Con Law ITaxing and Spending

Anti-Commandeering

Congress may not compel state legislatures to enact federal programs (New York v. United States, 1992) or order state officers to carry them out (Printz v. United States, 1997), and may not order states to keep their own laws on the books (Murphy v. NCAA, 2018).

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You have seen two ways Congress can influence states: it can pass federal laws that preempt state law, and it can offer money with conditions. There is a third thing it may not do: give orders to state governments, telling their legislatures what laws to pass or their officers what federal duties to perform. This is the anti-commandeering rule.

Why it works

Why the rule? The anti-commandeering cases give two main reasons. Accountability: if Congress orders states to carry out a federal program, voters may blame state officials for a choice Congress made, and the lines of responsibility blur. Structure: the Constitution created a government that acts directly on individuals, not one that governs through the states, as the Articles of Confederation had tried to do. States keep their own sovereignty and cannot be made agents of the federal government against their will.

Key idea

Congress may not compel state legislatures to enact or enforce federal programs (New York v. United States, 1992) or order state officers to carry them out (Printz v. United States, 1997), and may not forbid states to repeal or change their own laws (Murphy v. NCAA, 2018).

Worked example: Commandeering, preemption or spending?

Classify each. (a) Federal law sets emission standards for factories and displaces state standards. (b) Federal law orders state legislatures to adopt the federal emission standards. (c) Congress offers states money if they adopt the standards.
  1. (a) Regulates private factories directly and displaces state law: preemption, valid if within a federal power.
  2. (b) Orders state legislatures to legislate: commandeering, invalid under New York.
  3. (c) Offers money with conditions: conditional spending, valid if it meets Dole's limits.

Answer: Only (b) violates the anti-commandeering rule.

Worked example: Reading Murphy

Why couldn't Congress defend PASPA as preemption?
  1. Preemption works through federal laws that regulate private conduct and so displace conflicting state laws.
  2. PASPA did not regulate gamblers or casinos; it told states what laws they could have.
  3. A rule addressed only to state legislatures is a command to the states, not a preemption.

Answer: Congress could have banned sports gambling directly, preempting state law. It could not tell states to keep their own bans.

Common mistake

Confusing commandeering with preemption. Congress may preempt state law or offer money with conditions; it may not issue direct orders to state governments to regulate. Check: is the federal law addressed to private people (preemption) or to the state as a government (commandeering)?

Federalists argued that the new government would act on individuals directly, unlike the Confederation, which could only make "requisitions" on states; see Hamilton in Federalist No. 15 and Federalist No. 16. Hamilton also wrote in Federalist No. 27 that federal laws would be enforced partly through state officers, a passage the Printz majority and dissent read differently.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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