Thursday, April 17, 2014

The Shadow Powers of Article I

Guest Blogger

Alison L. LaCroix

For the Symposium on Federalism as the New Nationalism

The terms of the federalism debate have recently changed, with important and potentially far-reaching consequences that have not been fully appreciated—even by the Court itself. The interpretive struggle over the meaning of American federalism has shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. To be sure, the higher-profile commerce power continues to attract an enormous amount of judicial attention and scholarly commentary. But for nearly a decade, the quieter, more structurally ambiguous federal powers listed at the head and foot of Article I have steadily increased in prominence. Today, the battles of judicial federalism are fought not across the well-trampled no-man’s-land of the commerce power or the Tenth Amendment, but in the less trafficked doctrinal redoubts of what I term the “shadow powers.” In my contribution to the Symposium, The Shadow Powers of Article I, I argue that this expansion of the battlefield carries important consequences for the meaning of modern federalism.

            Beginning with Gonzales v. Raich in 2005 and continuing through United States v. Comstock, National Federation of Independent Business v. Sebelius, and United States v. Kebodeaux, the Supreme Court’s “federalism revolution” has taken on a new form. The Court’s federalism jurisprudence has shifted from its once-typical form of inquiry into the scope of Congress’s power to regulate interstate commerce, refracted through the Tenth Amendment, to become an inquiry into the transsubstantive reasons for allowing Congress to regulate at all. This transformation has been especially significant when the Court views Congress as venturing into a domain not explicitly specified in the text of Article I.

I argue that the two clauses operate as shadow powers of Article I, and that their return to the center of debate in the Court and in the broader public sphere provides both a problem and an opportunity for the understanding how the United States’ federal structure should operate. Both powers have a potentially capacious quality, unlike the other Article I powers, which are much more bounded and subject-specific (e.g., “[t]o borrow [m]oney on the credit of the United States”; “[t]o coin [m]oney”; “[t]o constitute [t]ribunals inferior to the [S]upreme Court”). The shadow powers tend to become contested, and to become the linchpins of judicially enforced federalism, when contemporary legal and political players determine – for a variety of reasons, from overly rigid case law to political expediency – that there is no more room to move the doctrine in the domain of “real” enumerated powers, such as the commerce power.

I also offer a normative argument. A description of shadow powers analysis might initially lead one to believe that the Court is using the shadow powers to expand, quietly, Congress’s power beyond the ostensible limits set forth in other doctrinal areas. But such a conclusion reads the direction of the doctrinal change exactly backward. Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power. 

But my critique of shadow powers analysis as deployed by the Court is not based on its direction alone. The prominent role of the shadow powers in the Court’s recent decisions is both a doctrinally unprecedented and an unhelpful development that fails to set meaningful standards for how federalism should work in practice.  As I demonstrate, the novelty of shadow powers analysis lies in the sharp line the Court appears increasingly willing to draw between solid, if controversial, Article I powers such as the commerce power, and auxiliary Article I powers such the necessary and proper power. In recent doctrine, the invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving post-Lopez baseline of a narrow commerce power.  This maneuvering might be productive if it were carried out explicitly, with some discussion by the Justices of the reasons for preferring to adjudicate federalism at its doctrinal and textual periphery rather than at its center.  But the result of the growth of shadow powers analysis has in fact been to obscure the outlines of federalism’s map – to shroud genuine (and perhaps salutary) doctrinal changes within a fog of constitutional text, under-overruled precedents, and acontextual readings of foundational cases such as McCulloch v. Maryland.

Alison L. LaCroix is Professor of Law and Ludwig and Hilde Wolf Teaching Scholar at the University of Chicago Law School.  You can reach her at

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