Caitlin B. Tully (Golieb Fellow, New York University Law) has posted "The Unenumerated Power." The article is forthcoming in Volume 111 of the Virginia Law Review (2025). The abstract:
Scholars and courts have long viewed unenumerated powers and rights as
constitutionally dubious. This skepticism has produced far-ranging
effects: most recently, it has undergirded the Court’s invalidation of
privacy rights. Many others have contested the presumption against
unenumerated law, including a recent wave of scholarship which
criticizes “enumerationism.” These efforts have been hampered, however,
by the fact that they are unable to point to a concrete example of a
tacit power or right that is entirely independent from an enumerated
power or right.
This Article demonstrates – for the first time –
that at least one such power exists: the power to charter corporations.
Trillions of dollars circulate through the federal corporate form. Yet
scholars often assume that the Constitution has nothing to say about
corporations. The doctrine of federal incorporation, meanwhile, is
confused: courts analogize federal corporations to state corporations or
federal agencies, despite obvious inconsistencies, or avoid them
altogether. As this Article demonstrates, however, the Framers
understood the power to charter as an independent power with its own
prerogatives and limits, and there was little doubt about the power’s
constitutionality following ratification. In fact, as this Article
shows, the Marshall Court constructed doctrine defining this
pre-existing power across three cases: Dartmouth College v. Woodward,
McCulloch v. Maryland, and Osborn v. Bank of the United States,
establishing an independent threshold for the creation of federal
corporations: “constitutional” purpose. Congress has effectively relied
on this tacit, but independent, legal power for over two centuries.
This
Article provides the first comprehensive account of the doctrine of
federal incorporation and its current use, as well as an index of all
federal corporations from the Founding to the present. In addition, this
Article makes two important interventions. First, by clarifying the
legal basis of federal incorporation, the existence of the charter power
may offer alternative rationales for the constitutionality of federal
legislation; alternatives to existing constructions of administrative
law; and a coherent way to analyze large transactions which currently
defy categorization. Second, as the current Court considers whether to
invalidate existing jurisprudence which endorses “implied” rights, the
existence of the charter power cuts against the theoretical case for
doing so. Challenging the presumption against the legitimacy of
unenumerated powers and rights, the charter power demonstrates that, in
at least one case, a “silent” power was concrete, constrained, and
original.
The full article is available here.
-- Karen Tani
