In the current issue of the Harvard Law Review, John Manning: Foreword: The Means of Constitutional Power (128 Harv. L. Rev. 1 (2014)). From the introduction:
The Supreme Court has always had a lot to say about the means used to implement the Constitution. I do not refer to headline-grabbing topics such as the freedom of speech, the right to bear arms, or the prohibition against cruel and unusual punishments. Instead, I mean the mundane but important task of constituting the government — delegating power; setting up agencies; structuring their relationship to the President; establishing rules of administrative procedure; setting up the federal courts; creating rights of action, burdens of persuasion, and statutes of limitations; instituting cooperative (or not-so-cooperative) federal-state partnerships; and the like. One might think that, by virtue of the Necessary and Proper Clause, primary responsibility for all such questions would lie at Congress’s door. But the Supreme Court, too, exercises great influence over the means of implementing constitutional power — in no small part because the Court itself establishes the rules of statutory and constitutional interpretation that structure the allocation of decisionmaking authority. Consider two examples.
First, without the benefit of any express direction from the Constitution or from federal statutes, judge-made rules of statutory construction deeply affect how federal power is carried out and by whom. In particular, such rules tell us how much authority the judiciary (or executive) has to smooth out, or even supplement, the means specified by statutory texts when the courts think a tweak or two is necessary to effectuate the purposes of legislation. Important things turn on this question — issues such as the judicial power to enforce the spirit over the letter of the law, the availability of implied rights of action, and the scope of federal preemption, just to name a few.
Second, in the exercise of Marbury-style judicial review, the Court directly passes judgment on the validity of the governmental arrangements Congress establishes. Again, since the particulars of the American doctrine of judicial review are entirely judge-made, the Court’s approach to such cases profoundly affects the distribution of power to compose the federal government. If the Court acts like a gentle Thayerian in structural constitutional cases, deferring to Congress’s judgment about the uncertain contours of principles such as federalism or the separation of powers, then Congress rather than the Court will have broad latitude to configure the government. If, however, the Court exercises independent judgment about the often open-ended reach of those principles, the Court itself will have the final say about many important questions concerning the shape of American government.
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.
This Foreword argues that the constitutional text itself favors an approach to both statutory and structural constitutional law that defers, within broad bounds, to congressional authority to determine how to implement constitutional power. In several important contexts, the Constitution grants implementation powers to Congress. These include the Necessary and Proper Clause, the Rules of Proceedings Clause, the Full Faith and Credit Clause, and the Enforcement Clauses of the Civil War Amendments and of the subsequent amendments modeled after them. This pattern is telling. It suggests that the people tasked their most immediate agent — Congress — with special powers to implement some but not other parts of the Constitution. In particular, the document gives Congress power to implement all federal powers — its own and those of the coordinate branches — but only specified federal rights.
Via Will Baude at Volokh Conspiracy, who has this response in the Harvard Law Review Forum: Sharing the Necessary and Proper Clause: The indeterminacy of deference. Here is the introduction:
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.
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.
Posted at 6:44 AM