Bankruptcy Clause

Arguing that there is no support in text or history for the Court’s conclusion in Central Virginia Community College v. Katz that the bankruptcy power is different in kind from other Article I powers with regard to the abrogation of State sovereign immunity.

Arguing that an originalist conception of the Bankruptcy Clause fails to account for Supreme Court precedent construing Congress’ bankruptcy power.

Noting that the Bankruptcy Clause was a “uniform rule[ ] enacted in a quest for efficiency” in response to a tangle of pre-Convention debtor regimes.

Arguing that the uniformity provision in the Bankruptcy Clause is a grant of power abrogating State sovereign immunity, not a limitation on power akin to the uniformity provision in the Taxing Clause.

Noting that “[t]he Bankruptcy Clause, empowering Congress to ‘pass uniform laws on the subject of bankruptcies,’ was added late in the proceedings of the Constitutional Convention, after very little debate,” and that “[a]n unsuccessful attempt was made to extend the prohibition against impairing the obligation of contracts from the states to the federal government, which if successful would have undermined the utility of any federal bankruptcy legislation.”