Not your Father’s Federalism: Primus, Enumeration, and State Power in the Modern Era

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

Abbe Gluck

Richard Primus’s vision is not, as they say, your father’s federalism. His meticulous historical inquiry into enumeration yields just enough ambiguity to throw into doubt whether the Constitution’s internal limits are what actually safeguard federalism, or whether it’s something else entirely—assuming of course that the concept of state autonomy still has meaning in an era of national power. Primus emphatically thinks it does, just not that the constitutional provisions that courts typically cite in service of it actually do much work.

Others have already lauded the way in which Primus’s modest goal has the potential to accomplish something revolutionary. His evenhanded treatment of a voluminous record from the founding period and shortly thereafter aims to convince the reader not that the standard account of enumeration as a constraint on national power is definitely wrong, but simply that it might be. By providing support for the idea that at least some founding thinkers and officials thought enumeration was actually meant to increase national power (to give bona fides to a national government whose strength was sorely needed at the time), Primus creates plausible ambiguity. He also credibly suggests that such ambiguity might have been intentional—that enumeration might have been something of a compromise, meant to signal two different theories of national power at once—one limiting and one enabling. In so doing, Primus creates the space to pave a path toward a different story about the powers and limits of our government.

When it comes to federalism, he really gets cooking. Primus’s basic argument is that enumeration has not done much to preserve local autonomy –but that does not mean that local autonomy is dead. He argues “the enumeration of powers has done virtually nothing to constrain federal lawmaking since the 1930s, and yet most governance in the United States today occurs at the state and local levels.” Indeed, Primus suggests that there is at least some evidence for the proposition that enumeration was for the “other half of federalism,” namely to generally empower the national government as a whole and specifically to empower Congress against the president. In other words, one plausible account of enumeration is about shoring up Congress’s powers against a powerful president, not limiting them against the states.

Yet Primus is a federalism believer. He just finds it elsewhere. Most excitingly, for statutory-interpretation-meets-federalism buffs like myself, Primus sees the connection between federal statutory power and state power. He finds federalism in the canons of statutory construction that protect state power in ways that seem like soft law but can effectively protect boundaries. And he finds it in the powers exerted by states when they implement federal law. He recognizes, as I have detailed in my own work, how states deploy vast lawmaking power and also exert great leverage from their roles within federal statutes, perhaps even more so than from separation from them.

Perhaps most interestingly, Primus finds federalism in what I would call expressive authority. He argues that, even if the specific text of the Constitution does less work than the classic story suggests, the national structure created by the Constitution—which includes enumeration—creates a philosophical grounding for the nation in a preference for dual government. For what it’s worth, he also views the anti-commandeering doctrine, which is not found in the specific text of the Constitution, as another important external limit that derives from that same enduring “set of ideas about the distinctive status of state governments within the federalism system. States are special.” He views these federalism principles as transcending any specific power or limitation in the Constitution (This is an interesting contrast to his emphasis on the Court’s current positivism, which I briefly discuss below.).

One compelling way in which Primus illustrates his theory of federalism is through what he calls “workarounds,” the idea that Congress almost always can find a way to legally accomplish what it wants to despite the limits of the Constitution, even if a first-legislative-attempt trial balloon, whether it’s gun-free school zones or an insurance mandate, gets popped on the first attempt. Indeed, an example he repeatedly mentions is NFIB v. Sebelius, the 2012 case challenging the Affordable Care Act’s insurance mandate. Primus notes that the full Court acknowledged that it wasn’t that Congress could never impose such a requirement, it was the mechanism Congress chose. Congress could have achieved the same thing not through the more controversial commerce power but, rather, through a universal taxing system such as single payer / Medicare-for-all, which would unquestionably be legal. The fact that most modern controversial legislative efforts have multiple pathways to effectuation, in Primus’s view, means that enumeration as a limiting principle does much less work than is often assumed. 

At the same time, Primus suggests that that fact that politics and process often make such workarounds politically unfeasible—in the context of the ACA, a single-payer health system was not politically palatable in 2010—supports his point that it’s not necessarily enumeration but, rather, constraints outside enumeration doing the hard work. Whether it’s the stickiness of the legislative process or the embedded culture of federalism, these softer forces still make the kind of wholesale takeover of, say, a Medicare-for-all much less politically feasible than a lower-key regulatory path, like the one the ACA tried to take through the private healthcare system. It’s very hard, as Primus notes, to make “Congress jump through extra hoops when legislating,” and it’s almost impossible to make Congress “legislate twice,” after a big high Court loss and the passage of time and momentum since legislative effort number one. Primus argues that, as a result, “[s]ince the 1940s, then, the United States has been a government of enumerated powers but not a government limited by those enumerated powers.” But in his view, the problem isn’t that enumeration has failed to do the limiting work, it’s the underlying mistake of thinking that that’s the role of enumeration in the first place. 

But wait—there is a role for enumeration in Primus’s vision, but it’s an expressive one, not a formalist one. Going back to the idea of how an embedded national sensibility toward federalism has a limiting effect on national power, Primus writes that “the official story embodied in enumeration plays a role in preventing national power from overcoming local autonomy.” Because “official stories shape the way that Americans think their system of government is supposed to operate,” Primus’s strongest argument yet for enumeration’s power to limit Congress is, ironically, the same classic story of enumeration-as-internal-limit that Primus is trying to dislodge. In other words, enumeration may not be an effective internal limit as a formal manner, but the entrenchment of its official story contributes significantly to the external limits, especially the expressive ones, that Primus still finds effective in safeguarding federalism.

As a statutory interpretation enthusiast, I also read with interest Primus’s arguments for how power, in the form of inherent or implied national authority, can be inferred from textual silence (what’s not mentioned by enumeration), and his willingness to flout the exclusio unius rule (that the expression of certain powers infers the absence of others), despite the interpretive preferences of our Court to the contrary. I also really appreciated his grounded argument, much like ones that congressional institutionalists like myself have made in other contexts, that the chaotic drafting process and multiplicity of drafters during the framing might have yielded language that was less precisely consistent than courts demand today. The punchline there is we should not attach too much significance to word variation among the three branches’ constitutional vesting clauses—a variation that some scholars use to support Congress’s particularly limited authority in the enumeration context. 

Finally, Primus gently presses on the post-New Deal rise of legal positivism without directly engaging it. He points out that “The Supreme Court during and after the New Deal validated a dramatic expansion in national lawmaking while being less inclined to say that Congress has non enumerated powers,” and instead construed enumerated powers more broadly in order to fit the caselaw into that text. The Court’s modern insistence on grounding power in textual grants of authority stems at least in part from the outsized influence of Erie’s holding and its link to modern-day textualism. And it certainly appears across doctrine, not just confined to constitutional interpretation. Indeed, one need only look at the line of implied-right-of-action cases in the Court over the past 75 years to see a shift from a Court willing to find implied rights and powers in statutory purposes to a Court insisting on textual explicitness, even if old congresses, drafting in pre-textualist eras, wrote statutes under different rules of the game. The same could be said of the Constitution’s drafters.

Yet Primus argues that even a textualist Court has a choice when it interprets. The Court can read enumerated powers broadly to make it seem like the doctrinal move to expand national power is the kind of positivist one it is more comfortable with, rather that resting on implied power, or it can read those powers narrowly. At least some of the rise of the power of the modern federal government lies in the Court’s choice to offer that generous textual interpretation, at least until recently. And Primus wants to turn that ship around before it goes too far, even as he recognizes his chances are slim with the current Court.

In other words, Primus’s enumeration is a star that lacks self-awareness. It plays a central role, but it’s not necessarily doing what it thinks it is. An illuminating and provocative read that should affect how anyone who engages with the book thinks about the classic account, federalism and all.

Abbe R. Gluck is the Alfred M. Rankin Professor of Law. You can reach her by e-mail at abbe.gluck@yale.edu.