The Supreme Court's federalism battleground has recently shifted from the Commerce Clause to two textually marginal but substantively important domains: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause.  For nearly a decade, these quieter, more structurally ambiguous federal powers – the “shadow powers” – have steadily increased in prominence.  Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power.  The invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving baseline of a narrow commerce power.  This maneuvering might be productive if it were carried out explicitly, with some discussion by the Court of the reasons for preferring to adjudicate federalism at its doctrinal and textual periphery rather than at its center.  But the result of the growth of shadow powers analysis has in fact been to obscure the outlines of federalism’s map.

This event is free and open to the public, but seating may be limited.