at where it has discretion, even absent constitutional mandate, it will apply federalism concerns to limit federal powers. For instance, the equity powers of the federal courts to interfere in ongoing state court proceedings and to review state court criminal convictions under habeas corpus have been curtailed, invoking a doctrine of comity and prudential restraint. But the critical fact, the scope of congressional power to regulate private activity, remains: the limits on congressional power under the commerce clause and other Article I powers, as well as under the power to enforce the Reconstruction Amendments, remain principally those of congressional self-restraint.
For much of the latter half of the 20th century, aggregation of national power in the presidency continued unabated. The trend was not much resisted by congressional majorities, which, indeed, continued to delegate power to the Executive Branch and to the independent agencies at least to the same degree or greater than before. The President himself assumed the existence of a substantial reservoir of inherent power to effectuate his policies, most notably in the field of foreign affairs and national defense. Only in the wake of the Watergate affair did Congress move to assert itself and attempt to claim some form of partnership with the President. This is most notable with respect to war powers and the declaration of national emergencies, but is also true for domestic presidential concerns, as in the controversy over the power of the President to impound appropriated funds.
Perhaps coincidentally, the Supreme Court during the same period effected a strong judicial interest in the adjudication of separation-of-powers controversies. Previously, despite its use of separation-of-power language, the Court did little to involve itself in actual controversies, save perhaps the Myers and Humphrey litigations over the President's power to remove executive branch officials. But that restraint evaporated in 1976. Since then there have been several Court decisions in this area, although in Buckley v. Valeo and subsequent cases the Court appeared to cast the judicial perspective favorably upon presidential prerogative. In other cases statutory construction was utilized to preserve the President’s discretion. Only very recently has the Court evolved an arguably consistent standard in this area, a two-pronged standard of aggrandizement and impairment, but the results still are cast in terms of executive preeminence.
The larger conflict has been political, and the Court resisted many efforts to involve it in litigation over the use of troops in Vietnam. In the context of treaty termination, the Court came close to declaring the resurgence of the political question doctrine to all such executive-congressional disputes. While a significant congressional interest in achieving a new and different balance between the political branches appeared to have survived cessation of the Vietnam conflict, such efforts largely diminished after the terrorist attacks of September 11, 2001. While Congressional assertion of such interest may well involve the judiciary to a greater extent in the future, the congressional branch is not without effective weapons of its own in this regard.
The Court’s practice of overturning economic legislation under principles of substantive due process in order to protect
property was already in sharp decline when Professor Corwin wrote his introduction in the 1950s. In a few isolated cases, however, especially regarding the obligation of contracts clause and perhaps the expansion of the regulatory takings doctrine, the Court demonstrated that some life is left in the old doctrines. On the other hand, the word
liberty in the due process clauses of the Fifth and Fourteenth Amendment has been seized upon by the Court to harness substantive due process to the protection of certain personal and familial privacy rights, most controversially in the abortion cases.
Although the decision in Roe v. Wade seemed to foreshadow broad constitutional protections for persona