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Federal Regulations Affecting State Activities and Instrumentalities

Federal Regulations Affecting State Activities and Instrumentalities. — Since the mid-1970s, the Court has been closely divided over whether the Tenth Amendment or related constitutional doctrine constrains congressional authority to subject state activities and instrumentalities to generally applicable requirements enacted pursuant to the commerce power.49 Under Garcia v. San Antonio Metropolitan Transit Authority,50 the Court's most recent ruling directly on point, the Tenth Amendment imposes practically no judicially enforceable limit on generally applicable federal legislation, and states must look to the political process for redress. Garcia, however, like National League of Cities v. Usery,51 the case it overruled, was a 5-4 decision, and there are recent indications that the Court may be ready to resurrect some form of Tenth Amendment constraint on Congress.

In National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the wages and hours of certain state and local governmental employees, was "undoubtedly within the scope of the Commerce Clause,"52 but it cautioned that "there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner."53 The Court approached but did not reach the conclusion that the Tenth Amendment was the prohibition here, not that it directly interdicted federal power because power which is delegated is not reserved, but that it implicitly embodied a policy against impairing the States' integrity or ability to function.54 But, in the end, the Court held that the legislation was invalid, not because it violated a prohibition found in the Tenth Amendment or elsewhere, but because the law was "not within the authority granted Congress."55 In subsequent cases applying or distinguishing National League of Cities, the Court and dissenters wrote as if the Tenth Amendment was the prohibition.56 Whatever the source of the constraint, it was held not to limit the exercise of power under the Reconstruction Amendments.57

48 United States v. Kahriger, 345 U.S. 22, 25-26 (1953); Lewis v. United States, 348 U.S. 419 (1955).

49 The matter is discussed more fully under "Supremacy Clause Versus the Tenth Amendment," supra.

50 469 U.S. 528 (1985).

51 426 U.S. 833 (1976).

52 Id. at 841.

53 Id. at 845.

54 Id. at 843.

55 Id. at 852.

56 E.g., FERC v. Mississippi, 456 U.S. 742, 771 (1982) (Justice Powell dissenting); id. at 775 (Justice O'Connor dissenting); EEOC v. Wyoming , 460 U.S. 226 (1983). The EEOC Court distinguished National League of Cities, holding that application of the Age Discrimination in Employment Act to state fish and game wardens did not directly impair the state's ability to structure integral operations in areas of traditional governmental function, since the state remained free to assess each warden's fitness on an individualized basis and retire those found unfit for the job.

57 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446 U.S. 156 (1980); Fullilove v. Klutznick, 448 U.S. 448, 476-78 (1980) (plurality opinion of Chief Justice Burger).

The Court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Auth.58 Justice Blackmun's opinion for the Court in Garcia concluded that the National League of Cities test for "integral operations in areas of traditional governmental functions" had proven "both impractical and doctrinally barren," and that the Court in 1976 had "tried to repair what did not need repair."59 With only passing reference to the Tenth Amendment the Court nonetheless clearly reverted to the Madisonian view of the Amendment reflected in Unites States v. Darby.60 States retain a significant amount of sovereign authority "only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government."61 The principal restraints on congressional exercise of the Commerce power are to be found not in the Tenth Amendment or in the Commerce Clause itself, but in the structure of the Federal Government and in the political processes.62 "Freestanding conceptions of state sovereignty" such as the National League of Cities test subvert the federal system by "invit[ing] an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes."63 While continuing to recognize that "Congress' authority under the Commerce Clause must reflect [the] position . . . that the States occupy a special and specific position in our constitutional system," the Court held that application of Fair Labor Standards Act minimum wage and overtime provisions to state employment does not require identification of these "affirmative limits."64 In sum, the Court in Garcia seems to have said that most but not necessarily all disputes over the effects on state sovereignty of federal commerce power legislation are to be considered political questions. What it would take for legislation to so threaten the "special and specific position" that states occupy in the constitutional system as to require judicial rather than political resolution was not delineated.

58 469 U.S. 528 (1985). The issue was again decided by a 5 to 4 vote, Justice Blackmun's qualified acceptance of the National League of Cities approach having changed to complete rejection.

59 Id. at 557.

60 312 U.S. 100, 124 (1941), discussed supra. Madison's views were quoted by the Court in Garcia, 469 U.S. at 549.

61 469 U.S. at 549.

62 "Apart from the limitation on federal authority inherent in the delegated nature of Congress' Article I powers, the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself." 469 U.S. at 550. The Court cited the role of states in selecting the President, and the equal representation of states in the Senate. Id. at 551.

63 469 U.S. at 550, 546.

64 469 U.S. at 556.

The first indication was that it would take a very unusual case indeed. In South Carolina v. Baker the Court expansively interpreted Garcia as meaning that there must be an allegation of "some extraordinary defects in the national political process" before the Court will apply substantive judicial review standards to claims that Congress has regulated state activities in violation of the Tenth Amendment.65 A claim that Congress acted on incomplete information would not suffice, the Court noting that South Carolina had "not even alleged that it was deprived of any right to participate in the national political process or that it was singled out in a way that left it politically isolated and powerless."66 Thus, the general rule was that "limits on Congress' authority to regulate state activities . . . are structural, not substantive—i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity."67chanrobles-red

Later indications are that the Court may be looking for ways to back off from Garcia. One device is to apply a "clear statement" rule requiring unambiguous statement of congressional intent to displace state authority. After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, the Court in Gregory v. Ashcroft68 explained that, because Garcia "constrained" consideration of "the limits that the state-federal balance places on Congress' powers," a plain statement rule was all the more necessary. "[I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise."

65 485 U.S. 505, 512 (1988). Justice Scalia, in a separate concurring opinion, objected to this language as departing from the Court's assertion in Garcia that the "constitutional structure" imposes some affirmative limits on congressional action. Id. at 528.

66 Id. at 513.

67 Id. at 512.

68 501 U.S. 452, 464 (1991). The Court left no doubt that it considered the constitutional issue 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 O'Connor cited Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). See also 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).

The Court's 1992 decision in New York v. United States,69 may portend a more direct retreat from Garcia. The holding in New York, that Congress may not "commandeer" state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum70 and in no way inconsistent with the holding in Garcia. Language in the opinion, however, sounds more reminiscent of National League of Cities than of Garcia. First, the Court's opinion by Justice O'Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; "the Tenth Amendment thus directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power."71 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 had participated in developing the compromise legislation and had consented to its enactment, the Court declared that "[t]he 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, "State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution."72 The stage appears to be set, therefore, for some relaxation of Garcia's obstacles to federalism-based challenges to legislation enacted pursuant to the commerce power.

Extending the principle applied in New York, the Court in Printz v. United States73 held that Congress may not "circumvent" the prohibition on commandeering a state's regulatory processes "by conscripting the State's officers directly."74 Struck down in Printz were 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. "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."75

69 505 U.S. 144 (1992).

70 See, e.g., Hodel v. Virginia Surface Mining & Recl. 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).

71 505 U.S. at 157.

72 Id. at 2431-32.

73 521 U.S. 898 (1997).

74 521 U.S. at 935.

75 Id.

In Reno v. Condon,76 the Court distinguished New York and Printz in upholding the Driver's Privacy Protection Act of 1994 (DPPA), a federal law that restricts 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 distinguishes between laws which improperly seek to control the manner in which States regulate private parties, and those which merely regulate state activities directly.77 Here, the Court found that the DPPA "does not require the States in their sovereign capacities to regulate their own citizens," but rather "regulates the States as the owners of databases."78 The Court saw no need to decide whether a federal law may regulate the states exclusively, since the DPPA is a law of general applicability that regulates private resellers of information as well as states.79

76 528 U.S. 141 (2000).

77 484 U.S. 505, 514-15 (1988).

78 528 U.S. at 151.

79 Id.

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