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Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The …