State Immunity from Federal Regulation

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					Constitutional Law I

Tenth Amendment
Back to the Future
   Feb. 28, 2006
Overview of the 10th Amendment
  “The powers not delegated to the United States by the
   Constitution, nor prohibited by it to the States, are
   reserved to the States respectively, or to the people.”
   Original (1st) Use of 10th Amendment
        Reinforces notion of enumerated powers
           Within delegated powers, congress has plenary
               authority, but no new powers can be assumed
        As such, 10th Amd states but a truism
   New (2nd) Use of 10th Amendment
        Even where Congress has substantive power,
        Congress cannot use that power against states
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2 intrusions into State Sovereignty
1. Congress passes a law regulating people in
   the states. Because of supremacy, that
   law displaces inconsistent state law.
2. Congress passes a law that regulates the
   states directly.




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  2 intrusions into State Sovereignty
  1. Congress passes a law regulating people in
     the states. Because of supremacy, that
     law displaces inconsistent state law.
  2. Congress passes a law that regulates the
     states directly.
                                        Federal
10th Amd (ver 2)     State                        10th Amd (ver 1)
Can congress use                                  Doctrine of
its enumerated                                    enumerated powers
powers to regulate
states themselves?                People

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10th Amd as State Immunity
   Version 1 focuses on powers
        Congress may regulate only where it has
         enumerated power
   Version 2 focuses on limits
        Congress may not use its enumerated powers
         to transgress constitutional limits
           E.g., taxing of exports; establishment of religion
        In this version, the 10th isn’t merely a truism
        It is a specific limit on federal power
           Query: what method of interpretation leads to this?

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Early Caselaw
   States enjoyed no special immunity from
   federal regulation
        so long as regulation was within federal power
   U.S. v. California (1936)
        states no different than individuals when
         engaged in commercial activity
   Maryland v. Wirtz (1968); Fry v. US (1975)
        even state activity of a sovereign government’l
         character was subject to fed regulatory power

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National League of Cities                        (1976)
   Overrules Wirtz; Fry
   10th not limited to its text (enum. powers
   doctrine); fully guarantees state sovereignty
       Fed’l reg’n of states abrogates their sovereignty
   Even where cong. has enumerated power
       And can regulate private activity
       State activity may be immune from regulation
   10th creates state right to be free
   from regulation, similar to BoR
       Limited to direct regulation of states
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NLC test:
1. Does Congress regulate the States qua states
        are the states regulated, or just their residents?
2. Involving an indisputable area of state
   sovereignty
        e.g., treasury, gov’t structure or employees
3. Affecting traditional governmental functions
        e.g., education, police, municipal services
4. Where state interest outweighs federal interest
        subjective value test
           E.g., federal interest in environment may outweigh states
        added by Blackmun’s concurrence (see Hodel v. VSMRA)
           Least common denominator for 5 votes (narrowest holding)
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National League of Cities
   Brennan dissent:
        How does the 10th Amd become a
         rights conferring amd, protecting
         states from regulation?
        If not the 10th Amd, what source of state
         sovereignty?
   Stevens dissent:
        Is state right to pay substandard
         wages stronger than federal
         interest in a healthy economy?

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Garcia v. SAMTA                             (1985)
   Reconsideration of Usery
        Stewart replaced by O’Connor
           no effect
        Blackmun switched his vote. Why?
   Difficulty in applying Usery test
        No agreement on traditional state functions
        No agreement on which attributes of state
         sovereignty need judicial protection
           Especially in light of the non-textual
               nature of state sovereignty

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Garcia v. SAMTA                           (1985)
   Garcia political postulate
        structure of congress provides adequate
         political protection for states
           states able to protect themselves in Congress
           Is Powell right that this is illusory?
        Notwithstanding changes in structure
           14th and 17th Amendments

   Process safeguard
        clear statement rule (Gregory v. Ashcroft)
           See also SWANCC v. Corps of Engineers

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Garcia v. SAMTA                   (1985)
   Role of stare decisis
      Should S.Ct. reexamine its precedents
      Is Powell right to criticize abrupt change?

      Is Rehnquist right to threaten another
       abrupt change (via new justices)?
   O’Connor Dissent:
      judicial protection of states needed to
       balance expansion of commerce power
      Do dissents reveal the source of state
       immunity from federal regulation?
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Tenth Amendment, version 3
1. Congress can act only w/in enum. Power
2. Even when acting w/in enum. power,
       congress can regulate states themselves
       only if it clearly says it is doing so
               More restrictive test of NLC overruled
3. Even when acting w/in enumerated
       power, congress cannot require states to
       enforce federal law


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New York v. United States                     (1992)
   Low-Level Radioactive Waste Policy Act-1985
        Federal gov’t exclusive power over nuclear
         issues starting with Atomic Energy Act (1954)
        Transfers some power to states (coop. fed’ism)
        States fail to develop disposal sites




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               Tragedy of the commons
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New York v. United States                       (1992)
    Low-Level Radioactive Waste Policy Act-1985
         Nat’l Gov’s' Ass’n & Nat’l Conf. of State Legis.
          develop LLWRPA and ask Congress to enact
         Passes both houses of Congress - unanimously




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New York v. United States                        (1992)
   What LLRWPA does
        Requires states take responsibility for
         disposal of waste created within the state
        Incentives
           Monetary assistance
           Discriminatory access
           “Take Title”
                States must either
                 regulate per Act, or
                Assume ownership
                 of waste

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Commandeering
   Rule: congress can’t “comman-
   deer” states into federal service
        Treat them as instruments of federal regulation
           Require them to legislate per fed’l standards, or
           Require them to enforce fed’l law (against 3d parties)
        Impose liabilities on them
           For failure to act
           Extend to other laws?
        Even if states consent?
           Federalism protects liberty
           Not states ?
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Commandeering
   Evils of Commandeering
        Avoids accountability
           State citizens won’t know
               who’s responsible
        Federalizes matters of
         local concern
           Deprives states of
               discretion on how to
               respond
        Treats states as instru-
         ments of federal gov’t

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Commandeering
   Source of anti-commandeering rule
        10th Amendment?
           NB: congress has plenary power over nuclear issues
        Art. I, Section 9?
           Par. 4 limits cong’ power over states, but not here
        Original intent (const as
         whole)
           Constitution never understood to
            allow this
           Lively debate during convention:
            would fed gov’t operate on the
            states or directly on the people ?
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Alternatives to Commandeering
   What options available to congress that
   better respect state sovereignty?
        Suspend block grants to non-complying states?
        Prohibit export of nuclear waste?
        Reassert exclusive jdx?
        Preempt state laws?
        Directly regulate waste
         generation and disposal?
               all of these would
               be constitutional

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Printz v. US                     (1997)
   Brady Act
        Passed under commerce power
           meets Lopez - commercial transaction
        Administration of law
           federal implementation
                   AG to develop instant
                    background check system
           state implementation
               (interim provisions)
                   “reasonable effort” to
                    determine lawfulness of
                    sale

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Printz v. US
   Constitutional objection
        state enforcement of federal
         law violates state sovereignty
     Interpretivist Methods
        Originalism
          “Because there is no const’l text speaking to this pre-
           cise question, the answer to the challenge must be
           sought in historical understanding and practice”
        Textualism
          and in the structure of the constitution
        Dynamic/organic
          and in the jurisprudence of this Court” [common law]
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Finding State Sovereignty
   10th Amendment
       nothing explicit (textualism)
          “no const'l text speaking to this precise question”
       implied from history (originalism)
          lack of contemporaneous or early examples (federal
               imposition of duties on state executive officers)
               “suggests an assumed absence of such power”
                  Exception: extradition clause (specific const’l duty on states)
          early congress “recommended” rather than “com-
           manded” state assistance
          “absence of executive-commandeering statutes” in
           later congressional enactments as well
                  funding measures don’t count (conditional spending)
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History continued                                       Can conclusive
                                                       decisions about
    Federalist Papers                                  const’l power be
                                                      made based on The
         As interpretive guide                          Federalist?
         Dueling federalists
            No. 27 (Hamilton) - states “will be
                   “incorporated into the operations of the nat’l gov’t”
                   “rendered auxiliary to the enforcement of [federal laws]”
            No. 36 (H) - state officers will collect federal taxes
            No. 44 (Madison) - states “will have an essential
               agency in giving effect to the federal const”
                   Scalia’s example of state conduct of federal elections is off
                    point; it involves a special provision Art, I, § 4
            No. 45 (M) - state collection of federal taxes
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Immunity in Const. Structure
    Textual recognition of state sovereignty
         Scalia’s examples
            integrity of state’s territory
            state residents as “citizens” (Art. III, § 2; Art. IV, § 2)
            state role in ratification and amendment
            10th amendment
         How persuasive
            Do any of these establish immunity from fed reg-
               ulation (beyond specific provisions mentioned)?
         Separation of Powers
            congress’ ability to delegate execution of laws
               diminishes President’s power / undermines SoP
                   also true for voluntary compliance by states
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State Enforcement of Fed Law
    Commandeering of state legislatures
     Forbidden by NY v. US
           reduces accountability

    Commandeering of state executive officers
        Forbidden by Printz v. US
    Commandeering of state judiciary
        State courts must enforce federal law and
         apply substantive federal standards
           Testa v. Katt
           Reverse Erie

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Practice Questions
   What is the difference between the 1st, 2nd and
   3rd uses of the Tenth Amendment?
   Can congress require state police cars to be
   equipped with catalytic converters -
        During the era of Dual-Federalism?
        During the post-New Deal era?
        Under NLC?
        Under Garcia?
        Under Printz?
   Can congress require that states enforce
   pollution controls against private vehicles?
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Practice Questions
   Is the Drug-Free School Zones Act
   const'l?
   After Lopez, are Heart of Atlanta Motel
   and Katzenbach still good law?
   Who won the Civil War?




               more practice questions
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