Academic journal article Harvard Law Review

The Means of Constitutional Power

Academic journal article Harvard Law Review

The Means of Constitutional Power

Article excerpt

CONTENTS  INTRODUCTION  I. STATUTORY INTERPRETATION AND CONSTITUTIONAL DEFERENCE    A. Post-New Deal Constitutionalism    B. Statutory Purposivism and Constitutional Deference C. Statutory Textualism as Structural Constitutional Law II. THE NEW STRUCTURALISM AND INDEPENDENT JUDGMENT    A. Freestanding Concepts of State Sovereignty: Anticommandeering    B. Who Defines Federalism?    C. Separation of Powers III. THE TEXTUAL BASIS FOR JUDICIAL DEFERENCE    A. Deference and Delegation    B. The Delegation    1. The Court's Theory of "Proper" Structural Limits    2. The Revisionist Theories    C. The Delegatee    1. The Specification of Congress    2. The Nature of the Power Granted IV. IMPLICATIONS    A. The Court's Textualism    1. The Emphasis on Usage    2. Legislative History    B. Constitutional Deference    1. Deference and the Necessary and Proper Clause    2. Deference in Interbranch Disputes CONCLUSION 

The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.

--McCulloch v. Maryland (1)


he 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. (2) 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. (3) 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. (4)

Second, in the exercise of Marbury-style judicial review, the Court directly passes judgment on the validity of the governmental arrangements Congress establishes. (5) 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. (6) 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. …

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