Tuesday, July 21, 2009

What Judge Sotomayor Didn't Say about Congress's Unenumerated Powers

Judge Sotomayor offered her thoughts about congressional authority, the Tenth Amendment, and enumerated powers in this written exchange with Senator Coburn:

How do you reconcile the tension between an enumerated power, the Tenth Amendment, and the Commerce Clause?

Response:  The Interstate Commerce Clause is one of the constitutionally enumerated sources of congressional power.  Within the scope of that and other sources of federal legislative power, Congress has broad authority.  But the constitutional enumeration of federal legislative power is also a limitation: Congress has no authority to legislate except pursuant to a constitutionally enumerated source of power.  See Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C.J.) ("The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.").  This is a critical feature of our constitutional federalism.  The Tenth Amendment underscores this point by providing that "[t]he powers not delegated to the [United States] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

But Judge Sotomayor didn't say anything about another quote from McCulloch v. Maryland and the Necessary and Proper Clause:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

This quote appeared most recently in a couple of concurrences by Justice Thomas in Gonzales v. Raich (upholding the federal Controlled Substances Act over the state Compassionate Use Act, permitting the use of medical marijuana) and Sabri v. U.S. (upholding the federal bribery prohibition on the use of federal funds).

SDS

http://lawprofessors.typepad.com/conlaw/2009/07/what-judge-sotomayor-didnt-say-about-congresss-unenumerated-powers.html

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