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Implied Powers, Capable Federalism, and the Limits of Enumerationism

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Implied Powers, Capable Federalism, and the Limits of Enumerationism A QUESTION PERPETUALLY ARISING: IMPLIED POWERS, CAPABLE FEDERALISM, AND THE LIMITS OF ENUMERATIONISM David S. Schwartz* The American constitutional order embodies a tension between two irreconcilable ideas. Enumerationism holds that federal powers are limited to those expressly enumerated in the Constitution, plus whatever implied powers are necessary and proper to execute them. What I call capable federalism asserts that the Constitution creates a national government fully empowered to address all national problems. Enumerationism rejects the idea that the federal government has general powers, or that it has implied powers of equal or greater dimension than those expressly listed. Capable federalism is a general power by definition, and it is fully compatible with formal recognition of implied “great” powers. Although the two theories are incompatible, our constitutional doctrine tries to harmonize them by claiming to adhere to enumerationism while evading its strictures. We find various constitutional tricks and cheats to accommodate the structural imperative that any federalist system must ensure that all societal problems can be addressed by at least one level of government. Still, an ideological overlay of enumerationism continues to suppress any formal recognition of capable federalism. * Foley & Lardner-Bascom Professor of Law, University of Wisconsin Law School. Copyright © 2017 by David S. Schwartz. I would like to thank the following colleagues for reviewing and commenting on drafts of this article: Steven Barkan, Tonya Brito, Peter Carstensen, Keith Findley, Alex Huneeus, Neil Komesar, Heinz Klug, Gwendolyn Leachman, Ion Meyn, Rob Mikos, Yaron Nili, Richard Primus, Mitra Sharafi, and Brad Snyder. I received further very helpful input from the participants in the 2016 Wisconsin Discussion Group on Constitutionalism, Eric Berger, Mary Bilder, Sam Erman, Mark Graber, Paul Halliday, Nancy Isenberg, Sandy Levinson, Ed Purcell, Lori Ringhand, and Chris Schmidt. John Mikhail patiently discussed ideas and saved me from the embarrassment of missing crucial sources. Andrew Coan, in particular, was meticulous in closely reading my arguments, unearthing their weaknesses, and trying to talk me out of my mistakes. He deserves much credit for anything of value found in this article, but no blame for its shortcomings. I am also grateful for the invaluable research support provided by my research assistants, Austin Doan, Kathryn Fifield, and Cecilia Kress, and to law librarians Bonnie Shucha, Jay Tucker, Kris Turner, and Peter Wehrle. 574 ARIZONA LAW REVIEW [VOL. 59:573 This Article argues that enumerationism is an ideology far more than it is a viable constitutional theory. Lacking a compelling claim to our constitutional fidelity as a matter of text or history, enumerationism is also lacking as a principle. Its purported logical premises—that a limited grant of power requires enumeration, and that an enumeration must always be interpreted as exclusive—are both false. The inability of enumerationism to explain implied powers undermines its logical consistency. And by requiring as an axiom that we accept a regulatory gap— potential subjects of national regulatory concern that cannot be adequately addressed by any level of government in our federal system—enumerationism may impose social costs that constitutional fidelity does not require. Not surprisingly, our constitutional practice, over the long run from ratification to the present, has been reflective of capable federalism: some way will be found to accommodate a federal power to address national legislative problems. TABLE OF CONTENTS INTRODUCTION ..................................................................................................... 575 I. ENUMERATIONISM VERSUS CAPABLE FEDERALISM .......................................... 579 A. The Two Theories ...................................................................................... 579 1. Capable Federalism ................................................................................ 579 2. Enumerationism ..................................................................................... 581 3. False Enumerationism ............................................................................ 582 B. Logic and Structure .................................................................................... 585 1. The Structural Imperative ....................................................................... 585 2. The Logic of Limits ................................................................................ 587 3. The Regulatory Gap Inherent in Enumerationism .................................. 589 II. ENUMERATIONISM VERSUS CAPABLE FEDERALISM IN TEXT AND HISTORY .... 590 A. Text ............................................................................................................ 591 1. Powers “Herein Granted” ....................................................................... 592 2. The Preamble .......................................................................................... 593 3. The General Welfare and Necessary and Proper Clauses....................... 595 4. Intertextual Difficulties .......................................................................... 600 B. History ........................................................................................................ 603 1. Framers’ Intent ....................................................................................... 603 2. The Ratification Debates ........................................................................ 606 3. Post-Ratification ..................................................................................... 608 III. THE IMPLIED POWERS PROBLEM FOR ENUMERATIONISM ............................... 608 A. The Unavoidable Need for Implied Powers ............................................... 609 B. The Straight Means-Ends Solution ............................................................. 610 C. The “Great Powers” Solution ..................................................................... 612 1. The Theoretical Inadequacies of “Great Powers” .................................. 613 2. The Sketchy Historical Pedigree of “Great Powers” .............................. 617 IV. AVOIDING ENUMERATIONISM: A CONSTITUTIONAL TRADITION .................... 620 A. Avoidance Techniques ............................................................................... 621 1. Metonymy .............................................................................................. 621 2. Synergy .................................................................................................. 622 3. Sovereignty............................................................................................. 622 2017] LIMITS OF ENUMERATIONISM 575 4. Means-Ends Reversal ............................................................................. 622 B. A Constitution of Implied Great Powers .................................................... 624 1. War and National Defense ..................................................................... 624 2. Foreign Affairs ....................................................................................... 629 3. Immigration and Deportation ................................................................. 631 4. Acquisition of Territories ....................................................................... 634 5. Prohibition of Private Race Discrimination ............................................ 636 6. The Money Supply and Legal Tender .................................................... 638 7. Eminent Domain .................................................................................... 640 8. Federal Criminal Law ............................................................................. 642 9. Additional Powers that Violate Enumerationism ................................... 643 CONCLUSION ........................................................................................................ 645 [T]he question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. — Chief Justice John Marshall, McCulloch v. Maryland1 The people are as much interested, their liberty is as deeply concerned, in preventing encroachments on [the U.S.] government, in arresting the hands which would tear from it the powers they have conferred upon it, as in restraining it within its constitutional limits. — John Marshall, pseudonymous editorial defense of McCulloch v. Maryland2 INTRODUCTION Our constitutional order embodies a tension between two irreconcilable ideas. One is that the U.S. Constitution creates a government of enumerated, and therefore limited, powers. The other is that the Constitution creates a national government fully empowered to address all national problems. For reasons that will be made clear, I call the former idea enumerationism, and the latter idea capable federalism. By enumerationism, I mean the doctrine which holds that the Constitution limits federal powers to those enumerated. Enumerationists see limited powers and enumerated powers as implying each other as a matter of logic and history. According to enumerationism, the fact that the Constitution expressly lists specified powers necessarily limits the federal government to those powers. And conversely, such a limiting enumeration is logically necessary—so enumerationists contend—in order to implement the
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