68 Am. U. L. Rev. 927 (2019)

* Foley & Lardner-Bascom Professor of Law, University of Wisconsin Law School.  Copyright © 2018 by David S. Schwartz.  I wish to thank numerous colleagues for providing feedback on drafts of this article:  Tonya Brito, Anuj Desai, Keith Findley, Mark Graber, Alexandra Huneeus, Mark Killenbeck, Heinz Klug, Gwendolyn Leachman, John Mikhail, Robert Mikos, Yaron Nili, Asifa Quraishi-Landes, Cristina Rodriguez, Christopher Schmidt, Miriam Seifter, Brad Snyder, Mitra Sharafi, and Robert Yablon.  In addition to his helpful comments, Richard Primus suggested the catchy part of the title.  I am grateful to the participants of two faculty workshops for their tough questions and incisive comments:  the University of Arizona, James E. Rogers College of Law, Faculty Workshop, in particular Andrew Coan (who invited me), David Marcus, Toni Massaro, and Carol Rose; and the University of Denver, Sturm College of Law, Faculty Workshop, in particular Rebecca Aviel (who invited me), Bernard Chao, Roberto Corrada, Sam Kamin, Nancy Leong, and Justin Marceau.

An underspecified doctrine of implied “reserved powers of the states” has been deployed through U.S. constitutional history to prevent the full application of McCulloch v. Maryland’s concept of implied powers to the enumerated powers—in particular, the Commerce Clause.  The primary rationales for these implied limitations on implied federal powers stem from two eighteenth and nineteenth century elements of American constitutionalism. First, the inability of pre-twentieth century judges to conceptualize a workable theory of concurrent federal and state power made it seem constitutionally necessary to limit the Commerce Clause and to refrain from applying the concept of implied powers to the Commerce Clause in order to preserve a substantial scope for state regulation.  Second, because slavery so obviously fed into interstate and international trade, a robust application of implied powers to the Commerce Clause could naturally lead to a congressional power to “interfere with” the institution of slavery within the states.  Antebellum judges and political leaders saw the implied limitation of such a power as an inescapable element of the constitutional bargain.

These twin supports of the implied limitation concept have been eliminated from American constitutional law, yet the concept persists, with potentially significant consequences.  In National Federation of Independent Business v. Sebelius, the 2012 Affordable Care Act case, for example, five Justices maintained that there is an implied limitation against regulating economic “inactivity.”  The justification offered for this is an abstract concept of federalism that is largely detached from the once powerful, but now defunct, principles of constitutional politics that sustained it.