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

2. This lecture We finish up on the cycles of federalism
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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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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”

11. 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?

12. 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

13. 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

14. 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?

15. 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

16. 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”

17. 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

18. The Next Lecture
We move into the 11th Amendment and Sovereign Immunity
And then New Judicial Federalism
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