This ruling, perhaps the term’s most overlooked decision, should be regarded as a watershed in the separation-of-powers doctrine on a par with Lopez, Morrison, Printz, and NFIB.
Randy Barnett and I co-authored a fresh article slated for publication in the Harvard Journal of Law & Public Policy: Landor v. Louisiana Department of Corrections: Bringing Clarity To The Necessary and Proper Clause. The following is its abstract:
It is often said that bad facts make bad law. Landor v. Louisiana Department of Corrections is an exception to this rule. Prison guards in Louisiana shaved a Rastafarian prisoner in violation of his religious beliefs. In a 6-3 decision, the Supreme Court held that Landor could not sue the guards in federal court for monetary damages. Justice Neil Gorsuch’s majority opinion correctly interpreted the Constitution in two significant respects. First, Landor affirmed a judicially enforceable limit to Congress’s Spending power. Second, Landor affirmed judicially enforceable limits to the Necessary and Proper Clause. This decision, which may be the “sleeper” case of the term, should come to be viewed as a landmark separation of powers ruling on par with Lopez, Morrison, Printz, and NFIB.
Part I of this essay outlines Landor‘s claim under the spending power. The Court held that Spending Clause conditions bind only those who consent to them. Part II turns to Landor‘s fallback argument grounded in the Necessary and Proper Clause. Here, the Court drew a distinction between carrying out an enumerated power and pursuing the objectives of a statute enacted under that power. Parts III and IV trace that distinction through the leading Commerce Clause cases: Lopez and Morrison, which narrowed the Substantial Effects doctrine to economic activity, and Raich, in which Justice Scalia’s concurrence tied that doctrine and its exceptions to the Necessary and Proper Clause. Part V demonstrates how Landor adopts Justice Scalia’s framing of the inquiry and also finds the proposed remedy to be “improper.” Part VI explains where the Landor dissent goes astray. We conclude by placing Landor within the decades-long effort to restore the Constitution’s limits on federal power.
This case largely flew under the radar last term, but it may prove to be nearly as important as Slaughter.
Here is our conclusion:
In Landor, the Court insists that the Spending Clause, like the Commerce Clause, has its own limits. But the Court in Landor goes further: it holds that the Necessary and Proper Clause has limits as well.
The decision also leaves work for future courts. Justice Jackson’s dissent catalogued spending statutes that impose penalties on individuals who never themselves accepted federal funds: the Federal Nursing Home Reform Act authorizes civil penalties against nursing-home employees who falsify resident assessments; the Emergency Medical Treatment and Active Labor Act authorizes penalties against physicians in federally funded hospitals; and Title X of the Public Health Service Act imposes criminal penalties on state employees who coerce abortion or sterilization by threatening the loss of federally funded benefits.
The majority let this catalog pass without comment. After Landor, each of these provisions is exposed to the same objection that defeated Landor’s claim. The government will have to defend the statute as protecting the federal funds themselves, as in Sabri, or grounded in some other enumerated power. Or perhaps some of these parties can be said to have actually consented to be bound by the regulations.
Landor may not receive the same attention as the other term-ending blockbuster decisions. But in our view, this sleeper opinion may prove to be a landmark case, on par with Lopez and Morrison, Printz and NFIB. Each of these cases is part of a decades-long process of restoring the original meaning of the Constitution. Raich has widely been considered to have set back the so-called Rehnquist Court’s federalism revolution. We agree. Moreover, Chief Justice Roberts’s use of a “saving construction” in NFIB to uphold the Affordable Care Act further set back the attempt to hold Congress to its enumerated powers. But Roberts’s Necessary and Proper Clause reasoning in NFIB—which he offered to justify the need for a “saving construction” of the statute as a tax—kept the flame of that revolution alive. With Landor, that flame now glows brighter. The federalism revolution still lives.
We welcome any comments!
