Commandeering and its Alternatives: A Federalism Perspective

Abstract

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation, and by addressing any accountability problems that commandeering can cause. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the commandeering ban would cause the federal government to respond by engaging in preemption, giving states a choice between commandeering and preemption, using the conditional spending power, or declining to regulate, this inquiry primarily advances a conceptual claim. Because there often will exist a non-trivial chance that Congress will engage in preemption when it cannot commandeer, and because it is impossible for the Court to know at the time of judicial decision where a given case fits along the continuum of preemption probabilities, federalism doctrine requires a strategically sophisticated conceptual system, one that takes into account all of the regulatory possibilities before Congress.

This inquiry recommends replacing the Court's categorical anticommandeering rule with a legal standard that is sensitive not only to accountability concerns, but also to the feasibility of preemption should commandeering be prohibited and to the financial burdens imposed by commandeering. One payoff of this approach is that it turns the conventional wisdom about New York and Printz on its head. Because preemption was reasonably available in the short run only in New York, and because accountability concerns were not greater in New York, Printz remains a close case, but the Court in New York should have rejected the state's Tenth Amendment challenge. After anticipating various objections, the author employs a post-9/11 terrorism hypothetical to illustrate the argument's potential relevance and force.