES IN THE BRITISH COLONIES, FOR THE PURPOSE OF RAISING A REVENUE, BY ACT OF PARLIAMENT 15 (Annapolis, Jonas Green 2d ed. 1765)
66. LACROIX, supra note 1, at 50-51 (discussing Dulany's views on the division of political and legal authority between the colonies and the metropole in Britain's North American empire).
67. DULANY, supra note 44, at 15.
68. DULANY, Id. at 15.
69. JOHN DICKINSON, LETTERS FROM A FARMER, IN PENNSYLVANIA, TO THE INHABITANTS OF THE BRITISH COLONIES 16 (Philadelphia, J. Almon 1774)
70. LACROIX, supra note 1, at 60-64 (discussing Dickinson's theories of taxation).
71. DICKINSON, supra note 48, at 13-16.
72. DICKINSON, Id. at 16.
73. ARTICLES OF CONFEDERATION of 1781, art. III (1777) (stating that "[t]he said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare"); An Act for Ascertaining the Rates of Foreign Coins in Her Majesties Plantations in America, in ACTS AND LAWS OF HIS MAJESTY'S PROVINCE OF NEW HAMPSHIRE IN NEW ENGLAND 140, 142 (Portsmouth, Daniel Fowle 1761) ("[N]othing in this Act.shall extend or be construed to restrain her Majesty from regulating, and settling the several rates of the said species of foreign silver coins within any of the said colonies or plantations.according to such other rates and proportions as her Majesty.shall from time to time judge proper and necessary."); cf. GARY LAWSON ET AL., THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE (2010) (tracing the clause's origins to English and colonial principles of fiduciary responsibility).
74. John Harrison, Enumerated Federal Power and the Necessary and Proper Clause, 78 U. CHI. L. REV. 1101 (2011).
75. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 242 (3d ed. 2006) ("Article I, §8, of the Constitution contains 18 clauses enumerating specific powers of Congress.").
76. id. at 233-335 (focusing on these powers in a chapter titled "The Federal Legislative Power").
77. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420 (1819) (listing the "necessary and proper" clause among the grants of power rather than limits).
78. Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (spending); United States v. Butler, 297 U.S. 1 (1936) (taxing).
79. This view has not always been the understanding of the purpose of the necessary and proper power. During the founding period, commentators offered numerous interpretations of the power, many of which have since been rejected. See infra Part II.
80. Harrison, supra note 53, at 1122 (distinguishing between "main power[s]" and "incidents").
81. South Dakota v. Dole, 483 U.S. 203, 207 (1987) ("[T]he exercise of the spending power must be in pursuit of 'the general welfare.'"); Steward Machine Co., 301 U.S. at 586
82. United States v. Comstock, 130 S. Ct. 1949, 1956 (2010) (noting that the Necessary and Proper Clause gives Congress authority to enact statutes that are "rationally related to the implementation of a constitutionally enumerated power"); McCulloch, 17 U.S. at 323-25.
83. DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010).
84. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411 (2012)
85. Alison L. LaCroix, Historical Gloss: A Primer, 126 HARV. L. REV. F. 75 (2012).
86. This positivist interpretation of Article I as in itself a source of law can be contrasted with some commentators' view of Article II as a restatement of inherent executive authority. According to this argument, presidential power under Article II is broader than congressional power under Article I because Article I refers to "legislative powers herein granted," while Article II refers only to "the executive power."
87. LOUIS FISHER, THE LAW OF THE EXECUTIVE BRANCH: PRESIDENTIAL POWER 63-68 (2014).
88. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788, at 181 (2010) (describing Antifederalists' concerns about the breadth of the taxing power of Article I, in particular the fact that it permitted Congress to "raise funds to pay the debts and provide for the 'common welfare' of the United States, but the debts were not confined to those already contracted, and the term 'general welfare' could cover 'any expenditure whatsoever'").
89. James Everard's Breweries v. Day, 265 U.S. 545, 558 (1924) (referring to the necessary and proper power as a "non-enumerated or 'implied'" power). The case consolidated two appeals from the Southern District of New York brought by "manufacturers and dealers in intoxicating malt liquors" to enjoin the Commissioner of Internal Revenue from enforcing the Supplemental Prohibition Act of 1921, which prohibited physicians from prescribing intoxicating malt liquors (including "Guinness's Stout") for medicinal purposes. Id. at 546 (argument for appellant). In addition to referring to the necessary and proper power as an "implied" power, the appellants argued that the "incidental power of Congress to give full effect to a delegated power" could not, consistent with the Tenth Amendment, "wholly deprive the States of the power which that amendment reserves to them." Id. at 548.
90. id. at 558 (majority opinion) (stating that "the Constitution confers upon Congress the power to make all laws necessary and proper for carrying into execution all powers that are vested in it" and describing these powers as "non-enumerated or 'implied' powers").
91. George Mason. GEORGE MASON, OBJECTIONS TO THIS CONSTITUTION OF GOVERNMENT (1787), http://www.gunstonhall.org/library/archives/manuscripts/objections.html ("Under their own Construction of the general Clause at the End of the enumerated powers the Congress may grant Monopolies in Trade and Commerce, constitute new Crimes, inflict unusual and severe Punishments, and extend their Powers as far as they shall think proper; so that the State legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights.").
92. As commentators have noted, Congress's necessary and proper power likely extends to include legislation that executes powers vested elsewhere in the national government, given the clause's reference to "all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." U.S. CONST. art. I, § 8, cl. 18
93. William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROB. 102 (1976).
94. But cf. United States v. Comstock, 130 S. Ct. 1949, 1966 (2010) (Kennedy, J., concurring) (suggesting that the necessary and proper power is not an enumerated power, but appearing to blur the enumeration/non-enumeration distinction with the primary/auxiliary distinction); Gonzalez v. Raich, 545 U.S. 1, 35 (2005) (Scalia, J., concurring) (setting forth the "two general circumstances" in which "the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce").
95. Mark A. Graber, Unnecessary and Unintelligible, 12 CONST. COMMENT. 167+169 (1995).
96. 17 U.S. (4 Wheat.) 316 (1819).
97. Id. at 406 ("But there is no phrase in the instrument which, like the [A]rticles of [C]onfederation, excludes incidental or implied powers; and which requires that every thing granted shall be expressly and minutely described.").
98. id. at 411-12 ("To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers.'") (quoting U.S. CONST. art. I, § 18, cl. 8).
99. id. at 411-12 ("To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers.'") (quoting U.S. CONST. art. I, § 18, cl. 8)Id. at 421.
100. id. at 411-12 ("To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers.'") (quoting U.S. CONST. art. I, § 18, cl. 8)Id. at 406.
101. id. at 411-12 ("To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers.'") (quoting U.S. CONST. art. I, § 18, cl. 8)Id. at 407.
102. id. at 411-12 ("To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers.'") (quoting U.S. CONST. art. I, § 18, cl. 8)Id. at 405.
103. id. at 411-12 ("To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers.'") (quoting U.S. CONST. art. I, § 18, cl. 8)Id. at 411.
104. See infra text accompanying notes 147-151 (summarizing NFIB's decontextualization of McCulloch's "great substantive and independent power" language)
105. William Baude, Rethinking the Federal Eminent Domain Power, 122 YALE L.J. 1738+1749 (2013) ("[S]ome powers are so great, so important, or so substantive, that we should not assume that they were granted by implication, even if they might help effectuate an enumerated power. These powers, sometimes called 'great powers,' are the kinds of powers we would expect the Constitution to mention if they were granted.").
106. McCulloch, 17 U.S. (4 Wheat.) at 409.
107. THE FEDERALIST NO. 44, supra note 2, at 304-05 (James Madison) ("No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorised; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.")
108. McCulloch, 17 U.S. (4 Wheat.) at 422 (describing the Constitution as "omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in government").
109. AKHIL REED AMAR, AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY 28 (2012). I disagree, however, with what appears to be Amar's categorization of the Necessary and Proper Clause as a non-enumerated power. See id. at 27 ("With this analysis of enumerated powers in mind, let's now return to Marshall's discussion of the necessary-and-proper clause."). Marshall's analysis would likely have led him to uphold the Bank even absent the Necessary and Proper Clause, because he would have viewed it as a necessary means of executing the taxation-borrowing-commerce-wararmies/navies powers. But the fact that Marshall relied at least in part on an arguably unwritten interpretive principle does not alter the fact that the necessary and proper power is explicitly granted and listed in Article I.
110. James Wilson, Pennsylvania Ratifying Convention, Dec. 1, 1787, in 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 448-49 (Jonathan Elliot ed., 2d ed. 1888)
111. THE FEDERALIST NO. 33, supra note 2, at 205 (Alexander Hamilton) (describing the clause as potentially "chargeable with tautology or redundancy," but noting that it was included in the text "for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union"); THE FEDERALIST NO. 44, supra note 2, at 304 (James Madison) (noting that even "[h]ad the Constitution been silent on this head, there can be no doubt that all the particular powers, requisite as means of executing the general powers, would have resulted to the government, by unavoidable implication").
112. I am grateful to Genevieve Lakier for discussions on this point.
113. United States v. Wrightwood Dairy Co, 315 U.S. 110, 119 (1942); see also United States v. Darby, 312 U.S. 100, 118-19 (1941) (citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)); The Shreveport Rate Cases, 234 U.S. 342, 353 (1913) (stating that the Necessary and Proper Clause does not give "Congress.the authority to regulate the internal commerce of a State, as such," but does allow Congress "to take all measures necessary or appropriate to" the effective regulation of the interstate market "although intrastate transactions.may thereby be controlled").
114. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 584-85 (1985) (O'Connor, J., dissenting) (describing the expansion of the Commerce Clause created by the post-New Deal cases as "based on.the authority of Congress, through the Necessary and Proper Clause, to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end" (internal quotation marks and citation omitted))
115. Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV. 795+807-08 (1996) (noting that the New Deal Court "did not simply and directly enlarge the scope of the Commerce Clause itself, as is often believed. Rather, it upheld various federal enactments as necessary and proper means to achieve the legitimate objective of regulating interstate commerce").
116. United States v. Kebodeaux, 133 S. Ct. 2496, 2503 (2013) (noting that the Necessary and Proper Clause "authorizes Congress, in the implementation of other explicit powers, to create federal crimes, to confine offenders to prison," and to enact several other provisions relating to the federal prison system); Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591 (2012) (describing the necessary and proper power as vesting Congress with authority to enact provisions "incidental to the [enumerated] power, and conducive to its beneficial exercise" (brackets in original) (citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 418 (1819))); United States v. Comstock, 560 U.S. 126, 134 (2010) (describing the test for Congress's exercise of its necessary and proper power as "whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power").
117. 514 U.S. 549, 560 (1995) ("Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.").
118. Stephen L. Carter, The Political Aspects of Judicial Power: Some Notes on the Presidential Immunity Decision, 131 U. PA. L. REV. 1341+1378 (1983).
119. Printz v. United States, 521 U.S. 898, 923 (1997).
120. Comstock, 560 U.S. at 134.
121. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 411-12 (1819).
122. Harrison, supra note 53, at 1104 ("The Necessary and Proper Clause is about meansends connections. It authorizes Congress to pass laws in order to do something. Usually, Congress is authorized to pursue some primary goal by a provision of the Constitution other than the Necessary and Proper Clause, frequently one of its other enumerated powers.").
123. 514 U.S. 549, 559 (1995).
124. United States v. Kebodeaux, 133 S. Ct. 2496, 2503 (2013); Comstock, 560 U.S. at 136-37.
125. 545 U.S. 1, 34 (2005) (Scalia, J., concurring in the judgment).
126. Id. at 33-34 (describing as "mechanical[] recit[ation]" and "misleading and incomplete" previous cases' inclusion of activities that "substantially affect" interstate commerce in the three categories of permissible regulation under the Commerce Clause).
127. Id. at 34 ("[U]nlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.").
128. Id. at 34-35.
129. Id. at 35.
130. Id. at 5 (majority opinion).
131. The Raich majority comprised Justices Stevens, Scalia, Kennedy, Souter, Ginsburg, and Breyer. Chief Justice Rehnquist and Justices O'Connor and Thomas dissented.
132. Tellingly, Justice Stevens did not cite the two as separate clauses of Article I, Section 8. See Raich, 545 U.S. at 22. He did, however, cite Wickard v. Filburn, the 1942 case that is typically regarded as the high-water mark of the Court's deference to Congress's assessment that intrastate, nonmarket activity may nonetheless be reached when it is a "'necessary and proper' implementation of the power of Congress over interstate commerce," 317 U.S. 111, 119 (1942). See Raich, 545 U.S. at 22 ("Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to 'make all Laws which shall be necessary and proper' to 'regulate Commerce.among the several States.'").
133. United States v. Morrison, 529 U.S. 598 (2000) (striking down the civil remedy provision of the Violence Against Women Act as aimed at conduct insufficiently connected to interstate commerce to justify regulation under the commerce power).
134. H. Jefferson Powell, The Regrettable Clause: United States v. Comstock and the Powers of Congress, 48 SAN DIEGO L. REV. 713 (2011).
135. 130 S. Ct. 1949 (2010).
136. Id. at 1963-1964.
137. Id. at 1964.
138. Id. at 1964-1965.
139. Id. at 1963 ("[F]rom the implied power to punish we have further inferred both the power to imprison and.the federal civil-commitment power." (citations omitted)).
140. Id. at 1964.
141. Id. at 1966 (Kennedy, J., concurring in the judgment). Justice Kennedy noted that he wrote separately in order to emphasize the importance of Tenth Amendment federalism concerns in analyzing regulation under the necessary and proper power. His view thus blended the two sides of the Hammer v. Dagenhart analysis: look to Article I (Holmes) but also the Tenth Amendment (majority). See id. at 1967-68 ("It is correct in one sense to say that if the National Government has the power to act under the Necessary and Proper Clause then that power is not one reserved to the States. But.[i]t is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power is not one properly within the reach of federal power.").
142. Powell, supra note 108, at 715 (describing the Justices in Comstock as "taking sides in an ancient debate" and, in so doing, "reopen[ing] an issue that ought to be deemed long settled").
143. Comstock, 130 S. Ct. at 1964 (majority opinion) (internal quotation marks omitted).
144. Id. at 1973 (Thomas, J., dissenting) (alteration and omission in original) (quoting Gonzales v. Raich, 545 U.S. 1, 39 (2005) (Scalia, J., concurring in the judgment)).
145. Id. ("The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable.").
146. Id. at 1983 ("Not long ago, this Court described the Necessary and Proper Clause as 'the last, best hope of those who defend ultra vires congressional action. Printz.'.Regrettably, today's opinion breathes new life into that Clause, and-the Court's protestations to the contrary notwithstanding.-comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'"). But see Powell, supra note 108, at 761-71 (criticizing the Comstock opinions for reopening a Jeffersonian versus nationalist debate over congressional authority).
147. Transcript of Oral Argument at 21-22, Comstock, 560 U.S. 126 (No. 08-1224) (citing United States v. Morrison, 529 U.S. 598 (2000) (striking down remedy provision of the Violence Against Women Act as beyond the scope of the commerce power)).
148. Consider Justice Kennedy's use of the commerce power as both an analogy and a disanalogy for the standard of review to be applied in cases under the necessary and proper power. See Comstock, 130 S. Ct. at 1966-67 (Kennedy, J., concurring in judgment); see also Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, 80 U. CHI. L. REV. 575, 588 (2013) (examining the use of tiers of scrutiny in cases under Article I).
149. Transcript of Oral Argument, supra note 121, at 23-24 (argument of Solicitor General Elena Kagan) ("[T]he essential tie to a congressional power is the tie of these people to the Federal criminal justice system because they are in Federal custody."); cf. Sabri v. United States, 541 U.S. 600 (2004) (upholding Congress's criminalization of bribes involving organizations receiving federal funds). Justice Stevens replied skeptically: "But isn't it true that this statute applies even if a person has not been a sexual offender in the past?" Solicitor General Kagan replied, "It.does, Justice Stevens." Transcript of Oral Argument, supra note 121, at 24.
150. 132 S. Ct. 2566 (2012).
151. 132 S. Ct. 2566 (2012). Id. at 2573
152. Andrew Koppelman, "Necessary," "Proper," and Health Care Reform, in THE HEALTH CARE CASE: THE SUPREME COURT'S DECISION AND ITS IMPLICATIONS 111 (Nathaniel Persily, Gillian Metzger & Trevor Morrison eds., 2013) (noting two prior decisions in which the Court held that a law might be necessary but not proper).
153. Kevin Sack, Legal Memo: Terrain Shifts in Challenges to the Health Care Law, N.Y. TIMES, Dec. 28, 2010, http://www.nytimes.com/2010/12/29/health/policy/29legal.html
154. A Koppelman, supra note 125, at 105 (stating that under "the settled law" of Necessary and Proper Clause jurisprudence, the Affordable Care Act was "obviously constitutional" at the time it was enacted).
155. NFIB, 132 S. Ct. at 2592 (emphasis added) (citations omitted).
156. David A. Strauss, Commerce Clause Revisionism and the Affordable Care Act, 2012 SUP. CT. REV. 1+4 (2013) (critiquing the Court's reasoning in NFIB for paying too little attention to post-Lopez principles and instead "return[ing] to the days before 1937 to hold, on the basis of arguments that do not withstand analysis, that the Commerce Clause did not authorize a major piece of federal legislation").
157. Gonzales v. Raich, 545 U.S. 1, 34 (2005) (Scalia, J., concurring in the judgment) (stating that "activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone" (emphasis added)).
158. One might ask whether Chief Justice Roberts would even have devoted a separate section of the NFIB opinion to the Necessary and Proper Clause were it not for Justice Scalia's highlighting of it as a distinct head of regulatory power in Raich.
159. NFIB, 132 S. Ct. at 2592.
160. 133 S. Ct. 2496 (2013).
161. U.S. CONST. art. I, § 8, cl. 14.
162. Kebodeaux, 133 S. Ct. at 2503 (citing James Everard's Breweries v. Day, 265 U.S. 545, 559 (1924)).
163. Gonzales v. Raich, 545 U.S. 1, 37 (2005) (Scalia, J., concurring in the judgment) (distinguishing between the "power to make regulation effective" and "the authority to regulate economic activities that substantially affect interstate commerce," both of which Justice Scalia argued were properly understood as stemming from the Necessary and Proper Clause; in his view, the federal Controlled Substances Act fell under the former category).
164. Kebodeaux, 133 S. Ct. at 2509-10 (Scalia, J., dissenting) (rejecting the majority's conclusion that the defendant was already subject to a valid exercise of federal power at the time the SORNA requirement was applied to him); United States v. Comstock, 560 U.S. 126, 159 (2010) (Thomas, J., dissenting, joined by Scalia, J.) (stating that § 4248 "[e]xecut[es] no enumerated power" (alterations in original)).
165. Kebodeaux, 133 S. Ct. at 2507 (Roberts, C.J., concurring in the judgment) ("I worry that incautious readers will think they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power."); see also MASON, supra note 68. But see Kebodeaux, 133 S. Ct. at 2503 (noting that the Necessary and Proper Clause authorizes Congress to, inter alia, "create federal crimes, to confine offenders to prison, to hire guards and other prison personnel" in the execution of its enumerated powers).
166. United States v. Lopez, 514 U.S. 549 (1995). The three dissenting opinions were similarly silent on the subject of the necessary and proper power.
167. Id. at 567.
168. Raich, 545 U.S. at 22 (holding that "Congress was acting well within its authority to make all laws which shall be necessary and proper to regulate commerce.among the several states" when it enacted comprehensive regulation of the intrastate market in marijuana) (internal quotation marks and citations omitted); but cf. Barry Friedman &
169. Genevieve Lakier, "To Regulate," Not "To Prohibit": Limiting the Commerce Power, 2012 SUP. CT. REV. 255, 258-59 (questioning whether the Commerce Clause, properly understood, "includes the power not only to.'protect' interstate markets but also to 'eradicate' them").
170. Lopez, 514 U.S. at 567 ("Admittedly, some of our prior cases have taken long steps down t[he] road [of a congressional police power], giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further.").
171. Note again that Justice Scalia signed on to Justice Thomas's dissent in Comstock.
172. United States v. Comstock, 560 U.S. 126, 180 (2010) (Thomas, J., dissenting, joined by Scalia, J., in part) ("Not long ago, this Court described the Necessary and Proper Clause as 'the last, best hope of those who defend ultra vires congressional action.' Regrettaby, today's opinion breathes new life into that Clause, and-the Court's protestations to the contrary notwithstanding-comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'" (citations omitted)).
173. Transcript of Oral Argument, supra note 121, at 13 ("Justice Scalia: General Kagan, you are relying on the Necessary and Proper Clause, right?.Now, why is this necessary for the execution of any Federal power?.You could say it's necessary for the good of society, but that's not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing?").
174. 132 S. Ct. 2566, 2587 (2012).
175. 17 U.S. (4 Wheat.) 316, 411 (1819) ("The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them."). Interpreted in context, and with a proper understanding of historical speech, it is clear that Chief Justice Marshall was using the phrase "great substantive and independent power" to mean "powers already explicitly enumerated in Article I." He was not establishing an extra-textual category of unnecessary and improper, or otherwise un-impliable, powers.
176. NFIB, 132 S. Ct. at 2593 (citation omitted).
177. Chief Justice Roberts's necessary and proper analysis was thus also premised on a temporal distinction between different types of federal regulatory schemes. See id. at 2592 (distinguishing the "continued confinement of those already in federal custody" (Comstock) and "those who by some preexisting activity bring themselves within the sphere of federal regulation" (Comstock and Gonzales v. Raich, 545 U.S. 1 (2005)) from "vest[ing] Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power" (the individual mandate)).
178. Chief Justice Roberts's opinion can be seen as the apogee of shadow powers analysis, insofar as the individual mandate was upheld as an exercise of the taxing power after having failed to meet the criteria for the commerce power or the necessary and proper power. The shadow power of the General Welfare Clause thus prevailed where the shadow power of the Necessary and Proper Clause did not.
179. Alison L. LaCroix, The Interbellum Constitution and the Spending Power 5, 31 (Univ. of Chi. Pub. Law Working Paper No. 420, 2013) (discussing nineteenth-century constitutional workarounds)
180. Mark Tushnet, Constitutional Workarounds, 87 TEX. L. REV. 1499(2009) (describing workarounds as tools for achieving particular goals that are politically popular but prohibited by certain constitutional provisions).
181. 154. As David Strauss notes, the Necessary and Proper and General Welfare Clause analyses set forth in NFIB may have different consequences for future federal legislation. The limits on the commerce and necessary and proper powers set forth in NFIB will cabin congressional power "only when the government tries to involve private parties, and therefore may have to resort to the Commerce Clause." If a given program is funded by tax revenues, however, the enacting legislation would presumably rely on the taxing power. Thus "the more the government is involved in a program, the less NFIB will affect it; NFIB will come into play, if at all, when the government increases the role of the private sector." Strauss, supra note 128, at 28.
182. U.S. CONST. art. I, § 8, cl. 1.
183. United States v. Butler, 297 U.S. 1, 66 (1936) (adopting the Hamiltonian view of the General Welfare Clause and concluding that "[w]hile.the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress").
184. United States v. Comstock, 130 S. Ct. 1949, 1967 (2010) (Kennedy, J., concurring in the judgment) (drawing a parallel between the necessary and proper power and the spending power in discussing the relevant standards to be applied to each).
185. THE FEDERALIST NO. 33, supra note 2, at 202 (Alexander Hamilton) (describing the clause as potentially "chargeable with tautology or redundancy").
186. LaCroix, supra note 153 (examining early-nineteenth-century debates about the scope of the clause, especially the spending power).
187. Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911 (1995)
188. David E. Engdahl, The Spending Power, 44 DUKE L.J. 1 (1994)
189. Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 SUP. CT. REV. 85
190. Edward S. Corwin, supra note 32, at 552 (arguing that the general welfare power should be viewed as "not an independent grant of power, but a qualification of the taxing power").
191. One of the main proponents of this view was the Pennsylvania judge Alexander Addison, who argued that the clause granted Congress three distinct powers: to tax, to spend, and to legislate for the general welfare. See Alexander Addison, Analysis of the Report of the Committee of the Virginia Assembly, in 2 AMERICAN OLITICAL WRITINGS DURING THE FOUNDING ERA, 1760-1805, at 1055 (Charles S. Hyneman & Donald S. Lutz eds., 1983); see also JEFFERSON POWELL, LANGUAGES OF POWER: A SOURCE BOOK OF EARLY AMERICAN CONSTITUTIONAL HISTORY 3, 32 (1991) (describing Addison's views).
192. Alexander Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank (Feb. 23, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON 129 (Harold C. Syrett ed., 1965) ("The constitutional test of a right application must always be whether it be for a purpose of general or local nature. If the former, there can be no want of constitutional power. The quality of the object, as how far it will really promote or not the welfare of the union, must be matter of conscientious discretion.").
193. James Madison, The Bank Bill (Feb. 2, 1791), in 13 THE PAPERS OF JAMES MADISON 375 (Charles F. Hobson & Robert A. Rutland eds., 1981) (arguing that a broad interpretation of the General Welfare Clause "would render nugatory the enumeration of particular powers").
194. United States v. Butler, 297 U.S. 1, 65 (1936).
195. Id. at 61; see also South Dakota v. Dole, 483 U.S. 203, 207-08 (1987) (adopting the four-part test of Steward Machine Co. v. Davis, 301 U.S. 548 (1937), according to which the exercise of the spending power must be in pursuit of the general welfare, the condition must be unambiguous, the condition must have some relation to the federal interest in a particular program, and the condition cannot violate any other constitutional provision).
196. Dole, 483 U.S. 203 (upholding a program that conditioned federal funds to states on states' compliance with minimum legal drinking age); Butler, 297 U.S. 1 (striking down the tax provision of the Agricultural Adjustment Act of 1933); Steward Machine, 301 U.S. 548 (upholding the unemployment compensation provisions of the Social Security Act of 1935).
197. Butler, 297 U.S. at 75, 78 (invalidating tax on agricultural commodities under the Agricultural Adjustment Act of 1933 as beyond the scope of the "taxing and spending power"); see also Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2600 (2012) (upholding the individual mandate provision of the Affordable Care Act under the taxing power).
198. NFIB, 132 S. Ct. at 2603, 2607 (upholding in part and invalidating in part the ACA's expansion of state-run Medicaid programs); Steward Machine, 301 U.S. 548 (upholding the Social Security Act's scheme of encouraging employers to pay taxes to state unemployment compensation fund). Insofar as the ACA's individual mandate was an exercise of the taxing power, while the Medicaid expansion was a conditional spending program, NFIB represented the melding of what had been two distinct lines of reasoning about regulation of individuals versus regulation of states.
199. Steward Machine, 301 U.S. at 590 (discussing the point at which "pressure turns into compulsion"); see also Dole, 483 U.S. at 215 ("There is a clear place at which the Court can draw the line between permissible and impermissible conditions on federal grants.").
200. Ruth Mason, Federalism and the Taxing Power, 99 CALIF. L. REV. 975 (2011) (arguing for reconceiving the taxing power as having potentially as broad a scope as the spending power).
201. Gillian E. Metzger, To Tax, To Spend, To Regulate, 126 HARV. L. REV. 83, 84 (2012) (describing NFIB as "challeng[ing] th[e] basic constitutional consensus" that "the fight over the federal government's proper role in the economic sphere" is "largely political, not constitutional"). See generally THE HEALTH CARE CASE, supra note 125 (discussing constitutional issues surrounding NFIB).
202. NFIB, 132 S. Ct. at 2593-609.
203. Id. at 2600 (upholding the ACA's requirement that individuals pay a penalty for not obtaining insurance).
204. Id. at 2603 (invalidating a provision permitting the Secretary of Health and Human Services to withdraw existing Medicaid funds from states that fail to comply with the ACA's requirements).
205. See NFIB, 132 S. Ct. at 2603 ("[The States] object that Congress has crossed the line distinguishing encouragement from coercion in the way it has structured the funding.Given the nature of the threat and the programs at issue here, we must agree." (citations and internal quotation marks omitted)).
206. See Mitchell N. Berman, Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions, 91 TEX. L. REV. 1283, 1342 (2013) (referring to "the discredited doctrine of United States v. Butler that Congress may not use its spending power to 'purchase a compliance which Congress is powerless to command'"); David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 3 (1994) (noting that the Butler Court "declared that Hamilton had it right but so misunderstood him that they actually decided the case according to the contrary, restrictive Madisonian view").
207. United States v. Butler, 297 U.S. 1, 71 (1936) (describing the statute at issue as "coercion by economic pressure" because "[t]he asserted power of choice is illusory").
208. South Dakota v. Dole, 483 U.S. 203 (1987) (highway funding and minimum drinking age).
209. Neil S. Siegel, Commandeering and Its Alternatives: A Federal Perspective, 59 VAND. L. REV. 1629, 1656 (2006) (noting that "commentators have debated vigorously whether many forms of conditional federal spending are actually mandatory in practice because the Rehnquist Court declined to put teeth into Dole's non-coercion requirement").
210. Butler, 297 U.S. at 59, 68. The analysis in Butler focused on the taxing power rather than conditional spending. The opinion of the Court was written by Justice Owen Roberts, subsequently identified as the Justice responsible for the "switch in time that saved nine." See MCCLOSKEY, supra note 13, at 118.
211. See NFIB, 132 S. Ct. 2566, 2596 (2012) (noting that "taxes that seek to influence conduct are nothing new").
212. Recall John Dickinson's argument in 1765 that taxation of the colonies for the purpose of empire-wide regulation was permissible, but that taxation merely to raise revenue was not- i.e., the opposite of the Court's conclusion in Butler. See supra text accompanying notes 48-50.
213. Dole, 483 U.S. at 207 (stating that "objectives not thought to be within Article I's enumerated legislative fields may nevertheless be attained through the use of the spending power and the conditional grant of federal funds" (internal citations and quotation marks omitted)).
214. NFIB, 132 S. Ct. at 2582.
215. NFIB, 132 S. Ct. at 2602.
216. id. at 2578 ("State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.") (quoting New York v. United States, 505 U.S. 144, 181 (1992)). On the developing doctrinal link between federalism and individual rights, see Aziz Z. Huq, Standing for the Structural Constitution, 99 VA. L. REV. 1435 (2013).
217. United States v. Lopez, 514 U.S. 549, 589 (1995) (Thomas, J., concurring); Nat'l League of Cities v. Usery, 426 U.S. 833, 842-43 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
218. The dissenters discussed the amendment in terms familiar from the Court's previous decisions. See NFIB, 132 S. Ct. at 2643 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (describing the existence of "structural limits upon federal power" as "absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since").
219. Hammer v. Dagenhart, 247 U.S. 251, 280-81 (1918) (Holmes, J., dissenting) ("I had thought that the propriety of the exercise of a power admitted to exist in some cases was for the consideration of Congress alone and that this Court had always disavowed the right to intrude its judgment upon questions of policy or morals. The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line they are no longer within their rights."); accord James Everard's Breweries v. Day, 265 U.S. 545, 558 (upholding Prohibition regulation on the ground that "if the act is within the authority delegated to Congress by the Eighteenth Amendment, its validity is not impaired by reason of any power reserved to the States").
220. Consider the post-Lopez retooling of the Gun-Free School Zones At of 1990, 18 U.S.C. § 922(q) (2006), to include a requirement that the firearm in question "has moved in or otherwise affects interstate commerce."
221. Cf. Powell, supra note 108, at 771 (noting that "questions involving the interpretation of the [Necessary and Proper C]lause unavoidably present the issue of how we are to understand more generally the scope of legislative power under the Constitution").
222. LACROIX, supra note 1, at 20-29 (discussing North American colonists' experiences with various provincial unions and contemporary precedents involving Scotland and Ireland); see also Alison L. LaCroix, Rhetoric and Reality in Early American Legal History: A Reply to Gordon Wood, 78 U. CHI. L. REV. 733 (2011) (discussing the many theories and practices of multiple sources of legal authority circulating in late-eighteenth-century British North America).
223. A DICKINSON, supra note 48, at 16.
224. A DICKINSON, Id. at 12-13.
225. A DICKINSON, Id. at 12.
226. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2589 (2012) ("Under the Government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned."); Printz v. United States, 521 U.S. 898, 919 (1997) (stating that "the Framers rejected the concept of a central government that would act upon and through the States").
227. LACROIX, supra note 1, at 216-18 (giving examples of contemporary views of federalism defined in relation to particular types of union); see also Alison L. LaCroix, Commandeering Federalism, BALKINIZATION (Apr. 7, 2010, 11:33 PM), http://balkin.blogspot.com/2010/04/commandeering-federalism.html (noting as one of the lessons of federalism's history for modern doctrine the fact that "uncertainty about the 'real' meaning of federalism in practice has as long a lineage as federal ideas themselves" insofar as "[s]imilar debates to the ones that played out in the Court's classic anticommandeering cases.took place in the first few decades of the Republic's existence").
228. 200. See LACROIX, supra note 1, at 113-20, 123-24 (discussing concepts of union as they were developed by Thomas Jefferson and by members of the Continental Congress in the 1770s).
229. A MAIER, supra note 65, at 451.
230. Abraham Lincoln, Address Before the Young Men's Lyceum of Springfield (Jan. 27, 1838), in THE POLITICAL THOUGHT OF ABRAHAM LINCOLN 11+15-16 (Richard N. Current ed., 1967).
231. Abraham Lincoln, Address Before the Young Men's Lyceum of Springfield (Jan. 27, 1838), in THE POLITICAL THOUGHT OF ABRAHAM LINCOLN (Richard N. Current ed., 1967) Id. at 16-17
232. Abraham Lincoln, Speech at Peoria, Illinois (Oct. 16, 1854), in 2 THE COLLECTED WORKS OF ABRAHAM LINCOLN 247+270 (Roy P. Basler ed., 1959) (evaluating the "Union-saving measure" of the Kansas-Nebraska Act and concluding, "[m]uch as I hate slavery, I would consent to the extension of it rather than see the Union dissolved").
233. John C. Calhoun, The South Carolina Exposition and Protest (1828), in 10 THE PAPERS OF JOHN C. CALHOUN 442+507-29 (Clyde N. Wilson & W. Edwin Hemphill eds., 1977).
234. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in THE POLITICAL THOUGHT OF ABRAHAM LINCOLN, supra note 202, at 168.
235. DICKINSON, supra note 48, at 12. United States v. Lopez, 514 U.S. 549, 577 (1995) (Kennedy, J., concurring) ("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.") BARBER, supra note 16, at 89-121 (discussing and critiquing "states' rights federalism").
236. Heather K. Gerken, The Supreme Court 2009 Term-Foreword: Federalism All the Way Down, 124 HARV. L. REV. 6+44 (2010) (describing a "nationalist account" of federalism).
237. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819).
238. MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT: ORIGINS OF THE U.S. CONSTITUTION AND THE MAKING OF THE AMERICAN STATE (2003); DAVID C. HENDRICKSON, PEACE PACT: THE LOST WORLD OF THE AMERICAN FOUNDING 259 (2003) (describing the federalist scheme of the U.S. Constitution as "the reasoned response to a serious security problem that espied a sequence in which internal division and the intervention of external powers would create the same whirlwind in America that had undone Europe")
239. David Armitage, The Declaration of Independence and International Law, 59 WM. & MARY Q. 39 (3d ser. 2002).