Academic journal article Harvard Law Review

The Means of Constitutional Power

Academic journal article Harvard Law Review

The Means of Constitutional Power

Article excerpt

II. THE NEW STRUCTURALISM AND INDEPENDENT JUDGMENT

In the past quarter century, the Court's structural constitutional decisions have proceeded on premises contrary to the deferential approach it takes in its statutory interpretation cases. The Rehnquist and Roberts Courts have asserted broad judicial power to determine the appropriateness of Congress's chosen means to implement federal power. It is not that the Court has upended the particular doctrines of constitutional deference that it enforced during the post-New Deal period. With tweaks here or there, the Court basically applies a forgiving approach to congressional judgments about the means-ends fit; (182) a narrow view of substantive due process in cases of ordinary legislation; (183) and a hands-off posture toward delegation. (184) However, at the same time, the Court has also broken fresh ground by, for example, erecting new buffer zones around state sovereignty, prohibiting affirmative federal mandates on individual behavior, and identifying a heretofore unknown limitation on congressional power to establish independent agencies.

What holds these seemingly disparate cases together--and what qualifies them as a "new structuralism"--is a shared methodology. The Court has shown itself willing time and again to derive specific limitations on congressional power from relatively high-level inferences about federalism and, to a lesser extent, separation of powers. On the rare occasions when the post-New Deal Court invalidated an act of Congress on separation of powers grounds, it did so for (what the Court saw as) fairly specific transgressions of the constitutional text: the creation of congressional power to remove executive officers outside the impeachment process; (185) the authorization of legislative lawmaking without bicameralism and presentment; (186) the assignment of core Article III business to a non-Article III court; (187) or the adoption of an appointments procedure unsanctioned by the Appointments Clause. (188) In many of the Rehnquist-Roberts era decisions invalidating structural legislation, the Court's judgment is not ultimately tied to the understood meaning of any particular constitutional text. Nor does any specific constitutional tradition or line of judicial precedent typically speak to the question at issue.

Instead, what underlies all of these cases is a "free-form" version of what Professor Charles Black called the "method of inference from the structures and relationships created by the constitution in all its parts or in some principal part." (189) This free-form structural inference first shifts the Constitution's level of generality upward by distilling from diverse clauses an abstract shared value--such as property, privacy, federalism, nationalism, or countless others--and then applies that value to resolve issues that sit outside the particular clauses that limit and define the value. (190) When abstracted from particular constitutional provisions or specific historical practices, such broad values leave judges with a great deal of discretion. (191) This phenomenon is especially evident in the Court's freestanding federalism and separation of powers cases because the purposes underlying those doctrines are diverse, unranked, and often self-contradictory. (192) Hence, such doctrines afford reasonable people plenty of room to strike the balance in different ways between federalism and nationalism or separation and interdependence.

In those types of cases, today's Court applies independent judgment to determine--in truth, to create--the meaning of federalism and separation of powers doctrine. In the process, it does not defer to Congress's contrary judgments about how to carry federal power into execution. This approach contrasts sharply with the philosophy of not only the post-New Deal Court's constitutional cases, but also the current Court's own statutory cases. When the Court invokes the Necessary and Proper Clause in contemporary structural cases, it is not typically as a font of legislative authority as it was in the post-New Deal constitutional cases (and as it still is in some of the Court's decisions). …

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