Low-Level Radioactive Waste Policy Amendments Research Articles

Federal Authority vs. State Autonomy: The Supreme Court's Role Revisited

Charles Wise's Judicial Federalism: The Resurgence of the Supreme Courts Role in the Protection of State Sovereignty (Public Administration Review, March/April 1998) provides an informative survey of recent cases in which the U.S. Supreme Court has considered assertions of national authority versus subnational claims of governmental autonomy and decided in of the latter. Wise is to be credited for bringing these cases to our attention, for they indeed have significant implications for American federalism and public administration. His brief synopsis, however, overlooks important aspects of some of these Court decisions which potentially render their meaning rather less auspicious than what he portrays. For the Supreme Court's current stance toward state sovereignty to be fully assessed, a closer look at these cases is required, one which better situates them within the larger political context in which they were made and should be interpreted. Consider first New York v. United States (505 U.S. 144, 1992), in which the State of New York and two of its counties successfully challenged the 1985 Low-Level Radioactive Waste Policy Amendments Act's requirement that the states either regulate the disposal of low-level radioactive waste according to congressional dictates or accept ownership of it (take title). Given the contemporary trend coupling federal policy making authority with state and local responsibility for program implementation and administration, advocates of a more balanced federalism have much to cheer in the New York majority's emphatic holding that the U.S. government may not constitutionally commandeer state governments and their administrative agencies into the service of federal regulatory purposes. Yet they must not underestimate the fact that in reaching that decision, the New York Court also gratuitously upheld conditions of federal aid that had not even been challenged in the case, reaffirming the government's effectively plenary power to regulate the behavior of subnational governments and individual citizens via the Spending Clause (U.S. Constitution, Article 1, [sections] 8). This is not the first case in which the federal courts have volunteered the notion, in the course of overturning instances of direct regulation, that Congressional goals might be more easily achieved through the alternate whip of economic pressure and seductive favor (Maryland v. Environmental Protection Agency, 530 F. 2nd 215, 228, 1975), but the New York majority was remarkably blunt in reminding the political branches about the force of conditional aid: one of two methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests (505 U.S. 166). Even those justices dissenting in New York v. U.S. explicitly condoned conditional federal spending schemes. As Justice White put it, the spending power offered the Government a way to enact the take title provision under the Court's standards. Had Congress crafted the Low-Level Radioactive Waste Policy Amendments Act to condition the states' federal grant assistance upon their willingness to accept ownership of or otherwise accept responsibility for the radioactive waste in question, the legislation would easily have passed constitutional muster (505 U.S. 208). The conditional spending power (i.e., the ability of Congress to attach conditions to the funds it expends) has become a vitally important source of national government authority to monitor and regulate the activities of both subnational governments and American citizens. This is so not only because the U.S. budget has grown and federal spending initiatives increased in number and scope, but especially because: long-standing federal court doctrine permits conditional offers of aid to circumvent most if not all of the restrictions that the U.S. Constitution otherwise imposes on the federal government's authority to regulate the behavior of citizens or the states directly (Jensen, 1993, 1998). …

The New Etiquette of Federalism: New York, Printz, and Yeskey

In New York v. United States, 505 U.S. 144 (1992), the Court revived as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly commandeered state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections v Yeskey, 118 S.Ct. 1952 (1998). We clarify the distinctions that the Court has drawn between permissible and impermissible federal action as sympathetically as possible, but argue that even on the most charitable construction, those distinctions are justified neither by the values of federalism that the Court has invoked in defense of justiciable state sovereignty, nor by an effort to express in law the importance of federalism to national identity. New York and Printz explicitly recognize three distinctions within the set of federal directives: 1) between and non-coercive directives (specifically, directives compliance with which is a condition for federal spending, or for the nonpreemption of state law); 2) between directives that are targeted at state officials, and directives that are to both state officials and private parties; and 3) between directives addressed to state legislative or executive officials, and directives addressed to state adjudicators. We argue that the anti-commandeering cases are best interpreted, within the context of wider case law, as permitting the federal government to impose in addition a large and significant category of targeted, coercive duties upon state legislative or executive officials--those that are imposed pursuant to the federal preemption of state law. As we interpret the present case law, federal directives that require inaction by state officials do not constitute commandeering; only directives that require action by state officials can do so. In addition, the cases governing Congress' powers to enforce the Reconstruction Amendments make clear that a statute properly grounded upon these powers can override whatever constraints limit federal authority under the Commerce Clause. In short, the emerging anti-commandeering jurisprudence is constituted by five demarcations, not three: (1) preemption versus commandeering; (2) coercion versus conditional spending or preemption; (3) targeted versus generally applicable federal statutes; (4) state legislative or executive officials versus state judicial officials; (5) the Commerce Clause versus the Reconstruction Amendments. After clarifying these demarcations, we evaluate them in light of the justifications for recognizing state sovereignty as an external limit to national power. Given the values that the Court has invoked to justify the existence of some justiciable federalism constraints upon the national government (values such as tyranny-prevention, political community, innovation, and the responsiveness of government to geographically diverse needs, preferences, and conditions), does it make sense to prohibit federal commandeering but not preemption, coercive but not noncoercive federal directives, and so on? We argue that none of the demarcations in the ani-commandeering jurisprudence except for the Reconstruction-Amendment demarcation is justified and that this one, although justified, is in its current doctrinal form unclear and probably unworkable. We explore, in the alternative, an expressive defense of the anti-commandeering jurisprudence, as seeking to impose an etiquette of federalism that alerts political actors to the norms of federalism, without directly confronting congressional value choices. We conclude that this defense is also unsuccessful.