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.