Amdt10.4.2 Anti-Commandeering Doctrine

Tenth 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.

In Garcia v. San Antonio Metropolitan Transit Authority,1 the Supreme Court adopted a narrow conception of states’ reserved powers under the Tenth Amendment. Following Garcia, the Court adopted a “clear statement” rule requiring an unambiguous statement of congressional intent to displace state authority, a rule first articulated in Gregory v. Ashcroft.2 After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, Gregory explained that, because Garcia “constrained” consideration of “the limits that the state-federal balance places on Congress’s powers,” a plain statement rule was all the more necessary.3 The Court stated: “[I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress’s Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.” 4

The Court’s 1992 decision in New York v. United States5 signaled a continuing retreat from the narrow conception of state power adopted in Garcia and the genesis of the Supreme Court’s “anti-commandeering” doctrine. The New York holding that Congress may not “commandeer” state regulatory processes by ordering states to enact or administer a federal regulatory program limited congressional power previously recognized in dictum.6

Language in New York seems more reminiscent of National League of Cities v. Usery7 than of the Court’s later Garcia decision. First, Justice Sandra Day O’Connor’s opinion declared that it makes no difference whether federalism constraints derive from the Tenth Amendment, or instead from a lack of power delegated to Congress under Article I: “the Tenth Amendment . . . directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.” 8 Second, the Court, without reference to Garcia, thoroughly repudiated Garcia's “structural” approach requiring states to look primarily to the political processes for protection. In rejecting arguments that New York’s sovereignty could not have been infringed because its representatives participated in developing the compromise legislation and consented to its enactment, the Court declared: “The Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals.” Consequently, the Court reasoned, “State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.” 9 The Court thus appeared to contemplate relaxation of Garcia's obstacles to federalism-based challenges.

Extending the principle applied in New York, the Court in Printz v. United States10 held that Congress may not “circumvent” the prohibition on commandeering a state’s regulatory processes “by conscripting the State’s officers directly.” 11 Printz struck down interim provisions of the Brady Handgun Violence Protection Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. In Printz, the Court noted:

The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers . . . to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.12

In Reno v. Condon,13 the Court distinguished New York and Printz in upholding the Driver’s Privacy Protection Act of 1994 (DPPA), a federal law that restricted the disclosure and resale of personal information contained in the records of state motor vehicles departments. The Court returned to a principle articulated in South Carolina v. Baker that distinguished between laws that improperly seek to control the manner in which states regulate private parties, and those that merely regulate state activities directly.14

In Condon, the Court found that the DPPA did “not require the States in their sovereign capacities to regulate their own citizens,” but rather “regulate[d] the States as the owners of databases.” 15 The Court saw no need to decide whether a federal law may regulate the states exclusively, because the DPPA was a law of general applicability that regulated private resellers of information as well as states.16

The Supreme Court’s anti-commandeering cases have recognized parallels—as well as distinctions—between commandeering state legislatures and requiring states to implement policies as a condition of federal funding.17 In both New York and Printz, the Court observed that Congress may attach conditions to federal funds disbursed under its Spending Clause power and thereby avoid anti-commandeering problems.18 The Court’s decision in National Federation of Independent Business v. Sebelius (NFIB) explored the limits of this power, holding that a federal spending condition unconstitutionally “coerced” state legislatures to adopt a federal regulatory program.19

In NFIB, which involved constitutional challenges to the Patient Protection and Affordable Care Act (ACA),20 several states challenged a provision that would have terminated a state’s Medicaid funding if the state failed to expand Medicaid coverage as directed by the Act.21 The Court held that the ACA’s Medicaid expansion was an unconstitutional exercise of Congress’s spending power.22 Though his opinion analyzed the ACA’s Medicaid expansion under the Spending Clause, Chief Justice John Roberts made repeated reference to the commandeering issues raised in New York and Printz.23 While those two decisions both recognized the government’s power to attach conditions to funds, Chief Justice Roberts averred that the distinction between permissible conditions and impermissible commandeering collapses “when the state has no choice” in whether to accept the conditions.24 The states argued—and the Court agreed—that the Medicaid expansion’s condition on noncompliance did not offer the states a true choice and was therefore akin to the types of coercion forbidden in New York and Printz.25

NFIB was not the first Supreme Court case to scrutinize federal spending conditions,26 but the case was the only instance in which the Supreme Court has invalidated an exercise of Congress’s Spending Clause power. Several factors played a role in Chief Justice Roberts’s analysis. First, as both the Chief Justice and the dissenters observed, states faced losing a substantial part of their budgets.27 Second, the Chief Justice concluded that the ACA’s Medicaid expansion represented “a shift in kind, not merely degree” that states could not have anticipated when they agreed to participate in Medicaid initially, despite Congress’s express reservation of “the right to alter, amend, or repeal” 28 any aspect of Medicaid.29

Though NFIB explored the limits of Congress’s power under the Spending Clause, the decision may be relevant to the development of anti-commandeering doctrine because it identifies a potential limit on what New York and Printz recognized as a constitutional alternative to commandeering.30 Reframing an otherwise impermissible act of commandeering as a spending condition may be subject to challenge as unconstitutionally coercive, following the reasoning of Chief Justice Roberts and the four dissenting Justices.

The Supreme Court’s most recent consideration of the anti-commandeering principle occurred in 2018 in Murphy v. NCAA.31 In Murphy, Justice Samuel Alito, writing on behalf of the Court, invalidated on anti-commandeering grounds a provision in the Professional and Amateur Sports Protection Act (PASPA) that prohibited states from authorizing sports gambling schemes.32 Noting the rule from New York and Printz that Congress lacks “the power to issue orders directly to the States,” 33 the Court concluded that PASPA’s prohibition of state authorization of sports gambling violated the anti-commandeering rule by putting state legislatures under the “direct control of Congress.” 34 In so concluding, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to “affirmative” congressional commands, as opposed to when Congress prohibits certain state action.35 Finding the distinction between affirmative requirements and prohibitions “empty,” the Court held that both types of commands equally intrude on state sovereign interests.36

In holding that Congress cannot command a state legislature to refrain from enacting a law, the Murphy Court reconciled its holding with two related doctrines.37 First, the Court noted that while cases like Garcia, Baker, and Condon establish that the anti-commandeering doctrine “does not apply when Congress evenhandedly regulates activity in which both States and private actors engage,” 38 PASPA’s anti-authorization provision was, in contrast, solely directed at the activities of state legislatures.39 Second, the Court rejected the argument that PASPA constituted a “valid preemption provision” under the Supremacy Clause.40 While acknowledging that the “language used by Congress and this Court” with respect to preemption is sometimes imprecise,41 Justice Alito viewed “every form of preemption” to be based on a federal law that regulates the conduct of private actors—either by directly regulating private entities or by conferring a federal right to be free from state regulation.42 In contrast, PASPA’s anti-authorization provision did not “confer any federal rights on private actors interested in conducting sports gambling operations” or “impose any federal restrictions on private actors.” 43 As a result, the Murphy Court viewed the challenged provision to be a direct command to the states in violation of the anti-commandeering rule.44

On June 15, 2023, the Supreme Court issued a decision in Haaland v. Brackeen45 , a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). ICWA regulates state court child custody proceedings that involve Indian children by establishing a preference for placing Indian children with Indian families or institutions instead of unrelated non-Indians or non-Indian institutions.46 The Court upheld ICWA as a valid exercise of Congress’s broad power to legislate with respect to Indian tribes under the Indian Commerce Clause.47 In reaching its decision, the Court rejected the argument that the challenged ICWA provisions “commandeered” state courts and officials to implement federal Indian policy in violation of the Tenth Amendment.48 The Court concluded that ICWA’s requirement that “any party” initiating an involuntary child custody proceeding demonstrate “active efforts” to avoid separating the Indian family did not implicate the anti-commandeering doctrine.49 Noting that state agencies or private parties could initiate such proceedings and satisfy this requirement, the Court wrote that “[l]egislation that applies evenhandedly to state and private actors does not typically implicate the Tenth Amendment.” 50 Moreover, ICWA did not commandeer state courts by mandating that they apply placement preferences in child custody proceedings because Congress can require state courts to enforce federal law.51

469 U.S. 528 (1985). back
501 U.S. 452 (1991). back
The Court left no doubt that it considered the constitutional issue to be serious: “[T]he authority of the people of the States to determine the qualifications of their most important government officials . . . is an authority that lies at ‘the heart of representative government’ [and] is a power reserved to the States under the Tenth Amendment and guaranteed them by [the Guarantee Clause].” Id. at 463. In the latter context, the Court’s opinion by Justice Sandra Day O’Connor cited Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988) and Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484 (1987) (also cited by the Court); and Van Alystyne, The Second Death of Federalism, 83 Mich. L. Rev. 1709 (1985). back
501 U.S. at 464. back
505 U.S. 144 (1992). back
See, e.g., Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288 (1981); FERC v. Mississippi, 456 U.S. 742, 765 (1982); South Carolina v. Baker, 485 U.S. 505, 513–15 (1988). back
426 U.S. 833 (1976). back
505 U.S. at 157. “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States . . . .” Id. at 156 (quoted with approval in Watters v. Wachovia Bank, N.A., 550 U.S. 1, 22 (2007) (holding a national bank’s state-chartered subsidiary real estate lending business is subject to federal, not state, law)). back
505 U.S. at 181, 182. back
521 U.S. 898 (1997). back
Id. at 935. back
Id. back
528 U.S. 141 (2000). back
485 U.S. 505, 514–15 (1988). back
Condon, 528 U.S. at 151. back
Id. back
See ArtI.S8.C1.2.1 Overview of Spending Clause. back
New York v. United States, 505 U.S. 144, 167 (1992); Printz v. United States, 521 U.S. 898, 917 (1997). back
567 U.S. 519, 580 (2012) (plurality opinion of Roberts, C.J.). back
Pub. L. No. 111–148, 124 Stat. 119 (2010). back
See 46 U.S.C. §§ 1396a (setting forth Medicaid requirements), 1396c (permitting the Secretary of the Department of Health and Human Services to withhold Medicaid payments). back
NFIB, 567 U.S. at 580 (plurality opinion). Chief Justice Roberts’s opinion with respect to the Medicaid expansion was joined by only three members of the Court, though four other Justices agreed that the ACA’s Medicaid expansion was unconstitutionally coercive. See id. at 681 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). back
Id. at 577 (plurality opinion of Roberts, C.J.). back
Id. at 578. back
Id. at 579–80. back
See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981). back
NFIB, 567 U.S. at 581–82 (plurality opinion of Roberts, C.J.); id. at 682 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). back
42 U.S.C. § 1304. back
NFIB, 567 U.S. at 583 (plurality opinion of Roberts, C.J.). back
New York v. United States, 505 U.S. 144, 167 (1992); Printz v. United States, 521 U.S. 898, 917 (1997). back
Murphy v. NCAA, No. 16-476, slip op. at 17–24 (U.S. May 14, 2018). back
See Pub. L. No. 102–559, § 2(a), 106 Stat. 4227, 4228 (1992) (codified at 28 U.S.C. § 3702). back
See Murphy, No.16-476, slip op. at 17–18. Murphy offered three justifications for the anti-commandeering rule: (1) to protect liberty by ensuring a “healthy balance of power” between the states and the federal government; (2) to promote political accountability by the United States avoiding the blurring of which government is to credit or blame for a particular policy; (3) to prevent Congress from shifting the costs of regulation to the states. Id. at 17–18. back
Id. at 18. back
Id. back
Id. back
Id. at 17–18. back
Id. at 18. back
Id. at 18–19. The Court also distinguished two other cases, Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981), and FERC v. Mississippi, 456 U.S. 742 (1982), in which the Court rejected anti-commandeering challenges to federal statutes. See Murphy, No. 16-476, slip op. at 17–19. back
See Murphy, No. 16-476, slip op. Murphy identified two requirements for a preemption provision to be deemed valid: (1) the provision must represent an exercise of power conferred on Congress by the Constitution; (2) the provision must regulate private actors and not the states. Id. back
Id. at 1480–81. back
Id. at 1481. back
Id. (noting that if a private actor started a sports gambling operation, either with or without state authorization, PASPA’s anti-authorization provision would not be violated). back
Id. The Court ultimately invalidated PASPA in its entirety, holding that other provisions of the law that regulated private conduct were inseverable from the anti-authorization provision and therefore could not exist independently from the unconstitutional provision. See id. at 1481–84. back
Haaland v. Brackeen No. 21-376 (U.S. June 15, 2023). back
46 11–12 (citing 25 U.S.C. § 1915). back
47 11–12. back
48 18–29. back
49 18–23. back
50 20 (citations and internal quotation marks omitted). back
51 24. In addition, the Court held that ICWA provisions requiring state courts to maintain records of custody proceedings did not implicate the Tenth Amendment because such “adjudicative tasks” were ancillary to states courts’ responsibility to enforce ICWA. 25–29. back