Vol. 130 No. 9 Introduction The much-discussed King v. Burwell decision presented the very complexities that make statutory interpretation simultaneously frustrating and fun. How should a court handle...
Vol. 124 No. 8 The Supreme Court applies the structural provisions of the Constitution by relying on an overarching framework of “separation of powers.” Its cases reflect two distinct visions of the doctrine. Functionalist decisions presuppose that Congress has plenary authority to compose the government under the Necessary and Proper Clause, subject only to the requirement that a particular governmental scheme maintain a proper overall balance of power. Formalist opinions, in contrast, assume that the constitutional structure adopts a norm of strict separation which may sharply limit presumptive congressional power to structure the government. This Article contends that, to the extent that these theories each rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the constitutionmaking process.
Vol. 122 No. 8 In recent years, the Supreme Court has embraced a freestanding federalism that is not tied to any particular clause of the Constitution. Rather, because multiple clauses assume the
continued existence of states and set up a government of limited and enumerated powers, the Court has inferred that such provisions collectively convey a purpose to establish federalism and to preserve a significant degree of state sovereignty. The Court has treated that general background purpose as a warrant to derive specific but unenumerated limitations on federal power – in particular, a federalism clear statement rule, an anticommandeering principle, and broad state sovereign immunity from suit in state courts.