Commandeering, coercion, and the deep structure of American federalism

Boston University Law Review

Volumn 95, Issue 1, 2015, Pages 1-34

  Coan, Andrew B ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 84927145231     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (69)

1. See, e.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism, 1998 SUP. CT. REV. 71
2. Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995)
3. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998) (arguing that commandeering poses different and greater threats to state autonomy than conditional spending or preemption)
4. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998)
5. H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993).
6. Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240, 99 Stat. 1842 (1986) (codified at 42 U.S.C. §§ 2021b-2021j (2012)), invalidated in part by New York, 505 U.S. 144
7. Brady Handgun Violence Prevention Act of 1993, Pub. L. No. 103-159, 107 Stat. 1536, invalidated in part by Printz v. United States, 521 U.S. 898 (1997).
8. State Medical Marijuana Laws, NCLS (Oct. 20, 2014), http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx, archived at http://perma.cc/8KU6-DDYR (documenting state legislation on medical marijuana).
9. Eliza Gray, New Laws Chart Course for Marijuana Legalization, TIME (Oct. 19, 2013), http://nation.time.com/2013/10/19/new-laws-chart-course-for-marijuana-legalization/, archived at http://perma.cc/3ZC6-A8MQ (discussing Colorado's and Washington's governance of legal marijuana and surmising that the states will be test cases for other states and countries).
10. See Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime, 62 VAND. L. REV. 1421, 1464-65 (2009)
11. David S. Schwartz, High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States, 35 CARDOZO L. REV. 567, 633 (2013) (stating that as of 2008, state law enforcement agents outnumbered federal law enforcement agents 765,000 to 120,000).
12. See Andrew B. Coan, Judicial Capacity and the Conditional Spending Paradox, 2013 WIS. L. REV. 339, 341 (discussing the number of statutes underwritten by the spending power and the potential flood of challenges to these statutes in federal courts after NFIB).
13. Political accountability is not the only justification that has been offered for the anti-commandeering principle. The most important alternative is the cost-internalization argument developed by Roderick Hills and Ernest Young. Hills, supra note 3, at 857; Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 35 (2004). In brief, Hills and Young contend that the anti-commandeering principle forces Congress to pay the market rate for states' services, rather than taking them without compensation. Hills, supra note 3, at 871; Young, supra, at 35. This, in turn, reduces the likelihood that Congress will pass legislation whose social costs exceed its benefits. See Young, supra, at 128. However persuasive this may be as a justification for the anti-commandeering principle, it cannot explain NFIB's anti-coercion principle, which prevents Congress from "purchasing" state services even-indeed, especially-when it is willing to pay the states' reservation price. See Hills, supra note 3, at 857. For this reason, and for reasons of space, I put the cost-internalization argument mostly to one side in this Article. But see infra note 144.
14. The most notable exception is Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988) (arguing that the Guarantee Clause of the Constitution requires Congress to respect the political autonomy of state governments). Merritt's argument, however, is largely textual, historical, and doctrinal rather than functionalist. For that reason, it largely ignores the insights of political economy and institutional economics that are my principal focus here. Merritt's article also predates New York, Printz, and NFIB, the three decisions most in need of explanation and justification in the contemporary context. Standards Act to the extent it burdened "traditional governmental functions" of states).
15. Pub. L. No. 99-240, 99 Stat. 1842 (1986) (codified at 42 U.S.C. § 2021b-2021j (2012)), invalidated in part by New York v. United States, 505 U.S. 144 (1992); New York, 505 U.S. at 149.
16. Printz v. United States, 521 U.S. 898, 933 (1997) ("We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: 'The Federal Government may not compel the States to enact or administer a federal regulatory program.'" (quoting New York, 505 U.S. at 188)).
17. See Reno v. Condon, 528 U.S. 141, 151 (2000) ("[T]he [Driver's Privacy Protection Act] is consistent with the constitutional principles enunciated in New York and Printz").
18. Immigration enforcement is one obvious example. See, e.g., Mikos, supra note 49, at 142-43 (discussing a New York City policy barring city employees from sharing immigration information with the federal government); Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. CIN. L. REV. 1373, 1382-84 (2006) (discussing state and local "sanctuary laws," which bar information sharing or other cooperation with federal immigration authorities).
19. Cf. City of New York v. United States, 179 F.3d 29, 34-35 (2d Cir. 1999) (adopting narrow reading of the anti-commandeering principle based on the federal government's strong interest in obtaining immigration information in the possession of state agencies).
20. South Dakota v. Dole, 483 U.S. 203 (1987).
21. I bracket United States v. Butler, which invalidated a conditional federal spending program aimed at individuals. United States v. Butler, 297 U.S. 1, 68 (1936).
22. See, e.g., Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 DUKE L.J. 345, 355 (2008) ("None of [Dole's] direct limitations on the spending power has had any real bite in the cases.")
23. Lynn A. Baker, Conditional Federal Spending and States' Rights, 574 ANNALS AM. ACAD. POL. & Soc. Sci. 104, 116, 117 n.18 (2001) (repeatedly describing Dole as "toothless")
24. Lynn A. Baker & Mitchell N. Berman, Getting off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 IND. L.J. 459, 467-69 (2003) (stating that courts have treated Dole's anti-coercion principle as "essentially nonjusticiable" even in cases where "the absolute amount or percentage of federal money at stake is so large that [a state] has 'no choice but to accept the [federal legislation's] many requirements'"
25. quoting Kansas v. United States, 214 F.3d 1196, 1201 (10th Cir. 2000).
26. NFIB, 132 S. Ct. 2566, 2603-04 (2012); see, e.g., Marty Lederman, The States' Extraordinary Medicaid Challenge: Claiming a Right Not to Take the Savory with the Sweet (or,⋯ All Carrots; No Stick) BALKINIZATION (Mar. 27, 2012), http://balkin.blogspot.com/2012/03/states-extraordinary-medicaid-challenge.html, archived at http://perma.cc/DCT5-ZTMA (writing before the decision that "many believe⋯ it is highly unlikely a majority of Justices will be sympathetic to that challenge").
27. CHRIS EDWARDS, FEDERAL AID TO THE STATES: HISTORICAL CAUSE OF GOVERNMENT GROWTH AND BUREAUCRACY 1 (CATO Inst., Policy Analysis No. 593, 2007), available at http://www.cato.org/pubs/pas/pa593.pdf, archived at http://perma.cc/B4DY-CBQ7.
28. Office of Mgmt. and Budget, Historical Tables, Table 12.1: Summary Comparison of Outlays for Grants to State and Local Governments: 1940-2019 (2013), available at http://www.whitehouse.gov/sites/default/files/omb/budget/fy2013/assets/histl2zl.xls, archived at http://perma.cc/S5GW-ZALL.
29. Daniel Halberstam, Comparative Federalism and the Issue of Commandeering, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 213, 231 (Kalypso Nicolaidis & Robert Howse eds., 2001) ("[P]roper lines of accountability can be preserved when component States are vigilant in publicizing the respective roles of the federal and State policy-makers on any given issue. Given proper information, citizens should find the lines of accountability reasonably clear."); Siegel, supra note 74, at 1632-33 ("Government officials also have an abiding interest in informing voters when they are responsible for popular actions. And when these actions prove unpopular, such that politicians have an incentive to engage in blame shifting, the popular press often serves to advance political accountability.").
30. Printz v. United States, 521 U.S. 898, 958 n.18 (1997) (Stevens, J., dissenting) ("[W]e can be sure that CLEO's will inform disgruntled constituents who have been denied permission to purchase a handgun about the origins of the Brady Act requirements.").
31. See generally MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS 62 (1996)
32. JOHN ZALLER, THE NATURE AND ORIGINS OF MASS OPINION (1992).
33. Ronald J. Krotoszynski, Jr., Listening to the "Sounds of Sovereignty" But Missing the Beat: Does the New Federalism Really Matter?, 32 IND. L. REV. 11, 17 (1998) ("[E]ven in this brave new world of post-post New Deal federalism, there really is no doubt that South Dakota v. Dole permits Congress to use the spending power to accomplish indirectly that which it may not accomplish directly.")
34. Robert A. Schapiro, From Dualist Federalism to Interactive Federalism, 56 EMORY L.J. 1, 14 (2006) ("[Conditional funding remains an effectively unbridled source of federal power.")
35. Carlos Manuel Vazquez, Eleventh Amendment Schizophrenia, 75 NOTRE DAME L. REV. 859, 864 n.23 (2000) (arguing that a virtually unlimited conditional spending power threatens to reduce all of the Court's federalism jurisprudence "to a matter of form rather than substance").
36. See generally Edward A. Zelinsky, Accountability and Mandates: Redefining the Problem of Federal Spending Conditions, 4 CORNELL J.L. & PUB. POL'Y 482 (1994).
37. See South Dakota v. Dole, 483 U.S. 203, 211 (1987).
38. See, e.g., Hills, supra note 3, at 828 ("[W]henever the federal government induces states to act, whether with block grants or categorical grants, there is a considerable risk that voters will be confused about which level of government imposed the regulatory burdens of the program."); Jackson, supra note 3, at 2202 ("Conditional spending regulatory requirements, though nominally involving a state's choice to accept federal funds, can result in a very confusing picture of responsibility for voters. Why, then, would commandeering be different?"); Rebecca E. Zietlow, Federalism's Paradox: The Spending Power and Waiver of Sovereign Immunity, 37 WAKE FOREST L. REV. 141, 190 (2002) ("The reason for the anti-commandeering rule was the Cour's fear that commandeering state officials would cause a lack of accountability and confuse state voters⋯. Yet conditional funding arguably creates the same concern about accountability since states agree to comply with conditions beyond their control in order to receive federal funds.")
39. cf. PAUL PETERSON, THE PRICE OF FEDERALISM 63 (1995) ("Would not local officials be more accountable to their own citizens and taxpayers if they were not so dependent on federal assistance?").
40. NFIB, 132 S. Ct. 2566, 2602 (2012) ('"The Constitution simply does not give Congress the authority to require states to regulate.' That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own." (quoting New York v. United States, 505 U.S. 144, 178 (1999))).
41. Cf. V. F. Nourse, Toward a New Constitutional Anatomy, 56 STAN. L. REV. 835, 851-52 (2003) [hereinafter Nourse, Constitutional Anatomy] ("The vertical relations created by the Constitution⋯ invite us to ask-not how power is described in the Constitution (as, for example, 'judicial,' 'executive,' or 'state') but, instead-how changing power shifts constitutional relations between the governed and the governing.").
42. U.S. CONST, art. I, § 2, cl. 1; id. amend. XVII. The federal judiciary is deliberately defined by its relative insulation from any popular constituency. Id. art. Ill, § 1. Of course, "relative" is an important qualifier. The presidential appointment power, the horizontal Necessary and Proper Clause, and many other provisions give the judiciary a meaningful but attenuated relation to the national constituencies of Congress and the President. See id. art. I, § 8, cl. 18; id. art. II, § 2, cl. 2; see generally TERRI JENNINGS PERETTI, IN DEFENSE OF A POLITICAL COURT (2001) (reviewing empirical evidence of the Court's connections to popular constituencies).
43. This is a fundamental postulate of political economy. See, e.g., NEIL K. KOMESAR, LAW'S LIMITS: RULE OF LAW AND THE SUPPLY AND DEMAND OF RIGHTS 63 (2001) [hereinafter KOMESAR, LAW'S LIMITS] ("Smaller numbers of voters are easier to organize and it is easier to prevent free riding and therefore, the probability of majoritarian activity increases.").
44. For the classic statement, see Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
45. See also Jenna Bednar et al., A Political Theory of Federalism, in CONSTITUTIONAL CULTURE AND DEMOCRATIC RULE 223, 227 (John Ferejohn et al. eds., 2001) ("A decentralized polity will usually end up with fewer dissatisfied citizens. For example, where fifty citizens in the first province favor policy A while ten oppose it, and thirty citizens in a second province favor non-A with ten favoring A, each province can adopt different policies, leaving only twenty (rather than forty) dissatisfied citizens [as would be the case in a centralized polity].").
46. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) ("This federalist structure of joint sovereigns⋯ makes government more responsive by putting the States in competition for a mobile citizenry.")
47. see also ALBERT BRETON, COMPETITIVE GOVERNMENTS: AN ECONOMIC THEORY OF POLITICS and PUBLIC FINANCE (1996)
48. Barry R. Weingast, The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development, 11 J.L. ECON. & ORG. 1 (1995).
49. See generally NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 7 (1994) [hereinafter, KOMESAR, IMPERFECT ALTERNATIVES] ("The participation-centered approach identifies the actions of the mass of participants as the factor that in general best accounts for the variation in how institutions function.")
50. Nourse, Constitutional Anatomy, supra note 96, at 840 ("At the center of the idea of a constitutive position is the notion of an economy of vertical relations between the governed and the governing, relations that create what we conventionally call the separation of powers and federalism."); see also Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 GEO. L.J. 1119, 1170 (2011) ("The representational approach 'asks whether and how the shifting of tasks among government players affects "who" will decide,' where the 'who' is the people, represented by state, district, and nation." (citations omitted)). Nourse calls her framework the "vertical relations model." Nourse, Constitutional Anatomy, supra note 96, at 840 (describing "vertical relations between the governed and the governing"). Komesar calls his the "participation-centered approach." KOMESAR, IMPERFECT ALTERNATIVES, supra, at 7 (describing the "participation-centered approach"). I have tweaked their nomenclature to put the emphasis on popular constituencies.
51. See, e.g., JAMES M. BUCHANAN, LIBERTY, MARKET AND STATE: POLITICAL ECONOMY OF THE 1980s (1986)
52. JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY (1962)
53. RUSSELL HARDIN, COLLECTIVE ACTION (1982)
54. MANCUR OLSON JR., THE LOGIC OF COLLECTIVE ACTION (1965).
55. See Victoria Nourse, The Vertical Separation of Powers, 49 DUKE LJ. 749, 768-772 (1999) (analyzing Clinton v. Jones in terms of the shift in power from national constituency of Congress to nonconstituency of courts).
56. Needless to say, such responsiveness is highly imperfect. Agency slack is pervasive in government, as in other spheres. Out-of-state influences on state politics are also numerous and powerful. National political parties and out-of-state campaign contributions are probably the two most important examples. See generally Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV. 1078 (2014). But as a relative matter, it seems incontestable that the electoral relations established by the Constitution tend to make state governments relatively more responsive to local constituencies and the national government relatively more responsive to national constituencies. Cf. Nourse, Constitutional Anatomy, supra note 96, at 868 ("I am aiming to capture, not all of the incentives of any particular actor in the system, but a simple and thus predictive take on relative incentives, with emphasis on the term 'relative.'").
57. Gonzales v. Raich, 545 U.S. 1, 29 (2005) ("[Limiting the activity to marijuana possession and cultivation 'in accordance with state law' cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail."). But see Mikos, supra note 8, at 1422-26 (arguing that the anti-commandeering principle prohibits preemption of state laws that merely permit, rather than affirmatively authorize or aid in, the medical use of marijuana).
58. Cf. New York v. United States, 505 U.S. 144, 177 (1992) ("No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress.").
59. Printz v. United States, 521 U.S. 898, 905 (1997) ("[I]f, as petitioners contend, earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist."); New York, 505 U.S. at 177 ("The take title provision appears to be unique. No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress.").
60. See Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 278 (2000) [hereinafter Kramer, Political Safeguards] ("For most of our history, the decentralized American party 'systems completely dominated the scene and protected the states by making national officials politically dependent upon state and local party organizations.")
61. Larry D. Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1526-27 (1994).
62. See Bulman-Pozen, supra note 120; cf. Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV. 273, 276-77 (2011) (describing these trends).
63. See, e.g., Miriam Seifter, States as Interest Groups in the Administrative Process, 100 VA. L. REV. 953, 961-70
64. see also Jennifer M. Jensen, State Representation in Washington and the Political Safeguards of Federalism 13-17 (Am. Political Sci. Ass'n 2013 Annual Meeting Paper), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=2300599.
65. See, e.g., Robert A. Mikos, The Populist Safeguards of Federalism, 68 OHIO ST. L.J. 1669, 1711-17 (2007) (collecting studies to this effect).
66. See New York v. United States, 505 U.S. 144, 149-51 (1992) (discussing the history of the take-title provision and the fact that states had failed to resolve the issue of how to store low-level radioactive waste on their own).
67. See Status of State Action on the Medicaid Expansion Decision as of August 28, 2014, HENRY J. KAISER FAMILY FOUND., http://kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/, archived at http://perma.cc/2DXL-4JJC (last visited Oct. 17, 2014) (observing that twenty-eight states (including the District of Columbia) are implementing the expansion, two states are in open debate, and twenty-one states are not moving forward with the expansion at this time).
68. Siegel, supra note 74, at 1646 ("Anticommandeering doctrine may increase the costs of federal regulation⋯because the unavailability of commandeering may result in more instances of federal preemption going forward."). Justice Stevens stresses the same point in his Printz dissent. Printz v. United States, 521 U.S. 898, 959 (1997) (Stevens, J., dissenting) ("By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to⋯ create vast national bureaucracies to implement its policies.").
69. Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256 (2009). you are strongly committed to uncooperative federalism, conditional spending is a worse option than commandeering but a better option than preemption⋯.").