New York v. United States, 505 U.S. 144 

Supreme Court of the United States

1992

Chapter

3

Title

The Scope of Congresss Powers

Page

336

Topic

The Tenth Amendment as a Federalism-Based Limitation

Quick Notes

New York challenged the Radioactive Wastes Act of 1985 that contained an incentive to require state to take title to radioactive wastes and take possession of it. 

o    The "take title" provision: After 1996, if a state had still not provided for its own waste disposal, it was to "take title to the waste" and would then be obligated to take over possession of the waste.

Rule

o         Congress may not violate state sovereignty by requiring a state through force of law to enact certain legislation.

o         The federalist structure of the national and state governments under the Constitution bars the federal government from compelling state governments to enact certain legislation desired by the federal government.

Rule:  Hodel v. Virginia Surface Mining (No commandeering)

o         Congress may not simply 'commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program'".

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0

Issue

o         Whether Congress may direct the States to regulate in a particular field or in a particular way?  No.

Procedure

Trial

o         Second Circuit upheld monetary incentive, access incentive, and take title provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985.

Appellant

o         Affirmed

Supreme

o         Affirmed in Part.  Reversed in Part.

Facts

Discussion

Key Phrases

Rules

Pl New York

Df United States

Description

o          Congress, in an effort to combat a burgeoning radioactive waste disposal problem, passed the Low-Level Radioactive Waste Policy Amendments Act of 1985,

o         The Act included monetary incentives, access incentives, and a take title provision, which offered states the option of taking title to and possession of low level radioactive waste generated within their borders and assuming liability for damages that waste generators suffer due to the states' tardiness.

New York said Unconstitutional

o         New York sued, claiming that the Act violated the tenth amendment.

o         The Supreme Court, after granting certiorari, declared the Act unconstitutional in part, holding that (a) monetary incentives constituted permissible exercises of congressional power under the Commerce, Taxing, and Spending Clauses of the Constitution; (b) access incentives represented permissible conditional exercise of Congress' commerce power; but (c) the take title clause exceeded U.S. Const. amend. X restrictions, because the take title incentive was not an exercise of congressional power enumerated in the Constitution.

o         Affirmed in part and reversed in part; monetary and access incentives were permissible exercises of Congressional power under the commerce, tax, and spending clauses, but the take title provision violated tenth Amendment because it was coercive.

Congress can encourage, but Congress cannot Coerce or Compel

o         Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so.

Section I Discussion

1980 Regional Compact for Disposal

o         Congress adopted a statute where each State was Responsible for radioactive waste disposal produced within its borders.

o         Authorized states to enter into regional compacts for disposal of facilities.

Between 1986 to 1992 (States could impose surcharges)

o         Under the Act, from 1986 to 1992, states with sites could impose surcharges for waste from out-of-state.

After 1992 (States could exclude waste from non participating states)

o         After 1992, these states could exclude waste from states not participating in a regional compact.

Purpose of 1985 Act

o         The purpose of the 1985 act was to give non-sited states incentives to provide for disposal within their own borders.

o         To this end the Act provided three distinct incentives.

(1)   Monetary: Part of the surcharges collected by sited states were transferred to the Secretary of Energy and then could be returned to a state that was able to find its own disposal site by 1993.

(2)   Access: The surcharges for access to existing sites escalate, and after a series of deadlines, access to those sites could be denied.

(3)   The "take title" provision: After 1996, if a state had still not provided for its own waste disposal, it was to "take title to the waste" and would then be obligated to take over possession of the waste.

Section II

Gregory v. Ashcroft

o         While the Tenth Amendment makes explicit that "the powers not delegated to the United States by the Constitution,  nor prohibited by it to the States, are reserved to the States respectively, or to the people"; the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court's most difficult and celebrated cases.

Rule

o         If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims [renounce] any reservation of that power to the States;

o         If a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.

United States v. Butler

o         Not a question of what Power the federal government should have.

o         What powers have been given by the people.

Framers Power Conferred upon the Federal Government

o         The powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role.

o         Actual scope of the federal governments authority has changed with respect to the States.

o         The Constitutional structure underlying and limiting that authority has not.

Petitioners do not contend the following (Regulations and Supremacy Clause)

o         Petitioners do not contend that Congress lacks the power to regulate the disposal of low level radioactive waste.

o         Petitioners likewise do not dispute that under the Supremacy Clause Congress could, if it wished, pre-empt state radioactive waste regulation.

Petitioners contend (Congress has impermissibly directed the States to regulate)

o         The Tenth Amendment limits the power of Congress to regulate in the way it has chosen.

o         Rather than addressing the problem of waste disposal by directly regulating the generators and disposers of waste, petitioners argue, Congress has impermissibly directed the States to regulate in this field.

Rule:  Hodel v. Virginia Surface Mining (No commandeering)

o         Congress may not simply 'commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program'".

Articles of Confederation

o         Legislation for States.

Constitution (Individuals)

o         The Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals rather than over States.

Constitution (does not coerce sovereign states)

o         This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity

Constitution (Congress has authority to pass laws prohibit; lacks power to compel States)

o         The Court has consistently respected this choice. We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.

Congress (Can encourage, Hold out incentives)

o         Congress can encourage States to regulate in a particular way.

o         Congress may hold out incentives to the States as a method of influencing a States policy choices.

Congress Acceptable Methods to urge a State to adopt a legislative program

1.     First, under Congress' spending power, "Congress may attach conditions on the receipt of federal funds."

a.     Such conditions must (among other requirements) bear some relationship to the purpose of the federal spending, otherwise, of course, the spending power could render academic the Constitution's other grants and limits of federal authority.

b.    Where the recipient of federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State's legislative choices.

2.     Second, where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.

a.     This arrangement, which has been termed "a program of cooperative federalism,"  is replicated in numerous federal statutory schemes

Methods States retain the ultimate decision whether to comply or not

o         The residents of the State retain the ultimate decision as to whether or not the State will comply.

May Elect to Decline

o         If a State's citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant.

May Choose the Governement to bear expense

o         If state residents would prefer their government to devote its attention and resources to problems other than those deemed important by Congress, they may choose to have the Federal Government rather than the State bear the expense of a federally mandated regulatory program, and they may continue to supplement that program to the extent state law is not pre-empted.

States remain responsive to local electorates preferences.

o         Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences; state officials remain accountable to the people.

Nation View Scenario

o         [If a citizen does not think it is in the States best interest], this view can always be pre-empted under the Supremacy Clause if it is contrary to the national view,

o         But in such a case it is the Federal Government that makes the decision in full view of the public

o         It will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.

Accountability is diminished if Coercion is allowed

o         Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation.

Section III First Set of Incentive Discussion (Page 340)

1.     First, Congress has authorized States with disposal sites to impose a surcharge on radioactive waste received from other States.

o    The first of these steps is an unexceptionable exercise of Congress' power to authorize the States to burden interstate commerce.

2.     Second, the Secretary of Energy collects a portion of this surcharge and places the money in an escrow account.

o    The second step, the Secretary's collection of a percentage of the surcharge, is no more than a federal tax on interstate commerce.

3.     Third, States achieving a series of milestones receive portions of this fund.

o    The third step is a conditional exercise of Congress' authority under the Spending Clause: Congress has placed conditions -- the achievement of the milestones -- on the receipt of federal funds

Section III Second Set of Incentives Discussion (Page 341)

o    The second set of incentives authorizes States to gradually increase the surcharqes, and then to deny access all together to States that fail to meet federal guidelines.

Congressional Authorization

o    This is a congressional authorization for the States to burden interstate commerce.

Valid exercise of private citizens

o    It is also a valid exercise of Congress' power to regulate private citizens-those who produce the waste.

o    For non-sited States the choice is either to regulate disposal of waste according to federal standards, or their residents who produce the waste will be subject to federal regulations allowing sited States to deny access to their disposal sites. 

Burden will fall on private citizens who produce the waste

o    Thus, the States are not being compelled by Congress to regulate because any burden for not regulating will fall on the private citizens who produce the waste, not on the State as a sovereign.

o    The second set of incentives is, therefore, a conditional exercise of Congress' commerce power.

Section III Third Set of Incentives Discussion

Incentive

o    This third "incentive" offers States, as an alternative to regulating pursuant to Congress' direction, the option of taking title to and possession of the low level radioactive waste generated within their borders and becoming liable for all damages waste generators suffer as a result of the States' failure to do so promptly. 

o    In this provision, Congress has crossed the line distinguishing encouragement from coercion

Discussion

o    Both requirements, standing alone, "commandeer" state governments and are inconsistent the Constitution's division of authority between federal and state governments.

o    The alternative-regulating pursuant to Congress' direction would, standing alone, be a simple command to state governments to implement, at the state level, legislation enacted by Congress.

o    This is a pure violation of the Constitution.

o    Because both of the requirements standing alone are invalid.

o    No matter which path the State chooses, it must follow the direction of Congress.

United States Argues

o    The Constitution's prohibition of congressional directives to state governments can be overcome where the federal interest is sufficiently important to justify state submission.

Court If federal interest is strong, Congress must regulate directly.

o    No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate.

o    The Constitution instead gives Congress the authority to regulate matters directly and to pre-empt contrary state regulation.

o    Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.

United State Argues

o    The Constitution does, in some circumstances, permit federal directives to state governments.

Court - all involve congressional regulation of individuals, not that States regulate

o    Various cases are cited for this proposition, but none support it.

o    These cases involve no more than an application of the Supremacy Clause's provision that federal law "shall be the supreme Law of the Land," enforceable in every State.

o    More to the point, all involve congressional regulation of individuals, not congressional requirements that States regulate.

Court - State Judges are mandated by the Supremacy Clause.

o    Federal statutes enforceable in state courts do, in a sense, direct state judges to enforce them, but this sort of federal "direction" of state judges is mandated by the text of the Supremacy Clause.

Court Congress cannot command a State to Legislate

o    No comparable constitutional provision authorizes Congress to command state legislatures to legislate

How can a federal statute be fund an unconstitutional infringement of State sovereignty when state official consented to the statutes enactment?

o    The Constitution divides authority between the federal and state governments for the protection of individuals.

o    Federalism secures to citizens the liberties that derives for the diffusion of sovereign power.

Great Analogy (Use This On Exam)

o    Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.

State Officials cannot Consent

o    State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.

o    Where state officials purport to submit to the direction of Congress in this manner, federalism is hardly being advanced.

Section VII The Air Around Us.

o    But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

States Rights

o    The Constitution leaves to the several States a residuary and inviolable sovereignty.

May Not Compel

o    The Federal Government may not compel the States to enact or administer a federal regulatory program.

Both Federal and States can enact legislation

o    The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low level radioactive waste.

Pre-empt state regulation if contrary to federal interests

o    The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes.

Congress cannot direct States

o    It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders.

DISSENT [Justice White, Blackmun, and Stevens]

Section I Cooperative Federalism

o    States sought congressional sanction of the interstate compromises they had reached.

o    The active was a product of cooperative federalism.

Section II Affects other States Sovereignty

o    The Court's refusal to force New York to accept responsibility for its own problem inevitably means that some other State's sovereignty will be impinged [encroached] by it being forced, for public health reasons, to accept New York's low-level radioactive waste

Section III Distinguishing between State and Private Parties

o    An incursion on state sovereignty hardly seems more constitutionally acceptable if the federal statute that "commands" specific action also applies to private parties.

o    The alleged diminution in state authority over its own affairs is not any less because the federal mandate restricts the activities of private parties.

Section V Congress was acting as an arbiter

o    The Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solution to local problems.

Rules

Rule

o         Congress may not violate state sovereignty by requiring a state through force of law to enact certain legislation.

o         The federalist structure of the national and state governments under the Constitution bars the federal government from compelling state governments to enact certain legislation desired by the federal government.

Rule:  Hodel v. Virginia Surface Mining (No commandeering)

o         Congress may not simply 'commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program'".

Class Notes