In Paul Clement’s merits brief on behalf of in Bond II, there are a number of citations to NFIB v. Sebelius, all for the proposition that the structural protections of our Constitution are fundamental to the protection of individual liberty. Here are the cites:
That is why “the Framers considered structural protections of freedom the most important ones,” and why “they alone were embodied in the original Constitution and not left to later amendment.” NFIB, 132 S. Ct. at 2676–77 (joint dissent) (emphasis added); see also id. at 2577– 78 (Roberts, C.J.) (“the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government”).
The statutory provisions addressed in cases such as Lopez, New York, Printz, Morrison, and NFIB were unconstitutional because they were “inconsistent with the federal structure of our Government.” New York, 505 U.S. at 177; see also, e.g., Lopez, 514 U.S. at 567 (rejecting theory of federal power that “would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated”); Printz, 521 U.S. at 935 (rejecting theory of federal power as “fundamentally incompatible with our constitutional system of dual sovereignty”). As these and other cases make clear, the cardinal canon that “[i]mpermissible interference with state sovereignty is not within the enumerated powers of the National Government” informs the scope of all federal powers. Bond, 131 S. Ct. at 2364
To the contrary, the Necessary and Proper Clause does not empower Congress to enact laws that “undermine the structure of government established by the Constitution.” NFIB, 132 S. Ct. at 2592 (Roberts, C.J.); see also Printz, 521 U.S. at 923–24 (a law that “violates the principle of state sovereignty reflected in the various constitutional provisions … is not a ‘La[w] … proper for carrying into Execution’” that power).
An unchecked power to implement treaties would amount to exactly the sort of “great substantive and independent power” that the Necessary and Proper Clause cannot supply. McCulloch v. Maryland, 17 U.S. 316, 411 (1819); see also NFIB, 132 S. Ct. at 2591–92 (Roberts, C.J.).
I was recently talking with a conlaw prof at another school, who asked whether South Texas separates constitutional law into separate classes on structure and rights. This dichotomy never made sense to me. Indeed, at GMU, the two bled into each other. Justice Kennedy made this point emphatically in his dissent, as read from the bench.
From Chapter 8 of Unprecedented, where I explore “Judgment Day”:
Everyone in the courtroom remained stunned. Totally oblivious to the commotion brewing outside the Court, the justice continued.
Kennedy paused for emphasis, then continued to read, very slowly. “Structure means liberty, for without structure, there are insufficient means to hold to account a central government that exceeds its powers in controlling the lives of its citizens. Today’s decisions should have vindicated, not ignored, these precepts. For these reasons, we would find the act invalid in its entirety.”
Kennedy was done.
Let’s see if the Court expands the intricate relationship between structure and liberty in Bond II.