This book seeks to establish two points: that the Supreme Court's decisions give inadequate weight to the Bankruptcy Clause and Congress's related enactments; and that the absence of an executive branch agency administering the Code has played a substantial role in that outcome. The first point is the simplest, for which I advance both quantitative and qualitative arguments. The raw numbers, summarized in Chapter 4, reveal a narrow interpretation of the bankruptcy process more than 60% of the time. The disparity is even starker in the close cases (those with three or more dissents), in which the Justices presumably have more room to maneuver. In that domain the Court has taken the narrow view almost three-quarters of the time (74%).

With less than a hundred data points, the persuasive force of numbers standing alone is limited. But when we bring to bear the qualitative evidence from the case studies, it is difficult to contest the Court's institutionalization of a routinized pattern of underenforcement. The case studies define a pattern of underenforcement with four prominent attributes. Specifically, responding to Congress's comprehensive overhaul of the Code, the Court

1. • has never seriously considered the idea that Congress's constitutional authority over bankruptcy supports deference to the choices that the Code implements;

2. • has adopted a jurisprudential presumption that the overhaul accomplished nothing;

3. • consistently resolves “conflict” cases (where the Bankruptcy Code collides with some other legal system) through application of the legal framework of the other (non-bankruptcy) system; and

4. • has narrowed the range and effect of the bankruptcy system at almost every opportunity.

Indeed, I would say that even the occasional “broad” cases turn out to buttress the underenforcement thesis. Consider, for example, the decisions in Wellness and Katz (discussed in the closing pages of Chapters 5 and 6 respectively). Although those decisions do show a “broad” result as the Court's last word on the constitutional topics, those decisions hardly demonstrate an affirmative shift toward a supportive conception of the Bankruptcy Power.