Checking Congress and Balancing Federalism: A Lesson from Separation-of-Powers Jurisprudence

By Werhan, Keith | Washington and Lee Law Review, Fall 2000 | Go to article overview

Checking Congress and Balancing Federalism: A Lesson from Separation-of-Powers Jurisprudence


Werhan, Keith, Washington and Lee Law Review


I. Introduction

As recent decisions make clear, the Supreme Court is reorienting the doctrines that enforce the limits of federalism on the regulatory power of Congress. The purpose of this undertaking is to tighten those limits in a way that is true to our constitutional design. This project has a long history, one that stretches to the foundational era of constitutional law.1 It is a history that counsels considerable caution.

In its foundational decisions, the Marshall Court constructed a framework for evaluating congressional action that created interplay between formal2 and functional3 understandings of how federalism limits national power.4 As the nation entered the modern, industrial age, and Congress initiated a regulatory response to the resultant problems and dislocations caused by that transition, a determined Court resorted to a thoroughgoing formalism in an effort to confine national power within narrow terrain.5 Beginning in 1937, in the crucible of the Great Depression, the Court relented, replacing the earlier formalism with a thoroughly functional understanding of congressional power that was acquiescent to legislative prerogative.6

It is this post-1937 settlement that the contemporary Court is examining and changing. Discontented with the failure of the functional post-1937 doctrine to register meaningful federalism limits on congressional power, the Court has begun to reintroduce formalist elements into its approach. This process is in an early, experimental stage, and a stable judicial consensus has yet to take hold. It is not yet clear whether the revival of formalism in federalism jurisprudence will restore a balance that has been absent since the founding era, or simply will initiate another formalist cycle.7

Before the Court completes its experiment, I suggest the justices pause and consider a lesson from their recent decision making with respect to the other central structural principle ofthe Constitution -the separation ofpowers. The Court's reinvigoration of separation-of-powers limits on the actions of the national government preceded the current federalism revival8 There too, the justices have swung between formal and functional understandings of constitutional structure? At present, the Court unpredictably moves between both approaches, typically invoking a formal approach to the separation of powers to invalidate actions by one of the branches,10 while falling back on a functional understanding to uphold a challenged action.11 The result has been a widely noted incoherence in separation-of-powers jurisprudence.12

The justices have an opportunity to learn from their separation-of-powers experience as they rethink their approach to the federalism limits on congressional power. It is important that the Court break the tendency to cycle between a strict formalism and a permissive functionalism when resolving issues of constitutional structure. The essential task facing the justices is to settle on a methodology that blends both approaches. The Court has not yet accomplished that goal in its separation-of-powers jurisprudence. It has faced a similar difficulty in its attempts to delineate federalism-based limits on congressional regulatory authority. While the Marshall Court, I shall argue, established a balanced approach that was consistent with the federalist understanding of federalism, later Courts lost, and have never regained, that balance.

Although translating the constitutional organizing principle of federalism into an appropriately balanced doctrine has proven to be something of a conundrum, a potential solution, surprisingly, is in sight. In the Supreme Court's recent, and potentially transformative, decision in United States v. Lopez,13 which it recently solidified in United States v. Morrison,14 a bare majority of the justices suggested an intriguing redefinition of the congressional commerce power.15 The Lopez/Morrison innovation promises to integrate formal and functional approaches to federalism limits and to align contemporary doctrine with the original federalist understanding and the foundational jurisprudence of the Marshall Court. …

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