K. Sabeel Rahman-
Part Two: The Structural Constitution
The Basic Structure
- Federalist 10, 51
- Marbury v. Madison, 5 U.S. 137 (1803)
- McCulloch v. Maryland, 17 U.S. 316 (1819)
- Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523-26, 528-29, 535-36, 538-43 (2004)
- Jack Balkin & Sanford Levinson, Constitutional Crises, 157 U. Penn. L. Rev. 707, 708-9, 711-15, 720-22, 728-32, 736-39 (2009)
One of the central functions of the Constitution is to structure the core institutions of government. In our constitutional system, this means the allocation of power between federal and state governments (“federalism”), and the division of powers between the federal branches: legislative, executive, and judicial (“separation of powers”). Taken together, federalism and the separation of powers comprise our basic constitutional structure.
For starters, the Federalist Papers offer a distillation of the political theory animating this basic structure. Pay close attention to how Madison describes the dynamics of power, ambition, and the purposes of institutional design. This is not a government designed to rely on or even encourage civic virtue; rather what we see here is an emphasis on politics as conflict and contestation. The task of institutional design is to contain and channel that contestation into productive ends. This idea of productive contestation is central to a particular strand of republican political thought, and a key to the basic structure. Through contestation, faction can check faction, corruption can be prevented, and ultimately government can be harnessed for the common good. We also see here a deep concern with concentrated power. A key part of the design is to diffuse political power, preventing domination by distributing power across different governmental bodies.
As Madison suggests, however, these institutional designs do not come into being simply from being put on paper. The Marshall court’s foundational rulings in Marbury and McCulloch were arguably nearly as crucial to the founding of the Constitution as the drafting itself. As the Levinson, Balkin, and Tushnet readings highlight, these foundational cases were decided not just on the basis of deep principle and reasoning, but also in the heat of the political moment, with very real partisan and power-politics debates at play. These historical backstories are vital reminders that the Founding was not some era of “pure virtuous” politics, and that constitutional law is often forged in the fires of partisan and political conflict. Indeed, this reality is one reason why Marshall’s reasoning in both of these cases are so deeply “structural”; note how Marshall’s approach to constitutional reasoning combines text, and history but focuses on the structural and long-term institutional implications of potential rulings. Marshall (like Madison) sought not only to assure checks and balances, but also to assure an effective government. That meant in turn assuring that the federal government has basic capacities to act.
This basic tension—between assuring checks and balances and accountability against arbitrary political power on the one hand, and assuring a powerful and efficacious government on the other—runs through the first half of most Con Law courses, encompassing units on the Commerce Power, federalism, and the separation of Powers. The next few sections extend these themes in context of traditional Con Law reading assignments.
Statebuilding, Congressional Power, and Crises of Social and Economic Inclusion
- Early Republic: McCulloch v. Maryland, 17 U.S. 316 (1819); Gibbons v. Ogden, 22 U.S. 1 (1824)
- Industrialization: Swift v. Tyson, 41 U.S. 1 (1842); United States v. E.C. Knight Co., 156 U.S. 1 (1895); Champion v. Ames, 188 U.S. 321 (1903); Hammer v Dagenhart, 247 U.S. 251 (1918); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922); United States v. Butler, 297 U.S. 1 (1936)
- The New Deal Revolution: NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942); Heart of Atlanta Motel Inc. United States, 379 U.S. 241 (1964)
- Modern Weakening of Commerce Power: United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000); Gonzales v. Raich, 529 U.S. 598 (2005); NFIB v Sibelius, 567 U.S. 519 (2012)
While most Constitutional Law courses begin with Marbury v. Madison and the rise of judicial review, I suggest beginning the unit on Constitutional structure with McCulloch v. Maryland instead. In general, in this unit, I like to emphasize the political and legal struggles around the construction and rise of Congressional—and specifically federal—power. The arc of this unit then emphasizes the rise of Congressional power, particularly as a response to very real economic and social challenges that required more robust governmental action to be addressed. Judicial review then reasserts itself in part as an attempt to counteract or resist this rise of Congressional power.
This is one way to understand the arc of Commerce Clause cases. In early cases like McCulloch and Gibbons, we see Chief Justice Marshall working to assert a broad federal (and legislative!) power, specifically on the grounds that the federal government’s capacity to regulate is essential to managing the modern economy. This structural reasoning presages the debates in the industrialization era to come.
In the late nineteenth to early twentieth century, the Commerce cases seem to swing wildly between constraining and enabling federal power. This reflects the pitched political and normative battles between business and reform interests. As a result, we see a growing set of attempts to regulate the modern industrial economy to protect workers, consumers, and communities against the upheavals, exploitations, and outright toxicity of modern industrial production. Cases like Swift, Shreveport or Champion highlight these reform successes. But at the same time we see the counter-pressures that drive cases in the other direction as well. As is often the case in legal and social change, these counter-pressures stemmed from a combination of interest group politics and doctrinal and ideological currents that provided footholds and favorable conceptual terrain for these political battles. Thus on the one hand, we see business interests lobbying policymakers and bringing suits to restrain this expansion of regulatory power. At the same time these efforts link up with patterns in classical legal thought where the presumption of free and equal market exchange—assuming market transactions are natural expressions of liberty and fairness and thus ought not to be interfered with—serves in effect to preserve the status quo and its existing power disparities. Thus, the Court in cases like E.C. Knight Co. or Hammer v. Dagenhart sought to limit the scope of federal regulation under the Commerce power by claiming that manufacture of goods within a state did not count as “interstate commerce”. But note that these cases were often driven by a confluence of legal reasoning (formalism) and a political economy lying behind the case: E.C. Knight Co. was an antitrust case that effectively saved the sugar monopoly from federal regulation. These struggles over industrialization, regulation, and the fight with new business interests and old legal formalisms also manifest in Fourteenth Amendment cases from around the same time, most notably the Lochner controversies. These two sets of cases are often read separately as they cover different doctrinal areas, but they were historically, politically, and conceptually interrelated.
These conflicts over economic regulation culminate in the New Deal era, as the combined pressures of the Great Depression, FDR’s new administration, and huge majorities backing Roosevelt in Congress led to a flurry of economic policymaking, constructing what we now think of as the modern administrative and regulatory state, from the Banking Acts of 1933 through the creation of regulatory bodies like the SEC and the establishment of major social insurance programs like Social Security and basic labor protections under the Wagner Act. Here too, however, doctrinal change was hard fought. The early New Deal administrative efforts were struck down by the Supreme Court, most notably in cases like Schechter Poultry Corp. and Panama Refining Co. where a strong consensus of conservatives and progressives on the Court alike sought to rein in the National Industrial Recovery Act (more on that below). After Roosevelt’s threat to “pack the court” in 1937 following reelection, the Supreme Court notably switched its approach to judicial scrutiny of economic regulation, establishing the modern doctrines of “rational basis review”—deferring to socioeconomic legislation in context of Due Process and Equal Protection challenges—and a more expansive view of the Commerce power. Thus cases like Parrish, Jones & Laughlin, Darby, Wickard, Seward, Helvering, Blaisedell, and others underscore a marked shift to judicial deference to expansive new regimes for economic regulation, labor rights, and social insurance. Through these cases, the Court validated efforts to expand the minimum wage, establish the Social Security regime and the system of federal-state cooperation on safety net programs, direct Federal regulation of labor, production, and consumer protection through the Commerce power, and the validation of federal regulation over Takings challenges. This expansive view of Commerce-based regulation is underscored further by the Heart of Atlanta case, where the Court upholds the landmark 1964 Civil Rights Act as a valid exercise of Congress’ power to regulate Interstate Commerce.
If the mid-century Commerce (and rational basis review) cases stretching from 1937-1964 represented a high-water mark of judicial deference to economic legislation, the modern era of jurisprudence starting from the 1990s onwards is marked by a series of increasingly sharp efforts to pull back against such Congressional power. First, cases like Lopez, Printz, NY v US, and Morrison reflect a Court increasingly solicitous of state interests under the Tenth Amendment, and correspondingly narrowing Congress’s power under the Commerce Clause. To some degree these doctrinal innovations reflect good faith efforts to identify meaningful limits under the Commerce power; given that Congress has, by definition, enumerated powers in Article I, it must follow that those powers have limits, otherwise the enumeration itself would have little meaning. But in the search for those limits, there is a question whether the Court has recreated formalistic limits on the ability of the Federal government to address issues of economic inequality and upheaval. Thus, Morrison and Lopez together suggest that Congress cannot pile “inference upon inference” to link “noneconomic” matters to the Commerce clause. In effect these cases stalled direct federal regulation of guns and of civil penalties for violence against women under the Violence Against Women Act (VAWA). But as the dissenting justices in both cases noted, there was significant evidence in the Congressional record linking these social problems to substantial economic effects, potentially bringing these issues within the reach of the Commerce power.
A similar tension arises in context of NFIB v. Sibelius—a headline case of the Roberts Court—which involved a challenge of the Obama Administration’s Affordable Care Act. While Sibelius was largely celebrated as a progressive victory as the ACA survived threat of judicial overturn, the reality is more complex. The Court struck down the individual mandate—the requirement that individuals buy health insurance—as an invalid use of the Commerce power, arguing that the power can only cover “activity” rather than “inactivity”. This adds a further formalistic threshold question to Morrison’s economic/noneconomic distinction—and like in Morrison, there seems to be considerable ambiguity in whether a target behavior can be construed as “activity” or “inactivity”, and what burden of empirical proof Congress labors under to overcome such judicial scrutiny. Furthermore, the Sibelius ruling on the Medicaid expansion, holding that the federal government’s incentives to states was so lopsided as to be coercive and therefore unconstitutional, adds a new complication to federal-state cooperative ventures, which since Helvering and Seward has formed a staple of safety net policy design.
Statebuilding, Separation of Powers, and the Administrative State
- The Constitutional Status of Administrative Agencies: Crowell v. Benson, 285 U.S. 22 (1932); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457 (2001)
- Interbranch Vetoes and Conflicts: INS v. Chadha, 462 U.S. 919 (1983); Bowshar v. Synar, 478 U.S. 714 (1986); Clinton v. City of New York, 524 U.S. 417 (1998)
- Additional Sources: Morton Horwitz, The Transformation of American Law: The Crisis of Legal Orthodoxy, Vol II; Daniel Ernst, Tocqueville’s Nightmare; Jon D. Michaels, Constitutional Coup; Metzger, Administrative Constitutionalism, 91 Tex. L. Rev. 1897 (2013); Gillian Metzger, 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017); William J. Novak, “The Public Utility Idea and the Origins of Modern Business Regulation,” in Corporations and American Democracy (Naomi R. Lamoreaux & William J. Novak, eds.)
Recall the discussion of checks and balances and the basic Madisonian structure of the Constitution. A key goal of constitutional law is to prevent domination—the concentration of arbitrary power—on the part of the state. The Constitution achieves this goal by fracturing political authority, creating mechanisms for checks and balances. Federalism and its attendant decentralization is one such structure. The separation of powers is another. In the Madisonian system, the three branches of government—legislative, executive, and judicial—are meant to counterbalance one another, preventing any one of these branches from usurping too much authority, and ensuring that each branch exercises its authority in ways consistent with the common good, subject to both interbranch accountability (what we may consider “horizontal accountability”) and electoral accountability (what we may consider “vertical accountability”).
In most Con Law classes, the unit on the separation of powers consists of cases highlighting the struggles to allocate power between the branches, and to prevent any one branch from “encroaching” on the domain of another. As students engage these cases, it quickly becomes clear that the Court has often struggled to police the lines between the branches. The doctrinal moves in these cases can often be difficult to follow, as the Court at times vacillates between “formalistic” approaches (deducing case results from the intrinsic qualities of the different branches, as in cases like INS v. Chadha), “functionalist” approaches (where the Court pursues results based on what promotes more effective and functional government, even if that means some bleeding of functions from one branch to another, as in cases like Mistretta).
Separation of powers units often address a number of critical issues, such as the role of the courts, presidential war powers, and the like. In this post, however, I would like to highlight one LPE-related theme in particular: the rise of the modern administrative state, and the ways in which separation of powers cases function as proxy fights for the substantive debates over economic inequality and exclusion.
Recall a central theme in basic constitutional structure is the tension between limited government on the one hand and effective government on the other, dating back to Justice Marshall’s famous cases like Marbury, McCulloch, and Gibbons v. Ogden. The rise of the administrative state has posed the same tensions between classic (and overly formalistic or limited) views of governmental power on the one hand and the emergence of new modes of governance in the face of the complexities and demands of modern capitalism on the other.
As scholars like Bill Novak have argued, the idea of expansive state power promoting the general welfare was not, in fact, a product of the New Deal, but rather rooted in deep traditions of state “police power” to promote health, safety, and public welfare. These traditions of public welfare governance evolved markedly in response to the social and economic pressures of industrialization in the nineteenth century. As the upheaval of industrialization produced new forms of concentrated corporate power—like the rise of railroads and telegraph monopolies—and the pressures of economic change created new forms of human and communal suffering from pollution to worker exploitation, those pressures drove the innovation of new modes of governance at the state and municipal level. Thus it was cities and states in the late nineteenth century who first developed public utility corporations, transparency and consumer protection laws, and the like. These innovations served as the first trial run for the 20th century experiments with a federal administrative state.
As the federal government began to experiment with new forms of economic regulation (see discussion of Commerce Power above), the formation of new federal regulatory agencies posed serious challenges to previous constitutional understandings based on a formalistic separation of powers. Regulatory agencies, nominally placed in the executive branch, nevertheless seemed to combine constitutional functions, making rules in quasi-legislative action, and enforcing rules and adjudicating disputes in quasi-judicial action. This combination of functions in administrative agencies seemed necessary to enable, manage, or mitigate the complexities of modern capitalism. Without administrative agencies, it would be difficult to maintain rules of the modern marketplace. Separation of powers cases from the early administrative era of the late nineteenth and early twentieth century—cases like Schechter Poultry Corp. or Crowell v. Benson—represent clashes between these new modes of governance and the established prior constitutional order. These tensions were gradually resolved in favor of the administrative state’s existence: just as clashes over federal legislative authority in the 1930s led to greater judicial deference to economic legislation (see above), clashes over the administrative state gave way to a more established constitutional position for administrative agencies: agencies had heads appointed by and accountable to the President (see cases like Myers), but could be structured and limited in their powers by congressional legislation, including statutes like the Administrative Procedure Act and the rise of modern administrative law, which created mechanisms of participation, transparency, and judicial review to legitimate and structure the exercise of administrative authority. As Jon Michaels has suggested, these measures created a kind of “administrative separation of powers” which assured checks and balances within the modern administrative state.
This construction and legitimation of the administrative state, however, did not mean that the contestation around administration—or the substantive battles over capitalism and inequality which helped drive the creation of these bodies—went away. Rather, as scholars like Karen Tani, Sophia Lee, and Gillian Metzger have suggested, moral battles over economic and social inclusion in a sense migrated into the administrative state. The administrative state has become central to implementing and realizing constitutional ideals of economic and social inclusion, through bureaucracies that administer welfare policies, civil rights statutes, and the like. Battles over privatization and deregulation, by contrast, represent efforts to dismantle institutions built to promote economic, social, gender, and racial inclusion.
K. Sabeel Rahman is an Assistant Professor of Law at Brooklyn Law School and President of Demos, a think-and-do tank dedicated to addressing issues of racial justice, economic inequality, and democracy.