Part 3: The Rehnquist and Roberts Courts Lecture 21 Federalism Part 3: The Rehnquist and Roberts Courts

This lecture We finish up on the cycles of federalism Pages 374-387 After the SAMTA case, changes on the court Burger replaced by Rehnquist as Chief Justice Rehnquist replaced by Scalia Powell replaced by Kennedy Brennan replaced by Souter Marshall replaced by Thomas

New York v. United States (1992) Background Deals with the Low-Level Radioactive Waste Policy Act of 1980 Waste was only being stored in Nevada, South Carolina and Washington They didn’t like it and they were reaching capacity It declared each state responsible for its own waste It allowed those states to impose a surcharge on states not in compliance with the act 1) The surcharges were to be distributed to complying states 2) Non complying states could eventually be refused access to the sites after paying higher surcharges 3) Take title provision- they were responsible for their own waste if not in a regional compact New York challenges the law- particularly #3

New York v. United States- II Question: Arguments: For New York The “take title” provision imposes conditional obligations only on the states This is distinguishable form SANTA This was not voluntarily undertaken States never consented to this States are deprived of the opportunity to make an independent choice as to whether the federal funds outweigh compliance

New York v. United States- III Arguments For the United States It leaves the states with many options- NY could enter into a compact New York was a participant in cooperative federalism Disposal of federal waste qualify as a national interest Notice the irony New York is arguing for 10th Amendment review- with Gov. Mario Cuomo The Bush Administration is advocating for federal control Later iterations lead to Screw Nevada Bill- Yucca Mountain

New York v. United States- IV O’Connor delivers the 6-3 opinion of the Court She gets her wish She finds only 2 of the 3 provisions are a proper exercise of federal power The 10th Amendment confirms that the powers of the federal government are limited- state sovereignty Commerce clause Provide for the general welfare- terms of disbursement of federal money Supremacy Clause While the scope of federal control has changed, the constitution has not

New York v. United States- V More from O’Connor Congress may not simply “commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program” Congress cannot require states to govern according to its instructions Congress exercises legislative authority over individuals not states This is the way she says the founders understood this Congress may use incentives for states to follow a rule Congress may attach conditions on the receipt of federal funds under its spending power If it bears some relationship to the purpose of the spending When Congress can regulate commerce States can choose to regulate at the federal standards or be preempted

New York v. United States- VI Yet more from Justice O’Connor So, residents can Reject the federal money Have the federal government do the regulation rather than the state One the law at hand She upholds the first two provisions But not the take-title provision- strikes down both parts This goes from encouragement to coercion This is the Congress directing states to assume the liability of certain state residents It would also be commandeering states to carry out federal regulatory policy This does not involve the threat of Congress using its spending power or commerce power

New York v. United States- VII More from O’Connor The constitution leaves to the several states a residuary and inviolable sovereignty reserved explicitly to the states under the 10th Amendment The Congress may not compel states to enact or administer a federal regulatory program

New York v. United States- VIII Justice White dissenting Joined by Justices Blackmun and Stevens Stevens had his own dissent Congress could have preempted the field by direct regulation However, it tried to give states some flexibility New York is essentially a free rider O’Connor is not following Garcia, but her own dissent in it The New York delegation participated in the drafting of both bills “For me, the Court’s civic lecture has a decidedly hollow ring at a time when action, rather than rhetoric is needed to solve a national problem”

Printz v. United States (1997) Background This is a challenge to the Brady Bill- which was to keep handguns out of the hands of people prohibited from owning them by federal law Within five years of passage, the Attorney General was to have established a instant background check for anyone wishing to purchase a handgun However, in some places, the chief law enforcement officer (CLEO) of a county was required to perform the background check If the person had a clean record, the records were destroyed This was to end when the federal instant background check was implemented A couple of local sheriffs challenged having to perform this Question: Can Congress force these CLEOs to perform this duty?

Printz v. United States- II Arguments For the local sheriffs New York v. United States said that the federal government cannot commandeer local offices to perform certain duties under the 10th Amendment Law enforcement is an area of state sovereignty This would be drafting state employees to do a task CLEOs are not engaged in any type of interstate commerce Article II requires the executive branch to faithfully executive the law, not local officials One of the plaintiffs- Richard Mack Founder of the Constitutional Sheriffs and Peace Officers Encourages local officials to refuse to implement federal laws they see as unconstitutional

Printz v. United States- III Arguments For the United States New York v. United States had required states to legislative a solution, this is merely asking for local help to implement a federal policy Congress has power to order this under the Necessary and Proper Clause It has historical precedent back to the First Congress It does not impose substantial burdens on states or CLEOs This is under the Commerce power- means are not irrational to the ends

Printz v. United States- IV Justice Scalia rules for a 5-4 Court Scalia disagrees that Congress has previously compelled states in the absence of constitutional authority to do so He said these were recommendations- the were voluntary He says the Federalist Papers say nothing about this compelling states He rejects that the federal government can compel in ministerial functions as well Congress cannot conscript a state officer either Scalia specifically mentions “dual sovereignty” For the federal government to do this, they must perform the task themselves Does this allow state and local governments to ignore federal laws they believe may be unconstitutional?

Printz v. United States- V Justice Thomas, concurring There is also a concurrence by O’Connor (not in book) He would hold the federal government did not have the power under the Commerce clause to regulate point of sale transactions (intrastate) It might also violate the Second Amendment Souter, J. dissenting Federalist #27 by Hamilton State and local governments will be incorporated into the operation of the national government… He says Madison supports this in Federalist #44

Printz v. United States- VI Justice Stevens, dissenting Joined by Souter, Ginsburg, and Kagan He relies on the necessary and proper clause He also says that unlike the First Amendment, the 10th Amendment imposes no restriction on delegated powers Nothing supports a local law enforcement official ignoring federal law He says this decision contradicts New York v. United States Method versus existence of the federal program Stevens specifically uses the words “cooperative federalism”

The Roberts Court National Federation of Independent Business v. Sebelius (2012) The Court struck down the Medicaid expansion provision as too coercive We cover this case extensively in the chapter on the taxing power He does not cite the 10th Amendment however

The Next Lecture We move into the 11th Amendment and Sovereign Immunity And then New Judicial Federalism Pages 387-399