State Sovereignty--Refusal to Enforce Federal Regulations

You asked whether recent U.S. Supreme Court cases such as Printz v. U.S. authorize a state to refuse to enforce federal regulations.

Recent Supreme Court rulings based on state sovereignty concerns, including Printz v. U.S., prohibit the federal government from (1) requiring states to enact or enforce a federal regulatory program and (2) requiring state officials to administer a federal regulatory scheme. They do not prohibit states from voluntarily complying with federal law to make themselves eligible for federal grants. In fact, these rulings allow Congress to impose conditions on the receipt of federal funds provided the conditions are a proper exercise of Congress' spending power granted it by the constitution. The Court has articulated four standards to determine whether conditions of eligibility for federal grants are a proper exercise of this power. First, the exercise of spending must be in pursuit of the general welfare. Second, the conditions must be unambiguous. Third, the conditions must be related to federal interests in the national projects or programs involved. Finally, the conditions may not induce states to engage in activities that violate some specific federal constitutional right.

The Supreme Court has long held that Congress may not commandeer a state's legislative processes by directly compelling it to enact and enforce a federal regulatory program. In Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. (101 S.Ct. 2352, 2366 (1981)) the Court upheld the Surface Mining Control and Reclamation Act of 1977 precisely because it did not “commandeer” the states into regulating mining. The Court found that “the States are not compelled to enforce the steep-slope standards, to expand any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the act and implementing regulations, the full regulatory burden will be borne by the Federal Government.” (Hodel, at 2366)

The Court reached the same conclusion the following year in FERC v. Mississippi (102 S.Ct. 2126, 2137 (1982)). At issue in FERC was the Public Utility Regulatory Policies Act of 1978, a federal statue encouraging the states in various ways to develop programs to combat the nation's energy crisis. The Court observed that it had never sanctioned explicitly a federal command to the states to promulgate and enforce laws and regulations. As in Hodel, the Court upheld the statute at issue because it did not view the statute as such a command. The Court emphasized that the federal law requires only consideration of federal standards. And if a state had no utilities commission, or simply stops regulating in the field, it did not need to consider the federal proposals. The Court concluded that since there was nothing in the federal law directly compelling the states to enact a legislative program, it was not consistent with the Constitution's division of authority between the federal government and the states.

In New York v. U.S., 112 S.Ct. 2408 (1992), the Supreme Court held that a federal law that required state's to accept ownership of radioactive waste or regulate its disposal according to Congress' instructions was outside Congress' enumerated powers and was inconsistent with the Tenth Amendment. But it upheld the constitutionality of the law's monetary and access incentive provisions.

Faced with a looming shortage of disposal sites for low level radioactive waste in 31 states, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985, which, among other things, imposed upon states, either alone or in “regional compacts” with other states, the obligations to provide for the disposal of waste generated within their borders, and contained three provisions setting forth “incentives” to states to comply with that obligation (42 U.S.C.A. § 2021). The first set of incentives—the monetary incentives—worked in three steps: (1) states with disposal sites were authorized to impose a surcharge on radioactive waste received from other states; (2) the secretary of energy collected a portion of this surcharge and placed it in an escrow account; and (3) states achieving a series of milestones in developing sites received portions of this fund. The second set of incentives—the access incentives—authorized sited states and regional compacts gradually to increase the cost of access to their sites, and then to deny access altogether, to waste generated in states that did not meet federal deadlines. The so-called third “incentive—the take title provision—specified that a state or regional compact that failed to provide for the disposal of all internally generated waste by a particular date, upon the request of the waste's generator or owner, had to take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the state's failure to promptly take possession.

Procedural History. New York state and two of its counties filed suit against the United States seeking a declaratory judgment that the three incentives were inconsistent with the Tenth Amendment to the U.S. Constitution which declares that powers not delegated to the United States by the Constitutional nor prohibited to the states, are reserved to the states

Court Findings and Conclusions. The Court found that regulation of the interstate market in the disposal of low level radioactive waste is within Congress' Commerce Clause authority, and Congress could, if it wished, preempt entirely state regulation in this area. But it also concluded that Congress may not commandeer the states' legislative processes by directly compelling them to enact and enforce a federal regulatory program, but rather must exercise legislative authority directly upon individuals.

The Court noted that there are a variety of methods, short of outright coercion, by which Congress may urge a state to adopt a legislative program consistent with federal interests. For example, it stated that Congress may, under its spending power, attach conditions on the receipt of federal funds.

1. the act's monetary incentives were well within Congress' Commerce and Spending Clause authority and thus were consistent with the Tenth Amendment;

2. the authorization to sited states to impose surcharges was an unexceptional exercise of Congress' power to enable states to burden interstate commerce;

3. the secretary's collection of a percentage of the surcharge was no more than a federal tax on interstate commerce, which petitioners did not claim to be an invalid exercise of either Congress' commerce or taxing power; and

4. in conditioning the states' receipt of federal funds upon their achieving specified milestones, Congress had not exceeded its Spending Clause authority.

The court concluded that the act's access incentives constitute a conditional exercise of Congress' commerce power and thus did not intrude on the States' Tenth Amendment sovereignty. According to the Court, these incentives presented nonsited states with the choice either of regulating waste disposal according to federal standards or having their waste-producing residents denied access to disposal sites. They were not compelled to regulate, expend any funds, or participate in any federal program, and they could continue to regulate waste in their own way if they do not accede to federal direction.

The court determined that because the act's take title provision offered the states a “choice” between the two unconstitutionally coercive alternatives—either accepting ownership of waste or regulating according to Congress' instructions—the provision was outside Congress' enumerated powers and was inconsistent with the Tenth Amendment. On the one hand, either forcing the transfer of waste from generators to the states or requiring the states to become liable for the generators' damages would “commandeer” states into the service of federal regulatory purposes. On the other hand, requiring the states to regulate pursuant to Congress' direction would present a simple unconstitutional command to implement legislation enacted by Congress.

In Printz v. U.S., 117 S. Ct. 2365 (1997) the Supreme Court, in a five-to-four decision, held that a federal law violated constitutional principles of state sovereignty by requiring state officials to receive firearms dealers' reports and conduct background checks as part of a federal program.

The federal law (Brady Act) among other things, established a five day federal waiting periods for those purchasing handguns and requires the U.S. Attorney General to setup a national computer system to instantly check buyers' backgrounds to determine their eligibility. The law gave the attorney general several years to establish the system. In the mean time, the law required the “chief law enforcement officer” in each locality to conduct these background searches. The offices had to receive reports from gun dealers concerning prospective handgun sales and “to make a reasonable effort to ascertain within five business days” whether a particular sale violated federal law (19 USCA § 922(s)(2)). The act did not require the officer to take any particular action if he determined that a pending transaction would be unlawful; he could notify the firearms dealer to that effect, but was not required to do so. If, however, the officer notified a gun dealer that a prospective purchaser was ineligible to receive a handgun, he upon request had to, provide the would-be purchaser with a written statement of the reasons for that determination (19 USCA § 922(s)(6)(C)). Moreover, if the officer did not discover any basis for objecting to the sale, he had to destroy any records in his possession relating to the transfer, including his copy of the Brady Form (§ 922(s)(6)(B)(I)). Under a separate provision of the law any person who “knowingly violates [the section of the GCA amended by the Brady Act] shall be fined under this title, imprisoned for no more than one year, or both” (§ 924(a)(5)).

County sheriffs in two states complained that the federal government lacks the power to force them to administer a federal regulatory scheme.

Writing for five-member majority, Justice Scalia observed that the Tenth Amendment, the enumerated Powers Clause, and other provisions establish a system of dual sovereignty that is violated when Congress orders state executives to administer a state regulatory program. Moreover, according to Scalia, separation of powers principles arising out of the constitution's structure are violated when Congress bypasses the federal executive branch by requiring state executives to perform federal law enforcement functions.

Scalia concluded that federal requirements such as the Brady Act provisions challenged by the sheriffs are unconstitutional whether or not the federal law requires state officials to make policy or exercise discretion.

In a concurring opinion, Justice O'Connor stressed that nothing prevents Congress from conditioning states' receipt of federal money or participating in enforcement of federal laws such as the Brady Act, and nothing prevents states from voluntarily choosing to participate (117 S.Ct. at 2385). She also notes that the Court had refrained from deciding whether purely ministerial reporting requirements imposed by Congress on state and local government pursuant to its Commerce Clause powers are involved. As an example, she cited a federal requirement that state and local law enforcement agencies report cases of missing children to the Department of Justice (42 USCA § 5779(aj)).

The Constitution empowers Congress to “lay and collect taxes, duties, imports, and excises, to pay the debts and provide the common defense and general welfare of the United States” (Art. I, Section 8, cl.1). Incident to this constitutional power, Congress may attach conditions on the receipt of federal funds and has repeatedly used this power to further broad policy objectives by conditioning receipt of federal moneys upon the recipient's compliance with federal statutory and administrative directives (South Dakota v. Dole, 107 S.Ct. 2793, 2796 (1987); Fullilove v. Klutznick, 100 S.Ct. 2758, 2772 (1980); Lau v. Nichols, 94 S.Ct. 786, 789 (1974); Ivanhoe Irrigation Dist.v. McCracken,78 S.Ct. 1174 (1958); Oklahoma v. Civil Service Comm'n., 67 S.Ct. 544, 553-554 (1947); Steward Machine Co. v. Davis, 57 S.Ct. 883 (1937)).

The broad dimensions of this power were established in 1936 in United States v. Butler (56 S.Ct. 312, 319). The Court held that the power of Congress to authorize expenditures of public moneys for public purposes is not limited by the direct grants of legislative power found in the constitution. Thus, “objectives not though to be within Article I's enumerated legislative fields … may nevertheless be attained through the use of the spending power and the conditional grant of federal funds” (South Dakota v. Dole at 2796).

But Congress' spending power is not unlimited; rather, it is subject to several general restrictions articulated by the Supreme Court in various cases. The first limitation is derived from the Constitution's language itself: the exercise of the spending power must be in pursuit of the “general welfare” (Helvering v. Davis, 57 S.Ct. 904, 908-909 (1937); United States v. Butler. 56 S.Ct. 312, 319 (1936)). In considering whether a particular expenditure is intended to serve the general welfare courts defer substantially to the Congress' judgment. Second, the conditions imposed must be unambiguous thus allowing the states to exercise their choice knowing the consequences (Pennhurst State School and Hospital v. Halderman, 101 S.Ct. 1531, 1540 (1981)). Third, conditions on federal grants might be illegitimate if they are unrelated to federal interest in particular national projects or programs (Massachusetts v. United States, 98 S.Ct. 1153, 1164 (1978) (plurality opinion); Ivanhoe Irrigation Distr. v. McCracken at 1185). Finally, other constitutional provisions may provide an independent bar to the conditional grant of federal funds (Lawrence County v. Lead-Deadwood School Dist., 105 S.Ct. 695, 703-704 (1985); Buckley v. Valeo, 96 S.Ct. 612, 669 (1976); King v. Smith, 88 S.Ct. 2128, 2141 (1968)).

This “independent constitutional bar” limitation on Congress' spending power does not prohibit Congress from indirectly achieving objectives which it is not explicitly empowered to directly achieve. Rather, it prohibitions Congress from using its spending power to induce states to engage in activities that would themselves be unconstitutional. For example, according to the Court, conditioning a grant of federal funds on an invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an improper exercise of the Congress' broad spending power (South Dakota v. Dole at 2798).