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The article examines the constitutionality of the U.S. federal court's independent exercise of inherent powers (IP) in multidistrict litigations (MDL) despite the lack of authorization by Congress. Also cited are the claim by the Supreme Court that the Constitution allows the use of IP in the exercise of judicial power under Article III, and the need to ensure the parties' due process rights when exercising IPs.

The article presents insights on the U.S. Commerce Clause from early federal government practice and judicial precedent concerning Native Americans. Topics discussed are definition of to regulate commerce in 1787, interaction between the Commerce Clause and structure of the Constitution, commerce regulation with foreign nations and Native Americans, government treatment of interstate and related foreign commerce clause regulations from 1789 to 1829, and the case Gibbons v. Ogden.

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 conservatives' attempt to legally restrict, but not unduly hamstring, federal power would benefit from a close study of Benjamin Cardozo's opinions from 1934 to 1938. In constitutional challenges to expansive New Deal laws, Justice Cardozo carefully evaluated each statute's text, the economic and social considerations that prompted its enactment, the facts presented, precedent, and the need to maintain the Constitution's basic structure. That last factor proved to be especially complicated because the Constitution creates a democracy in which legislative acts are presumptively valid, but prohibits Congress from either delegating its legislative power to the executive department or invading the states' jurisdiction over local matters. Cardozo balanced these constitutional concerns by deferring to the federal government's broad but reasonable exercise of authority, while invalidating merely expedient laws that either gave Congress untrammeled power or the executive unbridled discretion. Although Justice Cardozo witnessed the triumph of his generally deferential approach to judicial review in 1937, his effort to craft modest legal restraints on Congress died along with him the next year. President Roosevelt appointed nine Justices between 1937 and 1943--all ardently pro-New Deal politicians or academics who quickly abandoned the previously established constitutional limits on federal power. The Court under Chief Justices Warren and Burger entrenched this precedent, which has left the conservative majority on the Rehnquist and Roberts Courts with a dilemma. On the one hand, they value stability and hence seek to respect stare decisis and preserve the existing government structure. On the other hand, they strive to expound constitutional provisions according to their original meaning. The conservative Justices have struck a strange compromise: reciting the originalist mantra that the federal government is confined to its enumerated powers, yet identifying only a few (and ineffective) limits based not on historical constitutional materials, but rather on a strained reading of cases decided between 1937 and 1994. As it turns out, however, the results of many of those cases can be grounded in authentic originalist principles, even though the Court's proffered rationales cannot be. Therefore, the conservative Justices need not continue to distort that precedent to discover previously unnoticed "limits" that are then fleshed out in pure common law fashion, Cardozo-style. Rather, these Justices should adopt a "Neo- Federalist" approach: formulating legal rules, rooted in the Constitution's text and structure as historically understood, that can be consistently applied to allow the kind of generous yet circumscribed federal power that Cardozo endorsed. This Article sets forth such concrete legal principles to guide judicial review under the Commerce Clause, the Taxing and Spending Power, and the nondelegation doctrine. My analysis demonstrates that, contrary to the assertions of many judges and scholars, such a genuinely legal framework is neither unworkable nor simplistic. [ABSTRACT FROM AUTHOR]

The Supreme Court's general approach to statutory interpretation is analytically incoherent. On the one hand, the Court has expressly endorsed "textualism": enforcing the plain meaning (i.e., ordinary usage) of a statute's words, and therefore refusing to consider non-textual evidence unless the language is unclear. On the other hand, the Court has implicitly applied "pragmatism"--reaching the best practical result after examining not only a statute's text but also Congress's intent (as revealed by legislative history), its overall purposes, precedent, and policy. The two cases upholding the Affordable Care Act (ACA) illustrate this practice of purporting to follow textualism, but then finding seemingly clear words to be ambiguous and consulting a variety of sources to resolve the manufactured ambiguity. First, in King, Justice Scalia made the unassailable textual argument that an ACA provision granting tax credits to those who purchase insurance on a Benefit Exchange established by "State" meant exactly what it said: one of America's fifty governments. A majority of Justices, however, asserted that "State" was unclear and could be read as also extending to the Federal Government. The Court adopted this broader interpretation based on its practical judgment that denying tax credits in the thirty-four States that had Federal Exchanges would cause millions of Americans to forego buying health insurance, which would frustrate the ACA's main purpose and potentially plunge insurance markets into chaos. This construction is defensible as an application of pragmatism, but not the textualist method the Court claimed to be employing. Second, National Federation concerned the ACA "penalty" for violating the individual mandate to purchase health insurance, which Congress had explicitly enacted under its Article I power to regulate interstate commerce--and not its taxing power. Four dissenting Justices applied textualism to conclude that Congress had imposed a "penalty," which has long had a single definition: "a monetary punishment for violating a regulatory law." Because the dissenters and Chief Justice Roberts agreed that Congress lacked power under the Commerce Clause to regulate inactivity (penalizing the failure to buy health insurance), the mandate should have been declared unconstitutional. Unexpectedly, however, Roberts joined his four liberal colleagues in maintaining that the term "penalty" was ambiguous and could possibly mean "tax"--a word that had always previously been defined as "an enforced contribution to support the government" and distinguished from a "penalty." This bizarre interpretation enabled the Court to reach its desired practical result of salvaging the mandate under Congress's constitutional power to tax. To compound the confusion, the Justices routinely invoke many specific "canons" of construction, which feature malleable standards that can easily be manipulated. For instance, in National Federation, the Court cited the canon that statutes should be read, where reasonable, to avoid constitutional issues in order to rationalize its tortured interpretation of "penalty"as "tax." King and National Federation are merely the most notable examples of a pervasive problem: unbridled discretion in construing statutes. Unfortunately, the Court has little practical incentive to change because (1) most statutes are of interest only to a small group, (2) Americans pay little attention to statutory interpretation, and (3) even unpopular individual rulings do not affect the public's overall high opinion of the Court. Nonetheless, respect for the rule of law and intellectual integrity should induce the Court to develop a more principled jurisprudence. The optimal solution would be for the Court to adopt and apply textualism as its basic interpretive approach, to clearly acknowledge when exceptional circumstances pragmatically persuade it to depart from that approach, and to deemphasize canons of construction. [ABSTRACT FROM AUTHOR]

The article focuses on the Structure of Standing Law. Topics discussed include modern standing doctrine along with its defects, Professor William Fletcher's proposed solution to these problems and congressional grants of standing to enforce constitutional rights. Other topics include "accidental plaintiff" theory of standing and practical court cases against radical reform of standing doctrine.

According to the Supreme Court, Article III's extension of "judicial Power" to "Cases" and "Controversies" limits standing to plaintiffs who can demonstrate an individualized "injury in fact" that was caused by the defendant and that is judicially redressable. Article III's text and history, however, do not mention "injury," "causation, "or "red ressability." Furthermore, these standards are malleable and have been applied to achieve ideological goals, especially in cases involving environmental and animal-welfare laws. Most notably, the Court has recognized an "injury in fact" to one's aesthetic enjoyment of nature, but determining such an injury is arbitrary because "aesthetics" is a matter of personal taste. Judges have exercised similar unbridled discretion in ascertaining causation and redressability. The result has often been a judicial takeover of important policy issues. Standing decisions are so inconsistent and politicized that most scholars have recommended abandoning the doctrine. However, stare decisis will prevent such a radical change. Therefore, I offer a more realistic approach that retains the existing standing framework but modifies its elements. My touchstone is the historical meaning of an Article III "case," which restricts court access to plaintiffs whose legal rights have been invaded fortuitously because of a chance event beyond their control. Applying this test, courts would find an "injury in fact" only when it befell a plaintiff by accident, not when someone manufactured a lawsuit by claiming "aesthetic" harm. Insisting on a fortuitous injury would also make it far easier to determine who caused it and whether the remedy requested would redress it. [ABSTRACT FROM AUTHOR]

The article focuses on partial-birth abortion and the perils of constitutional common law in the U.S. It explores aspects of the U.S. Supreme Court case Gonzales versus Carhart and places it in the context of the major abortion decisions. It argues that the case is part of a broader, decades-long movement that has rendered the process and substance of constitutional decision making almost indistinguishable from simple politics.

The article summarizes the paper of Paul Mishkin's "The Federal Question in the District Courts," which transformed the discernment of the most important area of jurisdiction in cases arising under the Constitution and laws of the U.S. His paper covers five topics: the Article III and statutory clauses conferring federal question jurisdiction; the Court's differing interpretations of these two provisions; its criteria for determining whether a case arises under federal law; the well-pleaded complaint rule; and protective jurisdiction. The article then discusses later judicial and scholarly developments regarding jurisdiction arising under federal law. It employs a neo-federalist methodology to revisit Mishkin's thesis and propose changes to it.

The Partial-Birth Abortion Ban Act makes it a federal crime for doctors to perform certain late-term abortions. Congress justified this law as an exercise of its power "to regulate Commerce . . . among the several States." lt is unclear whether the Act will be upheld under the Supreme Court's current Commerce Clause standards, which are malleable and therefore tend to be applied in light of each judge's politics and ideology. To remedy this problem, the author urges the Court to articulate and consistently apply precise rules of law rooted in the Commerce Clause's language, history, and early precedent. Under this approach, the Court would sustain the Act because the performance of partial-birth abortions is "commerce"--the sale of a service in the market--that has demonstrable effects "among the states." The proposed analysis is politically neutral, however, because it would also support the constitutionality of the federal statute protecting abortion clinics, as interstate market-based enterprises, from criminal interference. Such an apolitical legal approach seems especially useful when addressing an explosive issue like abortion. [ABSTRACT FROM AUTHOR]

Comments on the Supreme Court's theory that self-restraint promotes federalism in relation to bridging the enforcement gap in constitutional law in the U.S. Device on doctrines that enable federal judges to exercise the jurisdiction Congress has granted over all constitutional cases; Impact on the result of constitutional law left to state judiciaries because Supreme Court review has become rare; Possibility that state judges expand or contract constitutional rights thereby producing enforcement gaps.

Compares the merits of the U.S. Supreme Court's ruling in Baker versus Carr and the 2000 presidential elections between Al Gore and George W. Bush. Details of a claim that the Equal Protection Clause required apportionment to be based solely on population; Actions needed when majority of the Justices perceive a nationwide electoral crisis that admits of no easy political solution; Legal implication of the power of the Supreme Court to stop the vote count in Florida.