Notes on a Theory…

Thoughts on politics, law, & social science

A Government of Enumerated Powers….Sometimes

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On Thursday, every single member of the Court agreed that the Constitution is one of enumerated powers, as the justices split three ways in ruling on the American Care Act, a comprehensive health insurance reform bill: upholding the mandate, but as a tax under the power to tax and spend and not a penalty under the commerce clause, striking down the provision authorizing the Secretary of Health and Human Services* to penalize states that failed to participate in the expansion of Medicaid , but allowing the Medicaid expansion and the Secretary’s authority to stop funding for the expansion.  Chief Justice Roberts’ opinion (pdf) waxes poetically about the centrality of the principle that the Constitution only allowed for enumerated powers at the federal level.

The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid. That is, rather than granting general authority to perform all the conceiv­able functions of government, the Constitution lists, or enumerates, the Federal Government’s powers.

While not all the opinions were as explicit about this, they all rested on this idea.

This contrasted quite strongly with the position taken by all nine justices in Arizona v. United  States  (pdf) that the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration despite disagreeing over whether Arizona’s punitive immigration law was preempted by federal law.  This is from the majority opinion (which Roberts joined)

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982);see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)). [my bold]

The odd thing is that both positions were consistent with past decisions. When it comes to foreign affairs, the Court has, at least since United States v. Curtiss-Wright Export Corp. (1936) if not the Chinese Exclusion Cases in the 1880s. When it comes to domestic affairs, the enumerated powers principle has held sway. One could make an argument that the Constitution only was meant to be a system of enumerated powers with regard to domestic affairs (Curtiss-Wright does just that, although I’d say it’s not persuasive in the least). But typically, the two claims are made without such qualifications.  And of course, the lines between domestic and foreign affairs are fairly blurry (for example, with powers relating to ‘national security’ largely unmoored from any limits at all yet applying to American citizens existing well within the interior).

All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk.  Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.

*Seriously, what are ‘human services’?

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Written by David Kaib

July 2, 2012 at 5:01 pm

One Response

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  1. […] the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the […]


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