copyright: 1999 george mason law review
TRANSCRIPT
Copyright: 1999 George Mason Law Review. All rights reserved. Reproduced by permission.
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420 GEO. MASON L. REV. [VOL. 7:2
that the federal judiciary should act as the defender of state sovereignty inthe face of congressional overreaching.7 Less than a decade later, however,in Garcia v. San Antonio Metropolitan Transit Authority, the Court re-versed National League of Cities and instead adopted the rationale that thepolitical process, standing alone, best protected federalism interests.8 Al-though the Court in Garcia appeared to conclude that the best coursewould be to allow âthe peopleâ to vindicate statesâ rights through theelectoral process, the 1990s have witnessed the Supreme Court once againreasserting a place for the federal judiciary in the regulation of federal-state relations.
In New York v. United States9 and Printz v. United States10 the mod-ern Court has developed a theory that forbids the federal government fromdelegating responsibility to state governments without full fundingââun-funded mandates.â In part, the Court has justified this new approach tofederalism as guaranteeing more reliable accountability between citizen-voters and legislators. Essentially, the Court has breathed life back into thedivided sovereignty theory of National League of Cities by flipping Gar-ciaâs political accountability rationale on its head. The vertical restrictionscreated by the new doctrine have a similar effect to the types of limitationsthe pre-New Deal Court placed on both vertical and horizontal govern-mental relations.
This Comment assesses the Courtâs new Tenth Amendment jurispru-dence through the prism of public choice theory. Part I introduces the fun-damental principles of public choice analysis and illustrates the implica-tions of that analysis for constitutional theory. Part II discusses the back-ground of the Tenth Amendment and explains how the Supreme Courtâsjurisprudence has severed Tenth Amendment analysis from other forms offederalism analysis. Part II also introduces the concept of the âhorizontalnondelegation doctrine,â a judicially imposed theory that seeks to preventthe improper delegation of legislative authority by the Congress to coequalbranches of the federal government. The judicial construct in horizontalnondelegation cases bears a striking resemblance to the Courtâs new doc-trine disallowing delegation of federal duties to the states without allocat-ing sufficient funds, which this Comment describes as the âvertical non-delegationâ doctrine.11
VAND. L. REV. 1563, 1564-66 (1994) (calling this the âterritorial modelâ).
7 National League of Cities, 426 U.S. at 852.8 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556 (1985).9 505 U.S. 144 (1992).
10 117 S. Ct. 2365 (1997).11 The terms âhorizontalâ and âverticalâ should help to clarify whether the discussion refers to
the nondelegation doctrine that prohibits congressional delegation of authority to a coequal federalbranch (âhorizontalâ), or to the one that prohibits congressional delegation of authority without fund-ing to the states (âverticalâ). Traditionally, the academic literature has referred to the âhorizontalâ
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Part III of this Comment explores the details of the Courtâs new TenthAmendment jurisprudence, with particular emphasis on the political ac-countability principle. Using public choice interest group theory, Part IVexplains that the Courtâs Tenth Amendment jurisprudence elaborated inNew York and Printz has unwisely created a new vertical nondelegationdoctrine. This Comment concludes that the vertical nondelegation ration-ale created in New York and Printz fails to vindicate the rights of âthe peo-pleâ articulated in the Tenth Amendment, and argues that the better path,expressed by the Court in Garcia, is to allow the people to sort out issuesof federalism through electoral politics.
I. PUBLIC CHOICE THEORY
âPublic choice theory is a hybrid: the application of the economistâsmethod to the political scientistâs subject.â12 Like economics, the assump-tion of individual rationality underlies all public choice theory.13 Thereexist two main branches of public choice analysis: interest group theoryand social choice theory.14 This Comment refers exclusively to interestgroup theory.
Interest group theory investigates how organized interest groups in-teract with legislators and other political actors. Generally, the theory hasshown that discrete, well-organized groups can procure disproportionatesocial, political and economic benefits through collective action.15 An im-portant corollary of interest group theory holds that legislators may claimno immunity from self-interest. In fact, interest group theory assumes thatlegislators are rational vote-seeking individuals motivated in large part bythe overriding goal of reelection.16
nondelegation doctrine as simply the ânondelegationâ doctrine. See, e.g., JERRY L. MASHAW, GREED,CHAOS, & GOVERNANCE 140 (1997). This Comment is the first to suggest a âverticalâ nondelegationdoctrine.
12 DANIEL A. FARBER & PHILIP P. FRICKEY, LAW & PUBLIC CHOICE 1 (1991); see also MaxwellL. Stearns, Restoring Positive Law & Economics, 6 GEO. MASON L. REV. 709, 710 (1998) [hereinafterStearns, Positive Law & Economics] (âPublic choice applies the tools of economics to the subjectmatter of political science.â).
13 See David J. Skeel, Public Choice and the Future of Public-Choice-Influenced Legal Scholar-ship, 50 VAND. L. REV. 647, 651 (1997) (book review).
14 See MAXWELL L. STEARNS, PUBLIC CHOICE AND PUBLIC LAW xix (1997). Although gener-ally considered a separate issue, game theory often adds an important component to social choicetheory. See Stearns, Positive Law & Economics, supra note 12, at 710 n.2.
15 See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION 134 & n.4 (1965) (discussing howlobbying groups will usually seek to procure political, social and economic benefits through collectiveaction).
16 See MORRIS P. FIORINA, CONGRESS 37 (2d ed. 1989) (â[T]he primary goal of the typicalcongressman is reelection.â).
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A. Connecting Public Choice Interest Group Theory to ConstitutionalTheory
Interest group theory parallels the constitutional theories of JamesMadison, just as modern microeconomics tracks Adam Smithâs Wealth ofNations.17 In The Federalist No. 10, Madison anticipated the problem ofinterest groups as he discussed the âcauses of faction.â18 He defined fac-tion:
By a faction I understand a number of citizens, whether amounting to a majority or minorityof the whole, who are united and actuated by some common impulse of passion, or of inter-est, adverse to the rights of other citizens, or to the permanent and aggregate interests of thecommunity.19
Madisonâs definition of faction, whether meant to describe political partiesor merely interest groups, parallels the definition of modern public choiceinterest group theory. Just as public choice theory suggests that self-interested rationality pervades any understanding of politics, Madison fullyunderstood that â[t]he latent causes of faction are . . . sown in the nature ofman . . . .â20
The structure of the federal government developed in the Constitutionsought to control faction and self-interest. To Madison, the chief difficultyin framing the government consisted in finding a workable structure toâenable the government to control the governed; and in the next placeoblige it to control itself.â21 While the Constitution included both a sepa-ration of powers componentâbetween legislative, executive and judicialbranches within the federal governmentâand a division of powers com-ponentâbetween federal and state governmentsâthese instruments serveda secondary role. Madison explained: âA dependence on the people is, nodoubt, the primary control on the government; but experience has taughtmankind the necessity of auxiliary precautions.â22 Checks and balancesserved as only âauxiliary precautions.â The vigilance and virtue of âthepeopleâ served as the primary guarantor of rights. Regarding federalism,Madison was no less adamant. Writing as a Congressman in the 1790s,Madison declared:
In bestowing the eulogies due to the partitions and internal checks of power, it ought not the
17 See STEARNS, supra note 14, at xxi (referring to ADAM SMITH, AN INQUIRY INTO THE
NATURE AND CAUSES OF THE WEALTH OF NATIONS (Edward Cannan ed., University of Chicago 1976)(1776)).
18 THE FEDERALIST NO. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961).19 Id.20 Id.21 THE FEDERALIST NO. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961).22 Id.
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less to be remembered that they are neither the sole nor the chief palladium of constitutionalliberty. The people who are the authors of this blessing, must also be its guardians.23
Madison understood that âthe peopleâ served as the ultimate âguardiansâof federalism. In the final analysis, âthe peopleâ must hold Congress andthe executive accountable for actions that may interfere with state sover-eignty. Madison fully understood that frequent elections, not judicial inter-vention, provided the best check on overreaching by federally elected offi-cials.24 Public choice interest group theory allows modern observers toevaluate Madisonâs theory that elected officials will be accountable to âthepeopleâ through elections.
B. Interest Group Theory Applied to the Judiciary
Interest group theory also suggests that the judiciary is not immunefrom rational self-interested behavior.25 As one commentator notes: âInter-est group theory gives us no reason to think that whatever comes into aJusticeâs head (or was within that head but unknown or unappreciated atthe time of appointment) will produce better social policy than a more po-litically responsive process.â26 Thus, the Court is not unaffected by elec-tion results and pays particular attention to its own constituencies, such asthe Department of Justice, the solicitor general, counsel for federal agen-cies, statesâ attorneys general, and the legal profession at large.27 Mostfundamental for purposes of this Comment is Professor Herbert Wech-slerâs insight that âthe Court is on weakest ground when it opposes its in-terpretation of the Constitution to that of Congress in the interest of thestates, whose representatives control the legislative process and . . . havebroadly acquiesced in sanctioning the challenged Act of Congress.â28
Furthermore, because the judiciary lacks the power âto remain inert,âcourts may be vulnerable to path manipulation by litigants.29
23 LANCE BANNING, THE SACRED FIRE OF LIBERTY 360 (1995) (quoting James Madison).24 See THE FEDERALIST NO. 52, at 327 (James Madison) (Clinton Rossiter ed., 1961) (noting
that âthe government in general should have a common interest with the peopleâ and can best keep anâimmediate dependenceâ and âintimate sympathyâ with âthe peopleâ by frequent elections).
25 See, e.g., Richard A. Posner, What Do Judges and Justices Maximize? (The Same ThingEverybody Else Does), 3 S. CT. ECON. REV. 1, 2 (1993) (suggesting a judicial utility function made upof income, leisure and judicial voting).
26 Einer R. Elhauge, Does Interest Group Theory Justify More Intensive Judicial Review?, 101YALE L.J. 31, 87 (1991).
27 See generally DAVID M. OâBRIEN, STORM CENTER 347-409 (3d ed. 1993).28 Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the
Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 559 (1954). Al-though Wechsler is not considered a âpublic choiceâ theorist, his views are in accord with publicchoice theory.
29 STEARNS, supra note 14, at 714; see also Maxwell L. Stearns, The Misguided Renaissance ofSocial Choice, 103 YALE L.J. 1219, 1259 (1994) (noting that âthe power to do nothing, proves to bethe single most important Arrovian difference between Congress and the Supreme Courtâ). The idea of
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In The Federalist No. 78, Alexander Hamilton echoed Madisonâs in-sight that accountability to âthe peopleâ should temper a wide-rangingjudicial review. Hamilton noted that a theory of judicial review does notâby any means suppose a superiority of the judicial to the legislativepower. It only supposes the power of the people is superior to both . . . .â30
Hamilton concluded that âwhere the will of the legislature . . . stands inopposition to that of the people . . . the judges ought to be governedâ bythe will of the people.31 Once again the touchstone of the constitutionalprocess rests with âthe people.â
Public choice and constitutional theory both suggest that the Courtshould avoid striking down federal legislation on grounds of federalism,unless the Court can justify the action as assisting âthe peopleâ to evaluatethe political accountability of elected officials. Judicial review that in-trudes upon the political process must have a âcomparative advantageâover the political process.32
II. NONDELEGATION THROUGH THE PRISM OF FEDERALISM
The United States Supreme Court has used several different clausesof the Constitution to circumscribe federal power relative to the states.33
The Commerce Clause34 and the Tenth Amendment35 have received themost attention in placing limitations on the federal government, althoughthe Court has also imposed limitations on the federal government based onthe Eleventh Amendment.36 While the Commerce Clause can lead to a
path manipulation is that litigants can bring cases knowing that a court must decide a case between twolitigants immediately and usually adheres to stare decisis. The Supreme Court (and other courts) canonly partially counteract path manipulation by using standing and other constitutional and prudentialdoctrines allowing a court to avoid decision. See Maxwell L. Stearns, Standing and Social Choice:Historical Evidence, 144 U. PA. L. REV. 309, 330 (1995) (âWhile standing does not cure the pathdependency that results from presumptive adherence to stare decisis on the Supreme Court and withinthe circuits, standing ameliorates path dependencyâs most damaging effects by rendering path ma-nipulation substantially more difficult.â).
30 THE FEDERALIST NO. 78, at 467-68 (Alexander Hamilton) (Clinton Rossiter ed., 1961).31 Id. at 468.32 See Elhauge, supra note 26, at 67 (âInterest group theory can justify more intrusive judicial
review only if it shows that the litigation process has some comparative advantage over the politicalprocess.â).
33 On the flip side, the Constitution places innumerable limitations on the states throughout boththe originally ratified Constitution and the 27 Amendments. See, e.g., U.S. CONST. art. VI, cl. 2 (âThisConstitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall bethe supreme Law of the Land . . . .â).
34 Id. art. I, § 8, cl. 3.35 Id. amend. X.36 Id. amend. XI (âThe Judicial Power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United States by Citizens ofanother State, or by Citizens or Subjects of any Foreign State.â). Most recently, the Court held that theEleventh Amendment prevents Congress from authorizing suits by American Indian tribes, or anyother private party: âEven when the Constitution vests in Congress complete law-making authority
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distinct inquiry from the Tenth Amendment,37 the Court has suggested thatin cases âinvolving the division of authority between federal and stategovernments . . . the two inquiries are mirror images of each other.â38 Thelimited scope of this Comment focuses primarily on the Tenth Amend-ment, but will consider Commerce Clause cases to the extent they bear onthe âhorizontalâ and âverticalâ nondelegation doctrines. The pre-New DealCommerce Clause and horizontal nondelegation doctrines provide a readystarting point for this Part, which will trace the varied (but always futile)efforts of the Court to formulate a workable federalism jurisprudence.
A. The Correspondence of Tenth Amendment Limitations on theCommerce Clause and the âHorizontalâ Nondelegation Doctrine
The âhorizontalâ nondelegation doctrine dates from the nineteenthcentury and remains a widely discussed doctrine today,39 even if neuteredin practice.40 The âhorizontalâ nondelegation doctrine is a judicially im-posed limitation on delegations of legislative authority from the Congressto a coequal branch of the federal government.41 The Court fully articu-lated the nondelegation doctrine in Field v. Clark, stating â[t]hat congresscannot delegate legislative power to the president is a principle universallyrecognized as vital to the integrity and maintenance of the system of gov-ernment ordained by the constitution.â42 For four decades, the Court con-tinued to refine the horizontal nondelegation doctrine without ever using itto strike down congressional legislation.43
over a particular area, the Eleventh Amendment prevents congressional authorization of suits by pri-vate parties against unconsenting States.â Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1119, 1131(1996).
37 See United States v. Lopez, 514 U.S. 549, 559 (1995) (applying a new âsubstantial effectâCommerce Clause test to determine whether a criminal statute withstands constitutional scrutiny);Perez v. United States, 402 U.S. 146, 154 (1971) (applying a Commerce Clause test to show thatâ[e]xtortionate credit transactions, though purely intrastate, may in the judgment of Congress affectinterstate commerceâ).
38 New York v. United States, 505 U.S. 144, 156 (1992).39 See Clinton v. City of New York, 118 S. Ct. 2091, 2125-31 (1998) (Breyer, J., dissenting).40 See Industrial Union Depât, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 646 (1980)
(using the nondelegation doctrine in the âconstruction of [a] statute that avoidsâ an âopen-endedgrantâ); see also Touby v. United States, 500 U.S. 160 (1991) (rejecting a nondelegation challenge tocongressional legislation).
41 See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825) (âIt will not be contended thatCongress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclu-sively legislative.â).
42 Field v. Clark, 143 U.S. 649, 692 (1892). The nondelegation doctrine finds original constitu-tional authority in Article I, section 1 of the Constitution: âAll Legislative Powers herein granted shallbe vested in a Congress . . . .â U.S. CONST. art. I, § 1.
43 See United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932) (âThat thelegislative power of Congress cannot be delegated is, of course, clear.â); J.W. Hampton, Jr., & Co. v.United States, 276 U.S. 394, 409 (1928) (requiring that an âintelligible principleâ must guide a con-gressional delegation to withstand constitutional muster); Wichita R.R. & Light Co. v. Public Utilities
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Rather than focus on the separation of powers principles underlyingthe nondelegation doctrine,44 the pre-New Deal Court imposed limitationson congressional power to pass progressive legislation based on the Com-merce Clause.45 For example, in Hammer v. Dagenhart, the Court sug-gested that child labor legislation exceeded Congressâs grant of authorityunder the Commerce Clause by invading âa matter purely local in its char-acter, and over which no authority has been delegated to Congress in con-ferring the power to regulate commerce among the states.â46 The choice ofverb to describe congressional action had nothing to do with the nondele-gation doctrine or separation of powers, but had everything to do with thelanguage of the Tenth Amendment.47 The Tenth Amendment, in fact, in-cludes the only reference in the Constitution to the word âdelegated.â48
The coincidence proved convenient.While remaining separate doctrines, the âhorizontalâ nondelegation
doctrine49 and the Commerce Clause limitations50 on congressional powercoalesced into a one-two punch to limit New Deal legislation. In A.L.A.Schechter Poultry Corp. v. United States, the two doctrines appeared sideby side for the first time to strike down legislation.51 The congressional
Commân, 260 U.S. 48, 59 (1922) (âIn creating . . . an administrative agency, the Legislature, to preventits being a pure delegation of legislative power, must enjoin upon it a certain course of procedure andcertain rules of decision in the performance of its function.â).
44 This era, the Lochner era, bears the name of the most infamous case striking down state laborlegislation. Lochner v. New York, 198 U.S. 45 (1908); see 1 RONALD D. ROTUNDA & JOHN E.NOWAK, TREATISE ON CONSTITUTIONAL LAW § 4.6, at 380-89 (2d ed. 1992).
45 See, e.g., Bailey v. Drexel Furniture Co., 259 U.S. 20, 39 (1922) (using the Tenth Amendmentand analogy to Commerce Clause cases to limit congressional taxing power); Hammer v. Dagenhart,247 U.S. 251, 275 (1918) (âThe power of the states to regulate their purely internal affairs by suchlaws as seem wise to the local authority is inherent and has never been surrendered to the generalgovernment.â), overruled by United States v. Darby, 312 U.S. 100 (1941); Adair v. United States, 208U.S. 161, 180 (1908) (holding that a labor law making it criminal to fire union workers did not fallwithin Congressâ Commerce Clause power and therefore violated the Fifth Amendment) overruled inpart by Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941); United States v. E.C. Knight Co., 156U.S. 1, 13 (1895) (limiting the application of antitrust laws to exclude manufacturing within one stateby noting that â[t]he fact that an article is manufactured for export to another state does not of itselfmake it an article of interstate commerce . . . .â).
46 Hammer, 247 U.S. at 276 (emphasis added).47 Intriguingly, the Court never mentioned the Tenth Amendment by name, instead opting to cite
to a nineteenth century case. See id. at 275 (citing Lane County v. Oregon, 74 U.S. (7 Wall.) 71(1869)).
48 U.S. CONST. amend. X (âThe Powers delegated to the United States by the Constitution, norprohibited to the States, are reserved to the States respectively, or to the people.â).
49 The Court struck down congressional legislation based on the âhorizontalâ nondelegationdoctrine for the first time in Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). The Court held:âWhen the President is invested with legislative authority as the delegate of Congress in carrying out adeclared policy, he necessarily acts under the constitutional restriction applicable to such a delegation.âId. at 433.
50 See Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330, 368 (1935) (concluding that pen-sions âlie outside the orbit of congressional powerâ under the Commerce Clause).
51 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
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legislation challenged in Schechter Poultry delegated powers to executiveadministrative agencies to regulate the poultry industry, arguably a whollyâintrastateâ activity. First, the Court held that Congress had failed to pre-scribe adequate standards to the relevant executive administrative agency,with the result that âthe code-making authority thus conferred [was] anunconstitutional delegation of legislative power.â52 Second, the Courtfound that the slaughter of poultry created only an âindirect effect uponinterstate commerce.â Consequently, the federal regulation of hours andwages of poultry workers failed to fall within the grant of congressionalpower under the Commerce Clause.53
In Carter v. Carter Coal Co., the Court again struck down a NewDeal statute after analyzing the statute against the horizontal nondelegationdoctrine and the Commerce Clause.54 The statute at issue delegatedauthority to mining companies to set rates that could be charged by com-petitors.55 The Court found this innovation to be a âlegislative delegationin its most obnoxious form; for it is not even delegation to an official . . .but to private persons whose interests may be . . . adverse to the interestsof others in the same business.â56 Ultimately, however, the Court in CarterCoal based its decision on Schechter Poultryâs Commerce Clause analysis,which suggested Congress had exceeded its authority by attempting toregulate wholly intrastate commerce.57 Schechter Poultry and Carter Coalrepresented the high water mark of judicially imposed limits on congres-sional regulation of individuals under the Commerce Clause and legisla-tive delegations to a coequal branch under the horizontal nondelegationdoctrine.
B. Forty Years of Carte Blanche Authority to Congress: The Disappear-ance of the âHorizontalâ Nondelegation Doctrine and Tenth Amend-ment Restrictions on the Commerce Clause
In 1937, President Franklin D. Roosevelt, buoyed by a landslide ree-lection in 1936, proposed a plan to pack the Court with Justices who woulduphold New Deal legislation.58 The plan failed, but the political pressuresgenerated by this famous âcourt packing planâ convinced two Justices toreverse their positions on the Commerce Clause and the horizontal non-
52 Id. at 542.53 See Id. at 548.54 Carter v. Carter Coal Co., 298 U.S. 238 (1936).55 See id. at 311.56 Id.57 Id. at 309-10 (discussing Schechter Poultry, 295 U.S. at 546, 549, as presenting âthe sameâ
issue).58 See HENRY J. ABRAHAM, FREEDOM AND THE COURT 13 (5th ed. 1988).
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delegation doctrine.59 In NLRB v. Jones & Laughlin Steel Corp., the Courtonce again addressed the questions of nondelegation and the limits of theCommerce Clause.60 The Court found Carter Coal and Schechter Poultrywere ânot controlling here.â61 In short order, the Court reversed itself andupheld as constitutional both the delegation to the executive agency andthe regulation of activities âaffecting interstate commerce.â62
One constitutional scholar has noted, âIn the years after 1937, theSupreme Court essentially offered the Congress carte blanche to regulatethe economic and social life of the nation, its actions subject only to therequirements of the Bill of Rights.â63 At the same time, the Supreme Courthabitually discounted the importance of the Tenth Amendment. In UnitedStates v. Darby, the Court noted that the Tenth Amendment
states but a truism that all is retained which has not been surrendered . . . .[and is but] de-claratory of the relationship between the national and state governments. . . .
From the beginning and for many years the amendment has been construed as not deprivingthe national government of authority to resort to all means for the exercise of a grantedpower which are appropriate and plainly adapted to the permitted end.64
The Court effectively eviscerated the Tenth Amendment by allowing theCongress to regulate every manner of activity, including alleged equalprotection violations,65 under the Commerce Clause so long as that activityaffected interstate commerce in some conceivable way.66
Since the New Deal, the Court has likewise gutted the horizontalnondelegation doctrine by permitting virtually any congressional delega-tion of power to the executive and judicial branches. In the landmark caseof Yakus v. United States,67 the Court explicitly departed from its priorruling in Field v. Clark,68 holding that âCongress is not confined to thatmethod of executing its policy which involves the least possible delegationof discretion to administrative [executive] officers.â69 In other words,
59 The changed position is known as âthe switch in time that saved nine.â See id. The first signal
of the switch occurred in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937), where the Courtdeferred to states and allowed them to adopt minimum wage and other progressive legislation.
60 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).61 Id. at 40-41 (discussing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935), and Carter Coal, 298 U.S. at 309-10).62 Id. at 43, 47.63 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-22, at 386 (2d ed. 1988).64 United States v. Darby, 312 U.S. 100, 124 (1941).65 See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding the constitutionality of
civil rights laws); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (same).66 See generally Perez v. United States, 402 U.S. 146 (1971) (allowing Congress to regulate loan
sharking under the Commerce Clause Power); Wickard v. Filburn, 317 U.S. 111 (1942) (finding thatthe Commerce Clause did not bar Congress from using agricultural quotas).
67 321 U.S. 414 (1944).68 143 U.S. 649, 692 (1892).69 Yakus, 321 U.S. at 425-26.
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Congress could delegate to the executive branch tremendous discretion increating regulations to effect the purposes of the delegation.70 In Lichter v.United States, the Court went so far as to suggest that âan unconstitutionaldelegation of . . . legislative power is not capable of precise definition.â71
Without the willingness to place a âprecise definitionâ on the limits ofcongressional delegation, the Court opted instead to merely limit the reachof legislation based on statutory construction rather than constitutionalprinciple.72
C. The Tenth Amendment Resurgent: State Sovereignty
The moribund Tenth Amendment found new life in the late 1970s,but this time the Court focused on âstate sovereigntyâ instead of federalaction directed at private individuals.73 While explaining why the TenthAmendment was inapplicable in Fry v. United States, the Court suggestedthat the Tenth âAmendment . . . expressly declares the constitutional pol-icy that Congress may not exercise power in the fashion that impairs theStatesâ integrity or their ability to function effectively in a federalsystem.â74 This language signaled a change from prior holdings, such asMaryland v. Wirtz, which had suggested that âthe Federal Government,when acting within a delegated power, may override countervailing Stateinterests whether these be described as âgovernmentalâ or âproprietaryâ incharacter.â75
In National League of Cities v. Usery,76 the Court found an opportu-nity to reconsider the constitutionality of the Fair Labor Standards Act, thestatute considered in Wirtz and an earlier case, United States v.California.77 In National League of Cities, the Court found that the TenthAmendment prohibited application of the minimum wage and overtimeprovisions of the Fair Labor Standards Act to employees of state govern-ments.78 Justice Rehnquist explained for the Court that âthe States as
70 See Lichter v. United States, 334 U.S. 742, 778 (1948) (âA constitutional power implies a
power of delegation of authority under it sufficient to effect its purposes.â) (emphasis omitted).71 Id. at 779.72 See Industrial Union Depât, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 646 (1980)
(using the nondelegation doctrine in the âconstruction of [a] statute that avoidsâ an âopen-endedgrantâ).
73 See TRIBE, supra note 63, § 5-22, at 387 (âThe Courtâs opinions had sounded such a note forseveral years, and past the mid-1970s the signals had become both louder and more frequent.â) (foot-notes omitted)); see also Edelman v. Jordan, 415 U.S. 651 (1974); Younger v. Harris, 401 U.S. 37(1971).
74 Fry v. United States, 421 U.S. 542, 547 n.7 (1975).75 Maryland v. Wirtz, 392 U.S. 183, 195 (1968), overruled by National League of Cities v.
Usery, 426 U.S. 833 (1976).76 426 U.S. 833 (1976).77 297 U.S. 175 (1936).78 National League of Cities, 426 U.S. at 851 (noting that âboth the minimum wage and the
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States stand on a quite different footing from an individual or a corporationwhen challenging the exercise of Congressâ power to regulatecommerce.â79 National League of Cities signaled that the Tenth Amend-ment limited congressional legislation that regulated the states, as opposedto the citizens within the states. 80 Yet, the Court failed to articulate aworkable test to implement this new âterritorialâ theory81 that allocatedregulatory authority based on whether states or the federal government hadtraditionally regulated in these areas.82
After National League of Cities, the Court created unworkable multi-pronged balancing tests83 that failed to give significant guidance to lowerfederal courts.84 Yet, if the tests offered little clarity, then the Courtâs con-sistent rulings upholding federal laws against Tenth Amendment chal-lenges only served to further confuse the issue.85 Hodel v. Virginia SurfaceMining and Reclamation Assân86 and FERC v. Mississippi87 served as thetwo most important exemplars of this confusion, because in each case theCourt upheld the federal statutes at issue while claiming to be faithful toNational League of Cities. In Hodel, a private association of coal produc-ers challenged the constitutionality of a federal law that regulated land use
maximum hour provisions will impermissibly interfere with the integral governmental functionsâ ofâStates and their political subdivisionsâ).
79 Id. at 854.80 The Court buttressed the new theory granting states regulatory immunity by referring to an
earlier case granting states immunity from federal taxation power. See id. at 843 (quoting New York v.United States, 326 U.S. 572, 587-88 (1946) (Stone, C.J., concurring)).
81 See Merritt, supra note 6, at 1564.82 See National League of Cities, 426 U.S. at 852.83 Justice Marshall, who had joined Justice Brennanâs dissent in National League of Cities, 426
U.S. at 856, subsequently articulated a three-part test for a majority:First, there must be a showing that the challenged statute regulates the âStates asStates.â Second, the federal regulation must address matters that are indisputablyâattribute[s] of state sovereignty.â And third, it must be apparent that the Statesâcompliance with the federal law would directly impair their ability âto structureintegral operations in areas of traditional governmental functions.â
Hodel v. Virginia Surface Mining and Reclamation Assân, 452 U.S. 264, 287-88 (1981) (citationsomitted). Justice Marshall then proceeded to limit the three-part test with a balancing test: âThere aresituations in which the nature of the federal interest advanced may be such that it justifies state submis-sion.â Id. at 288 n.29. The Court implemented Hodelâs three-part test limited by a balancing test onseveral occasions without striking down the contested federal law. See, e.g., FERC v. Mississippi, 456U.S. 742, 764 n.28 (1982); United Transp. Union v. Long Island R.R., 455 U.S. 678, 684 n.9 (1982).
84 See 1 ROTUNDA & NOWAK, supra note 44, § 4.10, at 423 (âApplication of tenth amendmentstandards became difficult for lower courts because . . . in no Supreme Court case following NationalLeague of Cities did the Court in fact rule that a federal law could not be applied to state or local gov-ernments . . . .â).
85 See FERC, 456 U.S. at 765 (upholding the application of Public Utility Regulatory PoliciesAct to state and local governments); EEOC v. Wyoming, 460 U.S. 226, 240-41 (1983) (upholding theapplication of the Age Discrimination in Employment Act to state and local governments); Hodel, 452U.S. at 288-89 (upholding the application of the Surface Mining Control and Reclamation Act of 1977to state and local governments).
86 452 U.S. at 276-77.87 456 U.S. at 758-59.
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planning.88 In addressing the alleged violations of the Tenth Amendmentand the Commerce Clause, the Court ruled unanimously against the coalproducers.89 Justice Marshall, writing for the Court, quickly disposed ofthe Commerce Clause claim and then turned to the coal producerâs TenthAmendment claim that the federal lawâs regulation of land use planninginterfered with an area of law traditionally regulated by the states.90 JusticeMarshall argued that the law at issue did not transgress the Tenth Amend-ment because âthere can be no suggestion that the [Surface Mining] Actcommandeers the legislative processes of the States by directly compellingthem to enact and enforce a federal regulatory program.â91 Instead, thefacts of Hodel presented what Marshall described as a âprogram of coop-erative federalism,â92 under which the states and the federal governmentworked together. While the Court ruled unanimously, Justice Rehnquist,joined by two other justices, suggested in concurrence that the post-NewDeal Commerce Clause jurisprudence inadequately restricted congres-sional delegations.93 Yet none of the justices took the Courtâs TenthAmendment analysis to task.
In FERC v. Mississippi, the Court reiterated its ruling in Hodel andonce again upheld a federal statute that regulated state actors on the groundthat the federal statute did not âcommandeerâ the legislative processes ofthe States.94 This time, however, four justices objected to the CourtâsTenth Amendment analysis and came to a contrary conclusion by sug-gesting that the federal government could not âcompel[]â state agenciesâto function as bureaucratic puppets.â95 The failure to articulate a workabletest for lower courts, the unwillingness of the Court to find any legislationunconstitutional following National League of Cities, and the growingdivisions in the Court seemed to spell the end of any Tenth Amendmentlimitations on federal regulation of âstates as states.â
D. The Rise of the Political Process Model
After National League of Cities, critics of the Court argued that judi-cial review of federal regulation of âstates as statesâ should be a nonjusti-ciable issue and left to the political branches.96 Post-New Deal observers,
88 Hodel, 452 U.S. at 268, 285.89 See id. at 268, 305.90 See id. at 283-85.91 Id. at 288 (emphasis added).92 Id. at 289.93 See id. at 307 (Rehnquist, J., concurring); id. at 305 (Burger, C.J., concurring); id. (Powell, J.,
concurring).94 FERC v. Mississippi, 456 U.S. 742, 764-65 (1982) (quoting Hodel, 462 U.S. at 288).95 Id. at 783 (OâConnor, J., concurring in part and dissenting in part).96 See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 193
(1980); see generally D. Bruce La Pierre, The Political Safeguards of Federalism Redux: Intergovern-
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such as Professor Herbert Wechsler, had long ago criticized judicial inter-vention that attempted to vindicate statesâ federalism interests.97 After Na-tional League of Cities, Professor Jesse Choper revised and extendedWechslerâs theory into a full blown âFederalism Proposal.â98 Chopersummarized the Federalism Proposal as follows:
The federal judiciary should not decide constitutional questions respecting the ultimatepower of the national government vis-Ă -vis the states; rather, the constitutional issue ofwhether federal action is beyond the authority of the central government and thus violatesâstatesâ rightsâ should be treated as nonjusticiable, final resolution being relegated to thepolitical branchesâi.e., Congress and the President.99
Under Choperâs paradigm, the Court should avoid deciding cases based onfederalism and allow the political process to work out any problems be-tween federal and state governments.100 Other observers sought a morerestrained view, but still advocated overturning National League ofCities.101
Less than a decade after breathing new life into the Tenth Amend-ment, the Court decided Garcia v. San Antonio Metropolitan TransitAuthority,102 which overruled National League of Cities and ushered in anew modus vivendi in the judicial scrutiny of federalism. Writing for theGarcia Court, Justice Blackmun explained that
the Framers chose to rely on a federal system in which special restraints on federal powerover the States inhered principally in the workings of the National Government itself, ratherthan in discrete limitations on the objects of federal authority. State sovereign interests,then, are more properly protected by procedural safeguards inherent in the structure of thefederal system than by judicially created limitations on federal power.103
Having thus embraced the essence of Choperâs âfederalism proposal,â theCourt concluded that âthe principal and basic limit on the federal com-merce power is that inherent in all congressional actionâthe built-in re-straints that our system provides through state participation in federal gov-ernmental action. The political process ensures that laws that unduly bur-den the States will not be promulgated.â104 Explicit in Justice Blackmunâsopinion is his faith that the âinternal safeguards of the political processâ mental Immunity and the States as Agents of the Nation, 60 WASH. U. L.Q. 779 (1982); Wechsler,supra note 28.
97 Wechsler, supra note 28, at 559-60.98 CHOPER, supra note 96, at 175.99 Id.
100 See id.101 See La Pierre, supra note 96, at 1054 (explaining that there is a âpolitical check and Congress
is politically acccountableâ when it regulates states, but not when Congress âemploys the states as itsagentsâ).
102 469 U.S. 528 (1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976).103 Id. at 552.104 Id. at 556.
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would perform as intended, rendering judicial review unnecessary.105 Gar-cia represented the âhigh waterâ mark of the âpolitical processâ model.106
Two years later, in South Dakota v. Dole, the Court missed an op-portunity to invoke Garcia and ruled that Congress could condition thereceipt of federal highway aid to states on agreement by the states to in-crease the legal drinking age to 21.107 The Court framed the case as onebased on a conflict between the Spending power108 and the Twenty-firstAmendmentâs109 grant of regulatory power over alcohol to the states.110 Indissent, Justice OâConnor suggested that the majorityâs ruling permittedCongress to exercise powers not granted to it under any clause of the con-stitution, including the Commerce Clause.111 At least one commentator hassuggested that the rationale of the Court in Dole directly contradicted Gar-cia.112 This subtle contradiction is important because Dole established thatthe Court would allow the federal government to use monetary incentivesto coerce states to implement federal directives. Garcia, however, hadestablished that the federal government could simply issue federal direc-tives and allow the political process to take care of the rest.
In South Carolina v. Baker, a case involving federal taxation of theinterest earned on state and municipal bonds, the Court returned to Gar-ciaâs central ruling by noting that âStates must find their protection fromcongressional regulation through the national political process, not throughjudicially defined spheres of unregulable state activity.â113 In rebutting thearguments of the National Governorsâ Association, the Court belittledSouth Carolinaâs invocation of the âcommandeeringâ language of FERC v.Mississippi, a pre-Garcia case, and suggested that âeven the pre-Garcialine of Tenth Amendment cases recognized that Congress could constitu-tionally impose federal requirements on States that States could meet onlyby amending their statutes.â114 The National Governorsâ Association founda sympathetic voice, however, in Justice OâConnorâs Baker dissent. Re-jecting the Courtâs conclusion that Congress could prohibit outright theissuance of state and federal bonds, Justice OâConnor suggested that âthe
105 Id.106 See Jesse H. Choper, Federalism and Judicial Review: An Update, 21 HASTINGS CONST. L.Q.
577, 580 (1994) (âGarcia represented the Federalism Proposalâs high-water mark.â).107 South Dakota v. Dole, 483 U.S. 203, 206 (1987) (âCongress may attach conditions on the
receipt of federal funds . . . .â).108 U.S. CONST. art. I, § 8, cl. 1.109 Id. amend. XXI, § 2 (âThe transportation or importation into any State, Territory, or posses-
sion of the United States for delivery or use therein of intoxicating liquors, in violation of the lawsthereof, is hereby probihited.â).
110 See Dole, 483 U.S. at 206.111 See id. at 218 (OâConnor, J., dissenting).112 See Choper, supra note 106, at 580-81.113 South Carolina v. Baker, 485 U.S. 505, 512 (1988).114 Id. at 515.
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Tenth Amendment and principles of federalism inherent in the Constitu-tion prohibit Congress from taxing or threatening to tax the interest paid onstate and municipal bonds.â115 In her dissents in Dole and Baker, JusticeOâConnor continued to develop an alternative theory to the âpolitical proc-essâ model of federalism embraced in Garcia, and signaled an unwilling-ness to forsake her prior reasoning in FERC v. Mississippi, where she hadarticulated a more complete theory of federalism.116
In 1991, however, Justice OâConnor, writing this time for the Courtrather than in dissent, cast doubt on the continuing validity of Garcia. InGregory v. Ashcroft, the Court evaluated a provision of the Missouri Con-stitution that imposed a mandatory retirement age of 70 on all statejudges.117 Justice OâConnor hinted broadly that the Tenth Amendmentmight be at issue,118 but decided the case on the narrower ground that theâplain statementâ of the federal Age Discrimination in Employment Act(ADEA) unequivocally exempted state judges.119
Justice White, dissenting in Gregory, argued that Justice OâConnorâsuse of the âplain statementâ rule âdirectly contravenesâ Garcia by adopt-ing a rule usually reserved for analysis of challenges based on the EleventhAmendment.120 Justice White argued that Justice OâConnorâs approachwould âserve only to confuse the law.â121 The clash between JusticesOâConnor and White on federalism issues foreshadowed a much sharperdebate that followed the next term. Nonetheless, Gregory offered a starkexample of the Garcia dissentersâ continuing search for a more workableTenth Amendment jurisprudence.
III. T HE VERTICAL NONDELEGATION DOCTRINE: âCOMMANDEERINGâ AS
CONSTITUTIONAL PRINCIPLE
For the past century, the Court has attempted to impose meaningfulTenth Amendment and nondelegation limitations on congressional power,but has failed to elucidate workable tests to be applied at the district courtlevel. Even as Garcia v. San Antonio Metropolitan Transit Authority122
signaled the Courtâs most recent retreat from the jurisprudential quagmireof federalism regulation, other members of the Court began to devise anew theory of Tenth Amendment limitation. This new theory, which ap-
115 Id. at 531 (OâConnor, J., dissenting).116 See FERC v. Mississippi, 456 U.S. 742, 775 (1982) (OâConnor, J., dissenting).117 Gregory v. Ashcroft, 501 U.S. 452, 455 (1991) (discussing MO. CONST. art. V, § 26).118 See id. at 457-64.119 Id. at 470 (noting that ambiguity in congressional meaning of âimportant public officialsâ led
to exclusion of judges from the Act).120 Id. at 477 (White, J., dissenting).121 Id. at 478.122 469 U.S. 528 (1985).
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pears to have merged a form of nondelegation into the Tenth Amendment,found its way into the majority opinions in New York v. United States123
and Printz v. United States.124 The holdings of New York and Printz, takentogether, constitute a new theory of âvertical nondelegationâ that suggeststhe Court will disallow any future congressional delegation of authority tothe states that fails to provide full funding.
A. Political Accountability and the Vertical Nondelegation Doctrine
In New York, the state of New York challenged the constitutionalityof the Low-Level Radioactive Waste Policy Amendments Act of 1985.125
Congress passed the original LLRWPA (âActâ) and the 1985 amendmentsin response to requests by the National Governorsâ Association that thefederal government facilitate the enforcement of agreements amongstatesâi.e., compactsârelating to the safe disposal of low-level radioac-tive waste.126 The Court upheld two provisions of the amended Act pro-viding monetary incentives to complying states and requiring payment ofsurcharges to noncomplying states who sought access to storage sites incomplying states.127 However, Justice OâConnor, writing for the Court,
123 505 U.S. 144 (1992).124 117 S. Ct. 2365 (1997).125 42 U.S.C. § 2021b (1994).126 New York, 505 U.S. at 150-52; see id. at 190-92 (1992) (White, J., concurring in part and
dissenting in part) (discussing the Governorâs Associationâs actions in bringing the legislation to Con-gress). When two of three low-level radioactive wasted facilities shut down, only one facility remainedto take the nationâs output of low-level radioactive waste precipitating a crisis among the Governors.When the Washington and Nevada sites shut down âtemporarilyâ in 1979, South Carolina was left theonly site available. See id. at 150.
The Governor became âunderstandably perturbedâ by the actions of the two other states andâordered a 50% reduction in the quantity of waste accepted.â Id. The Congress relied âlargely on areport submitted by the National Governorsâ Association.â Id. Therefore, the National GovernorsâAssociation asked the Congress to get involved in 1980 to authorize âregional compactsâ of States thatwould be ratified by Congress in 1986 to ârestrict the use of their disposal facilities to waste generatedwithin member States.â Id. at 151. In 1985, when only 29 of the 50 States had joined regional com-pacts, the National Governorsâ Association once again asked the Congress to pass legislation. âThe billthat in large measure became the 1985 Act ârepresent[ed] the diligent negotiating undertaken byâ theNational Governorsâ Association and âembodiedâ the âfundamentals of their settlement.ââ Id. at 194(White, J., concurring in part and dissenting in part) (quoting 131 CONG. REC. 35203, 35204 (1985)(statement of Rep. Udall)).
Justice OâConnor further noted:In broad outline, the act embodies a compromise among the sited and unsitedStates. The sited States agreed to extend for seven years the period in which theywould accept low level radioactive waste from other States. In exchange, the un-sited States agreed to end their reliance on the sited States by 1992.
Id. at 151 (OâConnor, J.).127 The Low-Level Radioactive Waste Policy Amendments Act had three components which
gave incentives to the States or their chosen regional compacts to meet the statutory obligations. SeeNew York, 505 U.S. at 152. First, the Act gave monetary incentives; it allowed the Secretary of Energyto collect one-quarter of surcharges that sited States charged, and redistributed the proceeds to Statesthat had met the deadlines imposed by the Act. Id. at 152-53 (citing 42 U.S.C. §§ 2021e(d)-(e)). Sec-
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found unconstitutional a third provision of the 1985 amendments requiringstates that failed to meet their obligations under the Act to âtake-titleâ totheir waste.128 Generally, this âtake-titleâ provision would have required astate that failed to join a regional waste disposal compact to find an intra-state site to dispose of its own low-level radioactive waste.129 Thus, thestate government would be forced to choose a spot within the state to placea low-level radioactive siteânever a popular political decision.
Objecting to the conduct of the federal government in enacting theâtake-titleâ provision at issue, Justice OâConnor seized on Justice Mar-shallâs language from Hodel130 and Justice Blackmunâs majority opinion inFERC v. Mississippi,131 which stated âCongress may not simply âcomman-dee[r] the legislative processes of the States by directly compelling them toenact and enforce a federal regulatory program.ââ132 Justice OâConnorâsinvocation of Hodel is vulnerable to criticism in light of the fact that thiscase followed the precedent of National League of Cities,133 a decisionexplicitly overruled by Garcia.134 Understanding, moreover, that the over-ruled precedent and the actual results in Hodel and FERC disfavoredstriking down the law at issue in New York, Justice OâConnor sought tobolster her theory by inserting a historical discussion that came straight outof her dissent in FERC.135
As she had in her FERC dissent, Justice OâConnor trolled through allthe debates of the state ratifying conventions and came to a startling con-clusion: âIn providing for a stronger central government . . . the Framersexplicitly chose a Constitution that confers upon Congress the power to
ond, the Act allowed States that had sites to charge a larger surcharge and to deny access to Stateswhich had failed to meet the statutory deadlines. Id. at 153 (citing 42 U.S.C. §§ 2021e(e)(1)-(2)). Allthe Justices agreed that the first two provisionsâthe monetary incentives and the access incentivesâshould be upheld as constitutional. See id. at 170-74 (OâConnor, J.); Id. at 189 (White, J., concurring inpart and dissenting in part).
128 The third provision required any State that failed to join a compact or to choose an in-Statesite to take title to its low-level radioactive waste. See Id. at 153-54 (citing 42 U.S.C. §2021e(d)(2)(C)).
129 See id.130 452 U.S. 264 (1981).131 456 U.S. 742, 764-65 (1982).132 New York, 505 U.S. at 161 (quoting Hodel, 452 U.S. at 288 and citing FERC, 456 U.S. at
761-62).133 426 U.S. 833 (1976).134 469 U.S. 528 (1985).135 FERC, 456 U.S. at, 775 (OâConnor, J., dissenting). From these two opinions, Justice
OâConnor brought together two principles in New York, (1) âthat the federal government must respectstate governments as the seat of autonomous legislative processes even where the federal governmenthas the power completely to preempt state regulation;â and (2) âthat under McCulloch v. Maryland thejudiciary has the duty to police Congressional encroachment on the autonomy of the states in obedi-ence to the spirit of the Tenth Amendment.â H. Jefferson Powell, The Oldest Question of Constitu-tional Law, 79 VA. L. REV. 633, 639 (1993).
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regulate individuals, not States.â136 The problem with the Act involved inNew York, she concluded, was that a âState [could] not decline to admin-ister the federal programâ and that the act allowed the federal governmentto âconscript state governments as its agents.â137 Essentially, the âtake-titleâ provision would require state legislatures to decide where in theirconstituencies to site low-level radioactive waste dumps; an inevitablycontroversial and politically costly decision: â[I]t may be the state officialswho bear the brunt of public disapproval, while the federal officials whodevised the regulatory program may remain insulated from the electoralramifications of their decision.â138 Fundamentally, Justice OâConnor ar-gued that the âtake titleâ provision at issue in New York inhibited democ-racy by forcing a State legislature to pass legislation adverse to its con-stituentsâ wishes. âAccountability is thus diminished when, due to federalcoercion, elected state officials cannot regulate in accordance with theviews of the local electorate . . . .â139 In Justice OâConnorâs view, theCourt, through vigilant judicial review, should play the role of assuringproper âaccountability.â
While Justice OâConnor drew freely upon Justice Marshallâs âcom-mandeeringâ language from Hodel, her opinion in New York selectivelyfailed to mention another important principle derived from that caseâtheprinciple of âcooperative federalism.â Recognizing this oversight, JusticeWhite, in dissent in New York, suggested that the National GovernorsâAssociationâs actions to bring the legislation to Congress âwas very muchthe product of cooperative federalism, in which the States bargainedamong themselves to achieve compromises for Congress to sanction.â140 Inother words New York presented just the sort of situation that Hodel wouldhave venerated. Justice Whiteâs attempt to bring a key principle to bearfrom Justice Marshallâs Hodel opinion, however, fell on deaf ears.
Rather than concern herself with the Courtâs prior endorsement of theâcooperative federalismâ principle, however, Justice OâConnor concludedthat âthe Constitution divides authority between federal and state govern-ments for the protection of individuals. Further, State sovereignty is notjust an end in itself: âRather, federalism secures to citizens the liberties thatderive from the diffusion of sovereign power.ââ141 Citing back to Gregoryv. Ashcroft and The Federalist No. 51, Justice OâConnor analogized thedivision of powers between the states and the federal government to theseparation of powers among the coordinate branches of the federal gov-
136 New York, 505 U.S. at 166.137 Id. at 177, 178.138 Id. at 169.139 Id.140 Id. at 194 (White, J., concurring in part and dissenting in part).141 Id. at 181 (OâConnor, J.) (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Black-
mun, J., dissenting)).
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ernment.142 âWhere Congress exceeds its authority relative to the States . .. the departure from the constitutional plan cannot be ratified by the âcon-sentâ of state officials.â143 Congress cannot expand its authority âby theâconsentâ of the governmental unit whose domain is thereby narrowed,whether that unit is the Executive Branch or the States.â144 According tothe New York majority, the Constitution built in certain rights for the peo-ple guaranteed by the structural relationship between the federal and stategovernments. Moreover, the Court concluded that this structural safeguardmust be defended not by the ostensibly aggrieved partyâi.e., by theâstates as statesâ or, more fundamentally, by âthe Peopleââbut rather by abenevolent federal judiciary.
In nearly the same breath, however, Justice OâConnor noted thatCongress still had the ability to âpre-empt state regulation contrary to fed-eral interests, and [the Constitution] permits the federal government tohold out incentives to the States as a means of encouraging them to adoptsuggested regulatory schemes.â145 Justice OâConnorâs conclusion thereforeplaced no limits on the substantive areas the federal government couldregulate, so long as the federal government pays for the privilege. Thus, astate could accept delegated federal duties, but only where the federal gov-ernment gives the state sufficient funds to administer the federal programat issue.
B. Elaborating the Nondelegation of Federal Unfunded Mandates:Printz v. United States
Printz v. United States146 applied to statesâ executive authorities theprinciples of nondelegation and accountability that the New York147 Courtapplied to the statesâ legislatures. Printz involved a challenge to the con-stitutionality of the interim provisions of the Brady Handgun ViolencePrevention Act (âBrady Actâ), which imposed a five-day waiting periodon handgun purchases and required local law enforcement officials to run
142 Id. at 181-82 (âJust as the separation and independence of the coordinate branches of theFederal Government serves to prevent the accumulation of excessive power in any one branch, ahealthy balance of power between the States and the Federal Government will reduce the risk of tyr-anny and abuse from either front.â) (citing Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) and THE
FEDERALIST NO. 51 (James Madison)).143 Id. at 182.144 Id. Justice OâConnor relied on INS v. Chadha, 462 U.S. 919, 944-59 (1983), for this proposi-
tion. Chadha involved the âlegislative veto,â which allowed Congress to delegate authority to theexecutive branch but reserve ultimate veto power of any executive decision in the House of Represen-tatives. Ultimately, the Court ruled the âlegislative vetoâ unconstitutional because it allowed Congressto overrule executive action without a two-thirds majority vote by both houses of Congress. See id. at959.
145 New York, 505 U.S. at 188.146 117 S. Ct. 2365 (1997).147 New York v. United States, 505 U.S. 144 (1992).
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background checks on purchased firearms.148 Chief law enforcement offi-cers (âCLEOsâ) from Montana and Arizona challenged these provisions ofthe Brady Act as violating the Tenth Amendment by requiring state ex-ecutive officers to implement federal laws.149
Writing for the Court, Justice Scalia considered the structure of theConstitution and reiterated the accountability principle from New York.Looking to those sections of the Constitution that implicate the division ofpowers,150 and relying on the reasoning of New York and Lopez v. UnitedStates,151 Justice Scalia concluded that â[t]he Constitution . . . contem-plates that a Stateâs government will represent and remain accountable toits own citizens.â152 Serving as a âdouble security,â153 Justice Scalia notedthat â[t]his separation of the two spheres is one of the Constitutionâsstructural protections of liberty.â154 Just as the Court had ruled in NewYork, the Printz Court emphasized the Courtâs role as guarantor of politicalaccountability: âMembers of Congress can take credit for âsolvingâ prob-lems without having to ask their constituents to pay for the solutions withhigher federal taxes.â155 Further, âeven when the States are not forced toabsorb the costs of implementing a federal program, they are still put in theposition of taking the blame for its burdensomeness and for its defects.â156
After discussing this accountability principle, Justice Scalia expandedon the nondelegation rationale implicit in New York:
[T]he power of the President would be subject to reduction, if Congress could act as effec-tively without the President as with him, by simply requiring state officers to execute the
148 18 U.S.C. § 922(s) (1994). The Brady Act imposed a five-day waiting period, see id. §
922(s)(1)(A)(ii), and required that a firearms dealer: (1) receive from a firearms purchaser a swornstatement that the purchaser was not among the forbidden class of purchasers under the Act, see id. §922(s)(1)(A)(i)(I); (2) immediately verify the purchaserâs identification, see id. § 922(s)(1)(A)(i)(II);and (3) provide the purchaserâs sworn statement to the chief law enforcement officer (CLEO) of thepurchaserâs residence, see id. § 922(s)(1)(A)(i)(III), (IV). If the State either issued permits with back-ground checks, see id. § 922(s)(1)(C), or provided for instant background checks, see id. §922(s)(1)(D), then the seller needed neither submit a sworn statement nor wait five business days forthe CLEO to perform a background check.
149 For a lengthier discussion of the facts in Printz, see Jonathan H. Adler, Comment, The GreenAspects of Printz: The Revival of Federalism and Its Implications for Environmental Law, 6 GEO.MASON L. REV. 573 (1998).
150 Printz, 117 S. Ct. at 2376 (citing U.S. CONST. art. IV, § 3 (prohibiting involuntary reductionor combination of a Stateâs territory); id. art. III, § 2 (Judicial Power Clause); id. art. IV, § 2 (Privilegesand Immunities Clause); id. art. IV, § 4 (Guarantee Clause); id. art. V (3/4 of States vote to amendConstitution); id. art. I, § 8 (limited by amend. X)).
151 514 U.S. 549 (1995). Lopez involved a challenge to a federal criminal law that the Courtstruck down as unconstitutional because Congress acted beyond the grant of power in the CommerceClause power.
152 Printz, 117 S. Ct. at 2377 (citing to New York, 505 U.S. at 168-69 and Lopez, 514 U.S. at 576-77 (Kennedy, J., concurring)).
153 Id. at 2378 (quoting THE FEDERALIST NO. 51 (James Madison)).154 Id.155 Id. at 2382.156 Id.
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laws. . . . â[The Commerce Clause] authorizes Congress to regulate interstate commerce di-rectly; it does not authorize Congress to regulate state governmentsâ regulation of interstatecommerce.â157
Using the same premise from Hodel and FERC that Justice OâConnor re-lied on in New York, Justice Scalia concluded that âthe Federal Govern-ment may not compel the States to implement, by legislation or executiveaction, federal regulatory programs.â158 Justice Scalia closed with a ringingendorsement of the notion of a complete division of powers between fed-eral and state governments: âIt is an essential attribute of the Statesâ re-tained sovereignty that they remain independent and autonomous withintheir proper sphere of authority.â159
In its brief in Printz, the United States Government argued in favor ofa rule that would limit New York by drawing a âdistinction between âmak-ingâ law and âenforcingâ it, between âpolicymakingâ and mere âimplemen-tation.ââ160 Under this theory, so long as state executive officials werecalled upon merely to enforce and implement, rather than to make policy,the Brady Act could not be fairly characterized as âcommandeeringâautonomous state officials.161 Responding, Justice Scalia characterized theGovernmentâs interpretation of federalism as âreminiscent of . . . the linethat separates proper congressional conferral of Executive power fromunconstitutional delegation of legislative authority for federal separation-of-powers purposes.â162 Justice Scalia argued that âthe new line the Gov-ernment proposesâ is not a bright one, because â[e]xecutive action that hasutterly no policymaking component is rare.â163 He questioned: âIs it reallytrue that there is no policymaking involved in deciding, for example, whatâreasonable effortsâ shall be expended to conduct a background check?â164
Yet ironically, even as Justice Scalia attempted to belittle the govern-mentâs rationale by comparing it to the moribund horizontal nondelegationdoctrine, the ultimate rule established in New York and Printz served tocreate what can only be called a âvertical nondelegationâ doctrine.
Taken together, the Courtâs majority opinions in New York and Printzmake the Court the ultimate arbiter of whether a decision by the federalgovernment to impose unfunded mandates upon the states violates the
157 Id. at 2378-79 (quoting New York, 505 U.S. at 166).158 Id. at 2380 (discussing Hodel v. Virginia Surface Mining & Reclamation Assân, Inc., 452 U.S.
264 (1981), FERC v. Mississippi, 456 U.S. 742 (1982) and New York, 505 U.S. 144 (1992)). Thedissents in New York vigorously rebutted the underlying assertions from Hodel and FERC.
159 Id. at 2381.160 Id. at 2380.161 See Brief for the United States, 1996 WL 595005, at **15-18, Printz v. United States, 117 S.
Ct. 2365 (1997) (Nos. 95-1478, 95-1503).162 Printz, 117 S.Ct. at 2380 (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495, 530 (1935); and Panama Refining Co. v. Ryan, 293 U.S. 388, 428-29 (1935)).163 Id. at 2380-81.164 Id. at 2381 (referring to the Brady Actâs requirement in 18 U.S.C. § 922(s)(2) (1994)).
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Tenth Amendment. Reminiscent of National League of Cities, the Courthas reasserted its role as mediator of federal-state conflicts; but it has doneso by torturing the principle of âpolitical accountabilityâ articulated inGarcia.
The principle that unfunded mandates are unconstitutional per seclosely resembles the type of structural limitations the Court imposed in itsearly horizontal nondelegation cases. In A.L.A. Schechter Poultry Corp. v.United States165 and Carter v. Carter Coal Co.,166 for example, the Courtused horizontal nondelegation and Tenth Amendment limitations to con-strict a delegation to a federal agency that regulated commerce throughoutthe nation. The horizontal nondelegation doctrine stood for a strict adher-ence to separation of powers principles. Similarly, in New York and Printz,the Court used a vertical nondelegation doctrine, ostensibly implicit in theTenth Amendment, to prohibit Congress from effectuating federal regula-tory policies through the âcommandeeringâ of state executive officials.This vertical nondelegation doctrine, as contemplated by the New York andPrintz Courts, stands for an equally strict adherence to division of powers.
IV. A NALYSIS: A PUBLIC CHOICE CRITIQUE OF THE SUPREME COURTâSNEW FEDERALISM JURISPRUDENCE
In New York and Printz, the Court has constructed a jurisprudenceforbidding the federal government from âcommandeer[ing]â or otherwiseforcing state officials to administer unfunded federal programs. In practice,this novel rule resembles a vertical equivalent to the horizontal nondelega-tion doctrine. Accordingly, this section analyzes New York and Printz un-der a theory of nondelegation.
The Court supports its decisions in New York and Printz on theground that, absent forceful judicial review, individual voters will be un-able to hold political candidates accountable. In the Courtâs view, un-funded mandates will confuse the electorate and induce it to vote out thewrong officeholders. Instead of punishing the federal officials responsiblefor unpopular federal mandates administered by state officers, the Courtworries that myopic voters will erroneously hold state legislators and stateexecutive officials accountable at the polls for the actions of the federalgovernment. In other words, the Court has suggested that without its inter-vention, federal politicians will delegate duties and take credit for popularprograms, while avoiding blame for unpopular ones. Moreover, the statepoliticians charged with finding resources to pay for the administration offederal delegations will get the worst of both worlds; they will receive nocredit from voters for popular programs, but will receive the blame if in-
165 295 U.S. 495 (1935).166 298 U.S. 238 (1936).
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creased taxes or decreased services result from having to fulfill federalunfunded mandates. The Court concluded that the political process wouldfail to bring this information to light.
Public choice interest group theory offers several useful tools to ana-lyze whether the Courtâs new doctrine makes any sense. In particular, thedecisions in New York and Printz may be analyzed for their âagency cost,ââdecision-making costâ and âaccountability costâ implications. In simpli-fied terms, agency costs refer to the âcosts engendered by a divergence ofthe agentâs goals and those of the principal . . . .â167 In the vertical delega-tion context, the principal is the federal government and the agent is thestate government entity. Decision-making costs refer to the costs of nego-tiating and reaching agreement on a single alternative by two or more indi-viduals (or even two or more entities).168 In the vertical delegation context,relevant decision-makers include congressmen, the President (with hisveto power), and intergovernmental lobbies such as the National Gover-norsâ Association. Accountability costs refer to the information costs asso-ciated with accurately communicating to voters which politicians shouldbe held responsible for which political decisions.169
Taken together, agency costs and decision-making costs constitute arough proxy for what the New York and Printz Courts have identified asâcommandeering.â These two costs provide the best tracking device tomeasure whether political actors have the incentive to âcommandeerâstates through vertical delegation. Accountability costs, addressed directlyby the New York and Printz Courts, provide a way to evaluate the electoraleffects of vertical delegation.
A. Agency Costs and Decision-making Costs: âCommandeeringâ inNew York and Printz
Implicit in the New York and Printz Courtâs analysis of vertical non-delegation is the insight, familiar in the horizontal nondelegation context,that âan increase in delegated legislative authority will increase âagencycosts,â . . . but will also diminish the principalsâ (legislatorsâ) decision-making costs.â170 Discussing horizontal delegations, Professors Aranson,Gellhorn and Robinson have postulated that horizontal delegations allow
167 Peter Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 6 (1982).168 See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 98 (1962)
(â[T]wo or more separate decision-making units must agree on a single alternative; and it is in thereaching of agreement among two or more individuals that the costs of collective decision-making . . .will tend to be more than the mere sum of individual decision-making costs taken separately.â).
169 See Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory ofRegulation: Toward a Public-Choice Explanation of Federalism, 76 VA. L. REV. 265, 265 (1990)(discussing what has come to be known as the âpolitical-support-maximization modelâ).
170 Aranson et al., supra note 167, at 6.
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legislators to effectively shift responsibility for costly political decisions toexecutive branch regulatory agencies.171 The flip-side of their postulate isthat agency costs will increase over time as the regulatory bodiesâ goalsdiverge from Congressâs original goal in passing the legislation.172 Whilethe initial passage of legislation may involve low decision-making costs,the congressional decision-making costs involved in the reversal of a mis-guided delegation will be much higher because a constituency will havebeen created to defend the new regulatory scheme.173 In describing the endresult of horizontal delegations, one scholar has established that âthe highcost of subsequent termination by Congress ensures that agency costs willincrease over time.â174
Although these insights may be of great utility in determining thewisdom, or even the constitutionality, of horizontal delegations, the NewYork and Printz Courts have erroneously overlooked the fact that mini-mizing agency costs and decision-making costs presents few problems inthe context of vertical delegations.175 While it may be possible to lowerdecision-making costs by prohibiting Congress from delegating legislativepower to the non-legislative branches of the federal government, a reviewof the facts of New York176 and Printz177 dramatically underscores the fu-tility of such an approach in the context of vertical delegations.
New York presented a situation in which the states attempted to bindeach other to follow certain mutually advantageous rules by creating acredible threat of punitive action by the federal government.178 Specifi-
171 See id. at 64 (âBy delegating both regulatory and legislative authority to the agencies, mem-
bers of Congress currently shift the cost of settling political conflicts while retaining some of the po-litical benefits of having acted.â).
172 See id. at 46-47 (analyzing the divergence of âincentives, preferences, and strategic choices ofbureaucrats and bureausâ from original delegation).
173 See JONATHAN RAUCH, DEMOSCLEROSIS 125 (1994) (âTo create a new subsidy or anticom-petitive deal is hard, but to reduce a subsidy is much harder. And to completely eliminate a subsidy oran anticompetitive arrangement is hardest of all.â).
174 See STEARNS, supra note 14, at 200.175 Of course, some have argued that a Court imposed nondelegation doctrine is unnecessary in
legislative-executive delegations because it is preferable to have high agency costs by allowing regu-lators to make political decisions. See, e.g., Jerry Mashaw, Prodelegation: Why Administrators ShouldMake Political Decisions, 1 J.L. ECON. & ORG. 81 (1985).
176 New York v. United States, 505 U.S. 144, 200 (1992) (White, J., dissenting).177 Printz v. United States, 117 S. Ct. 2365 (1997).178 In game theory, where multiple players have the incentive to cheat and free ride off lawful
players, the creation of rules that impose an outside credible threat binds players who would otherwisecheat. See AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY 120-24 (1991).Justice White, in dissent in New York, 505 U.S. at 197, noted that the plan would have actually worked.New York, speaking through its legislature, recognized the federal law and consistently met the dead-lines set by the legislation without objection. See id. In the end, New York balked at taking title to itslow level radioactive waste on the eve of implementation. Justice White suggested that the Courtshould hold New York to the bargain it originally made under a theory of estoppel. See id. at 198. TheCourt had long recognized that when a state entered a compact, the state should be held to the bargain.See State ex rel. Dyer v. Sims, 341 U.S. 22, 35 (1951) (Jackson, J., concurring) (â[I]f the compact
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cally, the states requested that the federal government give binding ap-proval to states forming regional compacts to deal with disposal of low-level radioactive waste.179 The states favored federal intervention in orderto discourage recalcitrant states from âfree-ridingâ off the waste disposalefforts of their neighbors. Since authorities in complying states were un-likely, as a political matter, to tolerate such free-riding, the stubborn non-compliance of any single state could subvert the entire waste disposalscheme, with unfortunate consequences for the national environment.Moreover, the states were constrained to ask approval from Congress priorto entering an interstate compact because of the Compact Clause of theConstitution, which declares that â[n]o State shall, without the Consent ofCongress, . . . enter into any Agreement or Compact with another State.â180
Although Justice OâConnor conveniently avoided the issue, it is clearthat the decision-making costs of implementing interstate compacts arenecessarily high, because the states must, by definition, first agree amongthemselves to be bound. In New York, for example, all fifty states hadagreed in advance to be bound by the compact at issue; it was only NewYorkâs refusal to honor its obligations that gave rise to a dispute.181
Moreover, Justice OâConnorâs conclusion that the federal government hadâcommandeeredâ the states when it passed the âtake titleâ provision atissue in New York showed that the delegation at issue in New York im-posed few agency costs, because a delegation by a principal (Congress)that âcommandeersâ the authority of the agent (the states) obviously leaveslittle, if any, discretion in the hands of the state authorities.182 If the agentpossesses no discretion to develop policy in a manner antithetical to thewill of the principal, no agency costs may be said to exist. Thus, in thevertical delegation at issue in New York, agency costs remained low whiledecision-making costs remained highâan outcome directly opposite towhat would be expected of a horizontal delegation.183
In Printz, Justice Scalia embraced the holding of New York and ap-plied its âcommandeeringâ rationale to a vertical delegation to state ex-ecutives.184 Justice Scalia, however, argued that state enforcement of theinterim provisions of the Brady Act would indeed impose agency costsâlabeled âpolicymakingââupon the federal government because the state system is to have vitality and integrity, [a state] may not raise an issue ultra vires, decide it, and releaseherself from an interstate obligation.â).
179 Recall that only one site was operating to take low-level radioactive waste. Due to this cir-cumstance the states, through the National Governorâs Association, came together with a proposal toremedy the situation. See New York, 505 U.S. at 150.
180 U.S. CONST. art. I, § 10, cl. 3; see also New York, 505 U.S. at 200 (White, J., concurring inpart and dissenting in part).
181 See New York, 505 U.S. at 150.182 See id. at 161.183 See Aranson et al., supra note 167, at 6.184 Printz v. United States, 117 S. Ct. 2365, 2381 (1997).
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CLEOs had some input in defining what would constitute âreasonable ef-fortsâ in conducting background checks on gun purchasers.185
This paradoxical conclusionâthat a delegation of federal authority tothe states may simultaneously âcommandeerâ autonomous state officialsand vest those same officials with excessive discretionâunderscores thefutility of the Courtâs vertical nondelegation jurisprudence. If state execu-tive officers did, in fact, have policymaking discretion in Printz, then per-haps vertical delegations do implicate agency costs after all, justifyingjudicial intervention. Yet, if the word âcommandeeringâ is susceptible ofdiametrically opposite meanings in two cases that purport to establish thesame principle, the idea of âcommandeeringâ is arguably deprived of ob-jective meaning and becomes nothing more than an all-purpose rhetoricaldevice. The Court cannot have it both ways. Either (1) the state officialswere âcommandeered,â and no substantial agency costs accrued, or (2)they were not âcommandeered,â in which case judicial intervention onbehalf of the states becomes unnecessary, even intrusive.
Finally, just as decision-making costs of the complex interstate com-pact were high in New York, legislative decision-making costs were alsohigh in Printz.186 Congress hammered out the specific interim provisionsof the Brady Bill for several sessions before it finally became law, over-seen by the watchful eyes of the two diametrically opposed, highly influ-ential lobbies on the gun-control issue.187
B. Accountability Costs in New York and Printz
While the foregoing discussion suggests that a consideration of theagency and decision-making costs implicit in the Courtâs new âcomman-deeringâ principle tends to undermine the Courtâs reasoning in New Yorkand Printz, this section probes the accountability cost rationale that theCourt uses to justify judicial intervention. Justice OâConnor, in NewYork,188 and Justice Scalia, in Printz,189 announced that the prevention ofdistorted political accountability was a key justification for invalidating
185 Id. at 2380 (referring to 18 U.S.C. § 922(s)(2)). Justice Scalia also argued that CLEOs had the
option to refrain from notifying a gun dealer that a prospective purchaser was ineligible to purchase ahandgun. See id. at 2369. In the next paragraph, however, Justice Scalia did note that under the GunControl Act of 1968, 18 U.S.C. § 924(a)(5) (1994), any person who violates a portion of the act, in-cluding any amendments like the Brady Act, would be subject to imprisonment or fine. See id.
186 The Brady Act did not involve the derided porkbarreling (i.e. political credit-taking withoutincurring significant political costs to those who voted for the Act). See generally GEORGE F. WILL ,RESTORATION 20-21 (1992) (discussing the mohair subsidy).
187 Mark Johnson, 5-4 Decision Guts Brady Gun Control Law, RICH. TIMES-DISPATCH, June 28,1997, at A1 (âGun rights groups, such as the National Rifle Association, successfully fended off theBrady law for years . . . .â).
188 New York v. United States, 505 U.S. 144, 169 (1992).189 Printz, 117 S. Ct. at 2382.
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laws that delegate federal duties to state executive and legislative actors. Inboth cases, the Court opined that federal legislators will generally takecredit and avoid blame for decisions delegated to state executive and leg-islative officials.190 The Court has thus concluded that judicial review mostadequately protects political accountability. This dubious conclusion di-rectly contradicts precedent and the lessons of public choice analysis.191
The inherently self-regulating political process rarely needs to be protectedby judicial review.192
While carefully carving out her new rule in New York, JusticeOâConnor explicitly declined to overrule Garcia v. San Antonio Metro-politan Transit Authority.193 Yet, the rule in New York and Printz advo-cates judicial intervention in the political process and therefore contradictsGarciaâs basic rule:194 âThe political process ensures that laws that undulyburden the States will not be promulgated.â195 Unlike the rule in Garcia,the implied vertical nondelegation doctrine adopted in New York andPrintz takes an overly pessimistic view of the political process and sug-gests that judicial review will be effective in ensuring that politicians re-main accountable to their constituents.196 In Printz, Justice Stevensâ dissentrejected the necessity of judicial review in the federalism context, arguingthat local officials faced with âdisgruntled constituentsâ would have littledifficulty pointing to âthe source of the misfortune.â197 Public choiceanalysis supports Justice Stevensâ opinion and militates against the exer-cise of judicial review in federalism cases.
Recall that the public-choice model of legislative action assumes thatlegislators are self-interested and principally focused on their reelectionprospects.198 According to scholars, congressmen tend to engage in threetypes of activities to enhance the possibility of reelection: (1) advertis-ingâincreasing their individual name recognition in the congressionaldistrict;199 (2) credit claimingâinternalizing the effect of beneficial treat-
190 See id.; New York, 505 U.S. at 169.191 But cf. John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1334
(1997) (suggesting that the Rehnquist Court has built a line of decisions creating âjudicial safeguardsâunder the mantra of a variety of constitutional clauses).
192 The clear exception to this rule is where the Court is attempting to assure participation byindividuals within the political process. See generally Harper v. Virginia State Bd. of Elections, 383U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964);Baker v. Carr, 369 U.S. 186 (1962).
193 469 U.S. 528 (1985).194 See Yoo, supra note 191, at 1311 (suggesting that Garcia âis not, nor should it beâ good law).195 Garcia, 469 U.S. at 556.196 See Aranson et al., supra note 167, at 55-64.197 Printz, 117 S. Ct. at 2395 n.18 (Stevens, J., dissenting).198 See FIORINA, supra note 16, at 37.199 See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 49-52 (1974). Fiorina
generally agrees with Mayhewâs characterization. See FIORINA, supra note 16, at 39 (âFor most of thetwentieth century, congressmen have engaged in a mix of three kinds of activities: lawmaking, pork-
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ment of governmental action on constituents (for example, findinggrandmaâs lost social security check or getting increased budget expendi-tures for the district); and (3) position takingâpublic iteration of a popularvalue or opinion held by the congressman (for example, a roll-call vote onthe Brady Act or the Low-Level Nuclear Waste Amendments Act). 200
Above all else, the proponents of the vertical nondelegation doctrine fearcredit claiming.201 With credit claiming, goes the theory, decision-makingcosts are low while agency costs are kept intentionally high so that con-gressmen may both blame the âbureaucracyâ for problems with legislationand extract political benefits by shepherding constituents through the frus-tratingly complex federal bureaucracy.202
The Courtâs concern with credit claiming seems overstated, however,if not entirely misplaced in the vertical context. Usually, a congressmanseeks to claim credit for delivering the goods for the district, the state or aninterest group. A common theme of credit claiming by incumbents re-volves around what committees a congressman sits on, seniority on thosecommittees, and how that seniority can ensure that the district (and interestgroups within the district) will get legislation helpful only to thatdistrict.203 Examples of credit claiming often include saving jobs at facto-ries in the district or building a new dam or road. By contrast, the decisionsinvolved in New York or Printz involved vertical delegations of national,rather than purely regional, import.
On the other hand, when a congressman takes a public position on acontroversial political issue by recorded or roll-call vote, the congressmanmay no longer hide behind the bureaucracy; rather, the congressman mustexplain his position to constituents or face defeat at the polls.204 Make nomistake, congressmen calculate their position taking votes just as they dowith claiming credit. With position taking, the congressman will seek tomaximize election chances by pleasing an âattentive publicâ that closelymonitors the progress of particular legislation.205 The congressman must
barreling, and casework.â).
200 See MAYHEW, supra note 199, at 52-61 (credit claiming); see id. at 61-73 (position taking).201 See Aranson et al., supra note 167, at 57-58.202 A congressman benefits from the delegation of regulatory power by âshifting responsibility,
deriding the bureaucracy, and engaging in ombudsman-like activities with the agency to extract bene-fits from identifiable constituents. Congressmen can also threaten adverse agency actions againstâuncooperativeâ constituents.â Id. at 58.
203 But see RICHARD F. FENNO, JR., CONGRESSMAN IN COMMITTEES 1-2 (noting that congress-men will match aspirations of âre-election, influence within the House [or Senate], and good publicpolicyâ with the choice of committee assignments).
204 See JOHN W. KINGDON, CONGRESSMENâS VOTING DECISIONS 47 (3d ed. 1989) (âCongress-men are constantly called upon to explain to constituents why they voted as they did.â).
205 See R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 64-65 (1990) (âAttentivepublics are those citizens who are aware that a specific issue is on the congressional agenda, knowwhat alternatives are under consideration, and have relatively firm preferences about what Congressshould do.â).
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successfully gauge, not only constituent preferences, but the relativestrength of constituent preferences. Will the incumbentâs next opponentuse a particular position taking vote in a 30-second attack commercial?
The âposition-takingâ characterization better fits the legislation at is-sue in Printz and New York, in part because of the recorded nature of thevote. In particular, the House of Representatives took recorded votespassing the underlying legislation involved in both New York206 andPrintz.207 Although the Senate passed both pieces of legislation without aroll-call vote,208 several senators placed ânoâ votes on the record in theunderlying legislation in Printz.209 Thus, there was some use of position-taking despite the lack of a roll-call vote in the Senate. This is not surpris-ing, as senators tend to approach elections (and position-taking employedto enhance re-election chances) slightly differently than members of theHouse.210 Recall also that the decisionmaking costs of passing the legisla-tion were high in both New York and Printz, while the agency costs createdby the legislation were low, thereby decreasing the likelihood that reelec-tion seeking congressmen could benefit from assisting interest groups ingaining purely private benefits.211 This is the precise opposite of the para-digm alleged to occur in the context of horizontal delegations.212
Under a public choice model, accountability in federalism cases isadequately protected by the ordinary workings of the political system. Asone public choice commentator has suggested, âCongress will delegate tothe local regulators only when the political support it obtains from defer-ring to states is greater than the political support it obtains from regulatingitself.â213 This so-called âfranchise theory of federalismâ identifies threegeneral situations wherein congressmen are likely to allow states to regu-late activity in lieu of regulating the activity by direct federal regulation.214
The first such situation arises where a state, like Delaware in corporatelaw, has created a âregulatory regime that accumulates particularized ex-
206 See 131 CONG. REC. 35,252 (1985) (passing the Low-Level Radioactive Waste Policy
Amendments Act of 1985 by roll-call vote without a single dissenting vote).207 See 139 CONG. REC. H10,907-08 (daily ed. Nov. 22, 1993) (passing the Brady bill by roll call
vote).208 See 131 CONG. REC. 38,385 (1985) (acknowledging that the âLow-Level Nuclear Wasteâ
legislation would pass by âunanimous-consent agreementâ).209 See 139 CONG. REC. S17,093 (daily ed. Nov. 24, 1993).210 See FIORINA, supra note 16, at 116 (â[M]ost Senate elections are significantly different from
most House elections. Reasonably enough, they appear to occupy a niche somewhere between presi-dential and House elections.â).
211 See supra Part IV.A.212 See Aranson et al., supra note 167, at 63-64 (âOur purpose . . . is not the reduction of legisla-
tion as such, but the reduction of legislation aimed at creating purely private benefits. Our justificationfor applying more rigorous standards to delegation rests on the prescription that delegation provides aprincipal means for the legislative production of private goods.â).
213 Macey, supra note 169, at 267.214 Id. at 268.
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pertise, reputational value, or human capital in a specific subject area, that. . . represents a capital asset of that state.â215 Federal legislators will alsodelegate when state law can be customized to respond to local interestgroups that differ from state to state.216 Third, federal officials will defer tostate officials where deference to states will âavoid the loss of politicalsupport on issues for which there is no clear national consensus.â217
Delegation through unfunded mandates falls squarely into categorythree described above. Congressmen will choose to delegate federal dutiesthrough unfunded mandates only where congressmen reasonably believethat a national consensus exists to support the delegated program.218 Thus,âCongress always can decide to regulate when and if interest-group politi-cal support galvanizes around a particular regulatory solution, thereby sig-naling Congress that it can intervene safely.â219 This conclusion suggeststhat Congress will choose to regulate both substance and form based onsignals from lobbyists. Before New York and Printz, the Court had longrecognized that Congress could choose the preferred means to implementfederal programs.220 However, the Court, in New York and Printz, sug-gested that Congress should have chosen to either completely preempt thestates or give monetary incentives to give states the option to administerthe federal programs.221 Both New York and Printz, however, include fac-tual situations where Congress had been galvanized not to pre-empt thestates entirely, but to enact a system the states either explicitly agreed to orwould only have to administer for a short time.
New York presented a situation in which the states, speaking throughthe National Governorsâ Association, âbargained among themselves toachieve compromises for Congress to sanction.â222 The National Gover-norsâ Association thereby signaled Congress that it could intervene safelyso long as it enacted the regulatory plan explicitly bargained over.
215 Id. at 276.216 See id. at 281 (noting that the âpolitical-support-maximizing outcome for politicians in one
state may not be the political-support-maximizing solution for politicians in anotherâ).217 Id. at 284.218 See RICHARD FENNO, HOMESTYLE 8-18 (1978) (noting that congressmen tend to view their
constituencies in varied ways including a reelection constituency specifically courted through deliber-ate legislative activity).
219 Macey, supra note 169, at 286.220 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (âLet the end be legitimate,
let it be within the scope of the constitution, and all means which are appropriate, which are plainlyadopted to that end, which are not prohibited, but consistent with the letter and spirit of the constitu-tion, are constitutional.â).
221 See Printz v. United States, 117 S. Ct. 2365, 2383 (1997) (holding a provision from the BradyAct unconstitutional where âit is the whole object of the law to direct the functioning of the state ex-ecutiveâ); New York v. United States, 505 U.S. 144, 188 (1992) (âThe Constitution enables the Fed-eral Government to pre-empt state regulation contrary to federal interests, and it permits . . . incentives. . . . It does not, however, authorize Congress simply to direct States to [take title to] radioactive wastegenerated within their borders.â).
222 New York, 505 U.S. at 194 (White, J., concurring in part and dissenting in part).
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The signals were more mixed concerning the passage of the interimgun-control legislation at issue in Printz,223 and regional variance of opin-ion regarding the gun control issue prevented legislators from permanentlydelegating gun control regulation to the states.224 Congress did, however,recognize that the states might be willing to administer the program on ashort-term basis, fully understanding that the federal government wouldimplement a more airtight national instant background check.225
Nonetheless, in both New York and Printz Congress acted consistentlywith the model of a rational vote-seeking politician; Congress listened toits constituents.226 In such circumstances, the states do not need the Courtto review unfunded mandates, because the political process, standingalone, has proven effective in reacting to the problem. As Justice Stevenspointed out in his Printz dissent, Congress had already passed the Un-funded Mandates Reform Act of 1995 to remedy the unfunded mandatesproblem.227 This legislation, even in the absence of judicial intervention,will successfully prevent future delegations of unfunded mandates bycompelling members of Congress to publicly acknowledge the unjust costsimposed on states.228
By creating a vertical nondelegation doctrine the Court has preemptedthe free play of the political marketplace and has given interest groups anincentive to use the judicial system to win political battles lost in the leg-islature.229 The Court is far less adept than Congress at choosing which
223 Macey listed gun control as an issue that differed from state-to-state, that Congress would notnormally choose to preempt. See Macey, supra note 169, at 281.
224 See Printz, 117 S. Ct. at 2365.225 Incidentally, the instant background check is now up and running. See Michael J. Sniffen,
Gun Buyers to Face Instant Checks, Oct. 30, 1998, available in 1998 WL 21781439.226 But cf. WILL , supra note 186, at 116 (arguing that representatives are too responsive to con-
stituent desires, â[l]eadership does not amount merely to being âresponsiveâ to . . . polling data.â); seealso HANNA F. PITKIN , THE CONCEPT OF REPRESENTATION 164 (1967) (âAs a matter of political fact,legislators often pattern their actions not on what their constituents ought to want but on what theyanticipate their constituents will want . . . . This is natural; the legislators want to be reelected.â).
227 Printz, 117 S. Ct., at 2395 (1997) (Stevens, J., dissenting) (discussing congressional passageof the Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, 109 Stat. 48 (1995) (codified at 2U.S.C. §§ 602, 632, 653, 658a-g, 1501-1571 (Supp. II 1996)).
228 See Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The UnfundedMandates Reform Act of 1995, 45 U. KAN. L. REV. 1113, 1115 (1997) (â[I]f one believes that federal-ism interests are insufficiently protected, one should consider directing some efforts toward the adop-tion of new legislative procedures.â).
229 Robert Bork has suggested that interest groups turn to the Court to fight political battles alltoo often:
Each [interest] group gathers to demonstrate outside the White House, then forms .. . to begin the lengthy walk down Pennsylvania Avenue to Constitution Avenueand on to Capitol Hill. There the demonstrators march past the Houses of Congresswith hardly a glance and go straight to the Supreme Court building to make theirmoral sentiments known where they perceive those sentiments to be relevant.
ROBERT H. BORK, THE TEMPTING OF AMERICA 3 (1990). Justice Thomas, concurring in Printz, hon-estly capsulized the underlying point when he suggested that âa colorable argumentâ could be madethat the Brady Act violated the Second Amendment. Printz, 117 S. Ct. at 2386 (Thomas, J., concur-
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interest groupâs policy should be law. The effects of the Courtâs recentdecisions serve only to stifle the development of a more fluid relationshipbetween the state and federal governments. In the end, the Courtâs deci-sions may lead the federal government to further âaggrandize itself.â230
CONCLUSION
The new vertical nondelegation doctrine articulated in New York andPrintz has brought the Court full circle from the pre-New Deal era. In thepast several decades, through fits and starts, the Court has tried to formu-late new doctrines springing from the Tenth Amendment and placed limi-tations on federal regulation of states. The vertical nondelegation doctrineof New York and Printz suggests that the fear of âcommandeeringâ and theprotection of political accountability provide twin principles that couldjustify judicial action to vindicate statesâ rights. Yet the Court fails toprove that its proposed solutions constitute an improvement over the freeinterplay of political forces. Just like previous judicial doctrines thatsought to place Tenth Amendment limitations on the federal government,the vertical nondelegation doctrine must ultimately collapse under theweight of its own incoherence.
This Comment applied public choice interest group theory to test theassertions underlying the new vertical nondelegation doctrine. The analy-sis suggests that the factual situations of New York and Printz, viewedthrough the prism of public choice, militated against judicial intervention.The agency costs for the delegations were low and the decision-makingcosts to pass the legislation were high. Any accountability costs wereremedied by the give-and-take of the political process. At bottom, the po-litical process possesses a decided comparative advantage over the judicialprocess in vindicating the rights of âthe people,â particularly as repre-sented by factional interest groups. The Court has yet to show a factualsituation that requires judicial intervention rooted in the Tenth Amend-ment. If the past is any guide, the factual situation may not exist.
Daniel S. Herzfeld*
ring). Pro- and anti-gun control advocates amassed on either side of the issue. See Brief of Gun Own-ers Foundation, 1996 WL 468617, 117 S. Ct. 2365 (1997) (No. 95-1478); Brief of Handgun Control,Inc., 1996 WL 585868, 117 S. Ct. 2365 (1997) (Nos. 95-1478, 95-1503); see also Johnson, supra note187, at A1 (âNRA lawyers challenged challenged Brady, not as a violation of the Second Amendmentright to bear arms, but as transgressing the 10th Amendment separation [sic] of powers between stateand federal government.â).
230 See Printz, 117 S. Ct. at 2396 (Stevens, J., dissenting).* George Mason University School of Law, Juris Doctor Candidate May, 1999; University of
Virginia, B.A. in History and Government & Foreign Affairs, May 1994. This article was inspired bydiscussions with Professor Maxwell Stearns. The author would like to especially thank fellow editorJohn Crossett for his thorough critique. Additionally, the author would like to thank Greg Greene,Eileen Cole, Jennifer Dacey, Michael Langan, and Nick Widnell for their perusal of earlier drafts.