Constitution Day at the Cato Institute:

For all you con law buffs, this coming Thursday, September 14, is Constitution Day at the Cato Institute: an all day conference featuring presentations on the most important Supreme Court cases of the 2005-2006 term. Among the presenters are leading legal scholars from across the political spectrum, such as liberal Walter Dellinger (discussing the upcoming Supreme Court term) and conservative John Yoo (discussing and, I assume, criticizing, Hamdan v. Rumsfeld).

Other speakers include VC's own Dale Carpenter (speaking about FAIR v. Rumsfeld), Randy Barnett, and yours truly. For a full schedule, see here.

My paper and presentation are about this year's federalism decisions (primarily Gonzalez v. Oregon and Rapanos v. United States), and argues that they do not herald any revival of judicial enforcement of limits on federal power. Here's an excerpt from the abstract:

The Supreme Court's 2005 decision in Gonzales v. Raich severely undermined hopes that the Court might enforce meaningful constitutional limits on congressional power. In the aftermath of Raich, some observers hoped and others feared that judicial limits on federal power might be resuscitated in Gonzales v. Oregon and Rapanos v. United States . . . A less high-profile [2006] case, Arlington Central School District v. Murphy, addressed the scope of Congress' power to set conditions on grants to state governments under the Spending Clause. Although the federal government suffered setbacks in all three cases, none of them actually impose significant constitutional limitations on congressional power.

Oregon, Rapanos, and Arlington all involved challenges to assertions of federal regulatory authority that might run afoul of "clear statement rules." These doctrines require Congress to clearly indicate its intent in the text of a statute before courts can interpret it in a way that "raises constitutional problems," impinges on an area of traditional state authority, or imposes conditions on state governments that accept federal funds . . .

[T]he major federalism cases of the 2005-2006 term fail to impose any constitutional limits on federal power, and also do not extend the reach of clear statement rules. Thus, the legacy of Raich remains intact. Indeed, all three decisions actually reinforce that legacy by emphasizing that Congress has the power to regulate almost any activity, but merely failed to exert it to the utmost in these specific instances.

Dale's interesting paper on Fair v. Rumsfeld is available here.

Come one, come all!