Debunking antinovelty. - Free Online Library (2024)

ABSTRACT

This Article debunks the idea that a federal statute's noveltyis an indication that the statute violates constitutional principles offederalism or the separation of powers. In the last six years, everyJustice on the Supreme Court has signed onto the idea that legislativenovelty signals that a statute is unconstitutional. Many courts ofappeals have also latched onto antinovelty rhetoric, two doing so in thecourse of finding federal statutes unconstitutional. The SupremeCourt's rhetoric about legislative novelty originated as anobservation: the Court described a statute as novel when distinguishingthat statute from other, constitutionally permissible ones. Since then,the Court has weaponized its rhetoric about legislative novelty suchthat a federal statute's novelty is now a "tellingindication" that the statute is unconstitutional.

This Article urges the Court to abandon this rhetoric. The ideathat legislative novelty is a sign that a statute is unconstitutionalprimarily rests on the mistaken Madisonian premise that Congressreliably exercises the full scope of its constitutional powers and thatprior Congresses' failure to enact a statute shows that priorCongresses assumed that the statute was unconstitutional. But there aremyriad reasons why Congress does not enact statutes: enacting federallaws is difficult--in part because of constitutional requirements--and

Congress legislates in response to existing conditions, whichchange over time. There are also many reasons why Congress may notinnovate and why Congress may not have enacted every constitutionallypermissible means of regulation. This Article suggests that there may bea more limited role for legislative novelty to play in areas ofunderenforced constitutional norms where courts have struggled toarticulate workable doctrinal rules. Even then, a statute's noveltyshould carry little weight in any determination about the statute'sconstitutionality. Finally, this Article reflects on whether rejectingthe Court's rhetoric about legislative novelty necessarily callsinto question the idea that a history of similar congressional statutesis evidence that a statute is constitutional.

TABLE OF CONTENTSINTRODUCTIONI. Legislative Novelty and Constitutional Interpretation A. Antinovelty Rhetoric in Constitutional Argument B. What Is Antinovelty Rhetoric?II. The (In)significance of Legislative Novelty A. Enacting Federal Laws Is Difficult 1. Constitutionally Prescribed Lawmaking Procedures 2. Congressional Procedures 3. The Legislative Function B. Noncongressional Sources of Novelty 1. Judicial Decisions 2. Precipitating Changes C. Possible Refinements: Actual Constitutional Consensus or Attractive Constitutional Powers? 1. Actual Constitutional Consensus 2. Attractive PowersIII. Actual Constitutionality, Views of Branches, and Conduct of Branches: A New Justification? A. The Constitution on Novelty and Actual Unconstitutionality 1. Text 2. Structure 3. Constitutionalism 4. Precedent 5. History 6. Congressional Practice B. Conduct and Actual Constitutionality: Comparing Congressional Action and Inaction 1. Congressional Action as a Sign of Congress's Views. 2. Congressional Action as Congressional Conduct 3. Congress's Conduct: Legislative Novelty C. Second-Best Solution: The Antinovelty Principle as a Limiting Principle 1. Arbitrary 2. Administrability 3. ViabilityIV. Rethinking NoveltyConclusion

[S]ometimes "the most telling indication of [a] severeconstitutional problem is the lack of historical precedent" forCongress's action.

--Chief Justice John Roberts (1)

[A] doubtful question [regarding] the respective powers of thosewho are equally the representatives of the people, are to be adjusted ifnot put to rest by the practice of the government. An exposition of theconstitution, deliberately established by legislative acts ought not tobe lightly disregarded.

--Chief Justice John Marshall (2)

INTRODUCTION

Change undergirds many difficult questions in constitutional law.One persistent question is how the Constitution may change--through theformal amendment process, through social movements, or through judicialdecisions. (3) Another is whether, and when, changed circ*mstancesshould alter how the Constitution is interpreted. (4)

Still another question has begun to emerge recently--whetherlegislative change, meaning a federal statute's novelty, speaks towhether that statute is constitutional. Three decades ago, the SupremeCourt began to suggest that a federal statute's novelty could beevidence that the statute exceeded the scope of Congress'sdelegated powers or violated the Tenth Amendment. When the Court in NewYork v. United States (5) held that Congress could not require statelegislatures to enact federal directives, it observed that thechallenged federal statute was different from other statutes: "The... [challenged] provision appears to be unique. No other federalstatute has been cited which offers a state government no option otherthan that of implementing legislation enacted by Congress." (6)Five years later, Printz v. United States (7) turned New York'sobservation into an affirmative reason for why a federal statutepurporting to require state executives to enforce federal law wasunconstitutional. (8) Writing for the majority, Justice Scaliamaintained that if "earlier Congresses avoided use of this highlyattractive power, we would have reason to believe that the power wasthought not to exist." (9)

Since Printz, the Court has, on several occasions, trotted out theidea that legislative novelty signals that a statute is unconstitutionalin cases regarding federalism and separation of powers. (10) Forexample, when the Court held in Free Enterprise Fund v. Public CompanyAccounting Oversight Board (11) that the Public Company AccountingOversight Board's (PCAOB) removal structure violated the separationof powers, it maintained that "the most telling indication of thesevere constitutional problem with the PCAOB is the lack of historicalprecedent for this entity." (12) And all of the opinions thatconcluded that the Affordable Care Act's (ACA) minimum-coveragerequirement exceeded Congress's power to regulate interstatecommerce reasoned that the minimum-coverage requirement's noveltywas a strong indication that it was unconstitutional--what this Articlecalls antinovelty rhetoric. (13)

The Court's rhetoric about legislative novelty is related to amore familiar issue in constitutional law: how congressional practicefactors into constitutional interpretation and, specifically, whether astatute is more likely to be constitutional because it is part of alongstanding history of similar congressional enactments. This idea issometimes associated with Chief Justice Marshall's opinion inMcCulloch v. Mary land. (14)

Professors Curtis Bradley and Trevor Morrison have since examined"the proper role of historical practice in" questions about"the distribution of authority between Congress and the executivebranch." (15) Like Chief Justice Marshall in McCulloch, Bradley andMorrison also addressed when a pattern of one branch's acts canestablish that branch's legal authority. (16)

Bradley and Morrison, as well as Chief Justice Marshall, wereconcerned with the inverse of the idea that legislative novelty signalsthat a statute is unconstitutional--when the existence of similarcongressional statutes or executive actions suggests that there isconstitutional authority to enact a certain statute or take an executiveaction. (17) They did not address when congressional inaction maysupport the claim that Congress lacks constitutional authority. (18)

The use of antinovelty rhetoric is now commonly employed by thefederal courts. Every Justice on the Supreme Court has joined an opinionpromoting the idea that legislative novelty is evidence of aconstitutional defect, and this rhetoric has appeared in at least onemajority opinion in each of the last six terms. (19) In that same time,several panels of the U.S. Court of Appeals for the D.C. Circuit, (20)as well as panels on the U.S. Courts of Appeals for the Fifth (21) andSixth Circuits, (22) have also relied on the idea that a statute'snovelty is evidence that the statute is unconstitutional, two doing soin the course of holding a federal statute unconstitutional.

Still, there is a fair amount of uncertainty about how significantlegislative novelty is to a court's ultimate conclusion that astatute is unconstitutional. Accordingly, now is the time to criticallyassess and debunk the idea that legislative novelty is a sign that astatute violates constitutional principles of federalism or theseparation of powers. This Article has three aims. (23) First, it tracesthe evolution of the idea that legislative novelty is evidence of aconstitutional infirmity, defines its contours, and spells out itsjustifications. Second, it critically assesses the Court'santinovelty rhetoric. This Article maintains that legislative novelty isnot evidence and should not be used as evidence that a statute isunconstitutional on federalism or separation-of-powers grounds. In thosecontexts, novelty should only be used to assure a judge that a rulinginvalidating a federal statute (for reasons unrelated to thestatute's novelty) will not have disastrous practical consequences.Third, it compares the rhetoric about legislative novelty with theinverse idea that a longstanding pattern of congressional statutes isevidence of those statutes' constitutionality. This Article doesnot reach a conclusion on whether that inverse principle is justified.But it shows that the reasons for rejecting the Court's antinoveltyrhetoric do not require the inverse principle to be rejected, and theremay be independently sufficient justifications for the inverseprinciple.

Before proceeding further, one caveat is in order: thisArticle's accounting of antinovelty rhetoric is limited to issuesof constitutional federalism and the separation of powers, notindividual rights. Antinovelty rhetoric has been invoked, albeit in adifferent form, in two cases concerning individual rights, Romer v.Evans (24) and United States v. Windsor. (25) Romer heldunconstitutional a Colorado state amendment that repealed municipallegislation--and barred future municipal legislation--that extendednondiscrimination protections to persons based on their sexualorientation. (26) Romer maintained that the amendment was"exceptional" (27) and "unprecedented in ourjurisprudence." (28) Romer then reasoned that "[t]he absenceof precedent ... is itself instructive" because"[d]iscriminations of an unusual character especially suggestcareful consideration to determine whether they are obnoxious to theconstitutional provision" guaranteeing equal protection of thelaws. (29) Windsor subsequently quoted this language when it held thefederal Defense of Marriage Act (DOMA) unconstitutional. (30)

There are, however, several differences between controversiesregarding individual rights and controversies regarding constitutionalstructure that may be relevant to whether the Court's antinoveltyrhetoric is justified in the two contexts. First, part of thisArticle's critique of antinovelty rhetoric in cases regardingconstitutional structure depends on how Congress functions, which hasless significance in cases involving individual rights becauseindividual-rights cases concern not only Congress, but also state andlocal governments. When a court invokes antinovelty rhetoric in casesinvolving federalism or the separation of powers, it will only searchfor similar congressional statutes. State statutes are not relevantbecause states are not subject to the constitutional federalism andseparation-of-powers limitations that apply to Congress. But the Bill ofRights and other individual-rights amendments are largely incorporatedagainst the states. Therefore, when a court asks whether there aresimilar statutes--or a lack thereof--in cases involving individualrights, the court may survey statutes enacted by state governments andtheir instrumentalities. Because state and local legislatures are notsubject to the same restrictions as Congress, several of the critiquesof antinovelty rhetoric may not apply with as much force in casesinvolving individual rights. Second, there are potentially differentjustifications for antinovelty rhetoric in cases of individual rights,such as the potential for oppression of disfavored minorities, (31) andthese other justifications require separate treatment. Third, therelevant constitutional text and structure--which this Article uses tocritique antinovelty rhetoric--treat constitutional federalism and theseparation of powers differently than individual rights. Finally, inboth doctrine and scholarship, practice-based arguments are treateddifferently in cases of individual rights versus cases of constitutionalstructure. Chief Justice Marshall, for example, cabined his statement inMcCulloch to apply only where "the great principles of liberty arenot concerned," (32) and Bradley and Morrison similarly walled off"individual rights controversies" from their analysis. (33)These differences between the two kinds of cases "are sufficient... to focus exclusively" on one set of them--those involvingquestions of constitutional structure. (34)

This Article proceeds in four parts. Part I identifies theCourt's increasing reliance on antinovelty rhetoric. Part II thenexamines the primary justification for the idea that legislative noveltyis evidence of a constitutional defect, which turns on the mistakenassumption that Congress reliably exercises the full scope of itspowers. Part III considers and rejects the idea that Congress'sinaction--through not enacting statutes--somehow makes a statuteunconstitutional and the claim that legislative novelty should be usedas evidence that a statute is unconstitutional. Part IV concludes that,at most, judges should consider a statute's novelty to ensure thatinvalidating an otherwise unconstitutional federal statute would notcall into question too many other federal statutes whose invalidationwould require a dramatic restructuring of how government functions dayto day.

I. LEGISLATIVE NOVELTY AND CONSTITUTIONAL INTERPRETATION

Legislative novelty has factored into several recent controversiesregarding constitutional structure. In the early 1990s, the SupremeCourt observed that a federal statute purporting to require statelegislatures to comply with federal directives was a fundamentally newform of legislation in the course of holding it unconstitutional. Sincethen, the Court has turned its observation about legislative noveltyinto a reason why a federal statute may violate constitutionalprinciples of separation of powers or federalism. Part I.A describes theantinovelty rhetoric which has been used in several recentcontroversies. Part I.B explains the role that antinovelty has played inthese rulings.

A. Antinovelty Rhetoric in Constitutional Argument

Several recent Supreme Court decisions have promoted the idea thatlegislative novelty is a mark against a law's constitutionality.The idea began as something of an observation in New York, whichaddressed whether Congress could require state legislatures to regulatelow-level radioactive waste according to federal directives. (35) TheCourt concluded that Congress did not possess this authority. (36)Recognizing that the Tenth Amendment did not speak to the precisequestion, (37) the Court explained that "the Framers explicitlychose a Constitution that confers upon Congress the power to regulateindividuals, not States," (38) and maintained that requiring statelegislatures to enact federal directives is inconsistent with severalvalues that federalism purportedly serves. (39) But New York also notedthe apparent novelty of the take title provision. It surmised that"[t]he take title provision is of a different character" fromother kinds of federal regulations, (40) and it observed that the"provision appears to be unique. No other federal statute has beencited which offers a state government no option other than that ofimplementing legislation enacted by Congress." (41)

Five years later, in Printz v. United States, the Court held thatCongress could not require state law enforcement officers to enforcefederal law. (42) Although New York had closed with an observation aboutthe challenged statute's novelty, the Court in Printz explicitlyframed its analysis around the idea that legislative novelty signifies aconstitutional infirmity. Again conceding that "no constitutionaltext sp[oke] to this precise question," (43) Justice Scalia framedthe issue this way:

 The Government contends ... that "the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws." ... [E]arly congressional enactments "provid[e] contemporaneous and weighty evidence of the Constitution's meaning." Indeed, such "contemporaneous legislative exposition of the Constitution ..., acquiesced in for a long term of years, fixes the construction to be given its provisions." Conversely if, as petitioners contend, earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist. (44)

Moreover, after noting that early statutes imposed federal dutieson state courts or state judges, but not state executives, (45) theCourt explained: "[T]he numerousness of these statutes, contrastedwith the utter lack of statutes imposing obligations on the States'executive (notwithstanding the attractiveness of that course toCongress), suggests an assumed absence of such power." (46) Basedon the "absence of executive-commandeering statutes in the earlyCongresses" as well as the "absence of them in our laterhistory as well, at least until very recent years," (47) the Courtsurmised, "The constitutional practice we have examined above tendsto negate the existence of the congressional power asserted here."(48)

Shortly after Printz, the Court relied on legislative novelty inAlden v. Maine (49) to justify the rule that Article I does not provideCongress with the power to subject unconsenting states to suits fordamages in state court. (50) Examining "early congressionalpractice," (51) it concluded that it had "discovered noinstance in which [early Congresses] purported to authorize suitsagainst nonconsenting States in" state court. (52) Quoting Printz,(53) the Court then surmised that "early Congresses did not believethey had the power to authorize private suits against the States intheir own courts." (54)

New York, Alden, and Printz each contained antinovelty rhetoricthat was used to identify federalism-based constraints about howCongress may regulate the states when Congress regulates in spheres thatconcededly fall within its Article I powers. The Court has subsequentlyinvoked similar antinovelty rhetoric in cases that identifyseparation-of-powers constraints on how Congress may structure federalagencies. For example, Free Enterprise Fund examined theconstitutionality of the PCAOB, which, by statute, consisted of fivemembers removable only for cause by the SEC. (55) Additionally, the SECconsisted of members who were removable only for cause by the President.The Court concluded that the PCAOB's double layer of for-causeremoval protection violated "the Constitution's separation ofpowers," (56) which requires the President to have some controlover officers executing federal law. (57) "Perhaps the most tellingindication of the severe constitutional problem with the PCAOB,"the Court maintained, "is the lack of historical precedent for thisentity." (58) The Court then stressed the PCAOB's noveltythroughout its analysis. (59)

Two years later, the Court invoked Free Enterprise Fund'santinovelty rhetoric in National Federation of Independent Business v.Sebelius (NFIB), (60) the case in which five Justices stated thatCongress lacked authority under the Commerce Clause and the Necessaryand Proper Clause to require individuals to purchase health insurance.(61) The Chief Justice's opinion, which stated that theminimum-coverage requirement exceeded Congress's powers, began withthe observation that "Congress ha[d] never attempted to rely on[its] power[s] to compel individuals not engaged in commerce to purchasean unwanted product." (62) The opinion quoted Free EnterpriseFund's antinovelty rhetoric, (63) but it also framed antinoveltyrhetoric in slightly softer terms, suggesting that "[a]t the veryleast, we should 'pause to consider the implications of theGovernment's arguments' when confronted with such newconceptions of federal power.'" (64) The jointdissent--authored by Justices Scalia, Kennedy. Thomas, and Alito--agreedwith the conclusion that the minimum-coverage requirement exceeded thescope of Congress's powers. (65) It similarly emphasized theminimum-coverage requirement's novelty, (66) and at oral argument,Justice Kennedy explained the implications of the minimum-coveragerequirement's novelty: "Assume for the moment that this isunprecedented.... If that is so, do you not have a heavy burden ofjustification?" (67)

The Court has also relied on a statute's apparent novelty tofind that it unconstitutionally infringed on the President's powerto recognize foreign states. In Zivotofsky v. Kerry, (68) whilediscussing the pertinent history, the Court observed, "'[T]hemost striking thing' about the history of recognition "is whatis absent from it: a situation like this one,' where Congress hasenacted a statute contrary to the President's formal and consideredstatement concerning recognition." (69) Based in part on the lackof analogous congressional statutes, Zivotofsky inferred that Congressdid not have the power to recognize foreign states and held that thestatute was unconstitutional.

Some antinovelty rhetoric has also appeared in cases that addressthe scope of executive power under Article II, independent of Congressenacting legislation that infringes on the President's powers.Although these cases are related to Zivotofsky, they differ for purposesof this Article's argument because they do not involve theconstitutionality of a federal statute. (70) For example, the Courtrelied on executive novelty in NLRB v. Noel Canning (71) when decidingthat the President's actions went beyond his "Power to fill upall Vacancies that may happen during the Recess of the Senate."(72)

The Court's skepticism of legislative novelty also appears incases that do not explicitly use the same kind of antinovelty rhetoric,as well as those that ultimately reject a constitutional challenge to afederal statute. One example of the former is Shelby County v. Holder,(73) which invalidated a part of the Voting Rights Act (VRA). (74) TheCourt repeatedly emphasized the novelty of the VRA provision it struckdown, describing it as "extraordinary" no less than ninetimes. (75) An example of a case where the statute'sconstitutionality was ultimately upheld notwithstanding antinoveltyrhetoric is Virginia Office for Protection and Advocacy v. Stewart(VOPA), (76) where sovereign immunity was deemed to pose no bar tofederal courts hearing suits for prospective injunctive relief broughtby independent state agencies vested with federal rights. (77) The VOPACourt quoted Free Enterprise Fund's language that a "tellingindication of [a] severe constitutional problem ... is [a] lack ofhistorical precedent"[TM] and also noted that the "weightiest][constitutional] objection" to the suits was their "relativenovelty." (79)

The federal courts of appeals have also latched onto theCourt's antinovelty rhetoric, including in cases that invalidatefederal statutes. (80) The Fifth Circuit relied on legislative noveltywhen it held en banc that a provision of the Sex Offender Registrationand Notification Act exceeded Congress's power to regulateinterstate commerce. (81) (The Supreme Court later reversed thatdecision in United States v. Kebodeaux,82 without saying anything aboutthe statute's novelty. (83)) The Fifth Circuit framed its analysisby saying that Printz had indicated that "a longstanding history ofrelated federal action ... expands the deference afforded to a statute.Conversely, the absence of an historical analog reduces thatdeference." (84) The D.C. Circuit also relied on the Court'santinovelty rhetoric in finding a provision of the Passenger RailInvestment and Improvement Act of 2008 unconstitutional. (85) The courtmaintained that "novelty ... signal[s] unconstitutionality"(86) and that the lack of an "antecedent" is a "reason tosuspect" that a law is unconstitutional. (87) (The Supreme Courtvacated this decision on other grounds. (88)) Finally, and mostrecently, the D.C. Circuit relied on the Court's antinoveltyrhetoric when holding a statutory provision establishing the structureof the Consumer Financial Protection Bureau (CFPB) to beunconstitutional. (89) The opinion is littered with references to thestatute's purported novelty and how the statute's noveltymattered to the court's analysis and conclusion. (90)

B. What Is Antinovelty Rhetoric?

Reliance on legislative novelty is not a consistent theme injudicial decisions--far from it. (91) The Supreme Court has upheldstatutes that are novel without so much as mentioning the statutes'novelty. (92) And it has included antinovelty rhetoric in decisionsupholding statutes without any explanation for why the statute'snovelty did not make the statute unconstitutional. (93) Part I. A showsonly that antinovelty rhetoric exists and that it has been invokedrepeatedly in recent times. This Part tries to parse what exactlyantinovelty rhetoric is by posing two questions. First, when do courtsinvoke antinovelty rhetoric? Second, what is the effect of theantinovelty rhetoric? Does it help resolve the cases in which it isinvoked? Does it further other projects in constitutional law? Does itshape the outcomes in future cases?

It is difficult to say when exactly legislative novelty affects theresolution of a question concerning principles of federalism orseparation of powers, or even when the Court will employ antinoveltyrhetoric. Legislative novelty might matter in a case if the Court adoptsantinovelty rhetoric and determines that a federal statute isunconstitutional. These cases have often divided along ideologicallines, at least in recent times (meaning that Justice Kennedy is in themajority with either the four more liberal Justices or the four moreconservative Justices). (94) They have also tended to be higher-profilecases--for example, NFIB and Zivotofsky--rather than those wherelegislative novelty apparently did not matter--for example, when theCourt invoked antinovelty rhetoric but held that the statute wasconstitutional (VOPA) or when the majority did not mention legislativenovelty but the dissenters or the lower court did (Bank Markazi v.Peterson (95) or Kebodeaux). But the cases where legislative novelty has"mattered" have not necessarily been high-profile cases to ageneral public audience (such as New York or Alden), even if they weresignificant federalism and separation-of-powers cases to the communityof lawyers who care about such issues.

The Court's antinovelty rhetoric, moreover, implies thatlegislative novelty matters in its analysis. (96) But it is unclearwhether the Court uses novelty as a "factor" in its analysisor as an on-off switch that adjusts whether a statute is presumedconstitutional or presumed unconstitutional. Sometimes legislativenovelty appears to be a factor that is weighed together with otherfactors, such as the constitutional text or doctrine: a novelty scorefactors into the Court's overall assessment of whether a law isconstitutional or not. (97) The Court in Alden, for example, used ananalysis that appeared to be shaped by a combined assessment of text,structure, nonoriginalist and originalist history, and precedent. TheCourt conceded that "the sovereign immunity of the States neitherderives from, nor is limited by, the terms of the EleventhAmendment," (98) but it maintained that the"Constitution's structure, its history, and the authoritativeinterpretations by this Court make clear" that states are immunefrom suits for damages. (99) In other words, Alden suggested that thesearguments in combination generate a constitutional rule. Zivotofsky issimilar to Alden in this respect. (100)

But other times--including in these same cases (101)--legislativenovelty appears to function more like an on-off switch that adjustswhether a statute is presumed constitutional (if the statute is notnovel) or presumed unconstitutional (if it is). The entire analysis inPrintz about whether federal commandeering of state executive officerswas consistent with federalism was structured under the framework ofantinovelty--if "earlier Congresses avoided use of this highlyattractive power, we would have reason to believe that the power wasthought not to exist." (102) The Chief Justice's opinion inNFIB was similar: the opinion deployed antinovelty rhetoric beforeproceeding to refute the government's explanations for why theminimum-coverage requirement was constitutional. (103) Professor NealKatyal and Thomas Schmidt have argued that "the basic structure ofthe Chief Justice's opinion" in NFIB reveals an especiallyhigh level of scrutiny of the government's arguments for why theindividual mandate was constitutional. (104) The Chief Justice began hisanalysis by stating the Government's theories for why the mandatewas constitutional before refuting them, thus putting the "burdenof establishing the constitutionality of the law" on theGovernment. (105) Therefore, at a minimum, courts may be relying onantinovelty rhetoric to excuse themselves from the kind of reasoning orevidence of unconstitutionality one might expect in cases declaringfederal statutes unconstitutional.

But are courts deploying antinovelty rhetoric in service of aconclusion that they have already reached? That antinovelty rhetoricappears in ideologically divided, higher-profile cases arguably suggeststhat legislative novelty itself might not factor significantly in theresolution of cases. Courts may instead deploy antinovelty rhetoric inservice of another project, and there are at least two theories thatantinovelty rhetoric might further--originalism and antiprogressivism.Although it is difficult to identify one definition of originalism,(106) antinovelty may be related to originalism in that both ideas placea premium on the past, specifically what the Framers thought theConstitution meant. But the Court's general antinovelty rhetoric isnot a particularly good indicator of assumptions about theConstitution's original meaning. (107) Antinovelty rhetoric is alsoconcerned with congressional practice during a period of time thatextends well beyond the period during which the Constitution was draftedand ratified. What Congress did several decades after the Constitutionwas ratified is relevant to antinovelty rhetoric but less relevant toascertaining the Constitution's original meaning. Additionally,what Congress did by enacting statutes--that is, governing--may bequalitatively different than enacting the Constitution--that is,creating the government.

The Court's antinovelty rhetoric is probably more related toan agenda of scaling back the federal government's authority. Whenthe Court has used antinovelty rhetoric to invalidate a statute, it hasfrequently discounted recently enacted statutes as "notrelevant," instead focusing on whether the statute is similar tostatutes enacted in the early 1800s. (108) In addition, the challenge tothe ACA's minimum-coverage requirement in NFIB looked, to somescholars, like a renewed challenge to the scope of federal legislativepower--specifically, one that sought to roll back the expansion ofcongressional power that occurred during the New Deal. (109) Otherscholars have observed a similar trend in recent administrative lawcases--a libertarian-infused skepticism of federal administrativeregulation that rejects the twentieth-century expansion of theadministrative state. (110) Here too antinovelty rhetoric is a way tochallenge federal regulation because it raises questions about theproper authority of the administrative state, which expandedsignificantly in the 1930s. (111) So antinovelty rhetoric might be a wayto retreat from the kind of federal social and economic regulation thatbecame common after the 1930s by only sanctioning already-enactedstatutes and regulations. One defender of the Court's antinoveltyrhetoric. Professor Randy Barnett, has formulated it in these terms.(112)

Not all of the Justices who have signed opinions with antinoveltyrhetoric have wanted to roll back the expansion of federal power thatoccurred during the New Deal or make constitutional interpretation alignmore closely with the Constitution's original meaning. (113)Knowing that antinovelty rhetoric might be a means to further thoseprojects--particularly a challenge to much of federal social andeconomic regulation--may and should give them pause.

Ultimately, however, whether one sees antinovelty rhetoric as anindependent principle of constitutional interpretation or as a tool ofanother project in constitutional law is less relevant to this Articlethan the mere existence of antinovelty rhetoric. The Court'srepeated invocations of antinovelty rhetoric--coupled with itssuggestion that legislative novelty matters--will continue to generatelitigation and sometimes result in the invalidation of statutes,assuming the rhetoric is not rejected. A comparison of the briefs inPrintz and NFIB is instructive: only one of the two principal openingbriefs in Printz mentioned the statute's purported novelty and itdid so only once, (114) whereas the opening brief for the staterespondents in NFIB used the word "unprecedented" twenty-onetimes. (115) Recently, in PHH Corp. v. Consumer Financial ProtectionBureau, (116) the D.C. Circuit relied on the Supreme Court'santinovelty rhetoric, while adding its own variations, to find thestatute establishing the structure of the CFPB unconstitutional. (117)

II. THE (IN)SIGNIFICANCE OF LEGISLATIVE NOVELTY

Part II analyzes whether legislative novelty should serve asevidence that a federal statute violates constitutional principles offederalism or separation of powers. It does so by unpacking andassessing the primary justification that has been offered forantinovelty rhetoric, which is that legislative novelty suggests thatprevious Congresses assumed similar legislation was unconstitutional.(118) Some more recent cases, such as Free Enterprise Fund, have offeredwhat may be a slightly different formulation. That formulation isexamined Parts III.C.

The idea that legislative novelty suggests that prior Congressesbelieved that similar legislation was unconstitutional is premised onthe notion that if Congress possessed a particular power, it would haveexercised it. The assumption that the legislature exercises the fullscope of its powers is related to a conception of government that JamesMadison articulated in Federalist 51. According to Madison, theofficials in each branch of government would aggressively exercise thefull set of constitutional powers they possessed such that each branchwould check the other--"[a]mbition must be made to counteractambition." (119) Professor Daryl Levinson has illustrated how thisaccount of government pervades both theory and doctrine regardingfederalism and the separation of powers. (120) He has also shown how theassumptions underlying this account of government are seriously"flawed with respect to ... Congress." (121)

Drawing from Levinson's and others' critiques, this Partexplains why legislative novelty will rarely reflect priorCongresses' assumption that a statute was unconstitutional. As PartII.A explains, enacting federal laws is difficult, and the nature of thelegislative process requires Congress to select from among manydifferent priorities and make compromises. Moreover, as Part II.Bexplains, congressional inaction and legislative novelty may arise forother reasons as well. Judicial decisions may make some legislativechoices more attractive than others, different areas of federalregulation may be better suited to different forms of regulation, andnew factual or legal developments may change reasonable people'sassessments about how to accommodate the pertinent constitutionalvalues. Part II.C then rejects potential limitations on the Court'santinovelty rhetoric that may promise to better identify those statutesthat prior Congresses assumed were unconstitutional.

Antinovelty rhetoric relies on legislative novelty to infer thatCongress assumed that a statute was unconstitutional. But this inferenceis misguided. Each year, thousands of bills are introduced in the Houseand Senate, but only a small fraction pass. (122) And for the lastthirty years, Congress has passed between 1 and 7 percent of all billsintroduced. (123) In the 113th Congress, for example, there were over5,500 bills introduced in the House and over 3,000 in the Senate. (124)Yet only eighty-six bills became law. (123) It seems strange to assumethat Congress had serious constitutional doubts about all of the billsthat never became law (over five thousand). The same goes for the billsthat were never even introduced--Congress probably did not assume thatall of those bills were unconstitutional either. Yet the Court has shownno regard for whether Congress even considered a statute, much lesswhether it was constitutional. In Alden, for example, the Court heldthat Congress lacked the power to subject unconsenting states to suitsfor damages in state court, relying in part on historical materials thatdid not mention bills Congress had introduced that would have doneexactly that. (126)

A. Enacting Federal Laws Is Difficult

Numerous institutional forces make enacting federal laws difficultand reduce Congress's incentives and ability to innovate, includingthe Constitution's requirements for Congress to make law,congressional procedures, and the nature of the legislative function.

1. Constitutionally Prescribed Lawmaking Procedures. TheConstitution requires a set of cumbersome procedures to enact federallaw. (127) Article I, Section 7 requires that all federal legislation gothrough the process of bicameralism and presentment. (128) To becomelaw, a bill must pass both houses of Congress; be presented to thePresident for her approval; and, if vetoed, have the consent oftwo-thirds of both the House and the Senate.

Inherent to this process are three features, all of which make ithard to enact federal law. First, the Senate, the House, and thePresident are three different institutions. A majority of persons in anyone of those institutions--potentially a minority of lawmakers--couldprohibit a bill from becoming a law. (129) The process of"[bicameralism and presentment ... disclose[s] an unmistakableemphasis--to give minorities, in general ... exceptional power to blocklegislation as a means of defense against self-interestedmajorities." (130) Second, the Senate, the House, and the Presidentanswer to different constituencies, further increasing the possibilitythat these institutions will disagree with one another with respect toany given federal law. (131) Third, both the Senate and the House arecollective bodies composed of individuals. The Senate has 100 members,and the House has 435. The sheer size and diversity of the House and theSenate thus make coordinated action difficult. (132) "Congress is aplural body" and "faces substantial collective actionproblems." (133)

The cumbersome nature of the lawmaking process was recognized bythe men who drafted the Constitution. (134) Madison describedbicameralism and presentment as a "complicated check onlegislation" that "may in some instances be injurious as wellas beneficial." (135) Indeed, Madison objected to giving all statesequal representation in the Senate precisely because it would enable"the minority [to] negative the will of the majority." (136)Hamilton too explained that bicameralism and presentment"include[d] [the power] of preventing good [laws]." (137)

2. Congressional Procedures. Under Article I, Section 5. Congressalso has the power to prescribe internal rules governing the lawmakingprocess. (138) The rules that Congress has made add another set ofencumbrances to the lawmaking process. A series of "vetogates"--opportunities for a minority of legislators to vetolegislation--make it more difficult to enact federal law. (139) Forexample:

 In each house of Congress, a subcommittee and a full committee have "gatekeeping" rights in that a bill normally cannot be considered by the entire legislative body until it has been approved in committee. Then, legislation must be given a position on the legislative calendar and often must secure a special rule restricting debate or amendments (or both) from the Rules Committee.... (140)

The committee process in particular means that a committee chairhas the power to schedule hearings, votes, and markup sessions, suchthat "if the chair opposes the bill, believes more study is needed... or is pessimistic ... that the bill has sufficient political support... the bill will die in committee." (141) "This is the fateof ninety percent of the bills introduced in each session ofCongress." (142) Senators can also use filibusters or holds toblock bills. (143) "[A] maze of obstacles stands in the way of eachcongressional decision," and "[e]very single veto point mustbe overcome if Congress is to act." (144)

3. The Legislative Function. Various features inherent to thelegislative process also make enacting federal laws difficult. First,legislatures have a finite amount of time and resources to address avast number of subjects. (145) Congress is not always in session, andwhen it is, it has a limited set of resources--committee staff, researchservices, political capital, and others--to invest in the many steps ittakes for a bill to become law. "Often proposals with wide supportfail ... because the legislature [simply] lacks the time to enactthem." (146) Some measures may "have a stronger claim on thelimited time and energy of the [legislative] body." (147)

Second, beyond a lack of time and resources, there are many otherreasons for legislators not to enact a law, including ordinary politics.(148) Legislators may believe that a "bill is sound in principlebut politically inexpedient to be connected with." (149) Orlegislators may believe that "action should be withheld until theproblem can be attacked on a broader front." (150) Politicalscience scholarship has identified reelection as a significantmotivation for many members of Congress, (151) and legislators motivatedby reelection have incentives to follow the wishes of theirconstituents, "who are concerned more with specific policy outcomes[rather] than congressional power." (152)

Political scientists have offered other explanations for whyregulatory legislation may fail to pass at any given time. As ProfessorsJody Freeman and David Spence explain, "Rational choice models ...conceive of the legislative process as the product of pressure exertedby interest groups" who "may be able to use their advantagesto kill or forestall regulatory legislation," whereas"organization theorists conceive of the policy process as far moreanarchic--the product of inertia, luck, and other forces." (153)Although any one of these theories cannot model congressional behaviorall of the time, the theories probably explain Congress's behaviorat least some of the time. And they provide reasons why Congresssometimes may not enact a bill even if it does not assume that bill isunconstitutional.

Third, the compromises that go into lawmaking may sometimesminimize the number and scope of federal laws that are enacted.Textualists have emphasized "behind-the-scenes legislativecompromise[s]" that are part of lawmaking. (154) Sometimes, thebrokered compromise may be to not enact any federal law. Lawmakers makedeals to support one piece of legislation at the expense of another:"Often proposals with wide support fail ... because ... agreed-onbills become pawns in larger struggles." (155) Other times, acompromise may affect the shape that a federal statute takes, which mayresult in a federal law that is more limited in scope than theConstitution permits. (156)

The Court's antinovelty rhetoric assumes that Congress willalways seek to exercise the full scope of its constitutional powers. Butthat assumption does not properly consider how Congress is structured orhow it actually works. Congress's inaction is, at best, a weakproxy for Congress's assumption that a federal statute isunconstitutional. As Justice Scalia wrote:

 [O]ne must ignore rudimentary principles of political science to draw any conclusions regarding [congressional] intent from the failure to enact legislation. The "complicated check on legislation" erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice. (157)

B. Noncongressional Sources of Novelty

The previous section described how legislative novelty sometimesresults from reasons inherent to the federal legislative process. Thissection outlines noncongressional sources of novelty--additional reasonswhy Congress may not enact statutes aside from thinking that thosestatutes are unconstitutional.

1. Judicial Decisions. Judicial interpretations of the Constitutionmay affect how Congress legislates. Given the amount of resources andtime required to enact a federal statute. Congress may attempt to enactstatutes that are likely to be upheld. Accordingly, judicialdecisions--specifically, what federal judges have said about whatstatutes might be unconstitutional--may incentivize Congress to avoidenacting federal statutes that test the limits of its constitutionalpowers. (158)

Consider, for example, the legislative history of the 2006reauthorization of the VRA. Originally enacted in 1965, the VRA requirednine states to preclear any changes to their voting laws. (159) Between1965 and 2006, the VRA had been upheld on three occasions. (160) Sincethose decisions, however, the Court announced a more rigorous form ofscrutiny applicable to legislation that was enacted under the FourteenthAmendment. (161) Congress, in deciding how to reauthorize the VRA,elected to stick with a version of the preclearance regime that hadpreviously been upheld. Testimony in congressional hearings andcongressional debates reflected the focus on reauthorizing a version ofthe VRA that would be upheld in court. (162) As Professor NathanielPersily explained, "Even though the shortcomings ... were widelyrecognized, tinkering with its basic architecture was ...constitutionally risky. Better to stick with a law that the Court hadpreviously upheld ... rather than gamble on a regime without staredecisis." (163)

Commandeering may be another example of how statutes sometimesreflect Congress's reticence to test judges' interpretationsof the Constitution, rather than reflecting Congress's ownassumptions about the Constitution. In Printz, the Court reasoned thatCongress's history of not requiring states to enforce federal lawssignaled Congress's assumption that it lacked the power to do so.(164) But the lack of analogous statutes instead might have reflectedCongress's concern that the Court would invalidate a statuterequiring states to enforce federal law. In an 1842 decision, Prigg v.Pennsylvania, (165) the Court held that the Fugitive Slave Act was aconstitutional exercise of Congress's powers under the FugitiveSlave Clause. (166) Prigg, however, suggested the statute would haveexceeded Congress's powers if it had pressed state executives intoimplementing federal law: "The states cannot... be compelled toenforce" federal law, "and it might well be deemed anunconstitutional exercise ... to insist that the states are bound toprovide means to carry into effect the duties of the nationalgovernment." (167) During this time period, the Supreme Court alsoconsidered the possibility that Congress could not impress statejudicial officers into service, (168) but it rejected that idea in theearly 1900s. (169) The Court's suggestion that Congress could notcommandeer state executive officers--a suggestion that went unchallengedin Supreme Court opinions for over a century--may partially explain thegreater number of federal statutes commandeering state judges than stateexecutive officers.

The Reconstruction Amendments are another example of how judicialdecisions may limit Congress's incentives to test the limits of itsconstitutional powers, especially when there are other, judiciallysanctioned means of pursuing Congress's desired goal. In 1883, inThe Civil Rights Cases, (170) the Court held that the ReconstructionAmendments did not provide Congress with the power to prohibit racialdiscrimination in private establishments. (171) Congress did not attemptto reenact any laws prohibiting racial discrimination by privateentities for several decades, (172) but when the civil rights movementgained traction in the 1960s, The Civil Rights Cases remained on thebooks. But in a series of 1940s decisions, the Supreme Court held thatCongress could pass laws under its Commerce Clause authority regulatingeven purely intrastate commerce and that the Court would not inquireinto Congress's "motives" in enacting such legislation.(173) Relying on these decisions, the Supreme Court upheld congressionallegislation prohibiting racial discrimination by private entities underthe Commerce Clause. (174) It would be strange to think that these casesdid not affect the way in which federal antidiscrimination legislationwas enacted. The doctrine has evolved in such a way that Congress haslittle incentive to challenge the proposition that it cannot prohibitracial discrimination by private entities under the ReconstructionAmendments, because it can enact such legislation under the CommerceClause.

2. Precipitating Changes. Congress also enacts new statutes becauseof changing conditions that did not previously exist. Congress enactslaws in response to existing conditions, and Congress now regulates inmore domains than it did one hundred or two hundred years ago. Variousfacts about the world have changed, such as the interconnectedness ofthe economy and the formation of political parties, and the federalbureaucracy is now more substantial in size and authority. In light ofthese changes, the absence of a federal statute may reflect nothing morethan Congress's belief that a particular kind of law was not neededor even its members' lack of imagination.

a. New or Changed Facts. One reason why Congress may not havepreviously enacted similar statutes is that new or changed facts havebrought a new issue to Congress's attention or changed the need forlegislation. Garcia v. San Antonio Metropolitan Transit Authority (175)addressed whether Congress may apply the federal minimum-wagerequirement to state and local government employees. (176) In the late1980s and early 1990s, when the Court decided Garcia, state and localgovernment employees constituted around 12 to 13 percent of the civilianworkforce. (177) A century earlier, however, governmentemployees--local, state, and federal--constituted less than 1 percent ofthe national workforce. (178) Even in 1900, these government employeesconstituted only 4 percent of the national workforce, and in 1930, stateand local employees constituted less than 6 percent of the nationalworkforce. (179) As state and local employees became an increasinglysignificant portion of the workforce, federal employee regulation beganto cover state and local employees. State and local employees were nolonger "small pockets of isolated workers whose conditions d[id]not affect interstate commerce." (180)

b. Changed Assessment of Facts. Apart from whether the underlyingfacts have actually changed, Congress's assessment of the facts mayhave changed. Take federal commandeering of state executive officers.The Court in Printz relied on the lack of historical evidence toconclude that Congress assumed it lacked the power to impress stateofficers into federal service. But "[v]arious Framers (includingHamilton) commented that the coercion of states would likely proveimpractical or ineffective at best and dangerous because divisive atworst." (181) Hamilton, for example, worried that stateadministration of federal law "wjould] in a great measure fail inthe execution." (182) Decisionmakers two hundred years ago may nothave required states to execute federal law because they did not believethe states could adequately execute it.

c. New Areas for Regulation. Some novel statutes may also arisebecause Congress controls more regulatory spheres today than it did onehundred or two hundred years ago. New industries have emerged, and someolder industries were not always regulated at the federal level. To takejust a few examples, nuclear weapons, the Internet, telephones,genetically modified food, and driverless cars (or even just cars) didnot exist in the first fifty years of the United States. Before thesetechnologies and their associated industries existed, Congress could notregulate them. Congress also now regulates in industries or domains thathave long existed but have not always been regulated at the federallevel. Before the 1900s, Congress did not regulate much intrastateeconomic activity under the Commerce Clause. (183) But today Congressregulates home-grown drugs, (184) small places of public accommodations,(185) loan sharking, (186) and insurance. (187) Indeed, some maintainthere is now no sphere of authority in which Congress may not reachunder its commerce power or another one of its delegated powers. (188)

Changed facts present a clear example of why antinovelty rhetoricshould not apply when the novel legislation deals with a new area ofregulation. If particular areas of regulation--the Internet, nuclearweapons, or certain pollutants--did not exist, then of course the factthat Congress did not regulate those areas before their existence shouldnot mean that Congress lacks the power to regulate. Changed factsarguably pose less of an issue for the antinovelty principle in casesinvolving new forms of congressional legislation. New facts may notsupport the claim that Congress can now exercise its powers in ways itpreviously did not, even if new facts may support the claim thatCongress can exercise its powers in previously unregulated areas.

But changed facts cause Congress to exercise its powers in newways, in part because new facts generate new areas of regulation, andnew areas of regulation may require new forms of regulation. Theindustries and activities that Congress regulates today differ inimportant ways, so they present different regulatory issues than thosethat Congress faced in 1800. And new regulatory forms may not have beensuited to the areas in which Congress previously regulated. For example,in the late 1700s and early 1800s, Congress regulated the production andconsumption of salt (189) and "snuff and refined sugar"through import duties. (190) That may have been the best regulatory toolfor salt and sugar, but the regulation of salt and sugar poses differentissues than the regulation of driverless cars, telephones, loansharking, and the provision of public accommodations.

d. New Policy Goal. Within any given area of regulation, there arepotentially infinite policy goals to pursue, and different policies maycall for different regulatory tools. That a regulation is new,therefore, may reflect that Congress has not elected to pursue aparticular policy goal within an area in which it has long regulated.Take, for example, federal housing law, which addresses myriadregulatory goals. Some federal laws attempt to remedy unsafe housingconditions. (191) Others try to expand the number of homes available toNative American families, (192) and still others prohibit discriminationin the sale, rental, or provision of housing related services. (193) AndCongress has elected to pursue these different goals using differentmeans. For example, as part of an effort to reduce lead-based paint,Congress directed the Environmental Protection Agency (EPA) toincorporate the need to reduce lead-based paint hazards intounderwriting, insurance, and mortgage appraisals. (194) The programproviding housing assistance for Native Americans, by contrast, requiresconsultation with Native American tribes before granting funds andapproving plans created by eligible housing authorities. (195) As partof its policy to ban housing discrimination, Congress funded aneducation initiative as well as private programs to investigate and testcompliance with the law. (196) As these examples indicate, differentregulatory tools are appropriate for different policies. The mere factthat Congress has regulated a particular area, such as housing, does notmean that it has exhausted the full set of regulatory options availablewithin that sphere. As Congress's regulatory priorities and goalschange, so too will its choice of regulatory tools. And given the sheernumber of policies that it could conceivably pursue, Congress may nothave tried out all forms of constitutionally permissible regulation.

e. New Forms of Regulation. New forms of congressional regulationmay themselves result in additional kinds of statutory novelty. A newform of regulation may lead to a new kind of enforcement proceedingbecoming available by statute. Consider federal regulation of stategovernments: federal regulations began to impose obligations on statesas employers and created opportunities for individuals to enforcefederal statutory obligations against states. A new kind of federalregulation thus generated a different kind of federal enforcementproceeding: suits for damages for violations of federal law against thestates.

Cooperative-federalism programs, in which Congress works withstates in some fashion, provide another example of how new kinds offederal regulations may generate new kinds of enforcement proceedings.(197) Cooperative-federalism programs differ from one another in severalways. They impose myriad conditions on state and local governments foraccepting federal funds, and they use a variety of incentives andmechanisms to encourage states to regulate in accordance with federalgoals. (198) The sheer variety of conditions in these programs generatesmany different possible federal enforcement mechanisms. The Court inVOPA acknowledged this when it held that an independent state agencyvested with federal rights could sue other state officials forprospective injunctive relief. Dismissing the idea that the suit'snovelty indicated that the suit was not constitutionally permissible,the Court explained the requirements for such a suit to arise:

 [A] state agency needs two things: first, a federal right that it possesses against its parent state; and second, authority to sue other state officials to enforce that right.... These conditions will rarely coincide.... Thus, the apparent novelty of this sort of suit does not at all suggest its unconstitutionality. (199)

New forms of regulation may also generate new kinds of ancillaryregulations. Sometimes Congress enacts a regulatory scheme with mutuallyreinforcing provisions or provisions designed to address effects causedby other statutory provisions. In United States v. Comstock, (200) forexample, the Court explained that federal criminal prohibitions maygenerate other, ancillary regulations, including establishing federalprisons and regulating those prisons to ensure "the safety of theprisoners, prison workers and visitors, and those in surroundingcommunities." (201)

f. Changed Accommodation of Constitutional Values. Novelty may alsobe the result of Congress's changed assessment of the relevantconstitutional values. Congress may accommodate constitutional valueslike state autonomy in different ways. (202) Congress may promote stateautonomy by not legislating at all: if Congress does not enact federallaw, the states can make policy and realize the goals of state autonomy,such as better-informed local decisionmakers, regulatory diversity, andopportunity for local political engagement. (203) But Congress may alsopreserve state autonomy by allowing states to implement federal law, bypartnering federal agencies with state counterparts to administerfederal law, or by offering states money to achieve regulatory goals.(204)

Relatedly, the contours of state autonomy and the separation ofpowers are susceptible to change because there are competingconstitutional values for Congress to reconcile with state autonomy andthe separation of powers. State autonomy is one constitutional value,but so is national supremacy. (205) Similarly, the separation of powersis one constitutional value, but so is the idea of checks and balancesamong the different branches of government. (206) Congress may,therefore, strike the balance between these cross-cutting values indifferent places at different points in time. When it has struck thebalance at any particular point in the past thus may not reveal everypossible permissible balancing of those constitutional values.

Finally, new or changed features of government may also offer newways of realizing constitutional values. For example, the advent ofpolitical parties has provided a new vehicle for realizing stateautonomy as well as the separation of powers. "Today'spolarized parties furnish" an additional means for how and"why states would check the federal government." (207) Andalthough the advent of political parties may have eliminated some meansfor realizing the separation of powers, it has offered other ways ofdoing so. (208)

g. Lawmaking Processes. The participants in the lawmaking processhave also changed. Congress is accountable to more groups today than itwas 150 or 200 years ago--the electorate now includes different agegroups, (209) women, (210) African Americans, (211) and other groups whodid not previously vote in federal elections. Congress also now enactsstatutes to regulate alongside administrative agencies that exercisedelegated lawmaking authority from Congress. (212) There are alsoincreasingly polarized political parties. (213) "[U]northodoxdrafters outside of government" may generate new ideas for federallaws. (214) New participants in the lawmaking process may also providenew possibilities for whom Congress may select to implement federal law,leading to new kinds or forms of regulation as new entities are chargedwith implementing federal law.

Another aspect of the lawmaking process that has changed is theways in which laws are made. It was initially expected that the Senatewould spend significant amounts of time in recess and that Congressmight not meet every year. (215) The first ten Senate sessions lastedapproximately seven or eight months. (216) It was not until the late1880s that Congress had a session that exceeded three hundred days.(217) The Senate's "first serious controvers[y] over'obstructive' uses of debate"--precursors to thefilibuster--"occurred ... [in] the 1820s." (218) The Senatedid not "establish a right of unlimited debate until 1856,"(219) and Congress did not develop a system of committees specialized insubject matter until the mid-1800s. Before that, there were twoCommittees of the Whole. (220)

In part because of political polarization, the lawmakingprocess--least when it results in the enactment of federal laws--hasbegun to move away from the labyrinth of committees that were oncethought of as hallmarks of the legislative process. "[I]n the firstyear of the 112th Congress, fewer than 10% of enacted laws proceededthrough the 'textbook' legislative process." (221)Indeed, the lawmaking process has changed so much that some scholarshave observed "that the Schoolhouse Rock! cartoon version of theconventional legislative process is dead." (222) For example,"legislative bundling through omnibus vehicles has increaseddramatically ... omnibus packages have made up about 12% of majorlegislation." (223)

The recent uptick in political polarization, coupled with these newlawmaking procedures, has generated new forms of legislation. Politicalpolarization sometimes means that parties are unable to come to anyagreement and enact federal law. (224) But political polarization alsoresults in different kinds of laws than ones that were produced in lesspolarized times. "In the rare political moments where Congressproduces legislation, the legislation tends to be sprawling and, atleast according to some, ill-conceived or even 'incoherent'--atrend toward what one recent article calls'hyper-legislation.'" (225) Different kinds of agencyauthority may be appealing to Congress in times of gridlock, such as"administrative forbearance authority--by which Congress grantsagencies the express power to deprive the laws it passes of legal forceand effect." (226) Polarization may also lead Congress to make newor additional delegations to states: "Particularly in times ofdivided government, some members of Congress might trust theirhome-state counterparts more than the administrative appointees of thePresident to fill in the interstices of new federal programs."(227)

h. Areas Versus Means? Perhaps antinovelty rhetoric is moreappealing when invoked in cases addressing new forms of regulation,rather than new areas of regulation. It may seem obvious to infer thatif new facts develop, then Congress's failure to regulate in thatarea does not and should not mean that Congress lacks the constitutionalauthority to regulate. Similarly, perhaps new facts do not support theclaim that Congress can now exercise its powers in new ways. Even then,the other reasons why lack of constitutional authority does not followfrom Congress not enacting a statute may also suggest thatCongress's failure to enact a statute does not reflect itsassumption that it lacks the constitutional power to enact that kind ofregulation. Bicameralism and presentment, together with Congress'sown rules about its procedures, make enacting federal law difficult andincrease Congress's incentive to enact minimal, low-risk statutesthat do not risk other lawmakers' opposition, such as enactingstatutes that resemble prior statutes. Enacting federal statutes thatuse the same form or means of regulation is a way of trying to ensurethat those statutes are upheld by judges.

There are other reasons why it is unlikely that Congress hasenacted all of the constitutionally permissible forms of regulation. Anew policy goal may call for a new form of regulation, and because thereare so many potential policy goals for Congress to pursue in a givenarea, Congress may exercise its power within a given area in a new way.Moreover, within any given regulatory sphere there are myriad forms thatfederal regulation could take, (228) and when Congress chooses toaddress a particular issue, Congress will not enact every possible lawit could have enacted to address that issue. If, for example, Congresswants to decrease the number of firearms near schools, it may choose toenact criminal penalties for possessing a firearm near a school.Additional ways it could accomplish this same goal would be to offermoney to the states to enact criminal penalties for possessing firearmsnear schools, tax those who possess firearms near schools, delegaterulemaking authority to an agency to determine whether to prohibitfirearms near schools, or conditionally preempt state firearms laws ifthe states did not enact criminal penalties for possessing firearms nearschools. But Congress usually does not throw every possible regulatorysolution at a problem, and therefore does not enact manyconstitutionally permissible means of regulation.

Moreover, it is not always clear when a statute presents a new formof regulation as opposed to a new area of regulation. Consider theexample of NFIB. Perhaps NFIB involved a new form ofregulation-requiring individuals to purchase a particular item. But NFIBcould equally be thought of as involving a new area of regulation--theregulation of individuals not engaged in any commerce--splicing theantinovelty principle. Indeed, parts of the opinion invalidating theminimum-coverage requirement appear to reflect this understanding. (229)The same could be said of Zivotofsky, which invalidated a statute on theground that it infringed the President's recognition power. (230)Did that statute intrude on an area of regulation reserved to theexecutive--the recognition of foreign states--or was the statuteparticularly suspect because of its form of regulation?

Finally, the premise that new facts do not lead to new forms ofregulation is wrong. Sometimes changed facts themselves generate a newform of regulation. Take the emergence of state and local governments assignificant employers in the national workforce. Historically, federalregulation of the workforce did not require the direct imposition ofobligations on state governments or generate suits to enforce federalobligations against states. But the emergence of new facts--theexpansion of state and local government workforces--generated those newforms of federal regulation. And even if new facts only led to newindustries and new areas of regulation, new areas of regulation maycause new forms of regulation because the kinds of regulation Congressused to regulate other areas may not be well suited to address whateverrisks or problems a newer area poses.

C. Possible Refinements: Actual Constitutional Consensus orAttractive Constitutional Powers?

Parts II.A and II.B outlined reasons why legislative novelty is apoor proxy for Congress's assumption that it lacks theconstitutional power to enact a particular statute. Instead ofmaintaining that all novel statutes are constitutionally suspect,another possible approach could be for the Court to limit the use ofantinovelty rhetoric to cases involving statutes that prior Congressesdoubted they could enact. But adoption of this approach would havefar-reaching practical consequences, may not identify theConstitution's original meaning, and would likely proveinadministrable. Alternatively, the Court could potentially usePrintz's formulation, which suggested that legislative novelty isevidence of Congress's assumption that a statute isunconstitutional when the statute exercises "highlyattractive" powers. But adoption of this formulation wouldsimilarly prove inadministrable.

1. Actual Constitutional Consensus. What if the Court only usedantinovelty rhetoric in cases involving statutes that prior Congressesdid not enact because they harbored doubts about the statutes'constitutionality? Justice Scalia arguably embraced this kind ofantinovelty principle in his dissent in Mclntyre v. Ohio ElectionsCommission, (231) The Justice framed the question as whether "thegovernment conduct at issue was not engaged in at the time of adoption,and [whether] there [was] ample evidence that the reason it was notengaged in [was] that it was thought to violate the[Constitution]." (232) This approach to antinovelty supports theimplementation of an original understanding of the Constitution. But ifthe Court relies on later Congresses' views about a statute'sconstitutionality--in particular, Congresses in session after the firsttwenty or fifty years of the United States, as the cases often do--thenit is no longer clearly about original understandings so much as theunderstanding during the nation's first quarter to half century.(233) This subsection rejects an antinovelty principle that would callinto question all federal statutes that prior Congresses assumed wereunconstitutional. That principle would be too dissonant with much ofconstitutional law; would likely reveal only the expected applicationsof the text, as opposed to its meaning; and would likely proveinadministrable.

First, an approach to the antinovelty principle that calls intoquestion the constitutionality of all statutes that the first twenty orso Congresses assumed were unconstitutional would have too far-reachingconsequences on much of constitutional law and constitutional practice.Several constitutional rules are considered settled by virtue ofdoctrine or congressional practice, (234) including thegovernment's ability to distribute paper money (235) and to provideSocial Security. (236) If constitutional disputes were to be resolvedaccording to the Constitution's original meaning, there would alsobe questions about various settled rules involving individual rights,such as the prohibition on segregation in public schools, (237) theprohibition on the establishment of state churches, (238) and theprotections of free speech that extend beyond a prohibition on priorrestraints. (239) As a matter of original or historical understandings,these constitutional rules are hard to justify, so the antinoveltyprinciple would jeopardize rule-of-law values, such as predictabilityand stability, as well as undermine the substantive justice that theconstitutional system delivers. (240) A system of adjudication in whichjudges discarded a significant amount of doctrine and congressionalpractice may also be too far removed from our own to be a viableinterpretive approach to constitutional law. (241)

Second, the antinovelty principle may only reveal priorCongresses' expectations about how the text would be applied, whichmost contemporary proponents of originalism reject as the lodestar forconstitutional decisionmaking. Recent scholarship on originalism hassought to refocus originalism away from the original intent of theConstitution's drafters (the expected applications of theconstitutional text) to whatever principle is embodied in theConstitution's text (the original public or semantic meaning of theconstitutional text). (242) An account of antinovelty that focuses onwhether "the government conduct ... was thought to violate ... the[Constitution" (243) may reveal only the expected applications ofthe text, as opposed to its fixed meaning. Consider the cases thatidentify constraints on Congress's powers based on the structure ofthe Constitution or the principle of federalism it embodies. The ideathat Congress may not commandeer state officials is probably an expectedapplication of some piece of constitutional text--for instance, theTenth Amendment or the Necessary and Proper Clause--or theConstitution's general structure. It cannot be the core semanticmeaning of those provisions, which say nothing about the specificquestion (in the case of the Tenth Amendment) or nothing at all (in thecase of the Constitution's structure).

There are also reasons why it is difficult to divine the meaning ofthe text from Congress's expectations or assumptions about how thetext should be applied. An account of antinovelty that focuses onwhether "the government conduct ... was thought to violate ... the[Constitution" may risk conflating the text's semantic meaningwith its expected applications because attempting to disaggregate thetwo can prove difficult. (244) This difficulty is only exacerbated whenthere is arguably no provision of the text, or very little text, that isrelevant to whatever question the judge is deciding, which is often thecase for questions of federalism or the separation of powers. (245) Andthere may be no epistemic reason why aggregating Congress'sexpectations about how the text should be applied would reveal thepublic meaning of the text. Because Congress is a collective body, itmay not be possible to attribute a singular constitutional view to itsmembers. Even when a majority of Congress chooses not to enact a statutebecause they assume that the statute would be unconstitutional, thosemembers may have different reasons for why that is. Different Justicesof the Supreme Court articulate different reasons for reaching the sameresult. (246) There is little reason to think that members of Congressare meaningfully different in this respect.

Third, operationalizing a principle concerned with identifyingcongressional consensus that a statute is unconstitutional would likelyprove inadministrable. It is not always clear what constitutionaldecisionmakers, particularly members of Congress, mean when they expressthe belief that a statute is unconstitutional. (247) Thus, even a highlyidealized congressional record that contains statements regarding astatute's constitutionality will be an imperfect proxy for eitherthe public meaning of the text or its expected applications. Someconstitutional arguments will be opportunistic--the reasoning will maskpolitical claims in the language of constitutional reasoning. Evengood-faith constitutional arguments may reflect what Professor RichardPrimus has called "constitutional expectations"--expectationsabout how the constitutional system should operate, rather than ajudgment about the requirements of the constitutional text. (248) Thatis, rather than revealing Congress's understanding about therequirements of the constitutional text, some constitutional claims mayinstead reflect how participants in the system expected things to work,given the underlying conditions at the time as well as their commonexperiences and socialization. And extrapolating what members of earlierCongresses thought in light of current conditions, experience, andsocialization is, essentially, asking how individuals would resolve thematter in those moments. (249)

2. Attractive Powers. Writing for the majority in Printz, JusticeScalia maintained that if "earlier Congresses avoided use of thishighly attractive power, we would have reason to believe that the powerwas thought not to exist." (250) No case after Printz even includedthis possible limit on the Court's approach to legislative novelty.But what if the Court stuck with this approach and inferred that theabsence of similar statutes reflected Congress's assumption that astatute was unconstitutional only if that statute exercised "highlyattractive" powers--that is, powers Congress would have wanted toexercise?

The problem with an "attractive powers" limit may be inits administration. The Supreme Court's own application of thisversion of antinovelty rhetoric provides reason to be skeptical ofjudges' abilities to discern when a statute was "highlyattractive" to contemporary Congresses and when Congress has notenacted a statute because it assumed that the statute wasunconstitutional. In Printz, Justice Scalia reasoned that "theutter lack of statutes imposing obligations on the states'executive (notwithstanding the attractiveness of that course toCongress), suggests an assumed absence of such power." (251) Butthe idea that impressing state officers into service was"attractive" to Congress is doubtful if not plainlywrong--proponents of federal power did not want to rely on stateofficers to enforce federal law in part because of concerns about thestate officers' competence. Moreover, there are still too manyreasons why Congress might not enact laws exercising"attractive" powers to infer that Congress assumed suchstatutes were unconstitutional.

This Part has focused on debunking the first step in theCourt's antinovelty rhetoric--namely, the claim that legislativenovelty suggests that prior Congresses believed that a statute wasunconstitutional. But the antinovelty rhetoric includes anotherquestionable assumption: that prior Congresses' assumptions about astatute's constitutionality do or should affect whether a statuteis unconstitutional. The Court has never explained why priorCongresses' assumptions matter to whether a statute isunconstitutional. Antinovelty rhetoric might also be rejected on thebasis of an explanation about why Congresses' assumptions about astatute's constitutionality purportedly matter to a statute'sultimate constitutionality. For example, one might argue that a priorCongress's assumption that a statute is unconstitutional means thatthe statute is unconstitutional because, if Congress assumes somethingto be true, then it is true. That does not seem right, however, becauseCongress makes mistakes. It makes drafting errors, (252) and it enactsstatutes that are plainly inconsistent with current doctrine (253) orthe original meaning of the Constitution's text. (254)

Perhaps Congress's belief that a statute is unconstitutionalis some evidence that a statute is unconstitutional. But either way,these formulations are arguably inconsistent with some Justices'refusal to consider Congress's assumptions in statutoryinterpretation cases. These Justices maintain that Congress'spurpose is not relevant to the meaning of a statute, and yet antinoveltyrhetoric maintains that Congress's assumptions about the meaning ofthe constitutional text are in fact relevant to the meaning of thattext. (255)

III. ACTUAL CONSTITUTIONALITY, VIEWS OF BRANCHES, AND CONDUCT OFBRANCHES: A NEW JUSTIFICATION?

The previous Part primarily focused on why legislative novelty doesnot suggest that prior Congresses assumed that a statute wasunconstitutional. Perhaps because legislative novelty does not reliablysignal Congress's assumptions about the Constitution, more recentcases have adopted slightly different antinovelty rhetoric. NFIB andFree Enterprise Fund framed the issue as follows: "Sometimes'the most telling indication of [a] severe constitutional problem... is the lack of historical precedent' for Congress'saction." (256) This formulation suggests that legislative noveltyis evidence of a constitutional defect, full stop. It omits theCourt's earlier explanation for why legislative novelty is a signof a constitutional defect, namely because legislative novelty suggeststhat prior Congresses assumed that a statute was unconstitutional. Andit does not include any other explanation for why legislative noveltymight be a sign of a constitutional defect.

But why might legislative novelty be evidence that a statute isunconstitutional? In the best of circ*mstances, it could only signalthat prior Congresses' view was that a statute wasunconstitutional. How could legislative novelty reveal something about astatute's actual constitutionality, as opposed to Congress'sviews about the statute's constitutionality? Part III.A argues thatthere is nothing in conventional sources of constitutional law thatsuggests that legislative novelty is, or should be used as, evidencethat a statute is unconstitutional.

Whether legislative novelty itself could make a statuteunconstitutional turns on broader questions about the properrelationship between the conduct of the branches and actualconstitutionality, specifically when one branch's actions can makesomething true as a constitutional matter. For example, Congress'senactment of statutes may make those statutes constitutional if theexistence of similar congressional statutes--or a longstanding patternof them--is evidence, or should be used as evidence, of thosestatutes' constitutionality. Part III.B explains why, even if sucha pattern is the case for legislative action, it is not the case forlegislative novelty--that is, why Congress's previous inaction doesnot make a statute unconstitutional.

Part III.C then discusses a recent justification that has beenoffered for why legislative novelty should be used as evidence that astatute is unconstitutional. Some scholars and judges have argued thatlegislative novelty should be used as evidence of unconstitutionality tolimit Congress's powers, which purportedly extend well beyond theunderstandings of those powers as they existed when the Constitution wasratified. Part III.C rejects the argument that legislative noveltyshould be used as a means to limit Congress's powers.

A. The Constitution on Novelty and Actual Unconstitutionality

Conventional sources of constitutional law do not suggest thatlegislative novelty matters, or should matter, when determining whethera statute is constitutional. Rather, many of the conventional sources ofconstitutional law--such as the text, structure, precedent, and thevalues that the Constitution serves--suggest that legislative noveltyshould not matter when determining a statute's constitutionality.

1. Text. There is no antinovelty provision in the constitutionaltext. (257) There are instead a host of power-granting provisions thatare at odds with a presumption that novel statutes are unconstitutional.In particular, the Necessary and Proper Clause provides, "TheCongress shall have Power ... To make all Laws which shall be necessaryand proper for carrying into Execution the foregoing Powers, and allother Powers vested by this Constitution in the Government of the UnitedStates." (258) Professor John Manning has explained how the clausedelegates to Congress the power to design innovative governmentalstructures and regulatory programs: the Necessary and Proper Clausecreates an "open-ended delegation." (259) The clause allowsCongress to pass laws that effectuate powers delegated to any branch ofthe federal government, and it, unlike other clauses, specifically"identifies Congress as the recipient of" its delegation ofpower. (260) A default rule against novel statutes is therefore "atodds with the constitutional allocation of implementation authority toCongress." (261)

Other provisions are similarly at odds with a default presumptionthat novel federal statutes are unconstitutional. The Tenth Amendment,for example, refers to "powers not delegated to the United Statesby the Constitution" rather than powers that are enumerated by theConstitution. (262) The phrase "not delegated" implies theexistence of some powers not specifically enumerated by theconstitutional text, (263) and the Court has implied some congressionalpowers that are not specifically enumerated in the constitutional text.(264)

2. Structure. The Constitution's structure also undermines theidea that antinovelty is a constitutional value. The Constitutionpartially reflects a design to empower Congress and provide it withauthority to respond to pressing national issues. The Constitutionenumerates an expansive list of powers and contemplates that the federalgovernment has powers other than those that are specifically enumerated.From these and other sources, the Court has inferred that the structureof the Constitution implicitly delegates powers to the federalgovernment that enable the federal government to serve national ends,such as effectively exercising those powers delegated to it, as well asadvancing values of unity, cohesion, and coordination. (265) And auniversal skepticism of novel federal statutes would be inconsistentwith a structure that purports to empower the federal legislature torespond to national problems and promote national values.

Moreover, the Court's antinovelty rhetoric does not justprevent Congress and the executive from adapting to changing problems.It also prevents states from adapting to changing problems, therebyundermining the values of federalism and state autonomy. The first casein which the Court floated the importance of legislative novelty was NewYork, a case that involved an agreement between the states and thefederal government to address problems with the disposal of radioactivewaste. The states had lobbied for the statute that the New York Courtheld to be unconstitutional, so the Court's opinion, based uponantinovelty rhetoric, precluded both state and federal innovation. (266)

3. Constitutionalism. A universal skepticism of novel statuteswould also be inconsistent with several of the Constitution'spurposes. One purpose of the Constitution, and an important value itrealizes, is to provide substantial room for democratic decisionmaking.(267) Another purpose is to provide a workable and enduring structure ofgovernment. (268) The Constitution allows Congress to provide, bylegislation, for "exigencies ... as they occur." (269) Theantinovelty principle fails to appreciably accommodate these purposesbecause the principle would hamstring the legislature's ability torespond to problems or resolve disagreements that did not materializeearly in U.S. history.

4. Precedent. A universal skepticism of novel statutes is also atodds with other precedent, especially that which establishes apresumption of constitutionality for federal statutes. (270)"Proper respect for a co-ordinate branch of the government"requires that courts strike down an act of Congress only when "thelack of constitutional authority to pass [the] act in question isclearly demonstrated." (271) Courts have accordingly afforded a"presumption of constitutionality" to federal statutes. (272)As the D.C. Circuit recognized when it applied that presumption to theACA's minimum-coverage requirement, courts "are obliged ... topresume that acts of Congress are constitutional." (273)

5. History. Historical sources do not say much about whetherlegislative novelty is evidence of unconstitutionality. The sourcestypically used by originalists--the Federalist Papers, Conventionrecords, and other statements indicative of contemporary publicopinion--are not principally concerned with how to determine whetherfederal statutes are unconstitutional, as opposed to what theConstitution does and does not permit. And Professor H. Jefferson Powellhas argued that legal traditions contemporaneous with the ratificationof the Constitution do not suggest that the Constitution should beinterpreted only in accordance with its original meaning. (274)

6. Congressional Practice. Another way of thinking about whetherlegislative novelty might indicate that a statute is unconstitutional isto ask what other kinds of federal laws might have been constitutionallysuspect given their novelty. One measure of any constitutional theory iswhether it "achieve[s] descriptive accuracy." (275) On thismetric, the idea that legislative novelty indicates a constitutionalinfirmity does not fare well. Everything is new the first time it isenacted, and many different kinds of laws are not similar to laws thatwere enacted in the first several sessions of Congress. Here are someexamples of new areas of regulation:

* Antidiscrimination. (276) The first federal prohibition onprivate entities discriminating on the basis of race was the CivilRights Act of 1875. (277) Today, federal law prohibits private entitiesfrom discriminating on the basis of race, sex, religion, ethnicity, andnational origin, among other traits. (278)

* Maternal Health. The 1921 Maternity Act (279) was likely thefirst federal regulation of maternal health. (280) Today, the Maternaland Child Health division of the Department of Health and Human Services(DHHS) conducts a variety of programs and initiatives "to improvematernal and child health." (281)

* Vaccines. It was not until 1813 that Congress established aNational Vaccine Agency, and the agency, at the time, had power only tomake vaccines available postage free. (282) It was not until 1944 thatCongress established a federal preclearance regime for vaccination, thefirst federal regulation of vaccine standards. (283) Today, vaccines areregulated by the Food and Drug Administration (FDA) as well as otherfederal agencies, such as the Centers for Disease Control andPrevention. (284) Federal law also establishes a remedy for individualsinjured by vaccines. (285)

* Animal Health. The Animal Welfare Act, (286) a federal law"that regulates the treatment of animals in research, exhibition,transport, and by dealers," (287) was not enacted until 1966.Today, the Center for Animal Welfare Section of the U.S. Department ofa*griculture (288) and the Animal and Veterinary Section of the FDA worktogether toward animal health. (289)

* Insurance. Enacted in 1890, the Sherman Antitrust Act was thefirst federal statute that outlawed monopolistic business practices.(290) It was not until the 1940s that the Court concluded that Congresscould regulate insurance under that statute. (291) Before that, theCourt had suggested that insurance was an area of regulation reserved tothe states. (292) Today, federal law regulates many different kinds ofinsurance--unemployment insurance, health insurance, crop insurance, andlivestock insurance, among others. (293)

There are similarly many examples of new forms of regulation thatspan myriad areas of regulation:

* Conditional Spending. When Congress initially started providingfederal money to states, it merely designated that money for use inparticular areas--to support public schools, for example, or to buildroads. (294) Not until the late 1800s did Congress start addingconditions to federal grants that required states to comply with certainregulatory directives in addition to requiring the states to use thefederal money toward a general project. (295) Since then, Congress hasenacted different kinds of conditions. Some conditions require states toenact laws that conform to certain regulatory directives. (296) Otherconditions are more procedural--they require states to institute a meansfor preventing fraud with federal monies (297) or require states tocreate an enforcement bureau independent from the regulatory arm thatimplements the program. (298) There is a huge variety among thedifferent conditions that are imposed on states in programs such asMedicaid, Temporary Assistance to Needy Families, civil rights programsunder the Individual with Disabilities in Education Act, SocialSecurity, and environmental programs under the Clean Water Act and theClean Air Act (CAA). (299)

* Conditional Preemption (and Other Varieties). Conditionalpreemption occurs when federal statutes preclude all state laws in aparticular area unless state law conforms to federal directives. Earlypreemptive statutes did not conditionally preempt state laws; (300)conditional preemption is routinely described as a twentieth centuryinnovation. (301) Some examples of conditional preemption includeprovisions in the Energy Policy Act of 2005, (302) the CAA, (303) andthe ACA. (304) Some federal statutes also "completely" preemptstate laws. (305) These statutes turn what would otherwise be state lawclaims into federal ones. (306) The only statutes that completelypreempt state laws, however, are of fairly recent vintage, includingsection 301 of the Labor Management Relations Act (1947), (307) theNational Bank Act (1863), (308) and the Employee Retirement IncomeSecurity Act (1974). (309)

* Delegations to Federal Agencies. The precise historical analogsto the administrative state are subject to debate. But it is safe to saythat early analogs to the federal bureaucracy did not affirmativelydelegate the kind of far-reaching authority that agencies exercise todayto prescribe binding regulations. The delegation to the InterstateCommerce Commission (ICC) in 1887 is generally seen as the firstdelegation of rulemaking authority significant enough to resemble modernagencies. (310) Today, many agencies exercise broad grants of power: theEPA, (311) the Securities and Exchange Commission (SEC), (312) the DHHS,(313) the Department of Labor, (314) and the Federal Trade Commission(FTC), (315) among others. Congress also sometimes provides agencieswith new kinds of powers. For example, it allows agencies to renderstatutory provisions without force or legal effect. (316)

* Agency Structure. Congress also regulates the structure of newlycreated agencies in new ways: it insulates some agency heads frompresidential removal, it establishes a period of tenure for agencyheads, it establishes multiperson bodies to oversee an agency or areawithin an agency, and it requires multimember agency bodies to includeequal numbers of Republican and Democratic members. (317) Many differentagencies have different structures, which could not exist before thedelegation of authority to the ICC. Only in the late 1800s did Congressbegin insulating agencies from presidential removal. (318) Today, theseagencies include the Federal Communications Commission (FCC), theFederal Election Commission, the FTC, the SEC, and the CFPB. (319)

* All Federal Agency Actions. Because federal agencies exercisepowers delegated to them by Congress,320 agencies may exercise onlythose powers that Congress has under the Constitution. Under theCourt's antinovelty rhetoric, any field in which an agency isregulating and any form that an agency regulation takes presumably needsto have some historical analog from the first twenty to fifty years ofthe United States. Yet agencies today regulate in many areas and in manyforms that did not exist then. Consider these examples:

** EPA's Greenhouse Gas Rule. To regulate greenhouse gases,the EPA embarked on "the single largest expansion in the scope ofthe [CAA] in its history," requiring entities that release morethan a certain amount of greenhouse gasses to obtain a permit forconstructions and modifications, subject to certain exceptions. (321)

** EPA's Clean Power Plan. The EPA established C[O.sup.2]emission standards for new, modified, and reconstructed power plants andrequirements for states to follow in developing plans to limitC[O.sup.2] from existing plants. (322) The former involved improvingheat rates at coal-fired plants, substituting natural-gas plants forsteam plants, and substituting renewable-energy generating capacity forgeneration from fossil-fuel-fired plants. (323) The latter entailedstate-specific emission goals tied to both the mass and rate ofemissions. (324)

** FCC's Net Neutrality Rule. The FCC recently classified theInternet as a telecommunication service and then prohibited broadbandproviders from "blocking 'lawful content, applications,services, or non-harmful devices' or throttling (degrading orimpairing) access to the same"; from "favor[ing] some trafficover other traffic ... in exchange for consideration ... or to benefitan affiliated entity"; or from "unreasonably interfering withor unreasonably disadvantaging" users' ability to usebroadband Internet access service or content providers' ability tomake content or items available to users.

** The Commodity Futures Trading Commission Credit Swaps Rule. The2010 Dodd-Frank Act directed the Commodity Futures Trading Commission(CFTC) to oversee the United States "swaps" market, which hadpreviously been largely unregulated. (326) The CFTC then imposed a hostof regulations on swap transactions, including a requirement that theybe performed on certain markets subject to certain monitoring andrequirements of the CFTC. (327)

The Congresses that enacted these statutes did not operate underthe assumption that they could only enact statutes that weresufficiently analogous to laws enacted in the first twenty to fiftyyears of the United States. Moreover, the fact that the Court'santinovelty rhetoric would have called into question many differentkinds of federal laws suggests that an antinovelty principle would failto reflect too much of constitutional law to be a viable interpretivetheory. At a minimum, the antinovelty rhetoric's potentiallyfar-reaching implications suggest the rhetoric's application is, atbest, selective, which is another reason to doubt the validity ofantinovelty rhetoric as a canon of constitutional interpretation. (328)

B. Conduct and Actual Constitutionality: Comparing CongressionalAction and Inaction

The idea that the absence of similar federal statutes is evidencethat a statute is unconstitutional is the inverse of an idea associatedwith Chief Justice Marshall's opinion in McCulloch v.Maryland--namely, that the existence of many, similar federal statutesis evidence that a statute is constitutional. (329) Several critiques ofthe Supreme Court's antinovelty rhetoric apply equally to theMcCulloch principle: Congress's enactment of a statute may notreflect Congress's assumption that a statute is constitutional. Andalthough longstanding statutes may exist, perhaps the facts or ourvalues have changed to a point where the statute's historicalpresence should not matter.

That being said, there are other reasons--besides the idea thatlegislative enactments reflect Congress's view that a statute isconstitutional--why the existence of similar statutes may and should beused as evidence of a statute's constitutionality. The McCullochprinciple may illustrate how Congress's conduct sometimes affectsthe "actual constitutionality" of a statute for reasonsunrelated to Congress's assumptions about a statute'sconstitutionality. Though this Part does not defend the McCullochprinciple, it highlights how some of the potential justifications for itdo not apply to the idea that legislative novelty is evidence that astatute is unconstitutional. The contrast between the Court'santinovelty rhetoric and the McCulloch principle, therefore, illustrateswhy legislative novelty should not be used as evidence that a statute isunconstitutional.

1. Congressional Action as a Sign of Congress's Views. Someexplanations for incorporating congressional practice intoconstitutional interpretation maintain that congressional practiceembodies Congress's assumptions about the Constitution. Congress is"interpreting" or "constructing" the Constitution inthe course of passing statutes, the argument goes, and statutestherefore represent Congress's views about the constitutional text.(330) Chief Justice Marshall described "legislative acts" as"exposition[s] of the constitution" in the course ofexplaining why constitutional interpretation should considercongressional practice. (331) The idea that Congress, in the course ofenacting statutes, also interprets the Constitution is related to theconcept of liquidation. In the Federalist Papers, Madison observed that"[a]ll new laws, though penned with the greatest technical skill,and passed on the fullest and most mature deliberation, are consideredas more or less obscure and equivocal, until their meaning be liquidatedand ascertained by a series of particular discussions andadjudications." (332) Professor Caleb Nelson has suggested that"the founding generation[] ... expected subsequent practice toliquidate the indeterminacy [of the constitutional text] and to producea fixed meaning for the future." (333) And Madison and othersbelieved that those subsequent practices could include congressionalstatutes, or at least statutes that were the product of somedeliberation. (334)

But Part II's critique of the Court's antinoveltyrhetoric casts doubt on these justifications. Just as in the case ofcongressional inaction, where Congress's conduct (not enacting akind of statute) does not reflect Congress's assumptions about astatute's constitutionality (that such statutes areunconstitutional), the same is true in many cases for congressionalaction. That is, Congress's enactment of a statute may not reflectCongress's assumption that the statute is constitutional, at leastin the sense that the statute is constitutional because it is consistentwith the constitutional text. It is fairly easy to see why: in thecourse of enacting a statute, there is no guarantee that Congress hasactually considered the extent of its constitutional powers or whether astatute is consistent with the requirements of the constitutional text.(335) Many members of Congress may not be lawyers or well-versed inconstitutional law, and quickly enacted legislation may not be subjectto any rigorous constitutional scrutiny. Congress also has a limitedamount of time and resources, which it might not devote to abstractquestions of constitutional law, (336) and the myriad reasons whyCongress does not enact statutes--constituent preferences and politicalexpediency, among others--also explain why Congress enacts statutes thatdo not embody or reflect any consideration of whether the statute isconstitutional. Congressional representatives concerned with reelectionwill focus on their constituents' wishes and concerns, which maynot include questions of constitutional power.

2. Congressional Action as Congressional Conduct. Even thoughCongress's enactment of a statute may not reliably signalCongress's assumption that the statute is constitutional, there maystill be reasons to treat Congress's enactment of a statute asevidence of a statute's constitutionality. This subsection does notpurport to offer a complete defense of that idea, but it outlines somepossible justifications for treating the enactment of a statute asevidence of the statute's constitutionality that are not calledinto question by the critiques of the Court's antinovelty rhetoric.These justifications include acquiescence, choices to prefer legislativevalue choices over judicial ones, broader understandings ofconstitutional interpretation, and advancement of other constitutionalvalues, such as providing room for democratic decisionmaking orpromoting the rule of law.

a. Acquiescence. One reason judges may assume that a longstandingpattern of congressional statutes is constitutional is because thepolitical branches have "acquiesced" to the arrangementprovided for by those statutes. (337) To the extent a law alters thedivision of power between Congress and the executive, both entities haveacquiesced, or consented, to that arrangement, and the statute might beviewed as legitimate for that reason, (338) whether or not the branchesare acquiescing to any claim that the statute is consistent with theconstitutional text's requirements. (339) Moreover, even ifacquiescence might suffice as a justification for separation-of-powersquestions, it might not suffice as a justification for federalismquestions. Although a federal law may reflect Congress's viewsabout the meaning of constitutional federalism, it may not reflect thestates' views. There are differing views on the extent to whichCongress--in particular the Senate--represents the states' views,(340) especially in light of the Seventeenth Amendment, which madeSenators directly elected by the people. (341)

b. Legislative Value Choices. One might also incorporatecongressional practice into constitutional interpretation to prioritizeCongress's legislative value choices when the text is ambiguous orwhen it permits more than one reasonable interpretation. (342) The textcan only say so much, and it often speaks in vague generalities. Bradleyand Morrison, for example, argue that interpreters rely on historicalpractice to determine the scope of the President's powers underArticle II because little constitutional text speaks to those questions.(343) Something similar could be said for questions about the properscope of Congress's delegated powers vis-a-vis the states. Theenumerated list of congressional powers contains several ambiguouslyworded provisions. The Necessary and Proper Clause, for example,provides Congress with the power to make "all Laws which shall benecessary and proper for carrying into Execution the foregoingPowers," (344) and the phrase "necessary and proper" is,as John Manning has observed, an "open-ended term[]." (345)Elsewhere, Article I, Section 8 authorizes Congress to "provide for... the general welfare of the United States." (346) The phrase"general welfare" does little to resolve questions likewhether Congress may amend the terms on which states receive federalmoney347 or whether Congress may condition a state's receipt offunds on the state's acceptance of terms that are unrelated to thefunds' purpose. (348) The Supreme Court has also held that Congresshas some powers because of the Constitution's structure, ratherthan because of any particular grant of express authority. (349) If thetext permissibly allows for multiple interpretations or does not reach aparticular issue, decisionmakers might have reasons to selectlegislative value choices over judicial ones.

c. Interpretation of Nontextual Sources. Relatedly, it might be thecase that congressional statutes represent constitutional determinationseven if Congress never considers whether a statute is consistent withthe constitutional text. James Bradley Thayer's original argumentfor judicial deference maintained that many constitutional questionsinvolve more than technical legal issues like the precise meaning of theconstitutional text. (350) Rather, Thayer argued, constitutionalquestions also turn on broader issues of constitutional policy andpolitics. (351) In this light. Congress's assessment of how to bestserve the national interest or how to realize particular constitutionalvalues, such as liberty or equality, is just as much a constitutionaldetermination as whether the text of the Commerce Clause authorizesCongress to enact a particular law. Congressional statutes, therefore,may serve epistemic ends in resolving constitutional questions becausethey embody judgments about our political priorities and how they shouldbe effectuated. (352)

Another way of getting at the point is to ask whether astatute's constitutionality turns only on whether that statuteconforms to the text's requirements. Many constitutional issues arenot resolved this way. (353) Consider, for example, different uses ofhistorical arguments in constitutional law. Occasionally historicalanalysis incorporates history as a way of "teaching] lessons."(354) Historical reflection can ground principles in experience, but thesignificance of that experience requires some normative evaluation. Forexample, Professor Michael Dorf has argued that one example of how"[h]istory teaches lessons" in constitutional law is the wayin which the Great Depression and the period leading up to the New Dealfactored into the Supreme Court's post-New Deal Commerce Clausecases. According to Dorf, these cases incorporated"laissez-faire's inability to revive industrial activityduring a depression." (355) This lesson turns on a judgment aboutthe inadequacy of laissez-faire economics, which entails both adescriptive assessment of facts as they existed in the world and anormative evaluation of the perceived adequacy (or inadequacy) of thatstate of affairs. And congressional statutes may reflect descriptive andnormative assessments about facts as they exist or have existed in theworld even if they do not reliably reflect interpretations of theconstitutional text, to the extent that interpretations of the text andassessments about the facts in the world are independent.

Statutes may also embody other kinds of judgments relevant toconstitutional interpretation. For example, some have argued that publicopinion may sometimes properly factor into constitutional analysis (356)and congressional statutes may incorporate some assessment--or at leastan educated guess--about how the public feels about a statute, includingwhether it is constitutional in some broad sense. Sometimes, politicaland social movements--and their ability to persuade others of theircauses--help to establish certain constitutional rules and determine thecontent or meaning of previously established ones. (357) And statutes,like judicial opinions, may reflect assessments about political andsocial movements and their causes. Congress may also have constitutionaldoctrine in mind as it enacts statutes, even if it does not have in mindthe constitutional text or the original meaning of that text.

d. Constitutional Values: Democracy and the Rule of Law. Anotherjustification for presuming that statutes are constitutional is thatjudicial review--at least the act of striking down statutes--is alwaysinherently antidemocratic. (358) Congress is accountable to the peoplevia elections, and federal judges are not. Although any form ofconstitutional democracy will be antidemocratic in some respects,ensuring a wide space for democratic politics is one important valueserved by a constitution. (359)

Incorporating congressional practice into constitutionalinterpretation may also bolster constitutional legitimacy in other ways.Under the familiar dead-hand critique of constitutionalism, it is aproblem that the people are governed and limited by constitutional ruleswhich they played no role in adopting. (360) Relying on congressionalpractice to inform constitutional interpretation minimizes the gapbetween the past and the present, and with it, the dead-hand problem.When congressional practices inform constitutional interpretation,people in the present can affect the shape of constitutional rules byhaving their elected representatives enact statutes. Incorporatingcongressional practice into constitutional interpretation, however, maydo more than mitigate concerns with constitutional legitimacy. Some havesuggested that the Constitution "owes its status as supreme law tocontemporary practices of acceptance." (361) Under this view, theConstitution is legitimate because individuals implicitly consent to it.But people implicitly consent only to existing practices, so theConstitution, to be legitimate, must closely conform to those practices.(362) Congressional statutes may provide some evidence of the practicesto which the relevant people consent.

There are also rule-of-law reasons to incorporate congressionalpractice into constitutional interpretation. (363) An interpretivepractice that suddenly invalidates a large number of federal statutesmay result in a sudden change in how the government works, therebyundermining rule-of-law values of stability and predictability. (364)These rule-of-law justifications do not turn on whether statutes reflectCongress's analysis of the text, but instead on the fact that manystatutes exist and cannot suddenly cease to exist without jarringconsequences. Moreover, judicial decisions purport to contain generallyapplicable principles and reasons why a statute is unconstitutional.Therefore, a decision which declares a statute that is similar to manyother statutes to be unconstitutional will likely create challenges tosimilar statutes. Those challenges will succeed even if the SupremeCourt does not decide to hear those other cases, because the lowercourts will use the Supreme Court's exposition of the Constitutionto find those other statutes unconstitutional.

e. Burkean Values. Some have also offered Burkean justificationsfor incorporating congressional practice into constitutionalinterpretation. Burkean justifications speak to the importance oflongstanding traditions and how such traditions may represent thecollective wisdom of many generations. (365) Traditions may speak to thepracticability and durability of constitutional rules, (366) andlongstanding congressional statutes may be evidence that such statutesare workable and durable.

f. Raw Power. In Thomas Hobbes' words, "Reputation ofpower, is Power." (367) If Congress and the executive want to pushforward, judges may be limited in their capacity to stem the tidebecause of their limited ability to stop a committed Congress andexecutive. (368) Professor Lawrence Lessig has explained how, in thecontext of the Commerce Clause, the Court was able to enforce limitedfederal power at a time when Congress did not attempt to exercise muchof it. But that ceased to be true once Congress had reason to enactmultiple laws that exceeded prior understandings about the scope ofCongress's commerce power. (369) Even rumblings that Congress andthe executive are not inclined to enforce judicial decisions may because for concern, (370) given the dangers of a system in which federaljudicial rulings are openly ignored by other branches of government.(371)

But there are serious realpolitick concerns even if Congress andthe executive do not intend to openly defy judicial rulings. Judgesissue decisions that provide purportedly generally applicable principlesthat explain why a case is decided in a particular way. If the reasons ajudge gives for invalidating a particular federal statute apply to manydifferent federal statutes, a decision invalidating a federal statutecould invalidate all of those similar statutes. And there is noguarantee that Congress and the executive would replace those statutesif judges invalidate them. Thus, even the possibility of a lazy,gridlocked, or overburdened Congress may be reason for judges to beconcerned about invalidating a statute that is similar to many otherlongstanding ones. Even a motivated Congress might not be able toreplace all of the statutes that could be invalidated. And even highlymotivated judges cannot enact statutes, pass regulations, or set up asubstitute for the administrative state. Thus, judges' limitedcapacity to provide replacements may be why judges choose not toinvalidate a statute that is similar to many other statutes thatfunction as the backbone of the government's day-to-day workings.

g. Objective Versus Subjective Purposes. There may also be reasonsto attribute to Congress the assumption that the statutes it has enactedare constitutional. Doctrine frequently distinguishes between objectiveversus subjective purposes. Whereas subjective purpose refers to theactual views and motives held by enacting legislators, objective purposerefers to something else. (372) That something else has been defined indifferent ways, but it encompasses something like "the interests,values, objectives, policy, and functions that the law should realize ina democracy" (373) or "the intent that a reasonable personwould gather from the text of the law, placed alongside the remainder ofthe corpus juris." (374) Others have equated a law's objectivepurpose with its "expressive character," (375) that is, what alaw objectively communicates.

The precise meaning of "objective purpose" matters lessthan the concept of objective purpose. Objective purpose recognizes thepossibility that a law may reflect a purpose that is not actually orsubjectively held by the enacting legislature. And one "objectivepurpose" of a law might be for Congress to say that the statute isconstitutional. An enacted statute might objectively communicate thatCongress assumes the statute to be constitutional; at least, reasonableobservers might infer as much from Congress's enactment of astatute. Therefore, judges may elect to ascribe to Congress the viewthat an enacted statute is constitutional even if Congress did notactually hold that view.

3. Congress's Conduct: Legislative Novelty. As the previoussubsection detailed, there may be reasons why Congress'sconduct--acting as if statutes are constitutional--actually makes thosestatutes constitutional. Even if these reasons do not ultimately justifythe presumption that a pattern of longstanding statutes is more likelyto be constitutional, they certainly do not justify the Court'santi-novelty rhetoric. That is, they do not justify why Congress'sfailure to enact a statute should make that statute unconstitutional.

For example, treating congressional statutes as evidence ofstatutes' constitutionality furthers rule-of-law values ofpredictability and consistency, and respects reliance interests that maybuild up around statutes. Enacting a statute begins a federal programwith all of its accompanying administration, including personnel,buildings, dispensation of government benefits, and adjustments made byother federal and state agencies. A regulatory web and privateparties' expectations build up around a federal statute that isharder to change than the kinds of reliance interests or expectationsthat may build up around the absence of one.

Even if there are some cases where reliance interests build uparound the absence of a federal statute, it is unclear how often thatmight occur and whether doctrine should protect those relianceinterests. Take the cases in which courts have invoked anti-noveltyrhetoric--regulated entities probably did not construct their businessesaround whether a regulating agency had one layer or two layers of forcause removal (376) or were headed by single- or multimember bodies.(377) And the many states that actively lobbied for the federalgovernment to require state legislatures to enact federal directives didnot rely on the federal government's inability to do so. (378)Moreover, whatever reliance interests may build up around the absence ofa federal statute may not be reliance interests that the doctrineprotects. For example, states may have set their budgets on anassumption that the federal government would not require the statelegislature to enact certain laws or require state executives to enforcefederal law. But that is not meaningfully different than if the statehad set its budget on an assumption that state courts would not berequired to enforce a new federal statute. Yet Congress mayconstitutionally require state courts to enforce federal law. (379)States may also have set their budgets on an assumption that the stategovernment would not be subject to a generally applicable regulatoryobligation, such as a minimum-wage requirement. But Congress mayconstitutionally impose that obligation on the states. (380) Withrespect to private entities, a private entity's desire orexpectation that it would not be subject to future regulation istypically not sufficient to immunize the entity from future regulation.

Nor do the realpolitick justifications apply in the context oflegislative novelty. Upholding statutes that prior Congresses thought tobe unconstitutional might upset those earlier Congresses, but they arenot around to do anything. Whereas invalidating a statute raisesconcerns about upsetting the day-to-day workings of the government,upholding statutes typically does not.

The democracy-based explanation for why congressional statutes aretreated as evidence of actual constitutionality also does not apply tothe Court's antinovelty rhetoric. Treating statutes as evidence oftheir constitutionality provides more room for democraticdecisionmaking; treating Congress's failure to enact a statute asevidence that Congress lacks constitutional power does not. Similarly,drawing a negative inference about a statute's constitutionalityfrom legislative novelty does not minimize the dead-hand problem. Ifanything, overruling the statute exacerbates it. Antinovelty rhetoricincreases the extent to which the people are governed and limited byconstitutional rules that they had no role in enacting by fixingconstitutional meaning according to what the first several Congresses(or whatever set of previous Congresses) did not do. (381)

The Burkean justification--the idea that longstanding traditionsrepresent the collective wisdom of many generations and establish theworkability of those traditions--may apply to the Supreme Court'santinovelty rhetoric, but it does not justify it. Under the McCullochprinciple, the relevant tradition is a pattern of congressionalstatutes. It is reasonable to think that the congressionalrepresentatives who voted for a statute had some reason to do so andperhaps even that their vote indicates that they did not assume that thestatute was a bad idea or disastrous. Moreover, if a statute has beenaround for a long time, it is possible to assess whether a statute orits analogues have resulted in a parade of horribles. So judges might beable to infer from the existence of similar statutes some kind ofcollective wisdom that is relevant to constitutional determinations, aswell as the workability of a statute.

That is less true when the relevant tradition is the absence ofsimilar statutes. There is no clear "collective wisdom"generated by Congress not enacting a statute: Congress may not haveenacted a statute because it did not think of it. Perhaps it did notenact a statute because the pertinent facts had not yet existed orbecause it could not get the statute through both houses of Congress. Atthe very least, it is a stretch to infer from legislative novelty thatevery, or even many, representatives thought that a statute was a badidea or even unnecessary. Representatives likely had differentreasons--if they had any at all--for not enacting a statute. (382) Andthe absence of a statute does not mean that it would have been workableor durable.

Moreover, in the case of the McCulloch principle, Burkeantraditions are being used as a shield--Burkeanism insulates a federalstatute from a constitutional challenge. But in the case of legislativenovelty, Burkean traditions are being used as a sword--Burkeanism drivesa constitutional challenge to a federal statute. (383) When Burkeantraditions function as a shield, they work together with otherconstitutional values, such as providing space for democraticdecisionmaking. But when Burkean traditions function as a sword, theywork against those constitutional values. And whatever the virtues ofBurkeanism, it is not the only constitutional value.

Finally, the Court's antinovelty rhetoric is more than justBurkeanism. Burkeanism emphasizes the value of continuity, andforeclosing change--or attempting to--is different than ensuringcontinuity, which would modulate any change that occurs. Congress rarelyenacts legislation that upends the status quo entirely. "[I]n asociety in which revolution is not the order of the day, and in whichall legislation occurs against a background of customs andunderstandings of the way things are done," Congress is unlikely tofrequently enact statutes that upend the entire system. (384)Legislators use past statutes as guides. They rely on the accumulationof precedent, and they rely on whatever wisdom society has accumulatedcollectively. (385) And if change occurs through any branch ofgovernment, the legislature and executive should be used rather than thecourts. Congress has certain advantages in making changes, such asacquiring the requisite information. (386)

C. Second-Best Solution: The Antinovelty Principle as a LimitingPrinciple

The Supreme Court has never explained why legislative novelty isevidence of a constitutional problem aside from its earlier claim thatlegislative novelty means that prior Congresses assumed a statute wasunconstitutional. But some scholars and court of appeals judges havejustified the Court's antinovelty rhetoric as a kind of second-bestsolution. Their justification says that it is unrealistic to expectcourts to "undo" all of the existing statutes that areinconsistent with the original understandings of constitutionalfederalism or the separation of powers (at least, under their account ofthe relevant original understandings). But a principle that called intoquestion all new federal statutes could be a means to ensure thatCongress does not continue to transgress constitutional limits on itspowers in new ways. Take the example of PCAOB. For purposes of PCAOB,the baseline constitutional principle is that the President has controlover people who administer federal law. Congressional practice anddoctrine have departed from this principle, but preventing Congress fromenacting "new" restrictions on presidential control is a wayto ensure that Congress does not stray even further.

Judge Kavanaugh's dissent in PCAOB hinted at thisjustification for the antinovelty principle. Judge Kavanaugh wrote,"The lack of precedent for the PCAOB counsels great restraint bythe Judiciary before approving this additional incursion on thePresident's Article II powers." (387) He also reiterated thisjustification for the Court's antinovelty rhetoric in a subsequentdecision invalidating the CFPB's structure. (388) Barnett offered asimilar account of why legislative novelty should matter in a lectureabout NFIB. He argued that "all of the powers that were approved bythe New Deal and Warren Courts are now to be taken asconstitutional." (389) And because congressional power expandedsignificantly in the mid-20th century, "[g]oing any higher ...requires special justification." (390) He concluded: "This[constitutional] gestalt can be summarized as 'this far and nofurther'--provided 'no further' is not taken as anabsolute, but merely as establishing a baseline beyond which seriousjustification is needed." (391) This account of the Court'santinovelty rhetoric--the limiting principle approach--does not justifya far-reaching anti-novelty principle, only one that would apply whenCongress has departed from--and the Court has allowed Congress to departfrom--the "correct" constitutional principle. This fact makesidentifying the "correct" constitutional baseline important,and it is far from clear that PCAOB and NFIB were right on this score.It is unclear whether the Constitution requires any kind of presidentialexecution of federal law (392) or whether the Constitution forbids aconstruction of Congress's delegated powers that would effectivelyamount to a police power. (393) Even putting that concern aside,legislative novelty should not be used as a means to limitCongress's powers by presumptively rendering unconstitutional allnew federal statutes structuring agencies or presumptively renderingunconstitutional all new federal statutes on the ground that they likelyexceed the scope of Congress's delegated powers. That approach tolegislative novelty is arbitrary and difficult to administer, and itdoes not account for canonical precedents.

1. Arbitrary. Judge Kavanaugh and Barnett's limiting-principleapproach to the Court's antinovelty rhetoric is arbitrary. Assumethe correct constitutional rule is that executive officers must beremovable by the President. A limiting-principle account acknowledgesthat the current structure of government no longer conforms to thisprinciple and allows Congress to continue to depart from this principle,but only in ways that it has already done. That results in fairlyarbitrary limits on Congress's powers that make little sense of theconstitutional principles that are purportedly at stake in these cases.For example, the D.C. Circuit maintained that the CFPB's noveltymeant that the CFPB's structure was unconstitutional because itinterfered with the President's authority to execute federal law,"even if it does not occasion any additional diminishment ofpresidential power beyond the significant diminishment already causedby" the Supreme Court's prior cases. (394)

Additionally, permitting Congress to depart from the"correct" constitutional principle implicitly recognizes thatother considerations may, at times, be sufficiently important tooutweigh whatever value there is in holding Congress to the"correct" constitutional rule. But that may also be the casewhen Congress enacts a federal statute that differs from previousstatutes. Perhaps a new area of regulation calls for differenttreatment, or perhaps there were unintended consequences or effects frompreviously existing regulations. Depending on the circ*mstances, any ofthese reasons may be similarly weighty to the reliance and rule-of-lawinterests that require federal judges not to strike down every singlefederal statute that purportedly violates the original understandings ofconstitutional federalism or the separation of powers.

Moreover, the idea of grandfathering federal statutes withoutacknowledging their constitutionality is a little strange.Grandfathering is not a recognized way of deciding constitutional cases.If challenged, statutes are either upheld as constitutional, invalidatedas unconstitutional, or remain as is without an assessment of theirconstitutionality because of various justiciability doctrines.Grandfathering in a litany of federal statutes means those statuteswould be upheld against a constitutional challenge, which implicitlyrecognizes that those statutes are, in some sense, constitutional. Thereason they are constitutional may be because some constitutional changehas occurred outside of the formal amendment process. (395) But the factthat there has been constitutional change should cause us to revisitwhat the relevant constitutional baseline is and potentially determinenew statutes' constitutionality on that basis (that is, thecurrently existing constitutional baseline). The constitutional changesthat occurred are so important and so entrenched that judges cannot rollthem back, and the statutes that reflect those changes are accepted aspart of the constitutional order. Instead of asking how to judiciallyenforce federalism given the increasing scope of congressional power,the question could instead be what the scope of federalism is in lightof our constitutional practices. (396) And judged under this conceptionof constitutional federalism, a new statute may not seem out of bounds.

2. Administr ability. Any antinovelty rhetoric raisesadministrability concerns because there does not appear to be a way tocoherently define novelty. Using antinovelty rhetoric as a limitingprinciple raises additional administrability concerns because it wouldbe difficult for judges to determine whether a statute is constitutionalonce they have determined that the statute is a new kind of statute.

Whether a statute is "novel" turns on whether it issimilar to previous ones. Accordingly, properly identifying the scope ofthat past practice is an important part of determining whether theantinovelty principle even applies, that is, determining whether astatute is new. (397) But historical traditions--specifically, whethercurrent statutes are similar to preexisting ones--can be defined atdifferent levels of generality. And there does not seem to be a good--orat least consistent--way to select a level of generality at which todescribe the past practices and a current statute. For example, asignificant point of disagreement between the majority and the dissentin Printz concerned how to characterize prior practices. The dissentmaintained that the statute impressing state executives into federalservice fell within the historical tradition of Congress pressing stateofficers into federal service. The majority, however, defined therelevant historical tradition more narrowly, such that the statute felloutside of it. It maintained that Congress only impressed state judgesinto federal service. The opinions in NFIB also disagreed about how tocharacterize the relevant statute and the ones that came before it. Theyparted ways over whether Congress's regulation of individuals whowere not part of the interstate market for health care fell within thehistorical tradition of Congress regulating individuals who were notpart of interstate markets in drugs (as in Gonzales v. Raich (398)) orwheat (as in Wickard v. Filburn (399)). Some of the opinions maintainedthat the statute was different because the statute directly compelledindividuals to purchase an unwanted good. The same difficulty arose inFree Enterprise Fund: Was the relevant tradition "single for-causeremoval" such that a double layer of for-cause removal fell outsideof the tradition, as the majority maintained? Or was the relevanttradition "insulation" from presidential control such that thestatute fell within the historical tradition, as the dissent maintained?

Under the limiting-principle approach to the Court'santinovelty rhetoric, these determinations can change the outcome of acase. Determining whether a statute is new affects whether a statute ispresumed constitutional. If the statute is "new," judges wouldthen determine whether the statute is constitutional based on theConstitution's original meaning. If the statute is not new, judgeswould determine that existing doctrine already establishes that thestatute is constitutional. The determination about how to characterizethe relevant past practice involves a fair amount of choice. It isunlikely that any past practice or statute would resemble a new statuteat its most specific level of abstraction; otherwise, that exact samestatute would already exist. Therefore, judges will need to specify atradition, beyond the one contained in the new statute, that fairlyrepresents the statutes that have come before it. (400)

Courts adopting antinovelty rhetoric also must choose the relevanttime period to assess whether a statute is new. The cases differ aboutwhich time period includes potentially relevant congressional practice.The Court in Printz and Alden claimed that statutes enacted in the lastfifty years "[were] of little relevance.... [T]hey [were] of suchrecent vintage that they [were] no more probative than the statutebefore [them] of a constitutional tradition that lends meaning to thetext." (401) The Court in Noel Canning, by contrast, representedthat it has previously "treated practice as an importantinterpretive factor even when the nature or longevity of that practice[was] subject to dispute, and even when that practice began after thefounding era." (402) Moreover, before the Court adopted antinoveltyrhetoric, prior Justices had suggested in INS v. Chadha (403) thatCongress's recent enactment of many, similar statutes made it morelikely that those statutes were unconstitutional: "[O]ur inquiry issharpened rather than blunted by the fact that Congressional vetoprovisions are appearing with increasing frequency in statutes whichdelegate authority to executive and independent agencies." (404)

Defining novelty is arbitrary in other ways as well. The principleappears to be concerned with the number of similar federalstatutes--that is, has Congress, in a certain time period, enactedseveral similar federal statutes? But why should it not be enough thatthere is one longstanding one? For example, Shelby County suggested thatthe VRA preclearance regime was novel and extraordinary. (405) But by2013, a voting preclearance regime had been on the books for over fourdecades. (406) Finally, who is to say what number of federal statutesmight be relevant? In PHH Corp., the D.C. Circuit had to distinguishthree other independent agencies led by single individuals, as well asthe many executive agencies that are led by single individuals. (407)

The limiting-principles approach to antinovelty raises additionaladministrability concerns because it is not clear how judges woulddetermine whether a statute is constitutional once they have concludedthat it is novel. Once a judge determines that a statute is not on allfours with previous ones, the judge is to determine whether the statuteis constitutional by consulting only the original public meaning of thetext without the aid of the last two hundred years of doctrine andpractice. The limiting-principle approach effectively renders a largesubset of the U.S. Reports nonprecedential outside of the case'sspecific facts because those cases are purportedly inconsistent with theConstitution's original meaning. Judges, therefore, could not relyon those cases in the ways that judges ordinarily do, by identifyingtheir essential facts and reasoning from them. The D.C. Circuit'streatment of Humphrey's Executor in the PHH Corp. decisioninvalidating the CFPB's structure is instructive. The court framedthe question as whether it should "extend the Supreme Court'sHumphrey's Executor precedent," (408) a decision the court ofappeals implied was inconsistent with "Article II and the decisionin Myers [v. United States]." (409) And instead of identifying andapplying the reasons why Congress had the constitutional authority tostructure federal agencies, (410) the court instead dismissivelyobserved that "Humphrey's Executor does not mean that anythinggoes." (411)

That is a problem if one believes that the system of precedentunder which judges reason from prior cases protects several importantsystemic values. (412) Walling off existing precedent results inconsiderable transition costs, such as the costs associated withdeveloping entirely new rules. It would also undermine the rule oflaw--specifically, the values of uniformity and consistency--for judgesto announce that, going forward, the reasoning in all previousseparation-of-powers and federalism cases do not guide their decisions.There is much constitutional precedent compared to very little text, andbecause that judicial precedent has driven constitutional decisionmakingfor decades, it would be difficult to suddenly change course.

Adopting this way of deciding cases would also precludedecisionmakers from relying on modern case law, which is one of the mosteasily findable and decipherable sources of constitutional law.Foreclosing reliance on precedent may be especially problematic forother constitutional decisionmakers, such as legislative and executiveofficials. (413) Federal officials, including agency staffers andcongressional staffers, need to have some sense about whether thestatute or regulation they are enacting is constitutional. But in aworld that operates under the limiting-principle approach to legislativenovelty, there will almost always be a risk that a judge will determinethat a statute is new. (414) And if a judge determines that the statuteor regulation is new, the judge will assess its constitutionality byconsulting the original meaning of the enacted constitutional text.Accordingly, to try and ascertain whether a regulation or statute isconstitutional, agency and congressional staffers would have to do thesame. But how are they to do so? Should they conduct an archival searchand immerse themselves in public thinking at the time? Federal officialsare probably not well equipped to perform that inquiry, nor should theyhave to be. Yet the limiting-principle approach to antinovelty wouldhave the entire federal administrative branch and legislative officialsinterpreting historical materials not readily available, or perhaps evenunderstandable, to determine whether a federal statute or regulation isconstitutional.

3. Viability. The limiting-principle account of antinoveltyrepresents that many significant constitutional decisions are incorrectunder its preferred approach to constitutional interpretation. Itmaintains that so many federal statutes are unconstitutional today thatjudges cannot plausibly strike them all down. The limiting-principleaccount of antinovelty then urges judges, going forward, to invalidateany new statute that is inconsistent with the Constitution'soriginal meaning, and it would probably include many new statutes, giventhat countless existing statutes are purportedly inconsistent with theConstitution's original meaning.

It is generally considered a serious mark against a constitutionaltheory if it cannot account for decisions that are celebrated as keyparts of our constitutional tradition. Consider these decisions thatupheld "new" statutes:

* South Carolina v. Katzenbachm upheld the VRA, the statute thatfirst put some southern states' election procedures under federalsupervision. (416) In part because of that statute, "the number ofAfrican-Americans who are registered and who turn out to cast ballotshas increased significantly over the last 40 years.... The Act hasproved immensely successful at redressing racial discrimination andintegrating the voting process." (417)

* Heart of Atlanta Motel v. United States (418) upheld the CivilRights Act of 1964, which banned private entities from discriminating onthe basis of race. (419)

The limiting-principle approach to antinovelty does not requirejudges to invalidate these statutes if they were challenged today. (420)But it asks judges to apply an approach to constitutional interpretationthat may have invalidated all of those statutes if it had been used toassess the constitutionality of those statutes when they were initiallyupheld. (421) That is a problem--constitutional theories are judged, inpart, by the results they deliver, and this theory cannot get us todecisions that, on many accounts, must be justified. (422) Moreover, wedo not know what the next Katzenbach, McCulloch, or Heart of Atlantawill be. There may be another federal civil rights statute, and theremay be another federal statute that addresses a national economicproblem. Whatever those new statutes are, the method of constitutionalinterpretation that judges will use seems likely to invalidate them.

IV. RETHINKING NOVELTY

Most of what remains of novelty is the idea that if Congress hasnot done something thus far, perhaps it should never be able to do so.The idea that legislative novelty is evidence of a constitutionalproblem accordingly suffers from some version of the is-oughtfallacy--the mere fact that something has not been done thus far doesnot establish that it should never be done. (423) The Court'santinovelty rhetoric relies on a descriptive statement about whatCongress has done to yield a normative conclusion about what Congressshould have the authority to do for all time. To be sure, there are waysof bridging this gap and explaining why descriptive statements aboutcongressional practice yield normative answers about the scope ofCongress's constitutional authority. But the Supreme Court has yetto attempt to bridge this gap for the antinovelty principle.

This Part suggests that there may still be a role for legislativenovelty, but not in determining whether a statute is constitutional.Once a federal judge has determined that a statute is unconstitutionalwithout reference to the statute's novelty, the judge could thenconsider the statute's novelty in deciding whether to actuallyinvalidate the statute and ultimately hold it unconstitutional.

This approach to legislative novelty may be particularly useful inareas of underenforced constitutional norms. Professor Larry Sagerinitially described underenforced constitutional norms as ideals thatare embodied in the Constitution but that judges, for various reasons,cannot fashion into judicially enforceable standards. (424) One ofSager's examples of an underenforced constitutional norm was theEqual Protection Clause: "Under th[e] federal judicial construct ofthe equal protection clause" (425) that is the "permissivestrand" (426) of rational basis review, "only a small part ofthe universe of plausible claims of unequal and unjust treatment bygovernment is seriously considered by the federal courts; the vastmajority of such claims are dismissed out of hand." (427) Whenfaced with a constitutional claim premised on an underenforcedconstitutional norm, judges may encounter a statute that offends theconstitutional norm--say "unequal and unjust treatment bygovernment"--but that is not identified as such by the doctrinedesigned to enforce the norm. In such a case, the court may seek to drawlimited, rule-like lines that identify specific things that Congresscannot do. Used in this context, the antinovelty principle may providesome assurances that the judicially crafted rule will not havedisastrous practical consequences.

There are, however, two caveats about how this kind of reliance onlegislative novelty might work. The first is that the statute'snovelty is not being used to determine whether a statute isunconstitutional.

Novelty instead enters into the analysis only once a judge hasdetermined that a statute violates some constitutional norm based onother considerations. Those other considerations include: precedent andthe reasons animating the results in prior cases (including moderncases); congressional practice, meaning whether a new statute ismeaningfully different from other statutes (including recently enactedones); constitutional text (including glosses on the text provided bydoctrine and practice); historical materials not limited to particularperiods in time; and considerations of substantive and moral justice.

The second caveat is that whatever rule the court fashions toexplain why the statute is unconstitutional must itself be coherent. Theline between what is prohibited and what is permissible must make somesense of the relevant constitutional norm--whether it be the scope ofCongress's delegated powers vis-a-vis the states or the scope ofCongress's powers vis-a-vis the other branches of the federalgovernment. Whatever line a court draws must be able to coherentlyexplain how an unconstitutional statute is meaningfully different frompermissible ones. Used in this way, novelty could conceivably play asecondary role when judges are attempting to adjudicate vagueconstitutional norms. When judges want to identify a statute asunconstitutional on the basis of an underenforced constitutional norm,the fact that Congress has never passed a similar statute may providesome assurances that finding the statute unconstitutional will notresult in many other statutes also being held unconstitutional.

In some ways, this account of legislative novelty is similar to howthe decision in New York was originally premised on legislative novelty.The New York Court identified government practices that had, by the timeof the decision, become firmly rooted and quite common, such asconditions attached to states when they received federal money. But theCourt assured that the practice of ordering state legislatures to enactfederal law was not similarly firmly rooted or common. The ruleannounced in New York, however, may fail the two "caveats" torelying on legislative novelty: there are strong arguments that thetext, original meaning, doctrine, and other constitutional metrics asidefrom the statute's novelty did not suggest that the Constitutionforbids Congress from requiring state legislatures to enact federaldirectives. (428) Strong arguments could also be made to show that, withrespect to the values federalism purportedly serves, federal directivesare not meaningfully different from conditions attached to federal fundsor conditions attached to preemption schemes, both of which areconstitutionally permissible. (429)

CONCLUSION

The Court's antinovelty rhetoric should be abandoned.Congress's failure to enact a statute rarely reflects priorCongresses' assumption that it lacks the constitutional power to doso. Antinovelty rhetoric, accordingly, should not serve as a means ofincorporating Congress's constitutional assumptions into judicialconstitutional interpretations. Legislative novelty is not a sign that alaw is actually unconstitutional, nor should legislative novelty be usedas evidence indicating that a statute is unconstitutional. Nothing inthe conventional sources of constitutional law suggests that a federalstatute's novelty is evidence that the statute is unconstitutional,and a presumption that novel federal statutes are unconstitutional wouldbe difficult to operationalize in a defensible, coherent way. Usinglegislative novelty as evidence that a statute is unconstitutionalserves little purpose, and it could prevent ordinary and legitimatecongressional innovation.

Constitutional law will always, in some sense, be about change."[I]n almost every instance of the exercise of ... powerdifferences are asserted from previous exercises of it and made a groundof attack." (430) Although novelty may precipitate constitutionalchallenges, it should not be used to resolve them.

Leah M. Litman ([dagger])

([dagger]) Assistant Professor of Law, UC Irvine School of Law.Thanks to Mario Barnes, Alex Camacho. Jennifer Chacon. ErwinCheraerinsky. Seth Davis, Daniel Deacon, Dan Burk, Dick Fallon,Catherine Fisk, Bryant Garth, Jonathan Glater, Michele Goodwin, RickHasen, Don Herzog, Summer Kim, Mike Klarman, Christopher Leslie, JohnManning, Tim Sellers, Greg Shaffer, and Ken Simons for their helpful andgenerous feedback, as well as Christina O'Tousa and the othereditors of the Duke Law Journal for their great work on what turned outto be a very long article.

(1.) Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct.2566, 2586 (2012) (quoting Free Enter. Fund v. Pub. Co. AccountingOversight Bd.. 561 U.S. 477, 505 (2010)).

(2.) McCulloch v. Maryland. 17 U.S. (4 Wheat.) 316, 401 (1819).

(3.) See generally Michael C. Dorf, The Vndead Constitution, 125HARV. L. REV. 2011 (2012) (book review) (describing popular and socialmovements that precipitate constitutional change); Reva B. Siegel. Shethe People: The Nineteenth Amendment, Sex Equality, Federalism, and theFamily, 115 HARV. L. REV. 947 (2002) (same); David A. Strauss. TheIrrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457 (2001)(describing sources of change other than constitutional amendments).

(4.) See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S.833, 863 (1992) (plurality opinion) (posing the question of when achanging "understanding of the facts" merits constitutionalchange); DAVID A. STRAUSS, THE LIVING CONSTITUTION 5 (2010) (arguingthat the Constitution's meaning must change as time passes).

(5.) New York v. United States, 505 U.S. 144 (1992).

(6.) Id. at 177.

(7.) Printz v. United States, 521 U.S. 898 (1997).

(8.) Id. at 935.

(9.) Id. at 905.

(10.) Two years after Printz, Alden v. Maine relied on the sameprinciple, without qualifying that the federal power must be highlyattractive. Alden v. Maine, 527 U.S. 706. 744 (1999).

(11.) Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561U.S. 477 (2010) (Scalia. Kennedy, Thomas, and Alito, J.J., dissenting).

(12.) Id. at 505.

(13.) Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct.2566, 2586 (2012); id. at 2649 (Scalia, Kennedy, Thomas, and Alito,J.J., dissenting).

(14.) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819);see, e.g.. Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO.WASH. L. REV. 1119,1124 (1998) (linking McCulloch with the idea"that the Constitution allows the living legislature togovern"); Barry Friedman & Scott B. Smith. The SedimentaryConstitution. 147 U. PA. L. REV. 1, 11 n.25 (1998) (same).

(15.) Curtis A. Bradley & Trevor W. Morrison. Historical Glossand the Separation of Powers, 126 HARV. L. REV. 412, 413 (2012); seealso id. at 416 ("[O]ur consideration of the role of historicalpractice is limited to the constitutional separation of powers, and inparticular to issues of executive and legislative power.").

(16.) Id. at 432.

(17.) Bradley and Morrison explained the relevant principle asfollows: a longstanding pattern of one branch's actions justifiesthat branch's legal authority when "the other branch can bedeemed to have 'acquiesced' in the practice over time."Id.

(18.) Some of the reasons Bradley and Morrison give for why"it is precarious to infer congressional acquiescence" from"the absence of legislation prohibiting the executive action inquestion," id. at 448. also speak to whether congressional silenceor inaction may signify a constitutional infirmity, see id. at 440-43.For a similar discussion, see infra Part H.A.

(19.) See supra text accompanying notes 10-12; cf. Va. Office forProt. & Advocacy v. Stewart, 563 U.S. 247, 260 (2011)("Novelty, however, is often the consequence of past constitutionaldoubts....").

(20.) Ass'n of Am. R.R.s v. U.S. Dep't of Transp., 721F.3d 666, 669 (D.C. Cir. 2013); Seven-Sky v. Holder, 661 F.3d 1,18 (D.C.Cir. 2011); see Zivotofsky v. Sec'y of State, 725 F.3d 197, 221-22(D.C. Cir. 2013) (Tatel. J., concurring); Free Enter. Fund v. Pub. Co.Accounting Oversight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh.J., dissenting).

(21.) United States v. Kebodeaux, 687 F.3d 232, 237-38 (5th Cir.2012).

(22.) Thomas More Law Ctr. v. Obama, 651 F.3d 529, 556, 559 (6thCir. 2011) (Sutton, J., concurring), abrogated by Nat'l Fed'nof Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2586 (2012).

(23.) Neal Katyal and Thomas Schmidt maintain that NFIB"yielded an important constitutional innovation," which theycall the "antinovelty doctrine: a law without historical precedentis constitutionally suspect." Neal Kumar Katyal & Thomas P.Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change,128 HARV. L. REV. 2109. 2139 (2015). But Katyal and Schmidt foreswearany kind of critical examination or assessment of the antinoveltydoctrine, explaining that their "purpose is not to debunk theantinovelty doctrine on the merits." Id. at 2149.

(24.) Romer v. Evans, 517 U.S. 620 (1996).

(25.) Windsor v. United States, 133 S. Ct. 2675 (2013).

(26.) Romer, 517 U.S. at 635-36.

(27.) Id. at 632.

(28.) Id. at 633.

(29.) Id. (quoting Louisville Gas & Elec. Co. v. Coleman, 277U.S. 32, 37-38 (1928)). The Court in Romer then declared, "It isnot within our constitutional tradition to enact laws of thissort." Id.

(30.) Windsor, 133 S. Ct. at 2692. For a countering view that DOMAs regulation of marriage is not novel, see Judith Resnik."Naturally " Without Gender: Women. Jurisdiction, and theFederal Courts. 66 N.Y.U. L. REV. 1682, 1721 (1991).

(31.) See Bradley & Morrison, supra note 15, at 416 (contendingthat federalism and separation-of-powers challenges "do[] nottypically raise concerns about the oppression of minorities or otherdisadvantaged groups" that arise "in some individual rightsareas").

(32.) McCulloch v. Maryland. 17 U.S. (4 Wheat.) 316.401 (1819).Romer--and also Windsor--similarly defined the relevant principle asapplicable to "[discriminations of an unusual character."Windsor, 133 S. Ct. at 2692 (quoting Coleman, 277 U.S. at 37-38): Romer,517 U.S. at 633 (same).

(33.) Bradley & Morrison, supra note 15, at 416.

(34.) Id. at 417.

(35.) New York v. United States, 505 U.S. 144. 175-76 (1992). Themajority in New York included Justice O'Connor (the opinion'sauthor). Chief Justice Rehnquist, Justice Scalia, Justice Kennedy,Justice Souter. and Justice Thomas.

(36.) Id. at 176-77.

(37.) Id. at 156-57 ("The Tenth Amendment['s] ... limitis not derived from the text of the Tenth Amendment ... which ... isessentially a tautology.").

(38.) Id. at 166.

(39.) Id. at 168-69.

(40.) Id. at 174-75.

(41.) Id. at 177. Similar to New York, the Court in Plaut v.Spendthrift Farm, Inc. also observed that a statute was novel in thecourse of finding that statute unconstitutional. Plaut v. SpendthriftFarm, Inc.. 514 U.S. 211, 230 (1995). The Plaut Court also suggested thestatute's novelty was relevant to the constitutional analysis, butin less forceful terms than Printz and other cases later adopted:"Apart from the statute we review today, we know of no instance inwhich Congress has attempted to set aside the final judgment of anArticle III court by retroactive legislation. That prolonged reticencewould be amazing if such interference were not understood to beconstitutionally proscribed." Id.

(42.) Printz v. United States, 521 U.S. 898, 935 (1997). Themajority in Printz included Justice Scalia (the opinion's author).Chief Justice Rehnquist, Justice O'Connor, Justice Kennedy, andJustice Thomas.

(43.) Id. at 905.

(44.) Id. (second alteration in original) (third omission inoriginal) (emphasis added) (citations omitted) (first quoting Brief forthe United States at 28. Printz v. United States, 521 U.S. 898 (1997)(Nos. 95-1478. 95-1503), 1996 WL 595005, at *28; then quoting Bowsher v.Synar, 748 U.S. 714, 723-24 (1986); and then quoting Myers v. UnitedStates, 272 U.S. 52, 175 (1926)). This statement is also technically theinverse of the preceding one.

(45.) Id. at 907. The Printz Court said that a latenineteenth-century statute did not state a command and that a draftstatute was not coercive. Id. at 916-17. It offered some reasons fordistinguishing between state judicial and executive officers. See id. at907 (relying on the Supremacy Clause, Congress's ability to notcreate federal courts, and the tradition of courts applying foreignlaw). For a critique of the Court's reasoning, see Evan H.Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997SUP. CT. REV. 199, 213-14.

(46.) Printz, 521 U.S. at 907-08.

(47.) Id. at 916.

(48.) Id. at 918.

(49.) Alden v. Maine, 527 U.S. 706 (1999). The majority in Aldenwas the same majority as in Printz. Justice Kennedy, rather than JusticeScalia, wrote that opinion.

(50.) Id. at 745.

(51.) Id. at 743.

(52.) Id.; see also id. at 744 ("[S]tatutes purporting toauthorize private suits against nonconsenting States in state courts ...are all but absent from our historical experience.").

(53.) Id. at 744.

(54.) Id.

(55.) Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561U.S. 477, 484, 486-87 (2010). The Free Enterprise Fund majority includedChief Justice Roberts (the opinion's author), Justice Scalia,Justice Kennedy, Justice Thomas, and Justice Alito.

(56.) Id. at 492.

(57.) Id. at 492. 497-98.

(58.) Id. at 506. Free Enterprise Fund's forceful account ofantinovelty rhetoric directly quotes Judge Kavanaugh's dissent tothe opinion of the U.S. Court of Appeals for the D.C. Circuit. See FreeEnter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 699(D.C. Cir. 2008) (Kavanaugh, J., dissenting).

(59.) See Free Enter. Fund. 561 U.S. at 514 (calling the doublelayer of protection a "new type of restriction"); id. at 496(calling it a "novel structure"); id. at 505 (calling it"highly unusual"); id. at 505 (noting that "[t]he parties[had] identified only a handful of isolated positions" that mightbe similar).

(60.) Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct.2566 (2012).

(61.) Id. at 2591.

(62.) Id. at 2586.

(63.) Id.

(64.) Id. (quoting United States v. Lopez. 514 U.S. 549, 564(1995)).

(65.) Id. at 2642 (Scalia. Kennedy. Thomas, and Alito, J.J.,dissenting).

(66.) Id. at 2647. 2649 (describing the minimum-coveragerequirement as "unprecedented" and explaining that "therelevant history is ... that [Congress] has never before used theCommerce Clause to compel entry into commerce").

(67.) Transcript of Oral Argument at 11-12. Dep't of Health& Human Servs. v. Florida, 132 S. Ct. 2566 (2012) (No. 11-398).https://www.supremecourt.gov/oral_arguments/argument_transcripts/2011/11-398-Tuesday.pdf [https://perma.cc/NW6U-J5E6].

(68.) Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). The statutedirected the U.S. Department of State to identify "Israel" asan applicant's birthplace on her passport when the applicant wasborn in Jerusalem and requested such identification. See id. at 2082.The Zivotofsky majority included Justice Kennedy (the opinion'sauthor). Justice Ginsburg, Justice Breyer, Justice Sotomayor. andJustice Kagan.

(69.) Id. at 2091 (quoting Zivotofsky v. Sec'y of State, 725F.3d 197, 221-22 (D.C. Cir. 2013) (Tatel. J., concurring)). TheZivotofsky Court's invocation of antinovelty rhetoric was borrowedfrom Judge Tatel's concurrence to the opinion by the U.S. Court ofAppeals for the D.C. Circuit.

(70.) See. e.g.. Medellin v. Texas. 552 U.S. 491, 532 (2008)(finding that a presidential memorandum had no legal effect on states inpart because it "is not supported by a 'particularlylongstanding practice' of congressional acquiescence, but rather iswhat the United States itself has described as 'unprecedentedaction'" (citations omitted) (first quoting Am. Ins.Ass'n v. Garamendi, 539 U.S. 396. 415 (2003); then quoting Brieffor the United States as Amicus Curiae at 29-30, Sanchez-Llamas v.Oregon. 548 U.S. 331 (2006) (No. 04-10566))).

(71.) NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).

(72.) U.S. Const, art. II, [section] 2, cl. 3; Noel Canning, 134 S.Ct. at 2566-67.

(73.) Shelby Cty. v. Holder. 133 S. Ct. 2612 (2013).

(74.) Id. at 2631. For more information on the VRA and theCourt's decision, see infra notes 159-63, 405-06.

(75.) Id. at 2618.

(76.) Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247(2011).

(77.) Id. at 260-61.

(78.) Id. at 270 (first alteration in original) (quoting FreeEnter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 505(2010)).

(79.) Id. at 260; see also id. (explaining that "[l]ack ofhistorical precedent can indicate a constitutional infirmity" andthat "[n]ovelty ... is often the consequence of past constitutionaldoubts").

(80.) Other cases address antinovelty rhetoric but uphold thefederal statute. See, e.g., Thomas More Law Ctr. v. Obama, 651 F.3d 529,556, 559 (6th Cir. 2011) (Sutton. J., concurring) (explaining that"[l]egislative novelty typically is not a constitutionalvirtue" and that this fact "dignifie[d] the plaintiffs'argument"); Seven-Sky v. Holder, 661 F.3d 1,18 (D.C. Cir. 2011)("The novelty ... is not irrelevant. The Supreme Court occasionallyhas treated a particular legislative device's lack of historicalpedigree as evidence that the device may exceed Congress'sconstitutional bounds.").

(81.) United States v. Kebodeaux. 687 F.3d 232. 234 (5th Cir. 2012)(en banc), rev'd, United States v. Kebodeaux, 133 S. Ct. 2496(2013).

(82.) United States v. Kebodeaux, 133 S. Ct. 2496 (2013).

(83.) See id. at 2501.

(84.) Kebodeaux. 687 F.3d at 237-38.

(85.) Ass'n of Am. R.R.s v. U.S. Dep't of Transp., 721F.3d 666, 669 (D.C. Cir. 2013), vacated, U.S. Dep't of Transp. v.Ass'n of Am. R.R.s. 135 S. Ct. 1225 (2015).

(86.) Id. at 673.

(87.) Id.

(88.) U.S. Dep't of Transp. v. Ass'n of Am. R.R.s, 135 S.Ct. 1225, 1228 (2015).

(89.) See PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1,21-22 (D.C. Cir. 2016), vacated and reh'g en banc granted, No.15-1177 (D.C. Cir. Feb. 16, 2017). Indeed, the President may have morepower over agencies headed by a single person, rather than a multimembercommission. A President would only have to convince, fire, or replaceone person in the former case, but he would have to convince, fire, orreplace several people in the latter.

(90.) See, e.g., id. at 6 ("[N]o independent agency exercisingsubstantial executive authority has ever been headed by a single person.Until now."); id. at 8 (describing this structure as a "grossdeparture" and "never before" used); id. at 21 (notingthat the CFPB is "exceptional" and "unprecedented").

(91.) See Mistretta v. United States, 488 U.S. 361, 385 (1989)("Our constitutional principles of separated powers are notviolated, however, by mere anomaly or innovation.").

(92.) See, e.g.. United States v. Kebodeaux, 133 S. Ct. 2496. 2501(2013) (reversing the Fifth Circuit's holding that a provision ofthe Sex Offender Registration and Notification Act exceededCongress's power without noting the statute's novelty). TheChief Justice invoked the antinovelty principle in his dissent in BankMarkazi v. Peterson, which Justice Sotomayor also joined. Bank Markaziv. Peterson, 136 S. Ct. 1310, 1329 (2016) (Roberts, C.J., dissenting).The dissent maintained:

 There has never been anything like [section] 8772 before. Neither the majority nor respondents have identified another statute that changed the law for a pending case in an outcome-determinative way and explicitly limited its effect to particular judicial proceedings. That fact alone is "[p]erhaps the most telling indication of the severe constitutional problem" with the law.

Id. at 1333 (quoting Free Enter. Fund v. Pub. Co. AccountingOversight Bd., 561 U.S. 477, 505 (2010)).

(93.) In VOPA, for example, the Court explained that "theapparently novelty" of the suit did "not at all suggest itsunconstitutionality" as opposed to the fact that the"conditions" for such a suit "rarely coincide." Va.Office for Prot. & Advocacy v. Stewart. 563 U.S. 247, 260-61 (2011).

(94.) That describes NFIB, Free Enterprise Fund, and Zivotofsky,which were decided when Justice Scalia was still on the Court. Alden,Printz. and New York were similarly divided along ideological lines, butthey were decided when Justice O'Connor and Chief Justice Rehnquistwere on the Court instead of Justice Alito and Chief Justice Roberts,and when Justice Souter and Justice Stevens were on the Court instead ofJustice Sotomayor and Justice Kagan.

(95.) Bank Markazi v. Peterson. 136 S. Ct. 1310 (2016).

(96.) E.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132S. Ct. 2566, 2586 (2012) ("[T]he lack of historical precedent"is a "telling indication of [a] severe constitutionalproblem.").

(97.) Professor Richard Fallon has observed that different forms ofargument cannot be weighed against one another because they are notcommensurable. See generally Richard H. Fallon, Jr.. A ConstructivistCoherence Theory of Constitutional Interpretation, 100 HARV. L. REV.1189 (1987) (considering how to weigh structure and doctrine when theypoint in different directions). Others have challenged whether"incommensurability" is a true impediment to reasonedconstitutional decisionmaking. See Michael C. Dorf, Create Your OwnConstitutional Theory, 87 CALIF. L. REV. 593, 607-08 (1999).

(98.) Alden v. Maine. 527 U.S. 706, 713 (1998).

(99.) Id.

(100.) Zivotofsky v. Kerry, 135 S. Ct. 2076. 2084 (2015).

(101.) Alden also contained analysis that suggested novelty wasmore like an on-off switch. Like NFIB, Alden appears to have put theburden on the government to demonstrate that a particular statute wasviewed as constitutional at the time the Constitution was ratified.Responding to the dissent's argument that nothing in the historicalmaterials addressed the validity of congressional statutes purporting tosubject the states to suits for damages, the Court replied, "Thedissent has provided no persuasive evidence that the founding generationregarded the States sovereign immunity as defeasible by federalstatute." Alden, 527 U.S. at 733.

(102.) Printz v. United States, 521 U.S. 898, 905 (1997).

(103.) Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct.2566, 2586 (2012).

(104.) Katyal & Schmidt, supra note 23, at 2141.

(105.) Id.

(106.) Cf. Richard H. Fallon, Jr.. The Many and Varied Roles ofHistory in Constitutional Adjudication, 90 NOTRE DAME L. REV. 1753, 1755(2015) (describing originalism as "underdefined"); Pamela S.Karlan, The Supreme Court, 2011 Term--Foreword: Democracy and Disdain,126 HARV. L. REV. 1. 28-29 (2012) ("With the possible exception of'originalism,' there is no word in constitutional law whosemeaning means less than 'activism.'").

(107.) See infra Part II.

(108.) See, e.g., Printz v. United States, 521 U.S. 898. 918 (1997)("[T]hey are of such recent vintage that they are no more probativethan the statute before us of a constitutional tradition.").

(109.) See Gillian E. Metzger, To Tax, to Spend, to Regulate, 126HARV. L. REV. 83, 83-84 (2012) (showing how arguments against the ACA"challenged th[e] basic constitutional consensus" of thepost-New Deal framework).

(110.) See Cass R. Sunstein & Adrian Vermeule, The New co*ke: Onthe Plural Aims of Administrative Law, 2015 SUP. CT. REV. 41, 41-42("[T]he New co*ke is a living-constitutionalist movement, a productof thoroughly contemporary values and fears--clearly prompted bycontinuing rejection, in some quarters, of the New Deal itself.").

(111.) See Mariano-Florentio Cuellar. Administrative War. 82 GEO.WASH. L. REV. 1343. 1362 (2014) ("[T]he federal bureaucracy hadexpanded considerably in the 1930s.").

(112.) See Randy e. Barnett, No Small Feat: Who Won the Health CareCase (And Why Did So Many Law Professors Miss the Boat)?, 65 FLA. L.REV. 1331. 1347-49 (2013).

(113.) See Richard A. Primus, When Should Original MeaningsMatter?, 107 mich. l. rev. 165, 167 & n.8 (2008) (citing STEPHENBREYER. ACTIVE LIBERTY 7-8 (2005)). They may be joining opinions withthe novelty language out of necessity to secure votes, they may notnotice it, or they may not associate antinovelty rhetoric with theselarger projects or the other cases in which it has been invoked.

(114.) Brief for Petitioner, Printz v. United States, 521 U.S. 898(1997) (No. 95-1478), 1996 WL 464182 (no mention); Brief for Petitionerat 37. Mack v. United States, No. 95-1603, 1996 WL 470962, at *37("Only in 1975 did an arm of the national government assertauthority to command State officials to regulate interstatecommerce.").

(115.) Brief for Respondents, Nat'l Fed'n of Indep. Bus.v. Sebelius, 132 S. Ct. 2566 passim (2012) (Nos. 11-393. 11-398, 11-400)(using the word "unprecedented" throughout).

(116.) PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1 (D.C.Cir. 2016), vacated and reh 'g en banc granted. No. 15-1177 (D.C.Cir. Feb. 16, 2017).

(117.) Id. at 6-8,22-23.

(118.) See Alden v. Maine. 520 U.S. 706, 744 (1999). Some casesavoided identifying who thinks that a congressional power did not existby framing the antinovelty principle in the passive voice. The Court inPrintz. for example, said that "if ... earlier Congresses avoideduse of this highly attractive power, we would have reason to believethat the power was thought not to exist," but it does not identifywho thought the power did not exist. Printz v. United States, 521 U.S.898, 905 (1997) (emphasis added). And Printz and Alden reasoned that"the utter lack of [similar] statutes ... 'suggests an assumedabsence of such power.'" Alden, 527 U.S. at 744 (quotingPrintz, 521 U.S. at 907-08). Plaut reasoned similarly. See Plaut v.Spendthrift Farm, Inc., 514 U.S. 211, 230 (1995). These cases, however,must be primarily talking about Congress's beliefs. Alden made thisclear: "It thus appears early Congresses did not believe they hadthe power to authorize private suits against the States in their owncourts." Alden, 520 U.S. at 744 (emphasis added).

(119.) THE FEDERALIST NO. 51, at 349 (James Madison) (Jacob E.Cooke ed., 1961).

(120.) Levinson states that, with respect to federalism,"[a]ll of the variations on the political safeguards argument ...share the basic assumptions that the federal government, left to its owndevices, will inexorably expand its power." Daryl J. Levinson,Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915,940 (2005). And that account "finds a close analogy in the waycourts and theorists think about the constitutional separation ofpowers." Id. at 950. Further, "[c]ourts and theorists continueto embrace Madison's understanding of competition amongempire-building branches." Id.

(121.) Bradley & Morrison, supra note 15, at 439; see also NealKumar Katyal, Internal Separation of Powers: Checking Today's MostDangerous Branch from Within. 115 YALE L.J. 2314, 2316 (2006)("Publius's view of separation of powers presumes threebranches with equivalent ambitions of maximizing their powers, yetlegislative abdication is the reigning modus operandi."); Levinson,supra note 120, at 951-60 (critiquing the assumption with respect toseparation of powers); id. at 942-43 (critiquing the assumption withrespect to federalism).

(122.) Bradford R. Clark, Separation of Powers as a Safeguard ofFederalism. 79 Tex. L. Rev. 1321, 1341 (2001).

(123.) See Statistics and Historical Comparison, GOVTRACK,https://www.govtrack.us/congress/ bills/statistics[https://perma.cc/JX5F-36A R].

(124.) CONGRESS.GOV,https://www.congress.gov/search?qH%22congress%22:%22113%22.%22chamber%22:%22House%22,%22type%22:%22bills%22)&pageSort=documentNumber: desc [https://perma.cc/86N2-HNT9] (House); congress.gov,https://www.congress.gov/search? q=(%22congress%22:%22113%22,%22chamber%22:%22Senate%22,%22type%22:%22bills%22)&pageSort=documentNumber:desc [https://perma.cc/Z8EV-RBNV](Senate).

(125.) Public Laws, CONGRESS.GOV,https://www.congress.gov/public-laws/113th-congress[https://perma.cc/AUN9-3TZR].

(126.) Alden v. Maine, 527 U.S. 706, 744 (1999).

(127.) See John F. Manning. Continuity and the Legislative Design.79 NOTRE dame L. rev. 1863.1868 (2004).

(128.) U.S. CONST, art. I, [section] 7.

(129.) John F. Manning, Textualism and the Equity of the Statute.101 COLUM. L. REV. 1, 74-75 (2001) ("[B]icameralism effectivelyadopts a supermajority requirement."); Michael B. Rappaport.Amending the Constitution to Establish Fiscal Supermajority Rules. 13J.L. & pol. 705, 712 (1997) ("It is well known thatbicameralism functions like a supermajority requirement.").

(130.) Manning, supra note 129, at 76; see also Clark, supra note122, at 1340 (identifying Senate structure as a source of thesupermajority requirement).

(131.) See U.S. CONST, art. I; see also William T. Mayton. ThePossibilities of Collective Choice: Arrow's Theorem, Article I. andthe Delegation of Legislative Power to Administrative Agencies. 1986DUKE L.J. 948, 956 ("Given that members of the House and Senaterepresent different constituencies and given that these bodies mustconcur on a proposed law, a supermajority ... is in effect required formuch of the legislation approved by Congress.").

(132.) Terry M. Moe & William G. Howell. The Presidential Powerof Unilateral Action. 15 J.L. ECON. & ORG. 132,144 (1999)("Congress is made up of hundreds of members.... Although all havea common stake in the institutional power of Congress, this is acollective good that, for well-known reasons, can only weakly motivatetheir behavior.").

(133.) Bradley & Morrison, supra note 15. at 440.

(134.) See Frank H. Easterbrook. The Role of Original Intent inStatutory Interpretation. 11 HARV. J.L. & PUB. POL'Y 59, 64-65(1988) ("As Madison said in Federalist No. 10. the cumbersomeprocess of legislation is the best safeguard against error.").

(135.) THE FEDERALIST NO. 62, at 418 (James Madison) (James E.Cooke ed., 1961). Madison also said, "[A] senate, as a secondbranch of the legislative assembly, distinct from and dividing the powerwith a first, must be in all cases a salutary check on the government.It doubles the security to the people by requiring the concurrence oftwo distinct bodies...." Id.

(136.) James Madison, Notes on the Constitutional Convention (July14, 1787), in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 9 (MaxFarrand ed., 1911).

(137.) THE FEDERALIST NO. 72, at 496 (Alexander Hamilton) (James E.Cooke ed.. 1961).

(138.) U.S. CONST, art. I, [section] 5, cl. 2 ("Each House maydetermine the Rules of its Proceedings.").

(139.) McNollgast, Positive Canons: The Role of LegislativeBargains in Statutory Interpretation. 80 GEO. L.J. 705, 707 & n.5(1992); see Moe & Howell, supra note 132, at 146.

(140.) McNollgast. supra note 139, at 720-21; see also Easterbrook,supra note 134, at 64-65 ("They must run the gamut of theprocess--and process is the essence of legislation."); William N.Eskridge. Jr.. Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV.1441,1442-43 (2008) (discussing how complicated the federal legislativeprocess is).

(141.) Eskridge, supra note 140, at 1444.

(142.) Id.

(143.) Id.

(144.) Moe & Howell, supra note 132, at 146. Professors KennethA. Shepsle and Barry R. Weingast also explain:

 The Rules Committee in the House may refuse to grant a rule for a committee bill, thereby scuttling it. The Speaker may use his power to schedule legislation and to control debate in ways detrimental to the prospects of a committee bill. A small group of senators in the U.S. Senate may engage in filibuster and other forms of obstruction. Any individual senator may refuse unanimous consent to procedures that would expedite passage of a committee bill. In short, veto groups are pervasive in legislatures....

Kenneth A. Shepsle & Barry R. Weingast, The InstitutionalFoundations of Committee Power, 81 AM. POL. SET. REV. 85. 89 (1987).

(145.) Frank H. Easterbrook, Statutes' Domains. 50 U. CHI. L.REV. 533, 548 (1983) (explaining that "[t]he foremost of ...checks" on a legislative body's power "is time").

(146.) Id. at 539.

(147.) Lawrence C. Marshall, "Let Congress Do It": TheCase for an Absolute Rule of Statutory Stare Decisis. 88 MICH. L. REV.177, 190 (1989).

(148.) Amy Coney Barrett, Statutory Stare Decisis in the Courts ofAppeals, 73 GEO. WASH. L. Rev. 317, 335-36 (2005).

(149.) Marshall, supra note 147, at 190.

(150.) Id.

(151.) R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 5(1990) ("Although [members of Congress] are not single-mindedseekers of reelection, reelection is their dominant goal.").

(152.) Bradley & Morrison, supra note 15, at 442.

(153.) Jody Freeman & David B. Spence, Old Statutes, NewProblems, 163 U. PA. L. REV. 1, 11-12 (2014).

(154.) John F. Manning, Justice Scalia and the Legislative Process,62 N.Y.U. Ann. surv. Am. L. 33, 38 (2006) (emphasis omitted).

(155.) Easterbrook, supra note 145, at 539.

(156.) See Manning, supra note 129. at 77. Professor John Manningalso stated:

 The minority's power to veto legislation carries with it the lesser power to insist, as the price of assent, upon less than what the bill's proponents ideally would desire--and, perhaps, less than what a reasonable person would view as a fully coherent approach to the mischief sought to be remedied.

Id.

(157.) Johnson v. Transp. Agency. 480 U.S. 616,671-72 (1987)(Scalia. J., dissenting) (emphasis omitted) (citation omitted). JusticeScalia was criticizing the Court for concluding that Congress'sfailure to amend a statute was evidence that Congress agreed with aSupreme Court decision interpreting that statute. If legislativeinaction is a weak proxy for Congress's assumptions about themeaning of the Constitution, legislative inaction should also be a weakproxy for Congress's assumptions about the meaning of a statute. Inboth cases, many different reasons might explain legislative inaction.Three doctrines--the acquiescence doctrine, the reenactment doctrine,and the rejected-proposal doctrine--infer something aboutCongress's assumptions regarding a statute from Congress'sinaction. Under the acquiescence doctrine, if "Congress is aware ofan authoritative agency or judicial interpretation of a statute and doesnot amend the statute, the Court has sometimes presumed that Congresshas 'acquiesced' in the interpretation'scorrectness." WILLIAM N. ESKRIDGE, JR.. PHILIP FRICKEY, ELIZABETHGARRETT & JAMES BRUDNEY, CASES AND MATERIALS ON LEGISLATION ANDREGULATION 854 (5th ed. 2014). Under the reenactment rule, "[i]fCongress reenacts a statute without making any material changes in itswording, the Court will often presume that Congress intends toincorporate authoritative agency and judicial interpretations of thatlanguage." Id. And under the rejected-proposal rule, "[i]fCongress (in conference committee) or one chamber (on the floor)considers and rejects specific statutory language, the Court has oftenbeen reluctant to interpret the statute along lines of the rejectedlanguage." Id.',see, e.g.. Koons Buick Pontiac GMC, Inc. v.Night, 543 U.S. 50, 63 (2004) (drawing an "analogy to Sir ArthurConan Doyle's "dog that didn't bark'"); id. at73 (calling it the "Canon of Canine Silence").

Whether these doctrines make too much of legislative inaction isbeyond the scope of this Article; statutory interpretation mayreasonably differ from constitutional interpretation. See William N.Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67.108-22 (1988) (discussing a defense of some iterations of thesedoctrines). The reenactment and rejected-proposal rules may be differentin that they draw an inference from legislative action (enacting astatute) that also happens to include some inaction (not amendinglanguage, either through responding to judicial or agency decisions orother representatives' proposals), rather than an inference simplyfrom inaction (not enacting a statute). Only the acquiescence rule makessomething solely of legislative inaction. Perhaps for this reason.Justice Scalia was particularly critical of it while on the Court. Seeinfra note 255; see also BRYAN A. GARNER & ANTONIN SCALIA. READINGLAW 326 (2012) (disavowing the acquiescence rule in cases of nonexistentlegislative amendments, but agreeing that "statutes adoptedafter" certain kinds of "prior judicial or administrativeinterpretations" may acquiesce in those interpretations). But evenwith the acquiescence rule, there is some precipitating event thatpurportedly, and somewhat plausibly, generates Congress'sattention--namely, a sufficiently important judicial or agencyinterpretation of a congressional statute. That may not be the case forthe Court's antinovelty rhetoric because there may be noprecipitating event that might plausibly catch Congress'sattention.

(158.) In Alden v. Maine. 527 U.S. 706 (1999), the Court reasonedthat Congress legislates in response to judicial decisions:

 To the extent recent practice ... departs from longstanding tradition, it reflects not so much an understanding that the States have surrendered their immunity from suit in their own courts as the erroneous view, perhaps inspired by [the Supreme Court's decisions in] Parden and Union Gas. that Congress may subject nonconsenting States to private suits in any forum.

Id. at 745.

(159.) For a summary, see Leah M. Litman, Inventing EqualSovereignty, 114 MICH. L. REV. 1207, 1208-09 (2016).

(160.) Lopez v. Monterey Cty., 525 U.S. 266, 283-85 (1999); City ofRome v. United States. 446 U.S. 159, 178-83 (1980); South Carolina v.Katzenbach, 383 U.S. 301, 334-35 (1966).

(161.) E.g., City of Boerne v. Flores, 521 U.S. 507 (1997). For anexplanation of the intervening legal challenges to the VRA. seegenerally Richard L. Hasen, Congressional Power to Renew thePreclearance Provisions of the Voting Rights Act After Tennessee v.Lane, 66 OHIO ST. L.J. 177 (2005).

(162.) See An Introduction to the Expiring Provisions of the VotingRights Act and Legal Issues Relating to Reauthorization: Hearing Beforethe S. Comm. on the Judiciary, 109th Cong. 8 (2006) (statement ofRichard L. Hasen. Professor, Loyola Law School) (focusing on thenecessity of passing a bill that "will ... pass constitutionalmuster in the Supreme Court"). The first question that SenateJudiciary Committee Chairman Arlen Specter asked Professor RichardPildes to answer at length was. "Is there anything that Congresscan do to ensure that the reauthorization of the Voting Rights Act isupheld by the Supreme Court under the 'congruence andproportionality' test articulated in City of Boerne v.Flores'!" The Continuing Need for Section 5 Pre-clearance:Hearing Before the S. Comm. on the Judiciary, 109th Cong. 105 (2006)(statement of Richard H. Pildes, Professor, New York University Schoolof Law) (emphasis omitted); see H.R. Rep. 109-478, at 93 (2006),reprinted in 2006 U.S.C.C.A.N. 618,678 (focusing on the VRA'sconstitutionality and noting that the VRA was previously upheld).

(163.) Nathaniel Persily, The Promise and Pitfalls of the NewVoting Rights Act (VRA), 117 YALE L.J. POCKET PART 139,140 (2007),htlp://www.yalelawjournal.org/forum/the-promise-and-pitfalls-of-the-ncw-voting-rights-act-vra [http://perma.cc/B7E3-FVZU]; see NathanielPersily, The Promise and Pitfalls of the New Voting Rights Act, 117 yaleL.J. 174,211 (2007) ("Whatever its drawbacks, the currcnl coverageformula had the virtue of already having been upheld by the SupremeCourt.").

(164.) Printz v. United States, 521 U.S. 898, 902 (1997).

(165.) Prigg v. Pennsylvania, 41 U.S. 539 (1842).

(166.) Id. at 624.

(167.) Id. M 615-16.

(168.) Evan H. Caminker, State Sovereignty and Subordinacy. 95colum. L. Rev. 1001, 1046 (1995); Charles Warren, Federal Criminal Lawsund the Stale Courts, 38 Harv. L. Rev. 545,58184 (1925) (describingSupreme Court cases intimating that Congress could not impress statejudicial officers into service).

(169.) Second Employers' Liab. Cases, 223 U.S. 1,57 (1912);Caminker, supra note 168, at 102328.

(170.) The Civil Rights Cases. 109 U.S. 3 (1883).

(171.) Id. at 15, 25.

(172.) ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHEDREVOLUTION 512-28 (1988) (describing how political moderates lost thewill to police southern stales).

(173.) See, e.g., United Slates v. Darby, 312 U.S. 100, 114-15(1941).

(174.) See Katzenbach v. McClung, 379 U.S. 294, 305 (1964)(upholding Title II of the Civil Rights Act of 1964); Heart of AtlantaMotel, Inc. v. United Slates, 379 U.S. 241, 261 (1964) (same).

(175.) Garcia v. San Antonio Mclro. Transit Auth., 469 U.S. 528(1985).

(176.) Id. at 554.

(177.) Douglas Layco*ck, Notes on the Rote of Judicial Review, theExpansion of Federal Power, and the Structure of Constitutional Rights,99 YALE L.J. 1711, 1733-34 (1990) (book review) (citing STATISTICALABSTRACT OF THE UNITED STATES 293, 380 (109th cd. 1989) (noting therewere 13,913,000 state and local government workers among the 109,597,000persons employed in the civilian noninstitutional population ages 16 andover).

(178.) BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE,HISTORICAL STATISTICS OF THE UNITED STATES, 1789-1945, at 64 ser. D.47-61 (1949), http://www2.census.gov/prod2/statcomp/documents/HistoricalSlatisticsoftheUniledStatesl789-1945.pdf [https://perma.cc/3WTZ-5NUN](showing that there were 12,920,000 gainful workers in 1870, with allgovernmental employees amounting to only 100.0(H)).

(179.) BUREAU OF THE CENSUS, U.S. PF.P'T OF COMMERCE,HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1970,BICENTENNIAL EDITION, pt. 5, at 137 ser. D 127-141 (1975).http://www2.census.gov/prod2/statcomp/documents/CT1970pl-05.pdf|https://perma.cc/ BK2P-T22S] (showing that nonagricultural governmentalemployees totaled 1,094,000 in 1900 and 2,371,000 in 1920); id. at 128ser. D 11-25, at 128 (showing that the civilian labor force totaled51,251,000 in 1900 and 87,981,000 in 1930).

(180.) Layco*ck, supra note 177, at 1733-34.

(181.) Caminker, supra note 168, at 1048; see also THE FEDERALISTNO. 15, at 97 (Alexander Hamilton) (James E. Cooke ed.. 1961) ("If,therefore, the measures of the Confederacy cannot be executed withoutthe intervention of the particular administrations, there will be littleprospect of their being executed at all."); Madison, supra note136, at 9 ("The practicability of making laws, with coercivesanctions, for the States as political bodies, had been exploded on allhands.").

(182.) LINDA GRANT DE PAUW, THE ELEVENTH PILLAR: NEW YORK STATE ANDTHE FEDERAL CONSTITUTION 33-34 (1966).

(183.) See Richard Primus. The Limits of Enumeration, 124 YALE L.J.576, 601-02 (2014) (discussing the direct-indirect distinction inCommerce Clause jurisprudence).

(184.) Gonzales v. Raich, 545 U.S. 1.17 (2005).

(185.) Katzenbach v. McClung, 379 U.S. 294,304 (1964); Heart ofAtlanta Motel. Inc. v. United States, 379 U.S. 241, 249-50 (1964).

(186.) Perez v. United States, 402 U.S. 146, 154 (1971).

(187.) United States v. Se. Underwriters Ass'n, 322 U.S. 533,542-45 (1944) (holding that Congress may regulate the insurance industrydespite stating in prior cases that insurance was not interstatecommerce), superseded by statute, 15 U.S.C. [section][section] 1011-1015(1970).

(188.) RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THEPRESUMPTION OF LIBERTY 318 (rev. ed. 2014); cf. Primus, supra note 183.at 579 ("[F]or much of the twentieth century, many people suspectedthat internal limits had lost all practical significance.").

(189.) Act of May 7, 1800, ch. 43, 2 Stat. 60 (repealed 1807)(continuing "[a]n act laying an additional duty on Salt importedinto the United States, and for other purposes").

(190.) Act of Feb. 25, 1801. ch. 11, 2 Stat. 102 (repealed 1802)(continuing "the act laying certain duties on snuff and refinedsugar").

(191.) 42 U.S.C. [section] 1437(a)(1)(A) (2012); id. [section]1441b.

(192.) 25 U.S.C. [section] 4101 (2012).

(193.) 42 U.S.C. [section][section] 3601-06.

(194.) Id. [section] 4852a(c)(l), (c)(5).

(195.) 25 U.S.C. [section][section]4112-13.

(196.) 42 U.S.C. [section][section]3616a(b)(2),(d).

(197.) Abbe R. Gluck, Intrastatutory Interpretation: StateImplementation of Federal Law in Health Reform and Beyond, 121 YALE L.J.534, 584-88 (2011) (describing different variations oncooperative-federalism programs).

(198.) See, e.g., Eloise Pasachoff. Agency Enforcement of SpendingClause Statutes: A Defense of the Funding Cut-Off, 124 YALE L.J. 248,259 (2014) (explaining federal grant conditions and mechanisms forenforcing compliance).

(199.) Va. Office for Prot. & Advocacy v. Stewart. 563 U.S.247, 260-61 (2011).

(200.) United States v. Comstock. 560 U.S. 126 (2010).

(201.) Id. at 136-37, 142.

(202.) See generally Ernest A. Young. Making Federalism Doctrine:Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM.& MARY L. Rev. 1733 (2005) (explaining how judges could compensatefor anti-federalist developments by developing pro-federalistdoctrines).

(203.) See Primus, supra note 183, at 587-91 (explaining thisargument).

(204.) Abbe R. Gluck, Federalism from Federal Statutes: HealthReform, Medicaid, and the Old-Fashioned Federalists' Gamble, 81FORDHAM L. REV. 1749, 1751-52 (2013).

(205.) John F. Manning, Federalism and the Generality Problem inConstitutional Interpretation. 122 Harv. L. Rev. 2003, 2055 (2009).

(206.) Leah M. Litman, Taking Care of Federal Law, 101 VA. L. REV.1289, 1352-53 (2015); John F. Manning, Separation of Powers as OrdinaryInterpretation, 124 HARV. L. REV. 1939, 1971-77 (2011).

(207.) Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV.1077, 1090 (2014).

(208.) See Daryl J. Levinson & Richard H. Pildes, Separation ofParties, Not Powers. 119 HARV. L. REV. 2311, 2315 (2006).

(209.) U.S. CONST, amend. XXVI.

(210.) Id. amend. XIX.

(211.) Id. amend. XV.

(212.) Edward L. Rubin, Law and Legislation in the AdministrativeState, 89 COLUM. L. REV. 369, 369 (1989).

(213.) Michael J. Klarman. Antifidelity, 70 S. Cal. L. Rev. 381,386 (1997).

(214.) Abbe R. Gluck, Anne Joseph O'Connell & Rosa Po,Unorthodox Lawmaking, Unorthodox Rulemaking, 115 COLUM. L. REV. 1789,1823 (2015); see generally Christopher J. Walker, Legislating in theShadows. 165 u. PA. L. REV. (forthcoming 2017) (describingagencies' role in the legislative process).

(215.) See, e.g., Barnes v. Kline, 759 F.2d 21, 39 (D.C. Cir.1985), vacated as moot sub nom. Burke v. Barnes, 479 U.S. 361 (1987).Compare U.S. CONST, art. I ("The Congress shall assemble at leastonce in every year...."), with ARTICLES OF CONFEDERATION of 1777,art. IX, para. 7 (requiring no period of adjournment be longer than sixmonths).

(216.) Joint Comm. on Printing, 113th Cong., 2013-2014 OFFICIALCONGRESSIONAL DIRECTORY 524 (Comm. Print 2013).

(217.) Id. at 528.

(218.) Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49STAN. L. REV. 181, 189-90 (1997).

(219.) Id. at 190.

(220.) Gerald B.H. Solomon & Donald R. Wolfensberger, TheDecline of Deliberative Democracy in the House and Proposals for Reform.31 HARV. J. ON LEGIS. 321, 327-28 (1994).

(221.) Gluck, O'Connell & Po, supra note 214, at 1800.

(222.) Id. at 1794. See generally BARBARA SINCLAIR, UNORTHODOXLAWMAKING (1997) (arguing that the conventional model no longeradequately captures the legislative process).

(223.) Gluck, O'Connell & Po, supra note 214, at 1800(emphasis omitted).

(224.) See, e.g.. Freeman & Spence, supra note 153, at 15-16.

(225.) Daniel T. Deacon. Administrative Forbearance, 125 YALE L.J.1548, 1557 (2016).

(226.) Id. at 1558.

(227.) Abbe R. Gluck, supra note 197, at 573.

(228.) In the constitutional convention itself, for example, onedelegate explained: "We all agree in the necessity of newregulations: but we differ widely in our opinions of what are the safestand most effectual." 1 The records of the federal convention of1787, at 161 (Max Farrand ed., 1911).

(229.) See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2586-87 (2012) (opinion of Roberts, C.J.) ("The power toregulate commerce presupposes the existence of commercial activity to beregulated.... The individual mandate, however, does not regulateexisting commercial activity."); id. at 2644 ("If thisprovision 'regulates' anything, it is the failure to maintainminimum essential coverage.... [T]hat failure--that abstention fromcommerce--is not 'Commerce.'").

(230.) Zivotofsky v. Kerry, 135 S. Ct. 2076, 2096 (2015).

(231.) McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).

(232.) Id. at 372 (Scalia, J., dissenting).

(233.) Unless the original understanding was to delegate a decisionto a subsequent Congress. See Caleb Nelson, Originalism and InterpretiveConventions, 70 U. CHI. L. REV. 519, 527-39 (2003) (explaining theconcept of liquidation).

(234.) Primus, supra note 113, at 177 & n.49 ("Manydoctrines that are central to modern constitutional law are notreconcilable with original constitutional meanings.").

(235.) Kenneth W. Dam. The Legal Tender Cases. 1981 SUP. CT. REV.367, 374. 389 (1982).

(236.) Henry Paul Monaghan, Stare Decisis and ConstitutionalAdjudication. 88 COLUM. L. REV. 723, 733-34 (1988); see Fallon, supranote 106. at 1810 ("Full-blooded exclusive originalism would be anutty view.").

(237.) See, e.g., Dorf, supra note 3, at 2027-30 (explaining thatpublic-school segregation would be constitutional under a"consistent and honest application of expected-applicationoriginalism"); Michael J. Klarman. Brown, Originalism, andConstitutional Theory: A Response to Professor McConnell, 81 VA. L. REV.1881, 1881 (1995) ("[t]he overwhelming consensus among legalacademics has been that Brown cannot be defended on originalistgrounds.").

(238.) See, e.g., David A. Strauss, The Supreme Court, 2014Term--Foreword: Does the Constitution Mean What It Says?, 129 Harv. L.Rev. 1, 3 (2015).

(239.) See, e.g., Ronald Dworkin, Comment, in ANTONIN SCALIA, AMATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 115, 124-25 (1997);Leonard W. Levy, LEGACY OF SUPPRESSION 173 (1960); Jack m. Balkin, NinePerspectives on Living Originalism, 2012 U. ILL. L. REV. 815, 835; Dorf,supra note 3, at 2027-30.

(240.) Professor Michael Dorf has explained how undoing thesedecisions may undermine individuals' abilities to identifysubjectively with the constitutional scheme. See Dorf, supra note 3, at2030 ("Although sacrificing Sullivan and Brown would not haveimmediate tangible legal consequences, these and other cases have cometo stand for more than the legal doctrines they announced. Theysymbolize the association in the public imagination of the Constitutionwith core ideals of liberty and equality.").

(241.) Michael c. Dorf, Integrating Normative and DescriptiveConstitutional Theory: The Case of Original Meaning, 15 GEO. L.J. 1765,1791-92 (1997) (explaining that a theory of constitutional law that"depart[s] so far from what the relevant audience understands thatsubject to be ... cannot meaningfully be called theories ofconstitutional law"). Philip Bobbitt maintains that constitutionalarguments and theory should conform--in some general way--to howconstitutional law is practiced because lawyers' reliance on thedifferent modalities of constitutional argument is what makes thearguments legitimate. PHILIP BOBBITT, CONSTITUTIONAL FATE 170-86 (1982).But Bobbin's explanation for why that should be the case is not theonly one. "It is one thing to argue that a practice is slightlyaskew, such that getting it right requires certain reforms. But it isquite another to argue that an entire community of practitioners isradically mistaken about the nature of its enterprise." Primus,supra note 113, at 178.

(242.) See Dorf, supra note 3, at 2020 (describing new originalistsas "rejecting] original intent in favor of original meaning").But there is substantial variety even among new originalists. See id. at2019 ("The simple dichotomy between old originalism and neworiginalism does not begin to capture the many variations of originalismnow on offer."). There are also different kinds of"meaning" other than original or semantic meaning. See RichardH. Fallon Jr.. The Meaning of Legal "Meaning" and ItsImplications for Theories of Legal Interpretation, 82 U. CHI. L. REV.1235,1290 (2015) (identifying other kinds of meaning).

(243.) Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 372(1995) (Scalia, J., dissenting).

(244.) Dorf, supra note 3. at 2031-34 (explaining how the two canbe grouped together even by original-public-meaning originalists).

(245.) See Gillian E. Metzger. The Constitutional Legitimacy ofFreestanding Federalism, 122 HARV. L. REV. 98,101 (2009).

(246.) Compare, e.g., Graham v. Florida. 560 U.S. 48, 48 (2010)(explaining that the Eighth Amendment prohibits imposing life withoutparole on juveniles convicted of nonhomicide offenses), with id. at 86(Roberts, C.J.. concurring) (contending that the Eighth Amendmentprohibits imposing life without parole on the particular juvenile):compare E. Enters, v. Apfel, 524 U.S. 498, 522-23 (1998) (finding thatthe Coal Industry Retiree Health Benefit Act effected anunconstitutional taking), with id. at 539 (Kennedy, J., concurring)(finding that the Act violated due process but did not amount to ataking).

(247.) See Richard Primus. Unbundling Constitutionality, 80 U. CHI.L. REV. 1079, 1104-28 (2013) (suggesting that a label ofconstitutionality traffics in different ideas).

(248.) See id. at 1107 ("[O]ur constitutional expectationshave the power to divert our attention from the words in thetext.").

(249.) Klarman, supra note 213, at 395-96 (explaining that thosewho try to "translate" constitutional texts to modern times"adjust the Framers' constitutional commitments to reflectchanged circ*mstances, but fail to ask whether the Framers would haveremained committed to the same concepts had they been aware of futurecirc*mstances").

(250.) Printz v. United States, 521 U.S. 898, 905 (1997).

(251.) Id. at 907-08 (first emphasis added).

(252.) See John F. Manning. The Absurdity Doctrine, 116 HARV. L.REV. 2387, 2459 n.265 (2003) (citing examples of likely scrivener'serrors).

(253.) See, e.g.. United States v. Stevens, 559 U.S. 460, 460(2010) (invalidating a statute that criminalized certain depictions ofanimal cruelty).

(254.) See supra text accompanying notes 231-41.

(255.) See Samantar v. Yousuf, 560 U.S. 305, 326 (2010) (Thomas,J., concurring in part and concurring in the judgment) (joining"the Court's opinion except for those parts relying on thelegislative history"); Milavetz, Gallop & Milavetz, P.A. v.United States, 559 U.S. 229, 253 (2010) (Scalia, J., concurring)(joining the Court's opinion except for a footnote mentioning"that the legislative history supports what the statuteunambiguously says"); Wyeth v. Levine, 555 U.S. 555, 594 (2009)(Thomas, J., concurring in the judgment) ("The cases improperlyrely on legislative history, broad a textual notions of congressionalpurpose, and even congressional inaction in order to preempt statelaw."); Conroy v. Aniskoff, 507 U.S. 511, 519 (1992) (Scalia, J.,concurring) ("We are governed by laws, not by the intentions oflegislators.").

(256.) Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct.2566, 2586 (2012) (quoting Free Enter. Fund v. Pub. Co. AccountingOversight Bd., 561 U.S. 477, 505 (2009)).

(257.) See Mistretta v. United States, 488 U.S. 361, 385 (1989)("Our constitutional principles of separated powers are notviolated, however, by mere anomaly or innovation.").

(258.) U.S. CONST, art. I. [section] 8.

(259.) John F. Manning, The Supreme Court, 2013 Term--Foreword: TheMeans of Constitutional Power. 128 HARV. L. REV. 1, 62 (2014).

(260.) Id. For a discussion of Hamilton's similar views, seeDaniel A. Farber, The Story of McCulloch: Banking on National Power. 20CONST. COMMENT. 679, 687-88 (2004).

(261.) Gillian E. Metzger, Appointments, Innovation, and theJudicial-Political Divide. 64 DUKE L.J. 1607, 1639 (2015).

(262.) U.S. CONST, amend. X (emphasis added).

(263.) The Tenth Amendment was enacted together with the NinthAmendment, which refers to "enumeration" rather thandelegation. See U.S. CONST, amend. IX.

(264.) See Evan H. Caminker, "Appropriate" Means-EndsConstraints on Section 5 Powers. 53 Stan. L. Rev. 1127, 1135 & n.35(2001) (listing as examples the power to regulate immigration, the powerover foreign affairs and diplomatic relations, and the power to protectthe American flag as a national symbol, as well as others); GilSeinfeld, Article I, Article III, and the Limits of Enumeration. 108MICH. L. REV. 1389,1394-1401 (2010) (listing examples).

(265.) Robert D. Cooter & Neil S. Siegel, Collective ActionFederalism: A General Theory of Article I, Section 8. 63 STAN. L. REV.115, 116 (2010) ("A federal constitution ideally gives the centraland state governments the power to do what each does best."). TheCourt occasionally invokes this kind of reasoning. See, e.g.. UnitedStates v. Comstock, 560 U.S. 126, 142-43 (2010) (construing federalcustodial power based on the assumption that the federal governmentcould prevent "an interstate epidemic"). Commentators havespelled out some of the ends of nationalism, such as having a federalgovernment that is capable of effectively exercising those powersdelegated to it. as well as unity, cohesion, and coordination. SeeRichard H. Fallon, Jr., The Ideologies of Federal Courts Law. 74 VA. L.REV. 1141, 1158-63 (1988) (describing nationalist premises of federalcourts doctrines); Gil Seinfeld, The Jurisprudence of Union, 89 NOTREDAME L. REV. 1085, 1085-86 (2014).

(266.) New York v. United States, 505 U.S. 144, 181 (1992).

(267.) See Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015)("[T]he Constitution contemplates that democracy is the appropriateprocess for change...."); Richard H. Fallon. Jr., Legitimacy andthe Constitution, 118 Harv. L. Rev. 1787, 1792-93 (2005). Primus hasalso noted:

 Part of the Constitution's legitimacy derives from its ability to deliver tolerable levels of substantive justice; part from the fact that citizens identify subjectively with the system of constitutional government and claim it as their own: part from the fact that the Constitution leaves a relatively broad field of play for democratic decisionmaking, albeit subject to certain constraints.

Primus, supra note 113, at 200-01.

(268.) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819)(describing the Constitution as a system of government that would"endure for ages to come" and "be adapted to the variouscrises of human affairs").

(269.) Id.

(270.) Some justifications for a presumption of constitutionalityturn on the assumption that a statute represents Congress's beliefthat the statute is constitutional. These justifications may be calledinto question by this Article's critique of the antinoveltyprinciple, but other justifications are not.

(271.) United States v. Harris, 106 U.S. 629, 635 (1883); see alsoOgdens v. Saunders, 25 U.S. (12 What.) 213. 270 (1827) (explaining that"respect" for "the wisdom, the integrity; and thepatriotism of the legislative body" compels the Court to"presume in favour of [a law's] validity, until its violationof the constitution is proved beyond all reasonable doubt").

(272.) United States v. Comstock, 560 U.S. 126, 135 (2010) (quotingMcCulloch. 17 U.S. (4 Wheat.) at 410); see Katyal & Schmidt, supranote 23, at 2139 ("The principle that the Court must presume lawsconstitutional is as old as judicial review.").

(273.) Seven-Sky v. Holder, 661 F.3d 1, 18 (D.C. Cir. 2011).

(274.) See generally H. Jefferson Powell, The OriginalUnderstanding of Original Intent. 98 HARV. L. REV. 885 (1985) (arguingthat the Framers' expectation of constitutional interpretation doesnot support an interpretive strategy based on the Framers' intent).

(275.) Fallon, supra note 97. at 1203; David A. Strauss, What IsConstitutional Theory?, 87 CALIF. L. REV. 581, 582 (1999) (explainingwhy a constitutional theory "cannot call for a wholesale departurefrom existing practices").

(276.) 42 U.S.C. [section][section] 2000e-1-17 (2012).

(277.) See Samuel R. Bagenstos, The Unrelenting LibertarianChallenge to Public Accommodations Law, 66 STAN. L. REV. 1205. 1211(2014) (describing how the Civil Rights Act of 1875 treated racediscrimination in public accommodations as a violation of civil, ratherthan merely social, rights). That legislation was enacted pursuant toCongress's powers under the Reconstruction Amendments, which theCourt invalidated. The Civil Rights Cases, 109 U.S. 3 (1883). Civilrights legislation is now enacted pursuant to Congress's powersunder the Commerce Clause. Heart of Atlanta Motel Inc. v. United States,379 U.S. 241, 261 (1964).

(278.) Congress has not yet enacted one of the bills that wouldexplicitly prohibit discrimination on the basis of sexual orientationand gender identity. See, e.g.. Equality Act, H.R. 3185, 114th Cong.(2015). https://www.congress.gov/bill/114th-congress/house-bill/3185[https://perma. cc/LF2Q-6FVJ].

(279.) Massachusetts v. Mellon. 262 U.S. 447, 480 (1923) (decliningto hear a challenge to the Maternity Act).

(280.) See Kate E. Ryan. Mandating Coverage for Maternity Length ofStays: Certain Problems with the Good Idea. 11 J.L. & HEALTH 271,295 (1996) (identifying the Maternity Act as the first federalregulation of maternal health). Although Congress had provided cash orpension benefits to war widows, these measures were not designed toestablish or affect standards for maternal health care. Kristin A.Collins, Federalism 's Fallacy: The Early Tradition of FederalFamily Law and the Invention of States' Rights, 26 Cardozo L. Rev.1761, 1782-1802 (2005) (describing pension allotments).

(281.) U.S. Dep't of Health & Human Servs., Health Res.& Servs. Admin., Programs & Initiatives, HRSA MATERNAL &CHILD HEALTH, http://mchb.hrsa.gov/programs/index.html[https://perma.cc/8ALB-M6NZ].

(282.) Law of Feb. 27, 1813, eh. 37 (repealed 1822),http://biotech.law.lsu.edu/cases/vaccines/ vac_act_1813.pdf[https://perma.cc/87YZ-659M].

(283.) Public Health Services Act, Pub. L. No. 78-410. ch. 373, 58Stat. 702 (1944), http://uscode.house.gov/statviewer.htm?volume=58&page=702[https://perma.cc/LV6U-RCWZ].

(284.) Vaccines, VACCINES, BLOOD & BIOLOGICS,http://www.fda.gov/BiologicsBlood Vaccines/Vaccines/[https://perma.cc/GJL9-MG5F].

(285.) See National Childhood Vaccine Injury Act of 1986, 42 U.S.C.[section][section] 300aal-34 (2012); National Childhood Vaccine InjuryAct of 1986. NAT'L VACCINE INFO. CTR., http://www.nvic.org/Vaccine-Laws/1986-Vaccine-Injury-Law.aspx [https://perma.cc/5HFF-TE37].

(286.) Animal Welfare Act, 7 U.S.C. [section] 54 (2013).

(287.) U.S. Dep't of Agrie.. Animal Welfare Act, U.S.DEP'T AGRIC. Nat'L AGRIC. LIBR..https://awic.nal.usda.gov/government-and-professional-resources/federal-laws/animal-welfare-act [https://perma.cc/A6DS-DMNZ].

(288.) U.S. Dep't of Agrie., Animal Welfare, Animal &Plant Health Inspection Serv.,https://www.aphis.usda.gov/wps/portal/aphis/ourfocus/animalwelfare[https://perma.cc/P6 TC-SJRJ].

(289.) About FDA, ABOUT THE CTR. FOR VETERINARY MED.,http://www.fda.gov/aboutfda/centersoffices/officeoffoods/cvm/default.htm[https://perma.cc/VYC4-F5BM].

(290.) The Antitrust Laws, GUIDE TO ANTITRUST LAWS,https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws[https://perma.cc/TC4G-R2T9].

(291.) United States v. Se. Underwriters Ass'n, 322 U.S. 533,553 (1944), superseded by statute 15 U.S.C. [section][section] 1011-1015(1970).

(292.) Paul v. Virginia. 75 U.S. 168,182-83 (1868).

(293.) E.g., Federal Crop Insurance Act, 7 U.S.C. [section] 1505(1994); 26 U.S.C. ch. 23; Employee Retirement Income Security Act of1974 (ERISA), Pub. L. No. 93-406, 80 Stat. 829 (codified as amended inscattered sections of 26 and 29 U.S.C.).

(294.) Lewis B. Kaden. Politics, Money, and State Sovereignty: TheJudicial Role, 79 COLUM. L. REV. 847. 871 (1979).

(295.) Id.

(296.) See Pasachoff, supra note 198, at 259, 271-73 (noting suchconditions). New York confirmed that conditional spending is aconstitutional means of regulating the states. New York v. UnitedStates, 505 U.S. 144, 167 (1992).

(297.) See Pasachoff, supra note 198, at 271-73 (discussingconditions on federal grants).

(298.) Va. Office for Prot. & Advocacy v. Stewart, 563 U.S.247, 251-52 (2011) (involving such a condition).

(299.) See Jessica Bulman-Pozen & Heather K. Gerken,Uncooperative Federalism, 118 Yale L.J. 1256. 1271-83 (2009) (discussingconditions in some of these statutes): Pasachoff, supra note 198, at267-69 (same).

(300.) See, e.g., Copyright Act of 1790, 1 Stat. 124; Patent Act of1790, 1 Stat. 109: An Act to Regulate Collection of Duties and Tonnageof 1799, 1 Stat. 627.

(301.) See, e.g., U.S. ADVISORY COMM'N ON IntergovernmentalRELATIONS, FEDERAL STATUTORY PREEMPTION OF STATE AND LOCAL AUTHORITY 6-7(1992), http://www.library. unt.edu/gpo/acir/reports/policy/a-121.pdf[https://perma.cc/D6G4-QEE2]

(302.) See R. Seth Davis, Note, Conditional Preemption,Commandeering, and the Values of Cooperative Federalism: An Analysis ofSection 216 of EPACT. 108 COLUM. L. REV. 404, 406 (2008) (referencingthe Energy Policy Act as an example of conditional preemption).

(303.) See Jessica Bulman-Pozen. Federalism as a Safeguard of theSeparation of Powers, 112 COLUM. L. Rev. 459, 474, 480 (2012) (using theClean Air Act as an example of conditional preemption).

(304.) See Gluck, supra note 197, at 585-86 ("[S]tates are thedefault and preferred implementers of the new federal program, but thereis a federal "fallback": the federal government must operatethese programs should states prove unable to do so or if they optout.").

(305.) See Gil Seinfeld, The Puzzle of Complete Preemption, 155 U.PA. L. REV. 537, 549-50 (2004) (listing examples).

(306.) Beneficial Nat'l Bank v. Anderson. 539 U.S. 1. 9 n.5(2003) (explaining that the question is "whether Congress intendedthe federal cause of action to be exclusive rather than ... whetherCongress intended that the cause of action be removable").

(307.) Avco Corp. v. Aero Lodge No. 735. Int'l Ass'n ofMachinists, 390 U.S. 557. 559-60 (1968).

(308.) Beneficial Nat'l Bank, 539 U.S. at 5.

(309.) Metro Life Ins. Co. v. Taylor, 581 U.S. 58, 66 (1987)(holding that Congress intended ERISA to completely preempt state law inthis area).

(310.) See Kirti Datla & Richard L. Revesz, DeconstructingIndependent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769,776 (2013); Robert L. Rabin, Federal Regulation in HistoricalPerspective. 38 Stan. L. Rev. 1189, 1189, 1206 (1986).

(311.) See, e.g., Whitman v. Am. Trucking Ass'ns, Inc. 531U.S. 457, 472 (2001) (explaining the delegation of authority to the EPA"to protect the public health" (quoting 42 U.S.C. [section]7409(b)(1) (2012))).

(312.) See, e.g.. United States v. O'Hagan, 521 U.S. 642, 650(1997) (explaining that the delegation of authority should be used"as necessary or appropriate in the public interest or for theprotection of investors" (quoting 15 U.S.C. [section] 78j(b)(2012))).

(313.) See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,209-12 (1988) (listing several delegations of rulemaking authority).

(314.) See, e.g.. Perez v. Mortg. Bankers Ass'n, 135 S. Ct.1199, 1204 (2015) (describing delegation).

(315.) See, e.g.. United States v. Morton Salt Co., 338 U.S. 632,632 n.1 (1950) (describing delegation).

(316.) Deacon, supra note 225, at 1551, 1561-64 (describing thisauthority and noting the discussion of historical analogs in Clinton v.City of New York, 524 U.S. 417 (1998)).

(317.) Datla & Revesz, supra note 310, at 786-99 (surveyingthese restrictions).

(318.) See PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1.12-13 (D.C. Cir. 2016), vacated and reh 'g en banc granted. No.15-1177 (D.C. Cir. Feb. 16, 2017).

(319.) See id. at 12-18; see, e.g., 12 U.S.C. [section] 5491(b)-(c)(2012) (establishing the position of Director of the CFPB as removableonly for cause).

(320.) Whitman v. Am. Trucking Ass'ns, Inc. 531 U.S. 457, 472(2001) (centering on a delegation of authority "to protect thepublic health" (quoting 42 U.S.C. [section] 7409(b)(1) (2012))).

(321.) Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427,2436-38(2014) (describing the history of this regulation).

(322.) Standards of Performance for Greenhouse Gas Emissions. 80Fed. Reg. 64,510 (Oct. 23. 2015) (to be codified at 40 C.F.R. pts. 60,70, 71, and 98); Carbon Pollution Emission Guidelines for ExistingStationary Sources, 80 Fed. Reg. 64.662 (Oct. 23, 2015) (to be codifiedat 40 C.F.R. pt. 60).

(323.) Carbon Pollution Emission Guidelines for Existing StationarySources, 80 Fed. Reg. at 64, 666-67.

(324.) Id. at 64, 820.

(325.) U.S. Telecomm. Ass'n v. FCC, 825 F.3d 674, 696 (D.C.Cir. 2016).

(326.) Commodity Futures Modernization Act of 2000, Pub. L. No.106-554, 114 Stat. 2763 (codified as amended in scattered sections of7,11,12. and 15 U.S.C.).

(327.) Swap Execution Facilities, 17 C.F.R. [section] 37 (2016).

(328.) See supra Part I.B.

(329.) For ease of reference, this Part refers to this idea as the"McCulloch principle." although it differs slightly from ChiefJustice Marshall's framing. In McCulloch v. Maryland, Chief JusticeMarshall wrote:

 [A] doubtful question ... [regarding] the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put to rest by the practice of the government.... An exposition of the constitution, deliberately established by legislative acts ... ought not to be lightly disregarded.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316. 401 (1819). JudgeKavanaugh's recent opinion holding the CFPB's structure to beunconstitutional explicitly framed the Supreme Court's antinoveltyrhetoric together with the McCulloch principle because both reflectedthe same idea "that history and tradition are importantguides." PHH Corp. v. Consumer Fin. Prot. Bureau. 839 F.3d 1,21-23(D.C. Cir. 2016), vacated and reh'g en banc granted. No. 15-1177(D.C. Cir. Feb. 16, 2017).

(330.) See generally LARRY D. KRAMER. THE PEOPLE THEMSELVES (2004)(advancing this argument); MARK TUSHNET, TAKING THE CONSTITUTION AWAYFROM THE COURTS (1999) (same); Curtis A. Bradley & Neil S. Siegel,After Recess: Historical Practice, Textual Ambiguity, and ConstitutionalAdverse Possession, 2014 SUP. CT. REV. 1, 27 (describing howincorporating congressional practice into constitutional interpretationis related to the idea that nonjudicial acts may constitute precedent).

(331.) McCulloch. 17 U.S. (4 Wheat.) at 401.

(332.) THE FEDERALIST No. 37. at 1236 (James Madison) (James E.Cooke ed., 1961); see also Letter from James Madison to Judge SpencerRoane (Sept. 2, 1819), in 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON143, 145 (Philadelphia, J.B. Lippincott ed., 1867) ("It could notbut happen, and was foreseen at the birth of the Constitution, thatdifficulties and differences of opinion might occasionally arise inexpounding terms and phrases ... and that it might require a regularcourse of practice to liquidate [and] settle the meaning of some ofthem.").

(333.) Nelson, supra note 233, at 547.

(334.) Id. at 526-29.

(337.) See Bradley & Morrison, supra note 15, at 418.

(338.) Id.

(339.) There are also both theoretical and practical difficultieswith acquiescence. See generally Shalev Roisman. ConstitutionalAcquiescence, 84 geo. wash. L. Rev. 668 (2016) (describing thesedifficulties).

(340.) See, e.g., Larry D. Kramer, Putting the Politics Back intothe Political Safeguards of Federalism. 100 COLUM. L. REV. 215, 224-25(2000) (summarizing different positions).

(341.) U.S. CONST, amend. XVII.

(342.) Evan H. Caminker, Thayerian Deference to Congress andSupreme Court Supermajority from the Past, 78 IND. L.J. 73,83 (2003).

(343.) Bradley & Morrison, supra note 15, at 417-18.

(344.) U.S. CONST, ART. I, [section] 8.

(345.) Manning, supra note 259, at 53.

(346.) U.S. CONST, ART. I, [section] 8. Those who ratified theConstitution disagreed about whether that provision permitted Congressto spend only in areas within its other delegated powers. See UnitedStates v. Butler, 297 U.S. 1, 65 (1936) ("Since the foundation ofthe Nation sharp differences of opinion have persisted as to the trueinterpretation of the phrase ['for the generalwelfare'].").

(347.) See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2601-02 (2012).

(348.) See South Dakota v. Dole. 483 U.S. 203.207-08 (1987).

(349.) See Primus, supra note 183, at 588.

(350.) James Bradley Thayer. The Origin and Scope of the AmericanDoctrine of Constitutional Law. 7 HARV. L. REV. 129, 156 (1893).

(351.) See Garrett & Vermeule, supra note 336, at 1279-80; seealso Karlan, supra 106, at 67 ("[M]any of the constitutional casesbefore the Supreme Court are there precisely because they raise hardquestions that cannot be answered simply by bringing technical acumen tobear.").

(352.) See Karlan, supra note 106, at 24-25 (urging deference onthese grounds).

(353.) See, e.g., Strauss, supra note 238, at 4 (claiming that"constitutional 'interpretation' usually has little to dowith the words of the text").

(354.) Dorf, supra note 241, at 1815.

(355.) Id.

(356.) See Richard Primus, Public Consensus as ConstitutionalAuthority, 78 GEO. WASH. L. REV. 1207, 1209-10 (2010) ("Just as thetext of a constitutional clause or the requirements of a precedentialdoctrine can guide good-faith constitutional adjudication, so can thefact that public consensus supports a particular view.").

(357.) See Dorf, supra note 3, at 2038-42.

(358.) See F. Andrew Hessick. Rethinking the Presumption ofConstitutionality, 85 NOTRE DAME L. REV. 1447,1450 (2010).

(359.) See Richard H. Fallon, Jr., How to Choose a ConstitutionalTheory. 87 CALIF. L. REV. 535, 549-50 (1999) (endeavoring to"provide a framework within which readers can determine how variousconstitutional theories should be assessed"). Democracy and therule of law are not the only values that judges should consider and willoccasionally conflict with other values. See Erwin Chemerinsky, TheSupreme Court. 1988 Term--Foreword: The Vanishing Constitution. 103Harv. L. Rev. 43, 75-76 (1989). Democracy also does not necessarily meanthat courts should mechanically defer to all decisions made by theelected branches of government. See id. at 76 (proposing that the term"democracy ... include both substantive constitutional values aswell as the procedural norm of majority rule," which "accordswith the analysis of most political science theorists"); see alsoRichard A. Primus, When Democracy Is Not Self-Government: Toward aDefense of the Unanimity Rule for Criminal Juries, 18 CARDOZO L. REV.1417, 1425-26 (1997) (noting two conceptions of democracy).

(360.) See David A. Strauss, Common Law, Common Ground, andJefferson's Principle, 112 Yale L.J. 1717, 1718 (2003) (citingThomas Jefferson at the time of the Founding as stating that "theearth belongs to the living, and not to the dead").

(361.) Richard H. Fallon. Jr., Constitutional Precedent ViewedThrough the Lens of Hartian Positive Jurisprudence. 86 N.C. L. REV.1107, 1117 (2008).

(362.) See Primus, supra note 113, at 190.

(363.) See id. at 173 ("Probably all players in contemporaryAmerican constitutional law agree that ... the rule of law ... [is a]constitutional value[].").

(364.) See id. at 211-13,217-21; see also Bradley & Morrison,supra note 15, at 427 ("[R]eliance interests ... can presumablyarise as a result of governmental practices as well as judicialdecisions."). There may be certain kinds of federal laws that, ifinvalidated, would uniquely implicate concerns about reliance, settledexpectations, and stability.

(365.) See, e.g., Bradley & Siegel, supra note 330, at 11(outlining Burkean approaches to constitutional interpretation).

(366.) See David A. Strauss, Common Law ConstitutionalInterpretation. 63 U. CHI. L. REV. 877, 892 (1996).

(367.) THOMAS HOBBES, LEVIATHAN 62 (Richard Tuck ed., CambridgeUniv. Press 1991) (1651) (emphasis added).

(368.) Cf. THE federalist No. 78, at 522-23 (Alexander Hamilton)(James E. Cooke ed., 1961) (maintaining that the judiciary would be the"least dangerous" and "weakest" of the branchesbecause it has "no influence over either the sword or thepurse").

(369.) Lawrence Lessig, Translating Federalism: United States v.Lopez, 1995 SUP. CT. REV. 125, 161.

(370.) See, e.g., Richard H. Fallon, Jr., ConstitutionalConstraints. 97 CALIF. L. REV. 975, 101524 (2009) (identifying"external constraints" on judicial authority, includinginefficacy or nullity of rulings because of resistance by politicalbranches).

(371.) E.g., id. at 1027 ("Nearly everyone agrees thatofficials should regard themselves as normatively bound by judicialdeterminations in cases to which they are parties, at least outside thescope of patently ultra vires rulings.").

(372.) See, e.g.. Edwards v. Aguillard. 482 U.S. 578, 636 (1987)(Scalia. J., dissenting) ("[W]hile it is possible to discern theobjective 'purpose' of a statute ... discerning the subjectivemotivation of those enacting the statute is, to be honest, almost alwaysan impossible task."); Mitchell N. Berman. Coercion WithoutBaselines: Unconstitutional Conditions in Three Dimensions. 90 GEO. L.J.1, 26-27 (2001) (noting the difference between subjective and objectiveviews).

(373.) Aharon Barak. The Supreme Court, 2001 Term--Foreword: AJudge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV.L. REV. 19, 75 (2002).

(374.) John F. Manning. What Divides Textualists fromPurposivists?, 106 COLUM. L. REV. 70, 79 (2006).

(375.) Deborah Hellman. The Expressive Dimension of EqualProtection. 85 MINN. L. REV. 1, 56-57 (2000).

(376.) See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,561 U.S. 477, 484 (2009).

(377.) See PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 6(D.C. Cir. 2016), vacated and reh'g en banc granted. No. 15-1177(D.C. Cir. Feb. 16, 2017).

(378.) See New York v. United States, 505 U.S. 144, 180 (1992)("The sited state respondents focus their attention on the processby which the Act was formulated.").

(379.) See, e.g.. Testa v. Katt, 330 U.S. 386, 394 (1947) (holdingthat state courts are required to entertain FELA claims).

(380.) See Garcia v. San Antonio Metro. Transit Auth., 469 U.S.528, 554 (1985) (upholding the minimum-wage requirement as applied tothe states).

(381.) This fixing, by itself, is not a sufficient reason to rejectantinovelty rhetoric. Many forms of constitutionalism will have sometype of dead-hand problem. See Stephen E. Sachs. The "Constitutionin Exile" as a Problem for Legal Theory, 89 NOTRE DAME L. REV.2253, 2256 (2014) ("[A]ny constitution worth its salt may spend agood bit of time in exile."). But some bases of constitutionallegitimacy are not undermined by the dead-hand problem. See Primus,supra note 113, at 199-202 (explaining that presentist, subjectiveidentification with the preexisting regime resolves some of thedead-hand problem).

(382.) See Adrian Vermeule, Common Law Constitutionalism and theLimits of Reason, 107 COLUM. L. REV. 1482, 1493-94, 1506-07 (2007)(explaining that the number of individuals in agreement matters toBurkeanism and that individuals must answer the same question).

(383.) See, e.g., Cass R. Sunstein, Burkean Minimalism. 105 MICH.L. REV. 353, 374-76 (2006) (explaining the difference between sword andshield Burkeanism).

(384.) David L. Shapiro, Continuity and Change in StatutoryInterpretation. 67 N.Y.U. L. REV. 921, 942 (1992).

(385.) See Vermeule, supra note 382, at 1511-13 (explaining howlegislators rely on accumulated wisdom).

(386.) See id. at 1508-11 (explaining how the legislature hasadvantages in acquiring information).

(387.) Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (emphasisadded). Katyal and Schmidt gestured in this direction as well. Katyal& Schmidt, supra note 23, at 2149 n.193.

(388.) See PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 7(D.C. Cir. 2016), vacated and reh'g en banc granted, No. 15-1177(D.C. Cir. Feb. 16, 2017) ("The question before us is whether wemay extend the Supreme Court's Humphrey's Executor precedentto cover this novel ... agency structure....").

(389.) Barnett, supra note 112, at 1348.

(390.) Id.

(391.) Id

(392.) See Lawrence Lessig & Cass R. Sunstein, The Presidentand the Administration, 94 COLUM. L. REV. 1, 2 (1994) (arguing, onhistorical grounds, that it does not).

(393.) See Primus, supra note 183, at 576 (positing that theprinciple that Congress's powers cannot add up to a police power isunsound).

(394.) PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 34(D.C. Cir. 2016), vacated and reh'gen banc granted. No. 15-1177(D.C. Cir. Feb. 16, 2017).

(395.) Various scholars have explained how constitutional changeoccurs outside the Article V amendment process. See, e.g., WILLIAM N.ESKRIDGE. JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEWAMERICAN CONSTITUTION 12-13 (2010); Bruce A. Ackerman, The StorrsLectures: Discovering the Constitution. 93 YALE L. J. 1013, 1056-57(1984); Strauss, supra note 366. at 905-06, 911-16.

(396.) Some may resist this claim on the ground that the"meaning" of a constitutional norm can never change. See,e.g.. Lawrence B. Solum. The Fixation Thesis: The Role of HistoricalFact in Original Meaning. 91 NOTRE DAME L. REV. 1, 1 (2015) (explainingthat the original meaning of the Constitution is fixed in time andcarries forward today). Although that may be true of a provision'ssemantic meaning, constitutional norms may be interpreted according totheir contextual meaning, intended meaning, or reasonable meaning, aswell as their interpreted meaning. See, e.g., Fallon, supra note 242, at1252-63.

(397.) E.g., Laurence H. Tribe & Michael C. Dorf, Levels ofGenerality in the Definition of Rights, 57 U. CHI. L. Rev. 1057, 1088(1990) ("Moreover, historical traditions, like rights themselves,exist at various levels of generality.").

(398.) Gonzales v. Raich. 545 U.S. 1 (2005).

(399.) Wickard v. Filburn.317 U.S. 111 (1942).

(400.) The same difficulty of selecting a level of generality atwhich to define past practices also arises in the Court'sfundamental rights jurisprudence. When adjudicating a case thatpurportedly involves a fundamental right, judges must define whatfundamental right is at issue before asking whether that fundamentalright is protected by the Constitution, which in turn depends in part onwhether that right has been "traditionally protected by oursociety." Michael H. v. Gerald D.. 491 U.S. 110, 122 (1989)(plurality opinion). Two scholars who have defended the Court'sfundamental rights doctrine against charges of arbitrariness havesuggested one way to save the fundamental rights doctrine is for judgesto identify guiding principles and significant lines of reasoning fromprior cases. Tribe & Dorf, supra note 397, at 1103-05. But thelimiting-principle approach disavows as incorrect many--if notmost--prior cases that might guide and constrain judges' decisions.

(401.) Printz v. United States, 521 U.S. 898, 918 (1997).

(402.) NLRB v. Noel Canning. 134 S. Ct. 2550, 2560 (2014); see alsoid. at 2564 ("[T]hree quarters of a century of settled practice islong enough to entitle a practice to great weight in a properinterpretation of the constitutional provision.") (citationomitted). Noel Canning also defined the minimum duration of anintrasession recess under the Recess Appointments Clause based onpractice up until the time the case was decided. See id. at 2657("We therefore conclude, in light of historical practice, that arecess of more than 3 days but less than 10 days is presumptively tooshort to fall within the Clause.").

(403.) INS v. Chadha, 462 U.S. 919 (1983).

(404.) Id. at 944.

(405.) Shelby Cty. v. Holder. 133 S. Ct. 2612, 2624-25 (2013).

(406.) Id. at 2625 (noting that in the fifty years since adoptingthe preclearance requirement "things ha[d] changeddramatically").

(407.) PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 18-21(D.C. Cir. 2016), vacated and reh'g en banc granted. No. 15-1177(D.C. Cir. Feb. 16, 2017). On February 16, 2017, the D.C. Circuitvacated its order in PHH Corp. and scheduled the case to be reheard enbanc on May 24. 2017.

(408.) PHH Corp., 839 F.3d at 7.

(409.) Id. at 14.

(410.) Instead, the court focused on characteristics of the FTCthat were noted in the opinion in Humphrey's Executor. See id. at14-15.

(411.) Id. at 33.

(412.) See generally Jeremy Waldron. Stare Decisis and the Rule ofLaw: A Layered Approach, 111 MICH. L. REV. 1 (2012) (arguing that thedoctrine of stare decisis protects the principles of constancy,generality, institutional responsibility, and fidelity).

(413.) Randy J. Kozel, Precedent and Reliance, 62 EMORY L.J. 1459,1491-92 (2013) ("Legislative and executive officials ...necessarily operate against the backdrop of judicial precedent.").

(414.) This risk is in part because operationalizing the principleis difficult, see supra notes 396401 and accompanying text, and becausemost statutes will be new in some sense or there would be little reasonto enact them.

(415.) South Carolina v. Katzenbach, 383 U.S. 301 (1965).

(416.) Id. at 337.

(417.) Shelby County v. Holder. 133 S. Ct. 2612, 2625-26 (2013)(citation omitted).

(418.) Heart of Atlanta Motel v. United States, 379 U.S. 241(1964).

(419.) Id. at 261.

(420.) But the Supreme Court already invalidated the VRAreauthorization. See Shelby County, 133 S. Ct. at 2631.

(421.) See, e.g., Randy E. Barnett, Necessary and Proper, 44 UCLAL. REV. 745, 762-63 (1999) ("Marshall's opinion in McCullochwas lambasted at the time as a usurpation.... [T]he enumeration ofpowers has largely been vitiated as a limitation on the scope of thenational government, due in no small measure to the influence of JusticeMarshall's opinion in McCulloch.")--, id. at 751-55(describing other original meanings of the clause); Randy E. Barnett,Commandeering the People: Why the Individual Health Insurance Mandate IsUnconstitutional, 5 N.Y.U. J.L. & LIBERTY 581, 594 (2010) (notinghow Heart of Atlanta relied on an even broader construction thanMcCulloch). The Voting Rights Act was certainly new.... but whether itwas consistent with the Constitution's "original meaning"is less clear. See generally Michael W. McConnell, Comment, Institutionsand Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L.REV. 153 (1997) (arguing that Congress has broader enforcement powersunder the Reconstruction Amendments than Supreme Court doctrinerecognizes).

(422.) See Dorf, supra note 3, at 2030. ("More generally, itcounts as a serious strike against an interpretive philosophy that itrequires courts to overturn precedents that are not only part of ournational culture but also celebrated as such.").

(423.) See generally DAVID HUME, A TREATISE OF HUMAN NATURE 293-306(David Fate Norton & Mary J. Norton eds., 2000) (introducing theis-ought fallacy); Eugene Volokh. The Mechanisms of the Slippery Slope,116 HARV. L. REV. 1026, 1077-82 (2003) (explaining is-ought as a"heuristic," though not necessarily a fallacy).

(424.) Lawrence Gene Sager, Fair Measure: The Legal Status ofUnderenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1212-13(1978). In Fallon's terminology, "a gap frequently, oftennecessarily, exists between the meaning of constitutional norms and thetests by which those norms are implemented." Richard h. Fallon.Jr., The Supreme Court, 1996 Term--Foreword: Implementing theConstitution, 111 HARV. L. REV. 56. 6U (1997). Another way of thinkingabout the relationship between doctrine and the Constitution is thedistinction between interpretation and construction. See Lawrence B.Solum. The Interpretation-Construction Distinction, 27 CONST. COMMENT.95. 95-96 (2010) (explaining that interpretation refers to the act ofdiscerning constitutional meaning, whereas construction refers to howthat meaning is implemented into legally enforceable rules).

(425.) Sager, supra note 424, at 1216.

(426.) Id. at 1215.

(427.) Id. at 1216.

(428.) See, e.g.. Caminker. supra note 168. at 1030-60. Caminkernotes. "The text does not. either explicitly or implicitly, clearlygenerate the Court's sharp distinction between judicial andnonjudicial commandeering, and other evidence of the Framers'original intent actually counters" this distinction. Id. at 1059.

(429.) See, e.g., Neil S. Siegel, Commandeering and ItsAlternatives: A Federalism Perspective, 59 VAND. L. REV. 1629, 1634,1657 (2006).

(430.) Hoke v. United States, 227 U.S. 308. 320 (1913). In adissenting opinion to NFIB. Justice Ginsburg cites briefs from thelosing side of three landmark cases that expanded federal power,including the Brief for Petitioner in Perez v. United States (claimingan "unprecedented exercise of power"), the Supplemental Brieffor Appellees in Katzenbach v. McClung (referencing a "novelassertion of federal power"), and the Brief for Appellee in Wickardv. Filburn (describing a "complete departure"). Nat'lFed'n of Indep. Bus. v. Sebelius. 132 S. Ct. 2566, 2625 (2012)(Ginsburg, J., dissenting) (first quoting Brief for Petitioner at 5,Perez v. United States, 402 U.S. 146 (1971) (No. 600); then quotingSupplemental Brief for Appellees at 40, Katzenbach v. McClung, 379 U.S.294 (1964) (No. 543); and then quoting Brief for Appellee at 6, Wickardv. Filburn, 317 U.S. Ill (1942) (No. 543)).