Use of state’s lawmaking mechanisms

• One aspect of state sovereignty is a state’s ability to make and apply law, through legislative, judicial, and administrative functions. Even after Garcia, there are limits to Congress’ right to interference with these state legislative or executive processes, and Congress will violate the 10^th Amendment if it exceeds those limits. In a pair of cases, SCt has held that the federal government may not: (1) compel a state to enact or enforce a particular law or type of law (New York v. United States); or (2) compel state/local officials to perform federally-specified administrative tasks (Printz v. U.S.)

New York V. United States - Waste disposal

• O’Connor 1992. Dramatically illustrates the principle that Congress may not simply force a state to enact a certain statute or to regulate in a certain manner.

• Regulatory scheme. Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985. The Act attempted to force each state to make its own arrangements for disposing (either in-state or out-of-state) of the low-level radioactive waste generated in that state. The Act tried to do this with three types of incentives: (1) monetary incentives, by which each state that made such waste-disposal arrangements would receive federally-collected funds, and states that didn’t wouldn’t; (2) “access incentives,” by which states that did not make arrangements would be denied access to the few disposal facilities in existence before the Act was passed; and (3) most significantly, the “take title” incentive, whereby any state which did not arrange for waste disposal would be required to “take title” to the waste (upon request by the waste generator), and would be liable for damages in connection with disposal of this waste.

• New York attacks statute. NY, unlike most states, made little progress in solving its waste disposal problems, because local residents of each community where the state proposed to put disposal sites fiercely objected. NY then sued the federal government, arguing that all three of the provisions, especially the “take title” provision, violated the 10^th Amendment, by effectively forcing the state to regulate in a particular area.

• 10th Amendment found violated. Majority of SCt agreed with NY position as to one of the provisions. SCt found that the “take title” provision violated the 10^th Amendment: Congress may not simply “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

• Explanation. NY was being put to the choice of two “unconstitutionally coercive regulatory techniques”: either it could choose to regulate on its own by making arrangements for disposal of waste generated inside the state, or be forced to indemnify waste-generators against tort damages. Because Congress could not employ either of these methods alone, it could not escape the problem by giving the state a choice between the two.

• Incentives allowed. But the other two “incentives” set forth in the federal statute were allowable. The use of monetary incentives was a valid conditional use of the federal spending power. Similarly, the denial of access to out-of-state facilities was a valid exercise of Congress’ power to regulate interstate commerce.

• O’Connor’s concern about accountability. O’Connor’s formalism is justified by realist concern for preserving accountability: “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” [C/A: federalism has political safeguards against this result: state officials can educate electorate about true source of their burdens.]

• Koppelman. It would be more effective to use Lopez argument that certain substitute areas are reserved to states.

• Dissent - White.

• Argued that this was not an instance where Congress was forcing its will upon the states. Rather, Congress had responded to a request by many of the states to ratify a compromise worked out among themselves, so that the waste-disposal problem could be solved. “The SCt’s refusal to force NY to accept responsibility for its own problem inevitably means that some other State’s sovereignty will be impinged by it being forced, for public health reasons, to accept NY’s low-level radioactive waste. I do not understand the principle of federalism to impede the National Government from acting as referee among the States to prohibit one from bullying another.”

• Functionalism, realist, practical necessity, collective action problem: If the concern is about Congress unnecessarily taking over state functions, then question should not be whether states have categorical immunity against imposition of this kind, but whether this legislation was necessary. If it is necessary that activity be done, and cannot be done any other way  then Congress should be able to tell states what to do.

1. Koppelman: But White did not show that there was no other way for problem to be addressed

• Dissent - Stevens. Formalist argument: Congress necessarily can do anything that was permissible under AC, which gave Congress power to issue commands to states.

• Alternative methods. Is Congress powerless to make each state deal with its radioactive waste (or any other specific problem)? Probably not. White’s dissent suggests several methods that are apparently still open to Congress, notwithstanding NY v. U.S.

• Spending power. First, Congress clearly may condition the receipt of federal funds on a state’s solving the problem (provided that the funds in question have something to do with the problem).

• Threat of regulation. Second, Congress could directly regulate the conduct in question, and could therefore take the less drastic step of telling the states that this direct regulation will follow if the states do not take care of the problems themselves.

• Summary. Congress may have to be a little more clever about how it accomplishes its regulatory purposes – and it will not be able to escape the “political heat” for unpopular decisions by forcing state officials to make those decisions. But Congress, by careful use of its enumerated powers (including the spending and commerce powers) can achieve practically any regulatory end it wants without running afoul of the 10^th Amendment.

• Critique by Jefferson Powell

• Inconsistency. Even though Congress cannot directly regulate states, it can indirectly do so through spending power. [analogous to spending cases in CC section]

• Two possibilities (depends on next few elections)

1. SC will impose more restrictions on spending power than it has in past 50 years; or

2. NY, Printz will end up being toothless.

3. Good Confusion: It remains to be seen whether this federalism-based limitation on Congress will be expanded beyond these 2 cases (New York, Printz)

• O’Connor’s procedural federalism

• O’Connor did not conform with pre-New Deal Federalism. She did not say there are substantive areas reserved to states (e.g. regulating radioactive waste), but rather that states have reserved their procedural mechanisms.

• Stevens: Ironically, O’Connor’s opinion suggests federal government will have to grow.

• Perhaps O’Connor should have been bolder, as in Lopez, and hold that substantive areas are reserved to states.