John Manning's criticism of the 'new structuralism' and my response

|The Volokh Conspiracy |

It's November, that month when Chicago trees have dropped their leaves, and the Supreme Court issue of the Harvard Law Review thunks on to law professors' desks around the country. This year, the Foreword to that issue is written by Professor John Manning— The Means of Constitutional Power—and it is about judicial interpretation of the Necessary and Proper Clause.

From the introduction:

Novel approaches to both statutory interpretation and structural constitutional law, more generally, have become signatures of the Rehnquist and Roberts Courts. A central but overlooked paradox of contemporary structural constitutional law is that the Court has moved in sharply different directions in these two contexts. In matters of statutory interpretation, the Court has shifted toward a new textualism, which has sought (though not with perfect consistency) to promote Congress's ability to specify with precision the means of constitutional power. In the past, the Court itself had asserted judicial power to reshape the letter of the law to make it cohere better with broader legislative purposes. By adhering, instead, to the words of the statute as written, today's Court enables Congress more predictably to express its preference for outcomes that may not be so coherent—that include rough accommodations, take only baby steps toward some broader purpose, or adopt crisp rules that favor certainty over achieving a perfect means-ends fit. This regime thus gives Congress greater control over the implementation of its constitutional power.

In constitutional adjudication, by contrast, the Court has asserted greater power than before to second-guess Congress's judgments about the composition of the federal government and the implementation of federal power. The Rehnquist and Roberts Courts have repeatedly invalidated statutory programs, but not because those programs violated some particular constitutional provision, settled course of constitutional practice, or specific line of judicial precedent. Rather, its "new structuralism" rests on freestanding principles of federalism and separation of powers. In cases involving questions as diverse as the commandeering of state officials, state sovereign immunity, presidential removal power, and standing (to name a few), the Court has moved from high levels of constitutional generality to granular prohibitions on the exercise of legislative power. Because those cases turn on abstract and often conflicting structural policies, their outcomes almost always involve large interpretive discretion and fall within a range in which reasonable people can easily disagree. By exercising independent judgment in those cases, the Court gives itself, rather than Congress, the final say about how to implement federal power. . . .

The text of the Necessary and Proper Clause cuts decisively in favor of one of these conflicting visions. The clause delegates to Congress broad and explicit (though not limitless) discretion to compose the government and prescribe the means of constitutional power. Hence, the Court should respect reasonable legislative exercises of the discretion that the people delegated to Congress rather than the Court. Two considerations support this conclusion. First, if one were to draw an analogy to administrative law, the phrase "necessary and proper" feels like the sort of classic "empty standard" that lawmakers routinely use to delegate discretion. Indeed, under any of the leading theories of its meaning—the ones presently applied by the Court or the revisionist alternatives that have cropped up in recent years—the "necessary and proper" standard inevitably effects a broad delegation of interpretive discretion to someone. Second, the clause directs its delegation explicitly to Congress. And in contrast with substantive power grants like the Commerce Clause or the Bankruptcy Clause, the Necessary and Proper Clause is a master provision that allocates decisionmaking responsibility to make laws that implement other constitutional powers. Indeed, the clause empowers Congress to carry into execution not only its own powers, but also "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This breadth indicates that the people not only delegated the implementation power to Congress, but also gave it precedence over the other branches in the exercise of such power.

I have a response in the Harvard Law Review Forum (addressing only the constitutional issues, not the issues of statutory interpretation). It's titled Sharing the Necessary and Proper Clause, and it begins:

Few constitutional clauses have been the focus of so many hopes and fears as the Necessary and Proper Clause.

In his Foreword, Professor John Manning puts forward a powerful vision of the clause, challenging the current approach of the Supreme Court. Focusing on the text, Manning suggests that it "has the unmistakable feel of an 'empty standard,'" and is therefore a source of great interpretive discretion. Manning further argues that the text gives that interpretive discretion to Congress. Many of the congressional-power decisions of the Roberts and Rehnquist Courts might fail under this critique. Manning also discusses statutory interpretation, which I lack the space to address here.

Constitutional text is a natural focal point for those who challenge current judicial practice, and Manning is right to ask whether the Court's doctrines have transgressed or misread the text. But Manning's proposed reading of the text is not the only one. To choose between them, we need additional sources or theories of meaning, and at least some of them will point to a different assessment than Manning's.

In this Response, I argue that historical practice, McCulloch v. Maryland, and the text itself all permit, though may not require, a less deferential judicial interpretation than Manning advocates.

Of course I'd like you to read the whole thing.