I want to flag a new paper by Richard Primus (full disclosure–my co-clerk and friend) forthcoming in Yale Law Journal. “The Limits of Enumeration” will likely be a significant contribution to the debate on the powers of Congress that was at the heart of NFIB v. Sebelius. Here is the Abstract:
According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internal-limits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. This Article explains why setting aside the internal-limits canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.