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Professor Robert Pushaw, "Enforcing Principled Constitutional Limits on Federal Power" -- William and Mary Law Review

Professor Robert J. Pushaw's article, "Enforcing Principled Constitutional Limits on Federal Power: A Neo-Federalist Refinement of Justice Cardozo's Jurisprudence" has been published in the William and Mary Law Review (60 William & Mary Law Review 937-984 [2019]). The article sets forth legal principles to guide Supreme Court judicial review regarding constitutional limits on the federal government.

Abstract of "Enforcing Principled Constitutional Limits on Federal Power: A Neo-Federalist Refinement of Justice Cardozo's Jurisprudence"

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) "regulate Commerce ... among the States," (2) tax and spend for the "general Welfare," and (3) delegate "legislative Power[ ]" to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress's Article I authority and usurped the states' reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The conservatives' attempt to legally restrict, but not unduly hamstring, federal power would benefit from a close study of Benjamin Cardozo's opinions from 1934 to 1938. In constitutional challenges to expansive New Deal laws, Justice Cardozo carefully evaluated each statute's text, the economic and social considerations that prompted its enactment, the facts presented, precedent, and the need to maintain the Constitution's basic structure. That last factor proved to be especially complicated because the Constitution creates a democracy in which legislative acts are presumptively valid, but prohibits Congress from either delegating its legislative power to the executive department or invading the states' jurisdiction over local matters. Cardozo balanced these constitutional concerns by deferring to the federal government's broad but reasonable exercise of authority, while invalidating merely expedient laws that either gave Congress untrammeled power or the executive unbridled discretion.

Although Justice Cardozo witnessed the triumph of his generally deferential approach to judicial review in 1937, his effort to craft modest legal restraints on Congress died along with him the next year. President Roosevelt appointed nine Justices between 1937 and 1943—all ardently pro-New Deal politicians or academics who quickly abandoned the previously established constitutional limits on federal power.

The Court under Chief Justices Warren and Burger entrenched this precedent, which has left the conservative majority on the Rehnquist and Roberts Courts with a dilemma. On the one hand, they value stability and hence seek to respect stare decisis and preserve the existing government structure. On the other hand, they strive to expound constitutional provisions according to their original meaning. The conservative Justices have struck a strange compromise: reciting the originalist mantra that the federal government is confined to its enumerated powers, yet identifying only a few (and ineffective) limits based not on historical constitutional materials, but rather on a strained reading of cases decided between 1937 and 1994.

As it turns out, however, the results of many of those cases can be grounded in authentic originalist principles, even though the Court's proffered rationales cannot be. Therefore, the conservative Justices need not continue to distort that precedent to discover previously unnoticed "limits" that are then fleshed out in pure common law fashion, Cardozo-style. Rather, these Justices should adopt a "Neo-Federalist" approach: formulating legal rules, rooted in the Constitution's text and structure as historically understood, that can be consistently applied to allow the kind of generous yet circumscribed federal power that Cardozo endorsed. This Article sets forth such concrete legal principles to guide judicial review under the Commerce Clause, the Taxing and Spending Power, and the nondelegation doctrine. My analysis demonstrates that, contrary to the assertions of many judges and scholars, such a genuinely legal framework is neither unworkable nor simplistic.