Copyright: 1999 George Mason Law Review. All rights reserved. Reproduced by permission.

Transcription

1 Copyright: 1999 George Mason Law Review. All rights reserved. Reproduced by permission.

2 420 GEO. MASON L. REV. [VOL. 7:2 that the federal judiciary should act as the defender of state sovereignty in the face of congressional overreaching. 7 Less than a decade later, however, in Garcia v. San Antonio Metropolitan Transit Authority, the Court reversed National League of Cities and instead adopted the rationale that the political process, standing alone, best protected federalism interests. 8 Although the Court in Garcia appeared to conclude that the best course would be to allow the people to vindicate states rights through the electoral process, the 1990s have witnessed the Supreme Court once again reasserting a place for the federal judiciary in the regulation of federalstate relations. In New York v. United States 9 and Printz v. United States 10 the modern Court has developed a theory that forbids the federal government from delegating responsibility to state governments without full funding unfunded mandates. In part, the Court has justified this new approach to federalism as guaranteeing more reliable accountability between citizenvoters and legislators. Essentially, the Court has breathed life back into the divided sovereignty theory of National League of Cities by flipping Garcia s political accountability rationale on its head. The vertical restrictions created by the new doctrine have a similar effect to the types of limitations the pre-new Deal Court placed on both vertical and horizontal governmental relations. This Comment assesses the Court s new Tenth Amendment jurisprudence through the prism of public choice theory. Part I introduces the fundamental principles of public choice analysis and illustrates the implications of that analysis for constitutional theory. Part II discusses the background of the Tenth Amendment and explains how the Supreme Court s jurisprudence has severed Tenth Amendment analysis from other forms of federalism analysis. Part II also introduces the concept of the horizontal nondelegation doctrine, a judicially imposed theory that seeks to prevent the improper delegation of legislative authority by the Congress to coequal branches of the federal government. The judicial construct in horizontal nondelegation cases bears a striking resemblance to the Court s new doctrine disallowing delegation of federal duties to the states without allocating sufficient funds, which this Comment describes as the vertical nondelegation doctrine. 11 VAND. L. REV. 1563, (1994) (calling this the territorial model ). 7 National League of Cities, 426 U.S. at Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556 (1985) U.S. 144 (1992) S. Ct (1997). 11 The terms horizontal and vertical should help to clarify whether the discussion refers to the nondelegation doctrine that prohibits congressional delegation of authority to a coequal federal branch ( horizontal ), or to the one that prohibits congressional delegation of authority without funding to the states ( vertical ). Traditionally, the academic literature has referred to the horizontal

3 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 421 Part III of this Comment explores the details of the Court s new Tenth Amendment jurisprudence, with particular emphasis on the political accountability principle. Using public choice interest group theory, Part IV explains that the Court s Tenth Amendment jurisprudence elaborated in New York and Printz has unwisely created a new vertical nondelegation doctrine. This Comment concludes that the vertical nondelegation rationale created in New York and Printz fails to vindicate the rights of the people 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 issues of federalism through electoral politics. I. PUBLIC CHOICE THEORY Public choice theory is a hybrid: the application of the economist s method to the political scientist s subject. 12 Like economics, the assumption of individual rationality underlies all public choice theory. 13 There exist two main branches of public choice analysis: interest group theory and social choice theory. 14 This Comment refers exclusively to interest group theory. Interest group theory investigates how organized interest groups interact with legislators and other political actors. Generally, the theory has shown that discrete, well-organized groups can procure disproportionate social, political and economic benefits through collective action. 15 An important corollary of interest group theory holds that legislators may claim no immunity from self-interest. In fact, interest group theory assumes that legislators are rational vote-seeking individuals motivated in large part by the overriding goal of reelection. 16 nondelegation doctrine as simply the nondelegation doctrine. See, e.g., JERRY L. MASHAW, GREED, CHAOS, & GOVERNANCE 140 (1997). This Comment is the first to suggest a vertical nondelegation doctrine. 12 DANIEL A. FARBER & PHILIP P. FRICKEY, LAW & PUBLIC CHOICE 1 (1991); see also Maxwell L. Stearns, Restoring Positive Law & Economics, 6 GEO. MASON L. REV. 709, 710 (1998) [hereinafter Stearns, Positive Law & Economics] ( Public choice applies the tools of economics to the subject matter of political science. ). 13 See David J. Skeel, Public Choice and the Future of Public-Choice-Influenced Legal Scholarship, 50 VAND. L. REV. 647, 651 (1997) (book review). 14 See MAXWELL L. STEARNS, PUBLIC CHOICE AND PUBLIC LAW xix (1997). Although generally considered a separate issue, game theory often adds an important component to social choice theory. See Stearns, Positive Law & Economics, supra note 12, at 710 n See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION 134 & n.4 (1965) (discussing how lobbying groups will usually seek to procure political, social and economic benefits through collective action). 16 See MORRIS P. FIORINA, CONGRESS 37 (2d ed. 1989) ( [T]he primary goal of the typical congressman is reelection. ).

4 422 GEO. MASON L. REV. [VOL. 7:2 A. Connecting Public Choice Interest Group Theory to Constitutional Theory Interest group theory parallels the constitutional theories of James Madison, just as modern microeconomics tracks Adam Smith s Wealth of Nations. 17 In The Federalist No. 10, Madison anticipated the problem of interest groups as he discussed the causes of faction. 18 He defined faction: By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. 19 Madison s definition of faction, whether meant to describe political parties or merely interest groups, parallels the definition of modern public choice interest group theory. Just as public choice theory suggests that selfinterested rationality pervades any understanding of politics, Madison fully understood that [t]he latent causes of faction are... sown in the nature of man The structure of the federal government developed in the Constitution sought to control faction and self-interest. To Madison, the chief difficulty in framing the government consisted in finding a workable structure to enable the government to control the governed; and in the next place oblige it to control itself. 21 While the Constitution included both a separation of powers component between legislative, executive and judicial branches within the federal government and a division of powers component between federal and state governments these instruments served a secondary role. Madison explained: A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. 22 Checks and balances served as only auxiliary precautions. The vigilance and virtue of the people 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.

5 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 423 less to be remembered that they are neither the sole nor the chief palladium of constitutional liberty. The people who are the authors of this blessing, must also be its guardians. 23 Madison understood that the people served as the ultimate guardians of federalism. In the final analysis, the people must hold Congress and the executive accountable for actions that may interfere with state sovereignty. Madison fully understood that frequent elections, not judicial intervention, provided the best check on overreaching by federally elected officials. 24 Public choice interest group theory allows modern observers to evaluate Madison s theory that elected officials will be accountable to the people through elections. B. Interest Group Theory Applied to the Judiciary Interest group theory also suggests that the judiciary is not immune from rational self-interested behavior. 25 As one commentator notes: Interest group theory gives us no reason to think that whatever comes into a Justice s head (or was within that head but unknown or unappreciated at the time of appointment) will produce better social policy than a more politically responsive process. 26 Thus, the Court is not unaffected by election results and pays particular attention to its own constituencies, such as the Department of Justice, the solicitor general, counsel for federal agencies, states attorneys general, and the legal profession at large. 27 Most fundamental for purposes of this Comment is Professor Herbert Wechsler s insight that the Court is on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states, whose representatives control the legislative process and... have broadly acquiesced in sanctioning the challenged Act of Congress. 28 Furthermore, because the judiciary lacks the power to remain inert, courts may be vulnerable to path manipulation by litigants 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 the government in general should have a common interest with the people and can best keep an immediate dependence and intimate sympathy with the people by frequent elections). 25 See, e.g., Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 S. CT. ECON. REV. 1, 2 (1993) (suggesting a judicial utility function made up of income, leisure and judicial voting). 26 Einer R. Elhauge, Does Interest Group Theory Justify More Intensive Judicial Review?, 101 YALE L.J. 31, 87 (1991). 27 See generally DAVID M. O BRIEN, STORM CENTER (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). Although Wechsler is not considered a public choice theorist, his views are in accord with public choice theory. 29 STEARNS, supra note 14, at 714; see also Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219, 1259 (1994) (noting that the power to do nothing, proves to be the single most important Arrovian difference between Congress and the Supreme Court ). The idea of

6 424 GEO. MASON L. REV. [VOL. 7:2 In The Federalist No. 78, Alexander Hamilton echoed Madison s insight that accountability to the people should temper a wide-ranging judicial review. Hamilton noted that a theory of judicial review does not by any means suppose a superiority of the judicial to the legislative power. It only supposes the power of the people is superior to both Hamilton concluded that where the will of the legislature... stands in opposition to that of the people... the judges ought to be governed by the will of the people. 31 Once again the touchstone of the constitutional process rests with the people. Public choice and constitutional theory both suggest that the Court should avoid striking down federal legislation on grounds of federalism, unless the Court can justify the action as assisting the people to evaluate the political accountability of elected officials. Judicial review that intrudes upon the political process must have a comparative advantage over the political process. 32 II. NONDELEGATION THROUGH THE PRISM OF FEDERALISM The United States Supreme Court has used several different clauses of the Constitution to circumscribe federal power relative to the states. 33 The Commerce Clause 34 and the Tenth Amendment 35 have received the most attention in placing limitations on the federal government, although the Court has also imposed limitations on the federal government based on the 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 two litigants immediately and usually adheres to stare decisis. The Supreme Court (and other courts) can only partially counteract path manipulation by using standing and other constitutional and prudential doctrines allowing a court to avoid decision. See Maxwell L. Stearns, Standing and Social Choice: Historical Evidence, 144 U. PA. L. REV. 309, 330 (1995) ( While standing does not cure the path dependency that results from presumptive adherence to stare decisis on the Supreme Court and within the circuits, standing ameliorates path dependency s most damaging effects by rendering path manipulation substantially more difficult. ). 30 THE FEDERALIST NO. 78, at (Alexander Hamilton) (Clinton Rossiter ed., 1961). 31 Id. at See Elhauge, supra note 26, at 67 ( Interest group theory can justify more intrusive judicial review only if it shows that the litigation process has some comparative advantage over the political process. ). 33 On the flip side, the Constitution places innumerable limitations on the states throughout both the originally ratified Constitution and the 27 Amendments. See, e.g., U.S. CONST. art. VI, cl. 2 ( This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land.... ). 34 Id. art. I, 8, cl Id. amend. X. 36 Id. amend. XI ( The 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 of another State, or by Citizens or Subjects of any Foreign State. ). Most recently, the Court held that the Eleventh Amendment prevents Congress from authorizing suits by American Indian tribes, or any other private party: Even when the Constitution vests in Congress complete law-making authority

7 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 425 distinct inquiry from the Tenth Amendment, 37 the Court has suggested that in cases involving the division of authority between federal and state governments... the two inquiries are mirror images of each other. 38 The limited scope of this Comment focuses primarily on the Tenth Amendment, but will consider Commerce Clause cases to the extent they bear on the horizontal and vertical nondelegation doctrines. The pre-new Deal Commerce Clause and horizontal nondelegation doctrines provide a ready starting 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 the Commerce Clause and the Horizontal Nondelegation Doctrine The horizontal nondelegation doctrine dates from the nineteenth century and remains a widely discussed doctrine today, 39 even if neutered in practice. 40 The horizontal nondelegation doctrine is a judicially imposed limitation on delegations of legislative authority from the Congress to a coequal branch of the federal government. 41 The Court fully articulated the nondelegation doctrine in Field v. Clark, stating [t]hat congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution. 42 For four decades, the Court continued to refine the horizontal nondelegation doctrine without ever using it to strike down congressional legislation. 43 over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. 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 substantial effect Commerce 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 that [e]xtortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce ). 38 New York v. United States, 505 U.S. 144, 156 (1992). 39 See Clinton v. City of New York, 118 S. Ct. 2091, (1998) (Breyer, J., dissenting). 40 See Industrial Union Dep t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 646 (1980) (using the nondelegation doctrine in the construction of [a] statute that avoids an open-ended grant ); see also Touby v. United States, 500 U.S. 160 (1991) (rejecting a nondelegation challenge to congressional legislation). 41 See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, (1825) ( It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. ). 42 Field v. Clark, 143 U.S. 649, 692 (1892). The nondelegation doctrine finds original constitutional authority in Article I, section 1 of the Constitution: All Legislative Powers herein granted shall be vested in a Congress.... U.S. CONST. art. I, See United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932) ( That the legislative power of Congress cannot be delegated is, of course, clear. ); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (requiring that an intelligible principle must guide a congressional delegation to withstand constitutional muster); Wichita R.R. & Light Co. v. Public Utilities

8 426 GEO. MASON L. REV. [VOL. 7:2 Rather than focus on the separation of powers principles underlying the nondelegation doctrine, 44 the pre-new Deal Court imposed limitations on congressional power to pass progressive legislation based on the Commerce Clause. 45 For example, in Hammer v. Dagenhart, the Court suggested that child labor legislation exceeded Congress s grant of authority under the Commerce Clause by invading a matter purely local in its character, and over which no authority has been delegated to Congress in conferring the power to regulate commerce among the states. 46 The choice of verb to describe congressional action had nothing to do with the nondelegation doctrine or separation of powers, but had everything to do with the language of the Tenth Amendment. 47 The Tenth Amendment, in fact, includes the only reference in the Constitution to the word delegated. 48 The coincidence proved convenient. While remaining separate doctrines, the horizontal nondelegation doctrine 49 and the Commerce Clause limitations 50 on congressional power coalesced into a one-two punch to limit New Deal legislation. In A.L.A. Schechter Poultry Corp. v. United States, the two doctrines appeared side by side for the first time to strike down legislation. 51 The congressional Comm n, 260 U.S. 48, 59 (1922) ( In creating... an administrative agency, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. ). 44 This era, the Lochner era, bears the name of the most infamous case striking down state labor legislation. Lochner v. New York, 198 U.S. 45 (1908); see 1 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW 4.6, at (2d ed. 1992). 45 See, e.g., Bailey v. Drexel Furniture Co., 259 U.S. 20, 39 (1922) (using the Tenth Amendment and analogy to Commerce Clause cases to limit congressional taxing power); Hammer v. Dagenhart, 247 U.S. 251, 275 (1918) ( The power of the states to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent and has never been surrendered to the general government. ), overruled by United States v. Darby, 312 U.S. 100 (1941); Adair v. United States, 208 U.S. 161, 180 (1908) (holding that a labor law making it criminal to fire union workers did not fall within Congress Commerce Clause power and therefore violated the Fifth Amendment) overruled in part by Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941); United States v. E.C. Knight Co., 156 U.S. 1, 13 (1895) (limiting the application of antitrust laws to exclude manufacturing within one state by noting that [t]he fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce.... ). 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 ( The Powers delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people. ). 49 The Court struck down congressional legislation based on the horizontal nondelegation doctrine for the first time in Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). The Court held: When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. Id. at See Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330, 368 (1935) (concluding that pensions lie outside the orbit of congressional power under the Commerce Clause). 51 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

9 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 427 legislation challenged in Schechter Poultry delegated powers to executive administrative agencies to regulate the poultry industry, arguably a wholly intrastate activity. First, the Court held that Congress had failed to prescribe adequate standards to the relevant executive administrative agency, with the result that the code-making authority thus conferred [was] an unconstitutional delegation of legislative power. 52 Second, the Court found that the slaughter of poultry created only an indirect effect upon interstate commerce. Consequently, the federal regulation of hours and wages of poultry workers failed to fall within the grant of congressional power under the Commerce Clause. 53 In Carter v. Carter Coal Co., the Court again struck down a New Deal statute after analyzing the statute against the horizontal nondelegation doctrine and the Commerce Clause. 54 The statute at issue delegated authority to mining companies to set rates that could be charged by competitors. 55 The Court found this innovation to be a legislative delegation in its most obnoxious form; for it is not even delegation to an official... but to private persons whose interests may be... adverse to the interests of others in the same business. 56 Ultimately, however, the Court in Carter Coal based its decision on Schechter Poultry s Commerce Clause analysis, which suggested Congress had exceeded its authority by attempting to regulate wholly intrastate commerce. 57 Schechter Poultry and Carter Coal represented the high water mark of judicially imposed limits on congressional regulation of individuals under the Commerce Clause and legislative delegations to a coequal branch under the horizontal nondelegation doctrine. B. Forty Years of Carte Blanche Authority to Congress: The Disappearance of the Horizontal Nondelegation Doctrine and Tenth Amendment Restrictions on the Commerce Clause In 1937, President Franklin D. Roosevelt, buoyed by a landslide reelection in 1936, proposed a plan to pack the Court with Justices who would uphold New Deal legislation. 58 The plan failed, but the political pressures generated by this famous court packing plan convinced two Justices to reverse their positions on the Commerce Clause and the horizontal non- 52 Id. at See Id. at Carter v. Carter Coal Co., 298 U.S. 238 (1936). 55 See id. at Id. 57 Id. at (discussing Schechter Poultry, 295 U.S. at 546, 549, as presenting the same issue). 58 See HENRY J. ABRAHAM, FREEDOM AND THE COURT 13 (5th ed. 1988).

10 428 GEO. MASON L. REV. [VOL. 7:2 delegation doctrine. 59 In NLRB v. Jones & Laughlin Steel Corp., the Court once again addressed the questions of nondelegation and the limits of the Commerce Clause. 60 The Court found Carter Coal and Schechter Poultry were not controlling here. 61 In short order, the Court reversed itself and upheld as constitutional both the delegation to the executive agency and the regulation of activities affecting interstate commerce. 62 One constitutional scholar has noted, In the years after 1937, the Supreme Court essentially offered the Congress carte blanche to regulate the economic and social life of the nation, its actions subject only to the requirements of the Bill of Rights. 63 At the same time, the Supreme Court habitually discounted the importance of the Tenth Amendment. In United States 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] declaratory of the relationship between the national and state governments.... From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. 64 The Court effectively eviscerated the Tenth Amendment by allowing the Congress to regulate every manner of activity, including alleged equal protection violations, 65 under the Commerce Clause so long as that activity affected interstate commerce in some conceivable way. 66 Since the New Deal, the Court has likewise gutted the horizontal nondelegation doctrine by permitting virtually any congressional delegation of power to the executive and judicial branches. In the landmark case of Yakus v. United States, 67 the Court explicitly departed from its prior ruling in Field v. Clark, 68 holding that Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative [executive] officers. 69 In other words, 59 The changed position is known as the switch in time that saved nine. See id. The first signal of the switch occurred in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937), where the Court deferred 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 (discussing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and Carter Coal, 298 U.S. at ). 62 Id. at 43, 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 that the Commerce Clause did not bar Congress from using agricultural quotas) U.S. 414 (1944) U.S. 649, 692 (1892). 69 Yakus, 321 U.S. at

11 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 429 Congress could delegate to the executive branch tremendous discretion in creating regulations to effect the purposes of the delegation. 70 In Lichter v. United States, the Court went so far as to suggest that an unconstitutional delegation of... legislative power is not capable of precise definition. 71 Without the willingness to place a precise definition on the limits of congressional delegation, the Court opted instead to merely limit the reach of legislation based on statutory construction rather than constitutional principle. 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 state sovereignty instead of federal action directed at private individuals. 73 While explaining why the Tenth Amendment was inapplicable in Fry v. United States, the Court suggested that the Tenth Amendment... expressly declares the constitutional policy that Congress may not exercise power in the fashion that impairs the States integrity or their ability to function effectively in a federal system. 74 This language signaled a change from prior holdings, such as Maryland v. Wirtz, which had suggested that the Federal Government, when acting within a delegated power, may override countervailing State interests whether these be described as governmental or proprietary in character. 75 In National League of Cities v. Usery, 76 the Court found an opportunity to reconsider the constitutionality of the Fair Labor Standards Act, the statute considered in Wirtz and an earlier case, United States v. California. 77 In National League of Cities, the Court found that the Tenth Amendment prohibited application of the minimum wage and overtime provisions of the Fair Labor Standards Act to employees of state governments. 78 Justice Rehnquist explained for the Court that the States as 70 See Lichter v. United States, 334 U.S. 742, 778 (1948) ( A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes. ) (emphasis omitted). 71 Id. at See Industrial Union Dep t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 646 (1980) (using the nondelegation doctrine in the construction of [a] statute that avoids an open-ended grant ). 73 See TRIBE, supra note 63, 5-22, at 387 ( The Court s opinions had sounded such a note for several years, and past the mid-1970s the signals had become both louder and more frequent. ) (footnotes 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) U.S. 833 (1976) U.S. 175 (1936). 78 National League of Cities, 426 U.S. at 851 (noting that both the minimum wage and the

12 430 GEO. MASON L. REV. [VOL. 7:2 States stand on a quite different footing from an individual or a corporation when challenging the exercise of Congress power to regulate commerce. 79 National League of Cities signaled that the Tenth Amendment limited congressional legislation that regulated the states, as opposed to the citizens within the states. 80 Yet, the Court failed to articulate a workable test to implement this new territorial theory 81 that allocated regulatory authority based on whether states or the federal government had traditionally regulated in these areas. 82 After National League of Cities, the Court created unworkable multipronged balancing tests 83 that failed to give significant guidance to lower federal courts. 84 Yet, if the tests offered little clarity, then the Court s consistent rulings upholding federal laws against Tenth Amendment challenges only served to further confuse the issue. 85 Hodel v. Virginia Surface Mining and Reclamation Ass n 86 and FERC v. Mississippi 87 served as the two most important exemplars of this confusion, because in each case the Court upheld the federal statutes at issue while claiming to be faithful to National League of Cities. In Hodel, a private association of coal producers challenged the constitutionality of a federal law that regulated land use maximum hour provisions will impermissibly interfere with the integral governmental functions of States and their political subdivisions ). 79 Id. at 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, (1946) (Stone, C.J., concurring)). 81 See Merritt, supra note 6, at See National League of Cities, 426 U.S. at Justice Marshall, who had joined Justice Brennan s 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 States as States. Second, the federal regulation must address matters that are indisputably attribute[s] of state sovereignty. And third, it must be apparent that the States compliance with the federal law would directly impair their ability to structure integral operations in areas of traditional governmental functions. Hodel v. Virginia Surface Mining and Reclamation Ass n, 452 U.S. 264, (1981) (citations omitted). Justice Marshall then proceeded to limit the three-part test with a balancing test: There are situations in which the nature of the federal interest advanced may be such that it justifies state submission. Id. at 288 n.29. The Court implemented Hodel s three-part test limited by a balancing test on several occasions without striking down the contested federal law. See, e.g., FERC v. Mississippi, 456 U.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 ( Application of tenth amendment standards became difficult for lower courts because... in no Supreme Court case following National League of Cities did the Court in fact rule that a federal law could not be applied to state or local governments.... ). 85 See FERC, 456 U.S. at 765 (upholding the application of Public Utility Regulatory Policies Act to state and local governments); EEOC v. Wyoming, 460 U.S. 226, (1983) (upholding the application of the Age Discrimination in Employment Act to state and local governments); Hodel, 452 U.S. at (upholding the application of the Surface Mining Control and Reclamation Act of 1977 to state and local governments) U.S. at U.S. at

13 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 431 planning. 88 In addressing the alleged violations of the Tenth Amendment and the Commerce Clause, the Court ruled unanimously against the coal producers. 89 Justice Marshall, writing for the Court, quickly disposed of the Commerce Clause claim and then turned to the coal producer s Tenth Amendment claim that the federal law s regulation of land use planning interfered with an area of law traditionally regulated by the states. 90 Justice Marshall argued that the law at issue did not transgress the Tenth Amendment because there can be no suggestion that the [Surface Mining] Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. 91 Instead, the facts of Hodel presented what Marshall described as a program of cooperative federalism, 92 under which the states and the federal government worked together. While the Court ruled unanimously, Justice Rehnquist, joined by two other justices, suggested in concurrence that the post-new Deal Commerce Clause jurisprudence inadequately restricted congressional delegations. 93 Yet none of the justices took the Court s Tenth Amendment analysis to task. In FERC v. Mississippi, the Court reiterated its ruling in Hodel and once again upheld a federal statute that regulated state actors on the ground that the federal statute did not commandeer the legislative processes of the States. 94 This time, however, four justices objected to the Court s Tenth Amendment analysis and came to a contrary conclusion by suggesting that the federal government could not compel[] state agencies to function as bureaucratic puppets. 95 The failure to articulate a workable test for lower courts, the unwillingness of the Court to find any legislation unconstitutional following National League of Cities, and the growing divisions in the Court seemed to spell the end of any Tenth Amendment limitations on federal regulation of states as states. D. The Rise of the Political Process Model After National League of Cities, critics of the Court argued that judicial review of federal regulation of states as states should be a nonjusticiable issue and left to the political branches. 96 Post-New Deal observers, 88 Hodel, 452 U.S. at 268, See id. at 268, See id. at Id. at 288 (emphasis added). 92 Id. at 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, (1982) (quoting Hodel, 462 U.S. at 288). 95 Id. at 783 (O Connor, 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-

14 432 GEO. MASON L. REV. [VOL. 7:2 such as Professor Herbert Wechsler, had long ago criticized judicial intervention that attempted to vindicate states federalism interests. 97 After National League of Cities, Professor Jesse Choper revised and extended Wechsler s theory into a full blown Federalism Proposal. 98 Choper summarized the Federalism Proposal as follows: The federal judiciary should not decide constitutional questions respecting the ultimate power of the national government vis-à-vis the states; rather, the constitutional issue of whether federal action is beyond the authority of the central government and thus violates states rights should be treated as nonjusticiable, final resolution being relegated to the political branches i.e., Congress and the President. 99 Under Choper s paradigm, the Court should avoid deciding cases based on federalism and allow the political process to work out any problems between federal and state governments. 100 Other observers sought a more restrained view, but still advocated overturning National League of Cities. 101 Less than a decade after breathing new life into the Tenth Amendment, the Court decided Garcia v. San Antonio Metropolitan Transit Authority, 102 which overruled National League of Cities and ushered in a new modus vivendi in the judicial scrutiny of federalism. Writing for the Garcia Court, Justice Blackmun explained that the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than 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 the federal system than by judicially created limitations on federal power. 103 Having thus embraced the essence of Choper s federalism proposal, the Court concluded that the principal and basic limit on the federal commerce power is that inherent in all congressional action the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated. 104 Explicit in Justice Blackmun s opinion is his faith that the internal safeguards of the political process mental Immunity and the States as Agents of the Nation, 60 WASH. U. L.Q. 779 (1982); Wechsler, supra note Wechsler, supra note 28, at CHOPER, supra note 96, at Id. 100 See id. 101 See La Pierre, supra note 96, at 1054 (explaining that there is a political check and Congress is politically acccountable when it regulates states, but not when Congress employs the states as its agents ) U.S. 528 (1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976). 103 Id. at Id. at 556.

15 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 433 would perform as intended, rendering judicial review unnecessary. 105 Garcia represented the high water mark of the political process model. 106 Two years later, in South Dakota v. Dole, the Court missed an opportunity to invoke Garcia and ruled that Congress could condition the receipt of federal highway aid to states on agreement by the states to increase the legal drinking age to The Court framed the case as one based on a conflict between the Spending power 108 and the Twenty-first Amendment s 109 grant of regulatory power over alcohol to the states. 110 In dissent, Justice O Connor suggested that the majority s ruling permitted Congress to exercise powers not granted to it under any clause of the constitution, including the Commerce Clause. 111 At least one commentator has suggested that the rationale of the Court in Dole directly contradicted Garcia. 112 This subtle contradiction is important because Dole established that the Court would allow the federal government to use monetary incentives to coerce states to implement federal directives. Garcia, however, had established that the federal government could simply issue federal directives and allow the political process to take care of the rest. In South Carolina v. Baker, a case involving federal taxation of the interest earned on state and municipal bonds, the Court returned to Garcia s central ruling by noting that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity. 113 In rebutting the arguments of the National Governors Association, the Court belittled South Carolina s invocation of the commandeering language of FERC v. Mississippi, a pre-garcia case, and suggested that even the pre-garcia line of Tenth Amendment cases recognized that Congress could constitutionally impose federal requirements on States that States could meet only by amending their statutes. 114 The National Governors Association found a sympathetic voice, however, in Justice O Connor s Baker dissent. Rejecting the Court s conclusion that Congress could prohibit outright the issuance of state and federal bonds, Justice O Connor suggested that the 105 Id. 106 See Jesse H. Choper, Federalism and Judicial Review: An Update, 21 HASTINGS CONST. L.Q. 577, 580 (1994) ( Garcia represented the Federalism Proposal s high-water mark. ). 107 South Dakota v. Dole, 483 U.S. 203, 206 (1987) ( Congress may attach conditions on the receipt of federal funds.... ). 108 U.S. CONST. art. I, 8, cl Id. amend. XXI, 2 ( The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby probihited. ). 110 See Dole, 483 U.S. at See id. at 218 (O Connor, J., dissenting). 112 See Choper, supra note 106, at South Carolina v. Baker, 485 U.S. 505, 512 (1988). 114 Id. at 515.

16 434 GEO. MASON L. REV. [VOL. 7:2 Tenth Amendment and principles of federalism inherent in the Constitution prohibit Congress from taxing or threatening to tax the interest paid on state and municipal bonds. 115 In her dissents in Dole and Baker, Justice O Connor continued to develop an alternative theory to the political process model of federalism embraced in Garcia, and signaled an unwillingness to forsake her prior reasoning in FERC v. Mississippi, where she had articulated a more complete theory of federalism. 116 In 1991, however, Justice O Connor, writing this time for the Court rather than in dissent, cast doubt on the continuing validity of Garcia. In Gregory v. Ashcroft, the Court evaluated a provision of the Missouri Constitution that imposed a mandatory retirement age of 70 on all state judges. 117 Justice O Connor hinted broadly that the Tenth Amendment might be at issue, 118 but decided the case on the narrower ground that the plain statement of the federal Age Discrimination in Employment Act (ADEA) unequivocally exempted state judges. 119 Justice White, dissenting in Gregory, argued that Justice O Connor s use of the plain statement rule directly contravenes Garcia by adopting a rule usually reserved for analysis of challenges based on the Eleventh Amendment. 120 Justice White argued that Justice O Connor s approach would serve only to confuse the law. 121 The clash between Justices O Connor and White on federalism issues foreshadowed a much sharper debate that followed the next term. Nonetheless, Gregory offered a stark example of the Garcia dissenters continuing search for a more workable Tenth Amendment jurisprudence. III. THE VERTICAL NONDELEGATION DOCTRINE: COMMANDEERING AS CONSTITUTIONAL PRINCIPLE For the past century, the Court has attempted to impose meaningful Tenth Amendment and nondelegation limitations on congressional power, but has failed to elucidate workable tests to be applied at the district court level. Even as Garcia v. San Antonio Metropolitan Transit Authority 122 signaled the Court s most recent retreat from the jurisprudential quagmire of federalism regulation, other members of the Court began to devise a new theory of Tenth Amendment limitation. This new theory, which ap- 115 Id. at 531 (O Connor, J., dissenting). 116 See FERC v. Mississippi, 456 U.S. 742, 775 (1982) (O Connor, J., dissenting). 117 Gregory v. Ashcroft, 501 U.S. 452, 455 (1991) (discussing MO. CONST. art. V, 26). 118 See id. at Id. at 470 (noting that ambiguity in congressional meaning of important public officials led to exclusion of judges from the Act). 120 Id. at 477 (White, J., dissenting). 121 Id. at U.S. 528 (1985).

17 1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 435 pears to have merged a form of nondelegation into the Tenth Amendment, found its way into the majority opinions in New York v. United States 123 and Printz v. United States. 124 The holdings of New York and Printz, taken together, constitute a new theory of vertical nondelegation that suggests the Court will disallow any future congressional delegation of authority to the 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 constitutionality of the Low-Level Radioactive Waste Policy Amendments Act of Congress passed the original LLRWPA ( Act ) and the 1985 amendments in response to requests by the National Governors Association that the federal government facilitate the enforcement of agreements among states i.e., compacts relating to the safe disposal of low-level radioactive waste. 126 The Court upheld two provisions of the amended Act providing monetary incentives to complying states and requiring payment of surcharges to noncomplying states who sought access to storage sites in complying states. 127 However, Justice O Connor, writing for the Court, U.S. 144 (1992) S. Ct (1997) U.S.C. 2021b (1994). 126 New York, 505 U.S. at ; see id. at (1992) (White, J., concurring in part and dissenting in part) (discussing the Governor s Association s actions in bringing the legislation to Congress). When two of three low-level radioactive wasted facilities shut down, only one facility remained to take the nation s output of low-level radioactive waste precipitating a crisis among the Governors. When the Washington and Nevada sites shut down temporarily in 1979, South Carolina was left the only site available. See id. at 150. The Governor became understandably perturbed by the actions of the two other states and ordered a 50% reduction in the quantity of waste accepted. Id. The Congress relied largely on a report submitted by the National Governors Association. Id. Therefore, the National Governors Association asked the Congress to get involved in 1980 to authorize regional compacts of States that would be ratified by Congress in 1986 to restrict the use of their disposal facilities to waste generated within member States. Id. at 151. In 1985, when only 29 of the 50 States had joined regional compacts, the National Governors Association once again asked the Congress to pass legislation. The bill that in large measure became the 1985 Act represent[ed] the diligent negotiating undertaken by the National Governors Association and embodied the fundamentals of their settlement. Id. at 194 (White, J., concurring in part and dissenting in part) (quoting 131 CONG. REC , (1985) (statement of Rep. Udall)). Justice O Connor further noted: In broad outline, the act embodies a compromise among the sited and unsited States. The sited States agreed to extend for seven years the period in which they would accept low level radioactive waste from other States. In exchange, the unsited States agreed to end their reliance on the sited States by Id. at 151 (O Connor, 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. See New York, 505 U.S. at 152. First, the Act gave monetary incentives; it allowed the Secretary of Energy to collect one-quarter of surcharges that sited States charged, and redistributed the proceeds to States that had met the deadlines imposed by the Act. Id. at (citing 42 U.S.C. 2021e(d)-(e)). Sec-