The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration

The Yale Law Journal Forum, December 22, 2014

28 Pages Posted: 24 Dec 2014

See all articles by Kurt T. Lash

Kurt T. Lash

University of Richmond School of Law

Date Written: December 23, 2014

Abstract

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority. As result, the modern Supreme Court is wrong to limit its interpretation of government power in order to maintain a distinction between “what is truly national and what is truly local.”

If we are talking about enumeration in general, then Primus is right: logic does not require that all enumerations of delegated authority exclude at least some other possible delegated authority. If we are talking about our actual Constitution, however, he is wrong. Whatever else is uncertain about the scope of delegated power, the constitutional text, reasonably interpreted, communicates that the sum of all actual delegated federal power amounts to something less than all possible delegated power. If a theory of federal power allows federal regulation of every possible subject, that theory cannot be correct. This fundamental truth about the limited scope of delegated powers of the American government is canonical for good reason: no other interpretation of the meaning of the text is reasonable. In the case of the federal Constitution, the sum of all enumerated power is less than all possible power.

Suggested Citation

Lash, Kurt T., The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration (December 23, 2014). The Yale Law Journal Forum, December 22, 2014. Available at SSRN: https://ssrn.com/abstract=2542202

Kurt T. Lash (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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