At Volokh Conspiracy, Will Baude: Cases that are likely wrong as a matter of original meaning: What would you add to the list? (describing this essay (with Stephen Sachs) in the Green Bag).
Here's the Baude/Sachs list:
Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 444 (1934)
Dames & Moore v. Regan, 453 U.S. 654 (1981)
Apodaca v. Oregon, 406 U.S. 404 (1972); Williams v. Florida, 399 U.S. 78 (1970)
Griffin v. California, 380 U.S. 609 (1965)
Reynolds v. Sims, 377 U.S. 53 (1964)
Nat’l Mutual Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949)
Wickard v. Filburn, 317 U.S. 111 (1942)
Crowell v. Benson, 285 U.S. 22 (1932)
Printz v. United States, 521 U.S. 898 (1997)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
I mostly like their list (especially Dames & Moore v. Regan). In a later post, time permitting, I'll try to come up with my own top ten. For now, however, I want to question including Printz — and to a lesser extent Lujan — on the list.
In Printz v. United States, Justice Scalia wrote for the majority to hold that the federal government cannot "commandeer" state executives to enforce federal law. (That ruling is in the news now because it is an essential protection of "sanctuary cities" — but for Printz, Congress could simply order state and local police to enforce U.S. immigration laws). Scalia conceded at the outset of his opinion (perhaps unwisely) that the Constitution's text does not speak directly to the question. That does not make his opinion nonoriginalist, though — it just reflects the fact that Scalia actually was somewhat less of a textualist than people often suppose.
Printz instead rests on the proposition (what Scalia called an "essential postulate" of the Constitution's structure) that under the Constitution's original design the states were sovereign entities structurally separate from the federal government, and that recognizing a commandeering power in Congress would destroy that separation. It also rested on a related structural imperative — that recognizing a commandeering power would allow Congress to bypass the essential separation-of-powers check that it would have to rely on the President to execute its laws. (The opinion also observes that early Congresses did not use the commandeering power, even though it would have been attractive to do so, had it been thought constitutional.)
Whether these are persuasive originalist authorities may depend upon one's approach to originalist methodology. My inclination is more textualist, so I'm inclined to say they are, in themselves, insufficient. The fact that the constitutional design rests upon the idea of the states being structurally separated does not show how the framers achieved this goal; perhaps they thought the protections for federalism built into the pre-seventeenth amendment Senate would be sufficient. As Printz indicates, however, Scalia was not always insistent on a textual basis for his structural rulings (a point also suggested by his opinion in Lujan). Rather than say Printz was wrong (or at least, that it belongs on a most-obviously-wrong list), I would say it reflects differences in originalist methodology.
Further, I would add that there is a textualist case for Printz, which Scalia partly made later in the opinion in response to the dissent. I would start from the proposition that Congress must have an enumerated power to commandeer. The federal law in Printz was not in itself a regulation of interstate commerce, so it must be "necessary and proper" to the regulation of interstate commerce (in Printz, the interstate commerce in firearms). Arguably, even if it is necessary (in the soft sense of that word) it is not "proper" because it upsets the fundamental relationship between the states and the federal government. (Scalia made this argument, albeit a bit tentatively, relying on the classic article by Gary Lawson and Patricia Granger. In later opinions, notably concurring in Bond v. United States, Scalia seemed increasingly open to the idea that "proper" in the necessary and proper clause had such an independent meaning.)
This limited view of the necessary and proper clause also seems consistent with Professor Baude's description of "great powers" — that is, that the necessary and proper clause provides incidental powers to support those important powers given to Congress directly, but that it should not be read to encompass important ("great") powers that Congress would otherwise not have. I would say that the power to commandeer state executives sounds like a great power, not an incidental power. Suppose that the Constitution contained an express clause declaring "Congress may command state executives to use their resources and personnel to enforce federal law as Congress thinks appropriate" – I think this would not have gone without objection in the ratifying debates.
Finally, Mike Rappaport makes the argument [93 Nw. U. L. Rev. 819, 869-70 (1999)] that the Constitution's use of the word "state" — meaning a sovereign entity — indicates reserved power in the states that would not allow (among other things) commandeering. Taken together, these points add up to a decent textualist/originalist argument for Printz.
Baude and Sachs actually only say that they "doubt the pedigree" of the first eight cases and "maybe even" Printz (and Lujan), so it's not clear how strong their claim is meant to be. Further, it's not clear what it takes to make their list — is this list supposed to be cases that are obviously wrong under the original meaning, or only cases that might be wrong under the original meaning? If the former, I don't think Printz qualifies, for the reasons stated. If the latter, well, a lot of cases might be wrong as a matter of original meaning, depending on how one thinks original meaning should be determined and what one thinks the history actually shows. But if this is intended as a list of infamy (which is a lot more fun), I would not put Printz on it.
(Readers are encouraged to submit their nominations).
Posted at 6:13 AM