Constitutional Law Foreword 128 Harv. L. Rev. 1

The Means of Constitutional Power



The Supreme Court has always had a lot to say about the means used to implement the Constitution. I do not refer to headline-grabbing topics such as the freedom of speech, the right to bear arms, or the prohibition against cruel and unusual punishments. Instead, I mean the mundane but important task of constituting the government — delegating power; setting up agencies; structuring their relationship to the President; establishing rules of administrative procedure; setting up the federal courts; creating rights of action, burdens of persuasion, and statutes of limitations; instituting cooperative (or not-so-cooperative) federal-state partnerships; and the like. One might think that, by virtue of the Necessary and Proper Clause, primary responsibility for all such questions would lie at Congress’s door. But the Supreme Court, too, exercises great influence over the means of implementing constitutional power — in no small part because the Court itself establishes the rules of statutory and constitutional interpretation that structure the allocation of decisionmaking authority. Consider two examples.

First, without the benefit of any express direction from the Constitution or from federal statutes, judge-made rules of statutory construction deeply affect how federal power is carried out and by whom. In particular, such rules tell us how much authority the judiciary (or executive) has to smooth out, or even supplement, the means specified by statutory texts when the courts think a tweak or two is necessary to effectuate the purposes of legislation. Important things turn on this question — issues such as the judicial power to enforce the spirit over the letter of the law, the availability of implied rights of action, and the scope of federal preemption, just to name a few.

Second, in the exercise of Marbury-style judicial review, the Court directly passes judgment on the validity of the governmental arrangements Congress establishes. Again, since the particulars of the American doctrine of judicial review are entirely judge-made, the Court’s approach to such cases profoundly affects the distribution of power to compose the federal government. If the Court acts like a gentle Thayerian in structural constitutional cases, deferring to Congress’s judgment about the uncertain contours of principles such as federalism or the separation of powers, then Congress rather than the Court will have broad latitude to configure the government. If, however, the Court exercises independent judgment about the often open-ended reach of those principles, the Court itself will have the final say about many important questions concerning the shape of American government.

Novel approaches to both statutory interpretation and structural constitutional law, more generally, have become signatures of the Rehnquist and Roberts Courts. A central but overlooked paradox of contemporary structural constitutional law is that the Court has moved in sharply different directions in these two contexts. In matters of statutory interpretation, the Court has shifted toward a new textualism, which has sought (though not with perfect consistency) to promote Congress’s ability to specify with precision the means of constitutional power. In the past, the Court itself had asserted judicial power to reshape the letter of the law to make it cohere better with broader legislative purposes. By adhering, instead, to the words of the statute as written, today’s Court enables Congress more predictably to express its preference for outcomes that may not be so coherent — that include rough accommodations, take only baby steps toward some broader purpose, or adopt crisp rules that favor certainty over achieving a perfect means-ends fit. This regime thus gives Congress greater control over the implementation of its constitutional power.

In constitutional adjudication, by contrast, the Court has asserted greater power than before to second-guess Congress’s judgments about the composition of the federal government and the implementation of federal power. The Rehnquist and Roberts Courts have repeatedly invalidated statutory programs, but not because those programs violated some particular constitutional provision, settled course of constitutional practice, or specific line of judicial precedent. Rather, its “new structuralism” rests on freestanding principles of federalism and separation of powers. In cases involving questions as diverse as the commandeering of state officials, state sovereign immunity, presidential removal power, and standing (to name a few), the Court has moved from high levels of constitutional generality to granular prohibitions on the exercise of legislative power. Because those cases turn on abstract and often conflicting structural policies, their outcomes almost always involve large interpretive discretion and fall within a range in which reasonable people can easily disagree. By exercising independent judgment in those cases, the Court gives itself, rather than Congress, the final say about how to implement federal power.

This Foreword argues that the constitutional text itself favors an approach to both statutory and structural constitutional law that defers, within broad bounds, to congressional authority to determine how to implement constitutional power. In several important contexts, the Constitution grants implementation powers to Congress. These include the Necessary and Proper Clause, the Rules of Proceedings Clause, the Full Faith and Credit Clause, and the Enforcement Clauses of the Civil War Amendments and of the subsequent amendments modeled after them. This pattern is telling. It suggests that the people tasked their most immediate agent — Congress — with special powers to implement some but not other parts of the Constitution. In particular, the document gives Congress power to implement all federal powers — its own and those of the coordinate branches — but only specified federal rights.

If space permitted, one might make a case for judicial deference under any clause that singles out Congress for the special responsibility of constitutional implementation. To sort out the competing impulses behind the Court’s new textualism and new structuralism, it suffices to consider the grounds for such deference under the Necessary and Proper Clause. The new textualism builds on a post–New Deal tradition that treated the Necessary and Proper Clause as a broad source of congressional authority to enact odd, and even silly, laws, as long as they satisfied a very minimal threshold of rationality. By enforcing the statutory text, warts and all, textualism enables Congress to use its words reliably to prescribe — and make stick — rough, awkward, and often ill-fitting solutions to complex and contested social problems. In contrast, the Court’s new structuralism transforms the Necessary and Proper Clause into a delegation of power to the courts to define abstract structural policies. In a novel reading of the clause, both the Rehnquist and Roberts Courts have held that a law is not “proper” if it cannot satisfy the Court’s own conception of freestanding, and thus indefinite, principles of federalism and separation of powers. This constitutional approach gives the Court primary responsibility for determining what means are “necessary and proper.”

The text of the Necessary and Proper Clause cuts decisively in favor of one of these conflicting visions. The clause delegates to Congress broad and explicit (though not limitless) discretion to compose the government and prescribe the means of constitutional power. Hence, the Court should respect reasonable legislative exercises of the discretion that the people delegated to Congress rather than the Court. Two considerations support this conclusion. First, if one were to draw an analogy to administrative law, the phrase “necessary and proper” feels like the sort of classic “empty standard” that lawmakers routinely use to delegate discretion. Indeed, under any of the leading theories of its meaning — the ones presently applied by the Court or the revisionist alternatives that have cropped up in recent years — the “necessary and proper” standard inevitably effects a broad delegation of interpretive discretion to someone. Second, the clause directs its delegation explicitly to Congress. And in contrast with substantive power grants like the Commerce Clause or the Bankruptcy Clause, the Necessary and Proper Clause is a master provision that allocates decisionmaking responsibility to make laws that implement other constitutional powers. Indeed, the clause empowers Congress to carry into execution not only its own powers, but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This breadth indicates that the people not only delegated the implementation power to Congress, but also gave it precedence over the other branches in the exercise of such power.

Again, analogies to administrative law suggest that such a delegation calls for judicial deference. If Congress, for example, delegates power to an administrative agency to promulgate rules for determining “fair and equitable” prices, such open-ended language creates a zone of discretion within which reasonable people can surely disagree. If a reviewing court exercises independent judgment about what is “fair and equitable” — and, in so doing, displaces an agency position that also lies within the margin of interpretive discretion left by the statute — then the court rather than the agency effectively exercises the discretion delegated by the statute. The same logic applies to the Necessary and Proper Clause. When the Court defers to Congress’s reasonable implemental decisions (as it does in today’s statutory cases), the judiciary respects the allocation of power effected by the clause. When the Court asserts independent judgment to determine the content of “necessary and proper” under vague criteria (as it does in structural constitutional cases), the judiciary substitutes itself for Congress as the people’s delegatee contrary to the terms of the constitutional text.

This Foreword develops that argument in four parts. After describing a post–New Deal baseline of broad constitutional deference to Congress under the Necessary and Proper Clause, Part I argues that the adoption of a textualist approach to statutes by today’s Court gives effect to that deferential constitutional approach. Both of the approaches emphasize, and seek to protect, congressional power to draw effective lines of inclusion and exclusion, however awkward they might be. Part II contends that in structural constitutional cases, today’s Court has moved in the opposite direction by opening new fronts that forswear deference to Congress. In these cases, as noted, the Court has effectively appropriated the Necessary and Proper Clause by treating it as a delegation to the judiciary to flesh out the abstract purposes of federalism and separation of powers. Part III maintains that the Necessary and Proper Clause delegates open-ended implementation power specifically to Congress and that, in statutory and constitutional cases alike, the judiciary must therefore respect Congress’s reasonable judgments under that clause. Part IV briefly considers doctrinal implications.

The full text of the Foreword may be found by clicking the PDF link below.