158

State Sovereignty and theAnti-Commandeering Cases

By MATTHEW D. ADLER

Matthew Adler is a professor of law at the University of Pennsylvania Law School.He is a former Marshall Scholar and clerked for Judge Harry Edwards and JusticeSandra Day O’Connor. His scholarship generally involves the application of analyticphilosophy to problems of public law. He has recently written about constitutional fed-eralism, expressive theories of law, cost-benefit analysis, and the peculiar way in whichconstitutional doctrine focuses on impermissible rule-types rather than protectedact-types.

ABSTRACT: The anti-commandeering doctrine, recently announcedby the Supreme Court in New York v. United States and Printz v.United States, prohibits the federal government from commandeer-ing state governments: more specifically, from imposing targeted, af-firmative, coercive duties upon state legislators or executive officials.This doctrine is best understood as an external constraint upon con-

gressional power—analogous to the constraints set forth in the Bill ofRights—but one that lacks an explicit textual basis. Should the Con-stitution indeed be interpreted to include a judicially enforceable con-straint upon national power—and, if so, should that constraint takethe form of an anti-commandeering rule?

159

I N New York v. United States,’ theSupreme Court announced a newand highly significant constitutionaldoctrine: the anti-commandeeringdoctrine (Adler and Kreimer 1998;Caminker 1995, 1997; Hills 1998;Jackson 1998). The Court stated that&dquo;Congress may not simply ...commandee[r] the legislative pro-cesses of the States by directly com-pelling them to enact and enforce afederal regulatory program,&dquo;’ and itproceeded to invalidate a federalstatute, the Low-Level RadioactiveWaste Policy Amendments Act. Fiveyears later, in Printz v. United

Stactes,3 the Court confirmed and ex-tended the anti-commandeering doc-trine and relied upon it to strike

down a second federal statute, theBrady Handgun Violence PreventionAct. The doctrine was at issue yetagain in Reno v. Condon,4 which, un-like New York and Printz, was a unan-imous decision. The Court in Condon

rejected an anti-commandeeringchallenge to the Drivers’ Privacy Pro-tection Act but, also unanimously, re-affirmed &dquo;the constitutional princi-ples enunciated in New York andPrintz.&dquo;&dquo; In this article, I will explainthe importance of the case law justdescribed within our regime of con-stitutional federalism, and I will ex-plore the grounds for applauding ordeploring this new limitation on fed-eral power.

OUR FEDERAL SYSTEMAND ITS SOVEREIGN STATES

It is a shibboleth of the Court’srecent federalism cases-not only

the anti-commandeering cases butalso commerce clause decisions suchas United States v. Lopez and UnitedStates v. Morrison’ and sovereignimmunity decisions such as SeminoleTribe of Florida v. Florida8 and Aldenv. Mc~ine9-that in our constitutionalsystem the state governments, andnot merely the national government,are sovereigns. State sovereigntymeans more, I suggest, than thesheer existence of states. One can

imagine a constitutional system inwhich geographically defined subdi-visions, called &dquo;states,&dquo; exist; inwhich the residents of each such sub-division are declared to be &dquo;citizens&dquo;

of that state; in which citizens of eachstate are protected from discrimina-tion by other states; in which thestates have some important constitu-tional role, for example, in electingkey officials in the national govern-ment ; but in which (1) the national

government is a government ofunlimited, rather than limited andenumerated, powers, and further (2)the national government, in the exer-cise of these powers, is free to definethe structure of state governmentand the rights and responsibilities ofstate officials, just as it is free to

define the structure of nationaladministrative agencies and therights and responsibilities of the per-sons who staff those agencies (Rubinand Feeley 1994, 910-15). It would becounterintuitive to describe thestates of this imaginary federal sys-tem as sovereign; and, in any event,these imaginary states do not havethe features that the Supreme Courtin Printz, New York, Lopez, Seminole

160

Tribe, and other such cases means toidentify when it invokes the conceptof state sovereignty

Just as state sovereignty meansmore than the sheer existence of

states, so it means less than sover-

eignty in the international-law sense(Rapaczynski 1985,346-59). Interna-tional sovereigns (nation-states) arecoequal; no such sovereign is eitherlegally subordinate, or legally su-preme, to any other. Where the lawsof two international sovereigns comeinto conflict, this clash is resolved byneutral choice-of-law rules that referto the territorial locus of the relevant

events, or the citizenry of the personsinvolved-not by a rule that gives au-tomatic priority to the laws of one na-tion-state over those of another. If, forexample, it were a principle of inter-national choice-of-law that the lawsof France always trumped the laws ofItaly, then Italy would not be prop-erly described as a full-fledged, inter-national sovereign. But the U.S. Con-stitution contains, quite explicitly, achoice-of-law rule that gives auto-matic priority to the laws of the na-tional government over state law(Gardbaum 1994, 770-73). Thus thesupremacy clause of Article VI:

This Constitution, and the Laws of theUnited States which shall be made inPursuance thereof ... shall be the su-

preme Law ofthe Land; and the Judges inevery State shall be bound thereby, anyThing in the Constitution or Laws of anyState to the Contrary notwithstanding.

What might state sovereignty in-volve, if not full coequality with thenational government, at one ex-

treme, and the mere existence of thestates, at the other? I have alreadyhinted at the answer. First, statescould be seen as sovereign in possess-ing governmental powers that arenot held by the national government(Rapaczynski 1985, 350-51). For ex-ample, if a unitary national govern-ment would have the power to regu-late all activities within theterritorial confines of the nation thataffect the welfare of its citizenry orsome part thereof, the national gov-ernment might be empowered to reg-ulate only those activities withmultistate welfare impacts-activi-ties that affect the well-being of citi-zens from multiple states-while thepower to regulate activities whosewelfare effects are wholly intrastatewould be reserved to the states. Sec-

ond, states could be sovereign inholding certain rights or entitle-ments against duly empowered na-tional action (Merritt 1988). TheConstitution could grant the na-tional government various powers(perhaps a wide set, perhaps a nar-rower subset) but then constrain thenational government from exercisingthese powers in a way that infringedcertain, constitutionally protectedinterests of the states, just as theFirst Amendment constrains the na-tional government from exercisingits powers in a way that infringes theconstitutionally protected interest ofindividuals in free speech.A particularly robust scheme of

state sovereignty would employ boththese strategies, while a yet strongerscheme would employ both and thenadd the feature of judicial enforce-ment (Sager 1978); constitutional

161

courts would be authorized to invali-date a federal statute that was

unsupported by any power constitu-tionally granted to the national gov-ernment or that was supported bysome such power but nonethelessviolated a state sovereignty con-straint (Yoo 1997).

So much for hypothetical constitu-tions. What about our actual Consti-tution ? First, does our Constitutionlimit the powers of the national gov-ernment and reserve regulatory pow-ers to the states? The answer-and itis hard to see how there could evenbe reasonable disagreement on thisscore-is yes. Article I, Section 8,enumerates the powers of Con-

gress-most significantly the powerset forth in the so-called commerceclause of Section 8, the power to &dquo;reg-ulate Commerce with foreignNations, and among the severalStates, and with the Indian Tribes.&dquo;Implicit in the fact of enumeration,and explicit in the Tenth Amend-ment, is the proposition (1) that Con-gress cannot legitimately enact astatute unless the statute is

grounded in some power-conferringclause contained in Article I, Section8, or elsewhere in the Constitution,and the further proposition (2) thatsome federal statutes will fail to bethus grounded. Why not say thatArticle I, Section 8, embodies theFramers’ view of the entire set of

powers justifiably held by unitarygovernments-and that state legis-lation, like federal legislation, isunconstitutional unless grounded insome clause of Article I, Section 8?The Tenth Amendment clearly pre-cludes this weird interpretation ofthat section. &dquo;The powers not

delegated to the United States by theConstitution ... are reserved to theStates.&dquo; In short, there are at leastsome types of legislation (such aslaws regulating wholly intrastateactivities) that the Constitution

permits states to enact but dis-empowers the national governmentfrom enacting. 10

More controversial is whether the

national-power-limiting feature ofthe Constitution should be enforced

by the U.S. Supreme Court or thelower federal courts (Moulton 1999;Yoo 1997). It would be quite possibleand, arguably, quite legitimate tohave a system of judicial reviewwhere Article I, Section 8, challengesto federal legislation were simplynonjusticiable. Indeed, during theyears between 1937 and the Lopezcase, the Supreme Court uniformlyrejected all such challenges (Tribe2000, 811-17), and some sophisti-cated constitutional thinkers arguedthat this was proper: the federalcourts should simply defer to Con-gress on the question of whether anational statute fell within the termsof a constitutionally enumeratedpower, or so it was and still is claimed

(Wechsler 1954; Choper 1980). Butthe more ambitious claim-that Arti-cle I, Section 8, is unbounded orbounded only by a proper under-standing of the powers that a unitarynational state would possess-isvery hard to swallow.

The states, then, are clearly sover-eign in the limited-national-powersense. Are they also sovereign in theconstrained-national-power sense?This is not an easy question. Tobegin, the Constitution is colorablyinterpreted as lacking any (non-

162

minimal) state sovereignty con-straint. And even if that interpreta-tion is rejected, it remains quiteunclear how we ought to delineatethe contours of the (nonminimal)constraint-how we should distin-

guish between permitted and prohib-ited uses of the powers laid out inArticle I, Section 8.

A STATE SOVEREIGNTYCONSTRAINT?

Let me start with the first point.Places in the constitutional textwhere the states are explicitlyaccorded rights against the nationalgovernment are few in number andrelatively minimal in importance-notably, Article I, Section 9’s prohibi-tion of federal taxes on exports fromany state and of federal preferencesfor the ports of one state overanother; Article IV, Section 3’s ban onthe creation of new states throughthe division or merger of old ones;and various references to the state

legislatures, implying that Congresscannot validly abolish them. Further,I see nothing unreasonable or plainlywrong in a reading of the Constitu-tion that envisions these as the onlysuch constraints. Indeed, such areading was seemingly adopted bythe Court in 1985, in the Garciacase.ll The question in Garcia waswhether the Fair Labor StandardsAct (FLSA), a national statute thatregulates the hours and wages ofemployees, could constitutionally beapplied to certain state employees aswell as the employees of privatefirms. Garciac answered the questionin the affirmative, thus overruling anearlier decision, National League of

Cities v. Usery,12 in which the Courthad held that considerations of state

sovereignty barred the application ofthe FLSA to state employees.The reader might wonder why

Congress has the constitutional au-thority to prescribe minimum wagesand maximum hours even for privatefirms, let alone for states and statesubdivisions. The answer is that the

post-New Deal Court has consis-tently interpreted the commerceclause as empowering congressionalregulation of intrastate activitiesthat &dquo;substantially affect&dquo; interstatecommerce (Tribe 2000, 811-24). Itwas clear in Garcia that the applica-tion of the FLSA to the state employ-ees at issue in the case satisfied thiswell-established test-and this wassufficient for constitutionality, in theCourt’s view. Gdrcia declined to find,in the Constitution, a state sover-eignty constraint that would warrantthe judicial invalidation of statutessatisfying the &dquo;substantial effect&dquo;test. The Court explained:

Apart from the limitation on federal au-thority inherent in the delegated natureof Congress’ Article I powers, the princi-pal means chosen by the Framers to en-sure the role of the States in the federal

system lies in the structure of the FederalGovernment itself.... The States werevested with indirect influence over theHouse of Representatives and the Presi-dency by their control of electoral qualifi-cations and their role in Presidentialelections.... They were given more directinfluence in the Senate, where each Statereceived equal representation and eachSenator was to be selected by the legisla-ture of his State....

... against this background, we are con-vinced that the fundamental limitation

163

that the constitutional scheme imposeson the Commerce Clause ... is one of pro-cess [that is, the federal political process]rather than one of results. 13

The excerpt from Gacrciac justquoted appears to adopt the viewthat the Constitution lacks any state

sovereignty constraints (beyond theexplicit and minimal constraints setforth in Article I, Section 9, and in Ar-ticle IV, which the Garcia Court men-tioned only in passing and presum-ably did not mean to disparage).Congress is constitutionally permit-ted to exercise its commerce clause

powers in a way that changes thestructure of state government, setsthe qualifications for state officers,and so forth; the states are notshielded from these outcomes by con-stitutional guarantees, but rather bythe structure of the national politicalprocess, which makes such outcomes

unlikely. Elsewhere, the GarciaCourt seems to take a different andless striking view: namely, that astate sovereignty constraint does ormay exist but is unenforceable bycourts.&dquo;’ Either way, the judicial out-come is the same: the Court in Garciaheld that no enforceable state sover-

eignty constraint barred the applica-tion of the FLSA to state employees,and it more generally suggested thatconsiderations of state sovereigntywould never (or almost never)15 war-rant judicial invalidation of thosefederal statutes that Article I, Sec-tion 8, empowered Congress to enact.

This is the backdrop for the anti-commandeering decisions, New Yorkand Printz. The statutory provisionstruck down in New York basically re-quired each state’s legislature to en-

act legislation providing for the dis-posal of low-level radioactive wasteproduced within that state. Crucially,the Court held that this provisionwas permissible under the substan-tial-effect test but nonetheless inval-idated the provision as an unconsti-tutional &dquo;commandeering&dquo; of statelegislatures. Printz extended NewYork by holding that the anti-commandeering doctrine protectedthe executive branch of state govern-ment as well as the state’s legisla-ture. The Brady Act, in relevant part,required certain state law enforce-ment officials to take &dquo;reasonable&dquo;

steps to investigate the legality ofpending gun sales. Such a require-ment violated state sovereignty, or sothe Court in Printz opined.

We held in New York that Congress can-not compel the states to enact ... a fed-eral regulatory program. Today we holdthat Congress cannot circumvent thatprohibition by conscripting the State’s of-ficers directly. The Federal Governmentmay neither issue directives requiringthe States to address particular prob-lems, nor command the States’ officers, orthose of their political subdivisions, to ad-minister or enforce a federal regulatoryprogram.... such commands are funda-

mentally incompatible with our constitu-tional system of dual sovereignty.16

THE ANTI-COMMANDEERINGDOCTRINE

What is commandeering? Paradig-matically, commandeering occurswhen Congress imposes a duty of leg-islation upon state legislatures or aduty of enforcement upon the stateexecutive branch. More generally, itseems, the Court in Printz and New

164

York means to preclude federal stat-utes that have the following charac-teristics : (1) the statutes are targetedat state legislative or executive offi-cials, rather than being generallyapplicable both to private partiesand to state officials; (2) the statutesimpose coercive duties upon statelegislative or executive officials (bycontrast, for example, with statutesthat merely require certain actionsby these officials as a condition forstate receipt of federal moneys); and(3) the statues impose affirmativeduties on the state officials, duties ofaction, rather than negative duties,duties of inaction (Adler and Kreimer1998, 74-95).As for the constitutional status of

the anti-commandeering rule, thereare two possible readings of NewYork and Printz. According to thefirst reading, the anti-commandeer-ing rule is a constitutional &dquo;con-

straint&dquo; (in the sense I have been dis-cussing) : a prohibition on targeted,coercive, and affirmative federalduties that is additional to, and sepa-rate from, the requirement that fed-eral legislation be grounded in anArticle I, Section 8, power. On thisreading, the anti-commandeeringrule is analogous to the First Amend-ment, or the explicit constraint onexport taxes set out in Article I, Sec-tion 9. According to the second read-ing of New York and Printz, theanti-commandeering rule is not a

separate such requirement butinstead is an internal limitation onthe scope of the commerce clause. Onthis reading, the substantial-effectdoctrine is only one part of the testfor deciding whether a statute is

empowered by the commerce clause.

The full test runs as follows: the fed-eral statute must (1) regulate anactivity with a substantial effect oninterstate commerce and (2) not con-stitute a commandeering of stateofficers.

I am inclined to adopt the firstreading of New York and Printz; theanti-commandeering rule is best

understood, I think, as a constrainton the commerce power rather thanan internal limitation. The con-straint view is better supported bythe text of the commerce clause. Theclause empowers Congress to &dquo;regu-late Commerce... among the Several

States,&dquo; which (together with the nec-essary and proper clause of Article I,Section 8, Clause 18) leads to the sub-stantial-effect test rather than themore complicated disjunctive testposited by the internal-limitationview. Further, the internal-limitationview gives rise to two structuralproblems that are avoided by the con-straint view:

1. According to the internal-limi-tation view, if Congress is prohibitedfrom exercising any of its Article I,Section 8, powers to impose affirma-tive, targeted, and coercive duties onthe states (as presumably Congressis), then the no-commandeering ruleshows up as a second clause in each ofthe Article I, Section 8, doctrines;this creates not only unnecessarycomplexity but also the risk that thesubstance of the anti-commandeer-

ing prohibition might vary fromclause to clause within Article I, Sec-tion 8.

2. The powers set forth in Article I,Section 8, can be seen to embody orreflect prima facie justifications for

165

federal lawmaking-for example, thefederal government is prima faciejustified in regulating interstateactivities, since such activities havemultistate welfare impacts-whichmust be balanced against the coun-tervailing considerations that are setforth elsewhere in the Constitution(for example, in the Bill of Rights) orare implicit in the Constitution’soverall design, and which may ren-der a particular instance of federallawmaking unjustified, all thingsconsidered. The internal-limitationview muddies this understanding ofconstitutional powers by construingthe commerce clause to incorporateboth a prima facie justification forfederal lawmaking (the existence of asubstantial effect on interstate

commerce) and one but not all of thecountervailing considerations thatmay undermine a particular federallaw.

I therefore interpret Printz andNew York as (re)establishing anenforceable and nonminimal state

sovereignty constraint. I say &dquo;(re)es-tablishing&dquo; because some such con-straint had been intermittently rec-ognized by the Court during earlierperiods of constitutional law, albeitnot in the specific shape of theanti-commandeering rule. The pre-New Deal Court repeatedly invokedstate sovereignty to invalidate fed-eral taxation of state institutions orofficers (Tribe 2000, 861-62, 866-67).State sovereignty was not an impor-tant consideration in the post-NewDeal case law prior to NationalLeague of Cities. That case set forth aconstraint (or perhaps an internallimitation on the commerce clause)

prohibiting federal action thatimpaired the states’ ability to &dquo;struc-ture integral operations in areas oftraditional governmental functions&dquo;and that satisfied a few other crite-ria.17 But the Court found it difficultto specify the content of the &dquo;tradi-tional governmental function&dquo; con-straint (Tribe 2000, 863-73), andNational League of Cities was over-ruled by Garcia. A decade later, inNew York and then Printz, the Courtshifted course once more and estab-lished the anti-commandeering rule.These cases did not overrule Garcia,since the statute upheld there wasnot commandeering (the duties it

imposed were generally applicable tostate and private actors alike, ratherthan being targeted at the states),but New York and Printz did departfrom the general view about statesovereignty articulated in Garcia,the view that the Constitution cre-ates no enforceable (and nonmini-mal) state sovereignty constraint.Even if I am incorrect in construingthe anti-commandeering rule as aconstraint rather than an internallimitation on the scope of the com-merce clause, New York and Printzremain highly significant cases sincein either event they (re)introducestate sovereignty as a considerationthat can prompt judicial invalidationof national statutes satisfying thesubstantial-effect test.

IS THE ANTI-COMMANDEERINGDOCTRINE JUSTIFIED?

Are New York and Printz rightlydecided? One line of criticism deniesthe existence of any state sovereigntyconstraint, beyond the constraints

166

explicitly set forth in the text of theConstitution. This view, as I have

already said, is a colorable one. Theview is colorable because it flowsfrom a colorable theory of constitu-tional interpretation, namely,textualism. The textualist insiststhat constitutional rights, powers,duties, constraints, and other ele-ments of the legal structure that wecall constitutional law derive fromthe text of the Constitution. More

precisely, the textualist (as I am

using that term) insists that consti-tutional rights, powers, duties,and so on derive from the text of theConstitution with a fairly highdegree of clarity and determinacy-paradigmatically, by flowing fromdiscrete and reasonably specific con-stitutional clauses (Bork 1990). A

right, power, and so forth that cannotbe linked to a discrete such clause-like the anti-commandeering rule or,more generally, any nonminimalstate sovereignty constraint-issuspect.

I am skeptical of textualism, forreasons developed at length by thevarious scholars who have advancednon-textualist accounts of constitu-tional interpretation (Brest 1980;Dworkin 1977; Fallon 1987; Grey1975; Perry 1982; Richards 1989).Some constitutional issues simplycannot be determinately resolved bythe text of the Constitution. (Forexample, the fundamental, method-ological debate between textualistsand non-textualists cannot be thusresolved. Even if the Constitutionwere to contain a pro-textualismclause, the non-textualist could legit-imately ask why the clause should bebinding, and the textualist would

have to answer that questionthrough general political and moralargument.) Many other constitu-tional issues are not, in fact, determi-nately resolved by the text of ourConstitution. To give two famousexamples: Marbury v. Madison18 heldthat the Supreme Court had thepower of judicial review, even thoughno discrete clause in the Constitutioncreates such a power; and the right ofprivacy recognized in Griswold v.

Connecticut’9 was located by theCourt in the &dquo;penumbra&dquo; of the Bill ofRights, since there is no separablelanguage in the Bill of Rights or else-where from which a privacy rightcould be said readily to derive. Eventhose constitutional rights, powers,and so forth that do derive from sepa-rable constitutional clauses often arenot determinately derivable. Forexample, the connection betweenexisting free speech doctrine, orequal protection doctrine, and thelanguage of the First Amendment, orthe equal protection clause, is highlyindeterminate and contestable.

If textualism is, indeed, an incor-rect account of constitutional inter-

pretation, why think that state sov-ereignty constraints are limited tothose minimal constraints set forthin Article I, Section 9, and in Arti-cle IV? The Constitution, read as awhole, suggests that the states arepolitical communities: they have&dquo;legislatures&dquo; (for example, Article I,Section 4) and &dquo;citizens&dquo; (for exam-ple, Article IV, Section 2), and theirpowers are guaranteed by the Con-stitution itself, rather than being del-egated and revocable by Congress.States are vehicles for political par-ticipation and democratic self-

167

governance ; all this is a reasonableinference from the text of the Consti-tution and from constitutional his-

tory (Friedman 1997, 389-94; Jack-son 1998, 2221; Merritt 1988, 7-8;McConnell 1987, 1507-11; Rapa-czynski 1985,395-408; Shapiro 1995,139). Imagine a federal law that pur-sues a legitimate federal end (thusfalling within an Article I, Section 8,power) and does not run afoul of theexplicit state sovereignty constraintsbut pursues its legitimate federalend in a way that subverts-deeplysubverts-the character of states as

political communities. (For example,imagine a federal law that requiresLouisiana citizens to vote in favor of

amending their state constitution toeliminate a provision that has hin-dered commercial ties between Loui-siana and other states.) Why insistthat such a law is constitutionallyvalid? Assume the Garcia Court wascorrect in its claim that states arewell represented in the nationalpolitical process (Wechsler 1954). Itdoes not follow that the national

political process is constitutionallyunconstrained, qua state sover-eignty Presumably, the states aregiven a special role in the nationalpolitical process just because theyare sovereign, and the recognition ofan implicit, nonjusticiable state sov-ereignty constraint would not func-tion to truncate the national politicalprocess.

The key word in the last sentenceis &dquo;nonjusticiable.&dquo; A justiciable-judicially enforceable-state sover-eignty constraint would truncate thenational political process, since thequestion of whether a given statuteviolated that constraint would be

finally resolved by the SupremeCourt rather than Congress. Garcia’spolitical-process argument is bestseen as an argument for theunenforceability of state sovereigntyconstraints rather than for their non-existence. But is the argument, thusunderstood, a persuasive one? Ithink not. The Constitution doesindeed structure the national politi-cal process in a way that is protectiveof states. Yet the most salient suchfeature-the election of senators on a

state-by-state basis-does not pro-tect state institutions. Rather, itserves to advance the shared inter-ests of those persons who reside ineach state; it makes each such collec-tivity a potent &dquo;interest&dquo; group(Kramer 2000, 221-27). If a senatorcan maximize the satisfaction of hisconstituents’ interests through fed-eral legislation that interferes withstate governments-for example, bycommandeering state officers, as didthe Brady Act-he will vote in favorof that legislation.2° Other constitu-tional provisions give state legisla-tors some role in national politics, forexample, in designing congressionalelectoral districts. Here, too, it is

questionable whether the states quapolitical communities are signifi-cantly protected (Kramer 2000, 226-27). First, the role of state legislatorsin shaping the national governmenthas significantly diminished over thelast century; state legislators no lon-ger choose senators (as they did priorto the Seventeenth Amendment)and, as a result of the Court’s votingrights jurisprudence, are much lessfree to shape electoral districts. Sec-ond, a state legislator will presum-ably use his various constitutionally

168

allocated powers to maximize thesatisfaction of his constituents’ inter-ests and therewith his own chancesof reelection. Whether a reelection-

maximizing state legislator is likelyto advance, or impair, state sover-eignty is an open question.

I thus believe that Printz and NewYork were correct to recognize someenforceable state sovereignty con-straint not derivable from discreteconstitutional clauses.&dquo; The casesare, on this level, rightly decided. Butthey remain vulnerable to a differ-ent, less sweeping criticism, namely,that considerations of state sover-

eignty justify some enforceable ruleother than an anti-commandeeringrule (Jackson 1998, 2246-59).

ALTERNATIVE FORMULATIONSFOR A STATE SOVEREIGNTY

CONSTRAINT

To begin, there is plenty of evi-dence that the Framers ofthe Consti-tution intended to recognize sover-eign states-genuine politicalcommunities, not merely subdivi-sions of the national government-but no strong evidence that theyintended to implement notions ofstate sovereignty through an anti-commandeering rule. The putativehistorical case for that rule, set forthby the Court in Printz, is unpersua-sive (Caminker 1995, 1042-50; 1997,209-12). To be sure, the anti-com-mandeering rule would be constitu-tionally justified, even absent strongtextual or historical grounding, if itwere the case that the concept ofstate sovereignty implied such a rule;but this is not the case, as ProfessorSeth Kreimer and I recently argued

at length in an article entitled &dquo;TheNew Etiquette of Federalism: NewYork, Printz and Yeskey&dquo; (Adler andKreimer 1998). We there tried toshow that the distinctions central tothe anti-commandeering rule-between permissible negative dutiesand impermissible affirmative ones;between the permissible enactmentof generally applicable laws and theimpermissible targeting of thestates; between permissible encour-agement of state officials to takeaction and the impermissible coer-cion of such officials; between thepermissible imposition of targeted,coercive, affirmative duties on statejudges and the impermissible impo-sition of such duties on state legisla-tors and executive officials-are notreleuacnt distinctions in light of feder-alism values and, specifically, in lightof the states’ status as politicalcommunities.

Consider the affirmative-negativedistinction. The anti-commandeeringrule prohibits the federal govern-ment from coercing state legislatorsor executive officials to enact orenforce a particular law, but it doesnot prohibit the federal governmentfrom coercing state legislators orexecutive officials to refrain from

enacting or refrain from enforcing alaw. Why the difference? In eitherevent, the state officials and, deriva-tively, the state citizenry aredeprived of a policy choice. Absentfederal intervention, the state maychoose between regulating a givenactivity and leaving it unregulated.Impermissible federal commandeer-ing deprives the state of the deregu-latory option; the permissible imposi-tion of negative federal duties

169

deprives the states of the regulatoryoption. But the concept of state sover-eignty is not biased toward deregula-tion ; each type of federal interventionreduces the state’s vitality andautonomy as a political community.Kreimer and I flesh out this analysisin &dquo;The New Etiquette&dquo; and presentparallel critiques of the coercion-encouragement, targeted-generallyapplicable, and judge-legislator orexecutive distinctions.What are the alternatives to the

anti-commandeering rule? Considersome possibilities. First, theSupreme Court and lower federalcourts might simply decide, on acase-by-case basis, whether a partic-ular federal statute seriously under-mined state sovereignty or politicalcommunity; the concepts of state sov-ereignty and political communitycould play a direct role in constitu-tional adjudication, rather thanbeing translated into doctrinal ruleslike the anti-commandeering rule orNational League of Cities’ &dquo;tradi-tional governmental function&dquo; rule.Such rules are more determinate,and easier to apply, than the underly-ing concepts, but precisely for thatreason the rules are not completelyfaithful to the concepts; some federalstatutes that are genuinely viola-tions of state sovereignty will be per-missible under a given rule, and viceversa. Second, the Court could put inplace a rule different from the anti-commandeering rule. The subse-quent history of National League ofCities impeaches the &dquo;traditional

governmental function&dquo; rule, but it ishardly the case that this is the onlyrule-based alternative to Printz andNew York. Some commentators have

suggested that the Court shouldinvalidate federal statutes thatchange the structure of state govern-ments, as opposed to statutes thatmerely impose duties on (or other-wise induce action or inaction by)state officials (Tribe 2000, 912-20).Paradigmatic would be federal stat-utes (enacted under the commerceclause, as opposed to Congress’s spe-cial power to enforce the Fourteenthand Fifteenth Amendments) thatspecified state voting qualificationsor electoral districts, the size of thestate legislature, the procedures forlegislation, or the separation of pow-ers between the legislature and thestate’s executive branch (Merritt1988,37-55).

Perhaps the structural-nonstruc-tural distinction would prove as inef-fable as the distinction between tra-ditional and nontraditional statefunctions. If so, a more specific rule orset of rules might be crafted that dis-tinguished between those processesand institutions that are central tothe democratic self-governance of thestate (the voting process, the legisla-ture) and those processes and insti-tutions that are less central. Con-

sider, for example, a doctrine thatprohibited Congress from imposingany duties (positive or negative) onstate legislators, on the state gover-nor (insofar as he or she has a role inthe legislative process), or on statevoters but permitted the impositionof any duties (positive or negative) onstate enforcement officials or judges.Such a rule would be no more diffi-cult to apply than the anti-comman-deering rule; it would cohere with thesupremacy clause (since the stateofficials who apply state law to

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particular cases-that is, enforce-ment officials or judges-would inany case of conflict between federal

and state law give effect to the fed-eral law) ; and it would better effectu-ate the underlying concept of statesovereignty than the anti-comman-deering rule, since it would leave thestate’s legislative process entirelyunconstrained by federal statutorylaw.

I believe, then, that the Court’sadoption of the anti-commandeeringrule in Printz and New York was mis-

taken ; but let me also emphasize thatthis was not an obvious or clear error.Printz and New York are not only sig-nificant decisions, for reinstating anonminimal state sovereignty con-straint within enforceable constitu-tional doctrine. They are also harddecisions, hard because the doctrinalspecification of state sovereignty issubtle and difficult-as the tortuous

path from the immediate post-NewDeal period, to National League ofCities, to Gacrciac, and finally to Printzand New York demonstrates. Notethat there has been no comparablevacillation in defining the basicstructure of many other constitu-tional doctrines, such as equal pro-tection doctrine (which since the NewDeal has been grounded on the prohi-bition against discrimination) or freespeech doctrine.

Is the game worth the candle?Does the vacillation amount to a per-suasive argument for the non-enforcement of the state sovereigntyconstraint-an argument morecogent than the political-processargument sketched in Garcia-namely, that the Supreme Court isincompetent to specify the content of

state sovereignty? I think not. Theissue is not absolute but relative

competence (Komesar 1994), and Isee no reason why Congress is bestpositioned to decide the hard issuesposed in the anti-commandeeringcases. The Court should, I suggest,continue to struggle with the mean-ing of state sovereignty; and the deci-sions in Printz and New York meanthat the Court will continue thus to

struggle, at least for now.

Notes

1. 505 U.S. 144 (1992).2. Id. at 161.3. 521 U.S. 898 (1997).4. 120 S. Ct. 666 (2000).5. Id. at 672. An important recent case

closely related to New York, Printz, and Con-don is Alden v. Maine, 527 U.S. 706 (1999), inwhich the Court grounded so-called sovereignimmunity doctrine—a doctrine that shieldsthe states from lawsuits—in unwritten consti-tutional principles of state sovereignty ratherthan in the text of the Eleventh Amendment.

Space limitations prevent me from discussingin this article sovereign immunity doctrineand its interesting connections to theanti-commandeering doctrine.

6. 514 U.S. 549 (1995).7. 120 S. Ct. 1740 (2000).8. 517 U.S. 44 (1996).9. 527 U.S. 706 (1999).

10. See, for example, Morrison, 120 S. Ct. at1754 ("The Constitution requires a distinctionbetween what is truly national and what istruly local.... The regulation and punishmentof intrastate violence that is not directed at the

instrumentalities, channels, or goods involvedin interstate commerce has always been theprovince of the States.").

11. Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528 (1985).12. 426 U.S. 833 (1976).13. Garcia, 469 U.S. at 550-51, 554.14. See id. at 547.15. See id. at 556.16. Printz, 521 U.S. at 935.17. Garcia, 469 U.S. at 537.

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18. 5 U.S. (1 Cranch) 137 (1803).19. 381 U.S. 479 (1965).20. More precisely, senators can be pre-

dicted to be responsive to the politically mobi-lized or organized segments of the state citi-zenry, rather than to the state citizenry as awhole. This qualification does not change thebasic point here, that the state-by-state elec-tion of senators does not function to safeguardthe sovereignty of state governments.

21. I do not have the space here to fully de-fend this view. I have just sketched a rebuttalto Garcia’s argument for the nonjusticiabilityof state sovereignty constraints; but there areother plausible arguments for non-

justiciability (Kramer 2000), and a full defenseof the claim that such constraints should be ju-dicially enforced would need to rebut these ar-guments.

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