Congress can encourage, but Congress cannot Coerce or Compel
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
Congress adopted a statute where each State was Responsible for
radioactive waste disposal produced within its borders.
Authorized states to enter into regional compacts for disposal
Between 1986 to 1992 (States could impose surcharges)
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
After 1992, these states could exclude waste from states not
participating in a regional compact.
Purpose of 1985 Act
The purpose of the 1985 act was to
give non-sited states incentives to provide for
disposal within their own borders.
To this end the Act provided three distinct incentives.
Part of the surcharges collected by
sited states were
transferred to the Secretary of Energy and then could
returned to a state that was able to
find its own disposal site by 1993.
The surcharges for access to existing sites escalate, and after
a series of deadlines, access to
those sites could be denied.
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.
Gregory v. Ashcroft
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.
If a power is delegated to Congress
in the Constitution, the Tenth Amendment expressly
disclaims [renounce] any reservation of that power to the
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
United States v. Butler
Not a question of what Power the federal government should have.
What powers have been given by the people.
Framers Power Conferred upon the Federal Government
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.
Actual scope of the federal governments authority has changed
with respect to the States.
The Constitutional structure underlying and limiting that
authority has not.
Petitioners do not contend the following
(Regulations and Supremacy Clause)
Petitioners do not contend that Congress lacks the power to
regulate the disposal of low level radioactive waste.
Petitioners likewise do not dispute that under the Supremacy
Clause Congress could, if it wished, pre-empt state radioactive
(Congress has impermissibly directed
the States to regulate)
The Tenth Amendment limits the power of Congress to regulate in
the way it has chosen.
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)
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
Legislation for States.
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)
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)
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)
Congress can encourage States to regulate in a particular way.
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
First, under Congress' spending power, "Congress
may attach conditions on the receipt of federal funds."
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.
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
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.
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
The residents of the State retain the ultimate decision as to
whether or not the State will comply.
May Elect to Decline
If a State's citizens view federal policy as sufficiently
contrary to local interests, they may elect to decline a federal
May Choose the Governement to bear expense
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.
Where Congress encourages state regulation rather than
compelling it, state governments remain responsive to the local
electorate's preferences; state officials remain accountable to
Nation View Scenario
[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
But in such a case it is the Federal Government that makes the
decision in full view of the public
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
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
Section III First Set of Incentive Discussion (Page 340)
First, Congress has authorized
States with disposal sites to impose
a surcharge on radioactive waste received from other States.
The first of these steps is an
unexceptionable exercise of
Congress' power to authorize the States to burden
Second, the Secretary of Energy collects a portion of this
surcharge and places the money in an escrow account.
The second step, the Secretary's collection of a percentage of
the surcharge, is no more
than a federal tax on interstate commerce.
Third, States achieving a series of milestones receive portions
of this fund.
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)
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.
This is a congressional authorization for the States to burden
Valid exercise of private citizens
It is also a valid exercise of Congress' power to regulate
private citizens-those who produce the waste.
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
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.
The second set of incentives is, therefore, a conditional
exercise of Congress' commerce power.
Section III Third Set of Incentives Discussion
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.
In this provision, Congress has crossed the line distinguishing
encouragement from coercion
Both requirements, standing alone, "commandeer" state
governments and are inconsistent the Constitution's division of
authority between federal and state governments.
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
This is a pure violation of the Constitution.
Because both of the requirements standing alone are invalid.
No matter which path the State chooses, it must follow the
direction of Congress.
United States Argues
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
No matter how powerful the federal interest involved, the
Constitution simply does not give Congress the authority to
require the States to regulate.
The Constitution instead gives Congress the authority to
regulate matters directly and to pre-empt contrary state
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
The Constitution does, in some circumstances, permit federal
directives to state governments.
Court - all involve congressional regulation of individuals, not
that States regulate
Various cases are cited for this proposition, but none support
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.
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.
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
Court Congress cannot command a State to Legislate
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?
The Constitution divides authority between the federal and state
governments for the protection of individuals.
Federalism secures to citizens the liberties that derives for
the diffusion of sovereign power.
Great Analogy (Use This On Exam)
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
State officials thus cannot consent to the enlargement of the
powers of Congress beyond those enumerated in the Constitution.
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.
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.
The Constitution leaves to the several States a residuary and
May Not Compel
The Federal Government may not compel the States to enact or
administer a federal regulatory program.
Both Federal and States can enact legislation
The Constitution permits both the Federal Government and the
States to enact legislation regarding the disposal of low level
Pre-empt state regulation if contrary to federal interests
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
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
States sought congressional sanction of the interstate
compromises they had reached.
The active was a product of cooperative federalism.
Section II Affects other States Sovereignty
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
Section III Distinguishing between State and Private Parties
An incursion on state sovereignty hardly seems more
constitutionally acceptable if the federal statute that
"commands" specific action also applies to private parties.
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
The Court gives Congress fewer incentives to defer to the wishes
of state officials in achieving local solution to local