For the Symposium on Federalism as the New Nationalism

The terms of the federalism debate have recently changed, with important and potentially far-reaching consequences that have not been fully appreciated—even by the Court itself. The interpretive struggle over the meaning of American federalism has shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. To be sure, the higher-profile commerce power continues to attract an enormous amount of judicial attention and scholarly commentary. But for nearly a decade, the quieter, more structurally ambiguous federal powers listed at the head and foot of Article I have steadily increased in prominence. Today, the battles of judicial federalism are fought not across the well-trampled no-man’s-land of the commerce power or the Tenth Amendment, but in the less trafficked doctrinal redoubts of what I term the “shadow powers.” In my contribution to the Symposium, The Shadow Powers of Article I, I argue that this expansion of the battlefield carries important consequences for the meaning of modern federalism.

Beginning with Gonzales v. Raich in 2005 and continuing through United States v. Comstock, National Federation of Independent Business v. Sebelius, and United States v. Kebodeaux, the Supreme Court’s “federalism revolution” has taken on a new form. The Court’s federalism jurisprudence has shifted from its once-typical form of inquiry into the scope of Congress’s power to regulate interstate commerce, refracted through the Tenth Amendment, to become an inquiry into the transsubstantive reasons for allowing Congress to regulate at all. This transformation has been especially significant when the Court views Congress as venturing into a domain not explicitly specified in the text of Article I.

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