Copyright: 1999 George Mason Law Review

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420 GEO. MASON L. REV. [VOL. 7:2

that the federal judiciary should act as the defender of state sovereignty inthe face of congressional overreaching.7 Less than a decade later, however,in Garcia v. San Antonio Metropolitan Transit Authority, the Court re-versed National League of Cities and instead adopted the rationale that thepolitical process, standing alone, best protected federalism interests.8 Al-though the Court in Garcia appeared to conclude that the best coursewould be to allow “the people” to vindicate states’ rights through theelectoral process, the 1990s have witnessed the Supreme Court once againreasserting a place for the federal judiciary in the regulation of federal-state relations.

In New York v. United States9 and Printz v. United States10 the mod-ern Court has developed a theory that forbids the federal government fromdelegating responsibility to state governments without full funding—“un-funded mandates.” In part, the Court has justified this new approach tofederalism as guaranteeing more reliable accountability between citizen-voters and legislators. Essentially, the Court has breathed life back into thedivided sovereignty theory of National League of Cities by flipping Gar-cia’s political accountability rationale on its head. The vertical restrictionscreated by the new doctrine have a similar effect to the types of limitationsthe pre-New Deal Court placed on both vertical and horizontal govern-mental relations.

This Comment assesses the Court’s new Tenth Amendment jurispru-dence through the prism of public choice theory. Part I introduces the fun-damental principles of public choice analysis and illustrates the implica-tions of that analysis for constitutional theory. Part II discusses the back-ground of the Tenth Amendment and explains how the Supreme Court’sjurisprudence has severed Tenth Amendment analysis from other forms offederalism analysis. Part II also introduces the concept of the “horizontalnondelegation doctrine,” a judicially imposed theory that seeks to preventthe improper delegation of legislative authority by the Congress to coequalbranches of the federal government. The judicial construct in horizontalnondelegation cases bears a striking resemblance to the Court’s new doc-trine disallowing delegation of federal duties to the states without allocat-ing sufficient funds, which this Comment describes as the “vertical non-delegation” doctrine.11

VAND. L. REV. 1563, 1564-66 (1994) (calling this the “territorial model”).

7 National League of Cities, 426 U.S. at 852.8 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556 (1985).9 505 U.S. 144 (1992).

10 117 S. Ct. 2365 (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 federalbranch (“horizontal”), or to the one that prohibits congressional delegation of authority without fund-ing to the states (“vertical”). Traditionally, the academic literature has referred to the “horizontal”


1999] TENTH AMENDMENT FEDERALISM JURISPRUDENCE 421

Part III of this Comment explores the details of the Court’s new TenthAmendment jurisprudence, with particular emphasis on the political ac-countability principle. Using public choice interest group theory, Part IVexplains that the Court’s Tenth Amendment jurisprudence elaborated inNew York and Printz has unwisely created a new vertical nondelegationdoctrine. This Comment concludes that the vertical nondelegation ration-ale created in New York and Printz fails to vindicate the rights of “the peo-ple” 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 issuesof federalism through electoral politics.

I. PUBLIC CHOICE THEORY

“Public choice theory is a hybrid: the application of the economist’smethod to the political scientist’s subject.”12 Like economics, the assump-tion of individual rationality underlies all public choice theory.13 Thereexist two main branches of public choice analysis: interest group theoryand social choice theory.14 This Comment refers exclusively to interestgroup theory.

Interest group theory investigates how organized interest groups in-teract with legislators and other political actors. Generally, the theory hasshown that discrete, well-organized groups can procure disproportionatesocial, political and economic benefits through collective action.15 An im-portant corollary of interest group theory holds that legislators may claimno immunity from self-interest. In fact, interest group theory assumes thatlegislators are rational vote-seeking individuals motivated in large part bythe 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” nondelegationdoctrine.

12 DANIEL A. FARBER & PHILIP P. FRICKEY, LAW & PUBLIC CHOICE 1 (1991); see also MaxwellL. Stearns, Restoring Positive Law & Economics, 6 GEO. MASON L. REV. 709, 710 (1998) [hereinafterStearns, Positive Law & Economics] (“Public choice applies the tools of economics to the subjectmatter of political science.”).

13 See David J. Skeel, Public Choice and the Future of Public-Choice-Influenced Legal Scholar-ship, 50 VAND. L. REV. 647, 651 (1997) (book review).

14 See MAXWELL L. STEARNS, PUBLIC CHOICE AND PUBLIC LAW xix (1997). Although gener-ally considered a separate issue, game theory often adds an important component to social choicetheory. See Stearns, Positive Law & Economics, supra note 12, at 710 n.2.

15 See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION 134 & n.4 (1965) (discussing howlobbying groups will usually seek to procure political, social and economic benefits through collectiveaction).

16 See MORRIS P. FIORINA, CONGRESS 37 (2d ed. 1989) (“[T]he primary goal of the typicalcongressman is reelection.”).



A. Connecting Public Choice Interest Group Theory to ConstitutionalTheory

Interest group theory parallels the constitutional theories of JamesMadison, just as modern microeconomics tracks Adam Smith’s Wealth ofNations.17 In The Federalist No. 10, Madison anticipated the problem ofinterest groups as he discussed the “causes of faction.”18 He defined fac-tion:

By a faction I understand a number of citizens, whether amounting to a majority or minorityof the whole, who are united and actuated by some common impulse of passion, or of inter-est, adverse to the rights of other citizens, or to the permanent and aggregate interests of thecommunity.19

Madison’s definition of faction, whether meant to describe political partiesor merely interest groups, parallels the definition of modern public choiceinterest group theory. Just as public choice theory suggests that self-interested rationality pervades any understanding of politics, Madison fullyunderstood that “[t]he latent causes of faction are . . . sown in the nature ofman . . . .”20

The structure of the federal government developed in the Constitutionsought to control faction and self-interest. To Madison, the chief difficultyin framing the government consisted in finding a workable structure to“enable the government to control the governed; and in the next placeoblige it to control itself.”21 While the Constitution included both a sepa-ration of powers component—between legislative, executive and judicialbranches within the federal government—and a division of powers com-ponent—between federal and state governments—these instruments serveda secondary role. Madison explained: “A dependence on the people is, nodoubt, the primary control on the government; but experience has taughtmankind the necessity of auxiliary precautions.”22 Checks and balancesserved as only “auxiliary precautions.” The vigilance and virtue of “thepeople” 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.



less to be remembered that they are neither the sole nor the chief palladium of constitutionalliberty. 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 andthe executive accountable for actions that may interfere with state sover-eignty. Madison fully understood that frequent elections, not judicial inter-vention, provided the best check on overreaching by federally elected offi-cials.24 Public choice interest group theory allows modern observers toevaluate Madison’s theory that elected officials will be accountable to “thepeople” through elections.

B. Interest Group Theory Applied to the Judiciary

Interest group theory also suggests that the judiciary is not immunefrom rational self-interested behavior.25 As one commentator notes: “Inter-est group theory gives us no reason to think that whatever comes into aJustice’s head (or was within that head but unknown or unappreciated atthe time of appointment) will produce better social policy than a more po-litically responsive process.”26 Thus, the Court is not unaffected by elec-tion results and pays particular attention to its own constituencies, such asthe Department of Justice, the solicitor general, counsel for federal agen-cies, states’ attorneys general, and the legal profession at large.27 Mostfundamental for purposes of this Comment is Professor Herbert Wech-sler’s insight that “the Court is on weakest ground when it opposes its in-terpretation of the Constitution to that of Congress in the interest of thestates, whose representatives control the legislative process and . . . havebroadly 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.29

23 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 ThingEverybody Else Does), 3 S. CT. ECON. REV. 1, 2 (1993) (suggesting a judicial utility function made upof income, leisure and judicial voting).

26 Einer R. Elhauge, Does Interest Group Theory Justify More Intensive Judicial Review?, 101YALE L.J. 31, 87 (1991).

27 See generally DAVID M. O’BRIEN, STORM CENTER 347-409 (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). Al-though Wechsler is not considered a “public choice” theorist, his views are in accord with publicchoice theory.

29 STEARNS, supra note 14, at 714; see also Maxwell L. Stearns, The Misguided Renaissance ofSocial Choice, 103 YALE L.J. 1219, 1259 (1994) (noting that “the power to do nothing, proves to bethe single most important Arrovian difference between Congress and the Supreme Court”). The idea of



In The Federalist No. 78, Alexander Hamilton echoed Madison’s in-sight that accountability to “the people” should temper a wide-rangingjudicial review. Hamilton noted that a theory of judicial review does not“by any means suppose a superiority of the judicial to the legislativepower. It only supposes the power of the people is superior to both . . . .”30

Hamilton concluded that “where the will of the legislature . . . stands inopposition to that of the people . . . the judges ought to be governed” bythe will of the people.31 Once again the touchstone of the constitutionalprocess rests with “the people.”

Public choice and constitutional theory both suggest that the Courtshould avoid striking down federal legislation on grounds of federalism,unless the Court can justify the action as assisting “the people” to evaluatethe political accountability of elected officials. Judicial review that in-trudes 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 clausesof the Constitution to circumscribe federal power relative to the states.33

The Commerce Clause34 and the Tenth Amendment35 have received themost attention in placing limitations on the federal government, althoughthe Court has also imposed limitations on the federal government based onthe 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 twolitigants immediately and usually adheres to stare decisis. The Supreme Court (and other courts) canonly partially counteract path manipulation by using standing and other constitutional and prudentialdoctrines 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 pathdependency that results from presumptive adherence to stare decisis on the Supreme Court and withinthe circuits, standing ameliorates path dependency’s most damaging effects by rendering path ma-nipulation substantially more difficult.”).

30 THE FEDERALIST NO. 78, at 467-68 (Alexander Hamilton) (Clinton Rossiter ed., 1961).31 Id. at 468.32 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 politicalprocess.”).

33 On the flip side, the Constitution places innumerable limitations on the states throughout boththe originally ratified Constitution and the 27 Amendments. See, e.g., U.S. CONST. art. VI, cl. 2 (“ThisConstitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall bethe supreme Law of the Land . . . .”).

34 Id. art. I, § 8, cl. 3.35 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 ofanother State, or by Citizens or Subjects of any Foreign State.”). Most recently, the Court held that theEleventh Amendment prevents Congress from authorizing suits by American Indian tribes, or anyother private party: “Even when the Constitution vests in Congress complete law-making authority



distinct inquiry from the Tenth Amendment,37 the Court has suggested thatin cases “involving the division of authority between federal and stategovernments . . . the two inquiries are mirror images of each other.”38 Thelimited scope of this Comment focuses primarily on the Tenth Amend-ment, but will consider Commerce Clause cases to the extent they bear onthe “horizontal” and “vertical” nondelegation doctrines. The pre-New DealCommerce Clause and horizontal nondelegation doctrines provide a readystarting 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 theCommerce Clause and the “Horizontal” Nondelegation Doctrine

The “horizontal” nondelegation doctrine dates from the nineteenthcentury and remains a widely discussed doctrine today,39 even if neuteredin practice.40 The “horizontal” nondelegation doctrine is a judicially im-posed limitation on delegations of legislative authority from the Congressto a coequal branch of the federal government.41 The Court fully articu-lated the nondelegation doctrine in Field v. Clark, stating “[t]hat congresscannot delegate legislative power to the president is a principle universallyrecognized as vital to the integrity and maintenance of the system of gov-ernment ordained by the constitution.”42 For four decades, the Court con-tinued to refine the horizontal nondelegation doctrine without ever using itto strike down congressional legislation.43

over a particular area, the Eleventh Amendment prevents congressional authorization of suits by pri-vate 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 affectinterstate 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, 2125-31 (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-endedgrant”); see also Touby v. United States, 500 U.S. 160 (1991) (rejecting a nondelegation challenge tocongressional legislation).

41 See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825) (“It will not be contended thatCongress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclu-sively legislative.”).

42 Field v. Clark, 143 U.S. 649, 692 (1892). The nondelegation doctrine finds original constitu-tional authority in Article I, section 1 of the Constitution: “All Legislative Powers herein granted shallbe vested in a Congress . . . .” U.S. CONST. art. I, § 1.

43 See United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932) (“That thelegislative 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 con-gressional delegation to withstand constitutional muster); Wichita R.R. & Light Co. v. Public Utilities



Rather than focus on the separation of powers principles underlyingthe nondelegation doctrine,44 the pre-New Deal Court imposed limitationson congressional power to pass progressive legislation based on the Com-merce Clause.45 For example, in Hammer v. Dagenhart, the Court sug-gested that child labor legislation exceeded Congress’s grant of authorityunder the Commerce Clause by invading “a matter purely local in its char-acter, and over which no authority has been delegated to Congress in con-ferring the power to regulate commerce among the states.”46 The choice ofverb to describe congressional action had nothing to do with the nondele-gation doctrine or separation of powers, but had everything to do with thelanguage of the Tenth Amendment.47 The Tenth Amendment, in fact, in-cludes the only reference in the Constitution to the word “delegated.”48

The coincidence proved convenient.While remaining separate doctrines, the “horizontal” nondelegation

doctrine49 and the Commerce Clause limitations50 on congressional powercoalesced into a one-two punch to limit New Deal legislation. In A.L.A.Schechter Poultry Corp. v. United States, the two doctrines appeared sideby 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 preventits being a pure delegation of legislative power, must enjoin upon it a certain course of procedure andcertain 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 laborlegislation. Lochner v. New York, 198 U.S. 45 (1908); see 1 RONALD D. ROTUNDA & JOHN E.NOWAK, TREATISE ON CONSTITUTIONAL LAW § 4.6, at 380-89 (2d ed. 1992).

45 See, e.g., Bailey v. Drexel Furniture Co., 259 U.S. 20, 39 (1922) (using the Tenth Amendmentand 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 suchlaws as seem wise to the local authority is inherent and has never been surrendered to the generalgovernment.”), overruled by United States v. Darby, 312 U.S. 100 (1941); Adair v. United States, 208U.S. 161, 180 (1908) (holding that a labor law making it criminal to fire union workers did not fallwithin Congress’ Commerce Clause power and therefore violated the Fifth Amendment) overruled inpart by Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941); United States v. E.C. Knight Co., 156U.S. 1, 13 (1895) (limiting the application of antitrust laws to exclude manufacturing within one stateby noting that “[t]he fact that an article is manufactured for export to another state does not of itselfmake 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, norprohibited to the States, are reserved to the States respectively, or to the people.”).

49 The Court struck down congressional legislation based on the “horizontal” nondelegationdoctrine 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 adeclared policy, he necessarily acts under the constitutional restriction applicable to such a delegation.”Id. at 433.

50 See Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330, 368 (1935) (concluding that pen-sions “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).



legislation challenged in Schechter Poultry delegated powers to executiveadministrative agencies to regulate the poultry industry, arguably a wholly“intrastate” activity. First, the Court held that Congress had failed to pre-scribe adequate standards to the relevant executive administrative agency,with the result that “the code-making authority thus conferred [was] anunconstitutional delegation of legislative power.”52 Second, the Courtfound that the slaughter of poultry created only an “indirect effect uponinterstate commerce.” Consequently, the federal regulation of hours andwages of poultry workers failed to fall within the grant of congressionalpower under the Commerce Clause.53

In Carter v. Carter Coal Co., the Court again struck down a NewDeal statute after analyzing the statute against the horizontal nondelegationdoctrine and the Commerce Clause.54 The statute at issue delegatedauthority to mining companies to set rates that could be charged by com-petitors.55 The Court found this innovation to be a “legislative delegationin its most obnoxious form; for it is not even delegation to an official . . .but to private persons whose interests may be . . . adverse to the interestsof others in the same business.”56 Ultimately, however, the Court in CarterCoal based its decision on Schechter Poultry’s Commerce Clause analysis,which suggested Congress had exceeded its authority by attempting toregulate wholly intrastate commerce.57 Schechter Poultry and Carter Coalrepresented the high water mark of judicially imposed limits on congres-sional regulation of individuals under the Commerce Clause and legisla-tive delegations to a coequal branch under the horizontal nondelegationdoctrine.

B. Forty Years of Carte Blanche Authority to Congress: The Disappear-ance of the “Horizontal” Nondelegation Doctrine and Tenth Amend-ment Restrictions on the Commerce Clause

In 1937, President Franklin D. Roosevelt, buoyed by a landslide ree-lection in 1936, proposed a plan to pack the Court with Justices who woulduphold New Deal legislation.58 The plan failed, but the political pressuresgenerated by this famous “court packing plan” convinced two Justices toreverse their positions on the Commerce Clause and the horizontal non-

52 Id. at 542.53 See Id. at 548.54 Carter v. Carter Coal Co., 298 U.S. 238 (1936).55 See id. at 311.56 Id.57 Id. at 309-10 (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).



delegation doctrine.59 In NLRB v. Jones & Laughlin Steel Corp., the Courtonce again addressed the questions of nondelegation and the limits of theCommerce Clause.60 The Court found Carter Coal and Schechter Poultrywere “not controlling here.”61 In short order, the Court reversed itself andupheld as constitutional both the delegation to the executive agency andthe regulation of activities “affecting interstate commerce.”62

One constitutional scholar has noted, “In the years after 1937, theSupreme Court essentially offered the Congress carte blanche to regulatethe economic and social life of the nation, its actions subject only to therequirements of the Bill of Rights.”63 At the same time, the Supreme Courthabitually discounted the importance of the Tenth Amendment. In UnitedStates 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] de-claratory of the relationship between the national and state governments. . . .

From the beginning and for many years the amendment has been construed as not deprivingthe national government of authority to resort to all means for the exercise of a grantedpower which are appropriate and plainly adapted to the permitted end.64

The Court effectively eviscerated the Tenth Amendment by allowing theCongress to regulate every manner of activity, including alleged equalprotection violations,65 under the Commerce Clause so long as that activityaffected interstate commerce in some conceivable way.66

Since the New Deal, the Court has likewise gutted the horizontalnondelegation doctrine by permitting virtually any congressional delega-tion of power to the executive and judicial branches. In the landmark caseof Yakus v. United States,67 the Court explicitly departed from its priorruling in Field v. Clark,68 holding that “Congress is not confined to thatmethod of executing its policy which involves the least possible delegationof 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 Courtdeferred 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 40-41 (discussing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495

(1935), and Carter Coal, 298 U.S. at 309-10).62 Id. at 43, 47.63 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 thatthe Commerce Clause did not bar Congress from using agricultural quotas).

67 321 U.S. 414 (1944).68 143 U.S. 649, 692 (1892).69 Yakus, 321 U.S. at 425-26.



Congress could delegate to the executive branch tremendous discretion increating regulations to effect the purposes of the delegation.70 In Lichter v.United States, the Court went so far as to suggest that “an unconstitutionaldelegation of . . . legislative power is not capable of precise definition.”71

Without the willingness to place a “precise definition” on the limits ofcongressional delegation, the Court opted instead to merely limit the reachof legislation based on statutory construction rather than constitutionalprinciple.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 federalaction directed at private individuals.73 While explaining why the TenthAmendment was inapplicable in Fry v. United States, the Court suggestedthat the Tenth “Amendment . . . expressly declares the constitutional pol-icy that Congress may not exercise power in the fashion that impairs theStates’ integrity or their ability to function effectively in a federalsystem.”74 This language signaled a change from prior holdings, such asMaryland v. Wirtz, which had suggested that “the Federal Government,when acting within a delegated power, may override countervailing Stateinterests whether these be described as ‘governmental’ or ‘proprietary’ incharacter.”75

In National League of Cities v. Usery,76 the Court found an opportu-nity to reconsider the constitutionality of the Fair Labor Standards Act, thestatute considered in Wirtz and an earlier case, United States v.California.77 In National League of Cities, the Court found that the TenthAmendment prohibited application of the minimum wage and overtimeprovisions of the Fair Labor Standards Act to employees of state govern-ments.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 779.72 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-endedgrant”).

73 See TRIBE, supra note 63, § 5-22, at 387 (“The Court’s opinions had sounded such a note forseveral years, and past the mid-1970s the signals had become both louder and more frequent.”) (foot-notes 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).76 426 U.S. 833 (1976).77 297 U.S. 175 (1936).78 National League of Cities, 426 U.S. at 851 (noting that “both the minimum wage and the



States stand on a quite different footing from an individual or a corporationwhen challenging the exercise of Congress’ power to regulatecommerce.”79 National League of Cities signaled that the Tenth Amend-ment limited congressional legislation that regulated the states, as opposedto the citizens within the states. 80 Yet, the Court failed to articulate aworkable test to implement this new “territorial” theory81 that allocatedregulatory authority based on whether states or the federal government hadtraditionally regulated in these areas.82

After National League of Cities, the Court created unworkable multi-pronged balancing tests83 that failed to give significant guidance to lowerfederal courts.84 Yet, if the tests offered little clarity, then the Court’s con-sistent rulings upholding federal laws against Tenth Amendment chal-lenges only served to further confuse the issue.85 Hodel v. Virginia SurfaceMining and Reclamation Ass’n86 and FERC v. Mississippi87 served as thetwo most important exemplars of this confusion, because in each case theCourt upheld the federal statutes at issue while claiming to be faithful toNational League of Cities. In Hodel, a private association of coal produc-ers 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 854.80 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, 587-88 (1946) (Stone, C.J., concurring)).

81 See Merritt, supra note 6, at 1564.82 See National League of Cities, 426 U.S. at 852.83 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 asStates.” 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 structureintegral operations in areas of traditional governmental functions.”

Hodel v. Virginia Surface Mining and Reclamation Ass’n, 452 U.S. 264, 287-88 (1981) (citationsomitted). Justice Marshall then proceeded to limit the three-part test with a balancing test: “There aresituations in which the nature of the federal interest advanced may be such that it justifies state submis-sion.” Id. at 288 n.29. The Court implemented Hodel’s three-part test limited by a balancing test onseveral occasions without striking down the contested federal law. See, e.g., FERC v. Mississippi, 456U.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 amendmentstandards became difficult for lower courts because . . . in no Supreme Court case following NationalLeague of Cities did the Court in fact rule that a federal law could not be applied to state or local gov-ernments . . . .”).

85 See FERC, 456 U.S. at 765 (upholding the application of Public Utility Regulatory PoliciesAct to state and local governments); EEOC v. Wyoming, 460 U.S. 226, 240-41 (1983) (upholding theapplication of the Age Discrimination in Employment Act to state and local governments); Hodel, 452U.S. at 288-89 (upholding the application of the Surface Mining Control and Reclamation Act of 1977to state and local governments).

86 452 U.S. at 276-77.87 456 U.S. at 758-59.



planning.88 In addressing the alleged violations of the Tenth Amendmentand the Commerce Clause, the Court ruled unanimously against the coalproducers.89 Justice Marshall, writing for the Court, quickly disposed ofthe Commerce Clause claim and then turned to the coal producer’s TenthAmendment claim that the federal law’s regulation of land use planninginterfered with an area of law traditionally regulated by the states.90 JusticeMarshall argued that the law at issue did not transgress the Tenth Amend-ment because “there can be no suggestion that the [Surface Mining] Actcommandeers the legislative processes of the States by directly compellingthem to enact and enforce a federal regulatory program.”91 Instead, thefacts of Hodel presented what Marshall described as a “program of coop-erative federalism,”92 under which the states and the federal governmentworked together. While the Court ruled unanimously, Justice Rehnquist,joined by two other justices, suggested in concurrence that the post-NewDeal Commerce Clause jurisprudence inadequately restricted congres-sional delegations.93 Yet none of the justices took the Court’s TenthAmendment analysis to task.

In FERC v. Mississippi, the Court reiterated its ruling in Hodel andonce again upheld a federal statute that regulated state actors on the groundthat the federal statute did not “commandeer” the legislative processes ofthe States.94 This time, however, four justices objected to the Court’sTenth Amendment analysis and came to a contrary conclusion by sug-gesting that the federal government could not “compel[]” state agencies“to function as bureaucratic puppets.”95 The failure to articulate a workabletest for lower courts, the unwillingness of the Court to find any legislationunconstitutional following National League of Cities, and the growingdivisions in the Court seemed to spell the end of any Tenth Amendmentlimitations 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 judi-cial review of federal regulation of “states as states” should be a nonjusti-ciable issue and left to the political branches.96 Post-New Deal observers,

88 Hodel, 452 U.S. at 268, 285.89 See id. at 268, 305.90 See id. at 283-85.91 Id. at 288 (emphasis added).92 Id. at 289.93 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, 764-65 (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-



such as Professor Herbert Wechsler, had long ago criticized judicial inter-vention that attempted to vindicate states’ federalism interests.97 After Na-tional League of Cities, Professor Jesse Choper revised and extendedWechsler’s theory into a full blown “Federalism Proposal.”98 Chopersummarized the Federalism Proposal as follows:

The federal judiciary should not decide constitutional questions respecting the ultimatepower of the national government vis-à-vis the states; rather, the constitutional issue ofwhether 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 thepolitical branches—i.e., Congress and the President.99

Under Choper’s paradigm, the Court should avoid deciding cases based onfederalism and allow the political process to work out any problems be-tween federal and state governments.100 Other observers sought a morerestrained view, but still advocated overturning National League ofCities.101

Less than a decade after breathing new life into the Tenth Amend-ment, the Court decided Garcia v. San Antonio Metropolitan TransitAuthority,102 which overruled National League of Cities and ushered in anew modus vivendi in the judicial scrutiny of federalism. Writing for theGarcia Court, Justice Blackmun explained that

the Framers chose to rely on a federal system in which special restraints on federal powerover the States inhered principally in the workings of the National Government itself, ratherthan 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 thefederal system than by judicially created limitations on federal power.103

Having thus embraced the essence of Choper’s “federalism proposal,” theCourt concluded that “the principal and basic limit on the federal com-merce power is that inherent in all congressional action—the built-in re-straints that our system provides through state participation in federal gov-ernmental action. The political process ensures that laws that unduly bur-den the States will not be promulgated.”104 Explicit in Justice Blackmun’sopinion 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 28.

97 Wechsler, supra note 28, at 559-60.98 CHOPER, supra note 96, at 175.99 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 itsagents”).

102 469 U.S. 528 (1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976).103 Id. at 552.104 Id. at 556.



would perform as intended, rendering judicial review unnecessary.105 Gar-cia represented the “high water” mark of the “political process” model.106

Two years later, in South Dakota v. Dole, the Court missed an op-portunity to invoke Garcia and ruled that Congress could condition thereceipt of federal highway aid to states on agreement by the states to in-crease the legal drinking age to 21.107 The Court framed the case as onebased on a conflict between the Spending power108 and the Twenty-firstAmendment’s109 grant of regulatory power over alcohol to the states.110 Indissent, Justice O’Connor suggested that the majority’s ruling permittedCongress to exercise powers not granted to it under any clause of the con-stitution, including the Commerce Clause.111 At least one commentator hassuggested that the rationale of the Court in Dole directly contradicted Gar-cia.112 This subtle contradiction is important because Dole established thatthe Court would allow the federal government to use monetary incentivesto coerce states to implement federal directives. Garcia, however, hadestablished that the federal government could simply issue federal direc-tives and allow the political process to take care of the rest.

In South Carolina v. Baker, a case involving federal taxation of theinterest earned on state and municipal bonds, the Court returned to Gar-cia’s central ruling by noting that “States must find their protection fromcongressional regulation through the national political process, not throughjudicially defined spheres of unregulable state activity.”113 In rebutting thearguments of the National Governors’ Association, the Court belittledSouth Carolina’s invocation of the “commandeering” language of FERC v.Mississippi, a pre-Garcia case, and suggested that “even the pre-Garcialine of Tenth Amendment cases recognized that Congress could constitu-tionally impose federal requirements on States that States could meet onlyby amending their statutes.”114 The National Governors’ Association founda sympathetic voice, however, in Justice O’Connor’s Baker dissent. Re-jecting the Court’s conclusion that Congress could prohibit outright theissuance 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. 1.109 Id. amend. XXI, § 2 (“The transportation or importation into any State, Territory, or posses-

sion of the United States for delivery or use therein of intoxicating liquors, in violation of the lawsthereof, is hereby probihited.”).

110 See Dole, 483 U.S. at 206.111 See id. at 218 (O’Connor, J., dissenting).112 See Choper, supra note 106, at 580-81.113 South Carolina v. Baker, 485 U.S. 505, 512 (1988).114 Id. at 515.



Tenth Amendment and principles of federalism inherent in the Constitu-tion prohibit Congress from taxing or threatening to tax the interest paid onstate and municipal bonds.”115 In her dissents in Dole and Baker, JusticeO’Connor continued to develop an alternative theory to the “political proc-ess” model of federalism embraced in Garcia, and signaled an unwilling-ness to forsake her prior reasoning in FERC v. Mississippi, where she hadarticulated a more complete theory of federalism.116

In 1991, however, Justice O’Connor, writing this time for the Courtrather than in dissent, cast doubt on the continuing validity of Garcia. InGregory v. Ashcroft, the Court evaluated a provision of the Missouri Con-stitution that imposed a mandatory retirement age of 70 on all statejudges.117 Justice O’Connor hinted broadly that the Tenth Amendmentmight 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’suse of the “plain statement” rule “directly contravenes” Garcia by adopt-ing a rule usually reserved for analysis of challenges based on the EleventhAmendment.120 Justice White argued that Justice O’Connor’s approachwould “serve only to confuse the law.”121 The clash between JusticesO’Connor and White on federalism issues foreshadowed a much sharperdebate that followed the next term. Nonetheless, Gregory offered a starkexample of the Garcia dissenters’ continuing search for a more workableTenth Amendment jurisprudence.

III. T HE VERTICAL NONDELEGATION DOCTRINE: “COMMANDEERING” AS

CONSTITUTIONAL PRINCIPLE

For the past century, the Court has attempted to impose meaningfulTenth Amendment and nondelegation limitations on congressional power,but has failed to elucidate workable tests to be applied at the district courtlevel. Even as Garcia v. San Antonio Metropolitan Transit Authority122

signaled the Court’s most recent retreat from the jurisprudential quagmireof federalism regulation, other members of the Court began to devise anew 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 457-64.119 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 478.122 469 U.S. 528 (1985).



pears to have merged a form of nondelegation into the Tenth Amendment,found its way into the majority opinions in New York v. United States123

and Printz v. United States.124 The holdings of New York and Printz, takentogether, constitute a new theory of “vertical nondelegation” that suggeststhe Court will disallow any future congressional delegation of authority tothe 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 constitutionalityof the Low-Level Radioactive Waste Policy Amendments Act of 1985.125

Congress passed the original LLRWPA (“Act”) and the 1985 amendmentsin response to requests by the National Governors’ Association that thefederal government facilitate the enforcement of agreements amongstates—i.e., compacts—relating to the safe disposal of low-level radioac-tive waste.126 The Court upheld two provisions of the amended Act pro-viding monetary incentives to complying states and requiring payment ofsurcharges to noncomplying states who sought access to storage sites incomplying states.127 However, Justice O’Connor, writing for the Court,

123 505 U.S. 144 (1992).124 117 S. Ct. 2365 (1997).125 42 U.S.C. § 2021b (1994).126 New York, 505 U.S. at 150-52; see id. at 190-92 (1992) (White, J., concurring in part and

dissenting in part) (discussing the Governor’s Association’s actions in bringing the legislation to Con-gress). When two of three low-level radioactive wasted facilities shut down, only one facility remainedto 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 theonly 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 areport 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 thatwould be ratified by Congress in 1986 to “restrict the use of their disposal facilities to waste generatedwithin member States.” Id. at 151. In 1985, when only 29 of the 50 States had joined regional com-pacts, the National Governors’ Association once again asked the Congress to pass legislation. “The billthat in large measure became the 1985 Act ‘represent[ed] the diligent negotiating undertaken by’ theNational 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. 35203, 35204 (1985)(statement of Rep. Udall)).

Justice O’Connor further noted:In broad outline, the act embodies a compromise among the sited and unsitedStates. The sited States agreed to extend for seven years the period in which theywould accept low level radioactive waste from other States. In exchange, the un-sited States agreed to end their reliance on the sited States by 1992.

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. SeeNew York, 505 U.S. at 152. First, the Act gave monetary incentives; it allowed the Secretary of Energyto collect one-quarter of surcharges that sited States charged, and redistributed the proceeds to Statesthat had met the deadlines imposed by the Act. Id. at 152-53 (citing 42 U.S.C. §§ 2021e(d)-(e)). Sec-



found unconstitutional a third provision of the 1985 amendments requiringstates that failed to meet their obligations under the Act to “take-title” totheir waste.128 Generally, this “take-title” provision would have required astate that failed to join a regional waste disposal compact to find an intra-state site to dispose of its own low-level radioactive waste.129 Thus, thestate government would be forced to choose a spot within the state to placea low-level radioactive site—never a popular political decision.

Objecting to the conduct of the federal government in enacting the“take-title” provision at issue, Justice O’Connor seized on Justice Mar-shall’s language from Hodel130 and Justice Blackmun’s majority opinion inFERC v. Mississippi,131 which stated “Congress may not simply ‘comman-dee[r] the legislative processes of the States by directly compelling them toenact and enforce a federal regulatory program.’”132 Justice O’Connor’sinvocation of Hodel is vulnerable to criticism in light of the fact that thiscase followed the precedent of National League of Cities,133 a decisionexplicitly overruled by Garcia.134 Understanding, moreover, that the over-ruled precedent and the actual results in Hodel and FERC disfavoredstriking down the law at issue in New York, Justice O’Connor sought tobolster her theory by inserting a historical discussion that came straight outof her dissent in FERC.135

As she had in her FERC dissent, Justice O’Connor trolled through allthe debates of the state ratifying conventions and came to a startling con-clusion: “In providing for a stronger central government . . . the Framersexplicitly chose a Constitution that confers upon Congress the power to

ond, the Act allowed States that had sites to charge a larger surcharge and to deny access to Stateswhich had failed to meet the statutory deadlines. Id. at 153 (citing 42 U.S.C. §§ 2021e(e)(1)-(2)). Allthe Justices agreed that the first two provisions—the monetary incentives and the access incentives—should be upheld as constitutional. See id. at 170-74 (O’Connor, J.); Id. at 189 (White, J., concurring inpart and dissenting in part).

128 The third provision required any State that failed to join a compact or to choose an in-Statesite to take title to its low-level radioactive waste. See Id. at 153-54 (citing 42 U.S.C. §2021e(d)(2)(C)).

129 See id.130 452 U.S. 264 (1981).131 456 U.S. 742, 764-65 (1982).132 New York, 505 U.S. at 161 (quoting Hodel, 452 U.S. at 288 and citing FERC, 456 U.S. at

761-62).133 426 U.S. 833 (1976).134 469 U.S. 528 (1985).135 FERC, 456 U.S. at, 775 (O’Connor, J., dissenting). From these two opinions, Justice

O’Connor brought together two principles in New York, (1) “that the federal government must respectstate governments as the seat of autonomous legislative processes even where the federal governmenthas the power completely to preempt state regulation;” and (2) “that under McCulloch v. Maryland thejudiciary has the duty to police Congressional encroachment on the autonomy of the states in obedi-ence to the spirit of the Tenth Amendment.” H. Jefferson Powell, The Oldest Question of Constitu-tional Law, 79 VA. L. REV. 633, 639 (1993).



regulate individuals, not States.”136 The problem with the Act involved inNew York, she concluded, was that a “State [could] not decline to admin-ister the federal program” and that the act allowed the federal governmentto “conscript state governments as its agents.”137 Essentially, the “take-title” provision would require state legislatures to decide where in theirconstituencies to site low-level radioactive waste dumps; an inevitablycontroversial and politically costly decision: “[I]t may be the state officialswho bear the brunt of public disapproval, while the federal officials whodevised the regulatory program may remain insulated from the electoralramifications of their decision.”138 Fundamentally, Justice O’Connor ar-gued that the “take title” provision at issue in New York inhibited democ-racy by forcing a State legislature to pass legislation adverse to its con-stituents’ wishes. “Accountability is thus diminished when, due to federalcoercion, elected state officials cannot regulate in accordance with theviews of the local electorate . . . .”139 In Justice O’Connor’s view, theCourt, through vigilant judicial review, should play the role of assuringproper “accountability.”

While Justice O’Connor drew freely upon Justice Marshall’s “com-mandeering” language from Hodel, her opinion in New York selectivelyfailed to mention another important principle derived from that case—theprinciple of “cooperative federalism.” Recognizing this oversight, JusticeWhite, in dissent in New York, suggested that the National Governors’Association’s actions to bring the legislation to Congress “was very muchthe product of cooperative federalism, in which the States bargainedamong themselves to achieve compromises for Congress to sanction.”140 Inother words New York presented just the sort of situation that Hodel wouldhave venerated. Justice White’s attempt to bring a key principle to bearfrom Justice Marshall’s Hodel opinion, however, fell on deaf ears.

Rather than concern herself with the Court’s prior endorsement of the“cooperative federalism” principle, however, Justice O’Connor concludedthat “the Constitution divides authority between federal and state govern-ments for the protection of individuals. Further, State sovereignty is notjust an end in itself: ‘Rather, federalism secures to citizens the liberties thatderive from the diffusion of sovereign power.’”141 Citing back to Gregoryv. Ashcroft and The Federalist No. 51, Justice O’Connor analogized thedivision of powers between the states and the federal government to theseparation of powers among the coordinate branches of the federal gov-

136 New York, 505 U.S. at 166.137 Id. at 177, 178.138 Id. at 169.139 Id.140 Id. at 194 (White, J., concurring in part and dissenting in part).141 Id. at 181 (O’Connor, J.) (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Black-

mun, J., dissenting)).



ernment.142 “Where Congress exceeds its authority relative to the States . .. the departure from the constitutional plan cannot be ratified by the ‘con-sent’ of state officials.”143 Congress cannot expand its authority “by the‘consent’ of the governmental unit whose domain is thereby narrowed,whether that unit is the Executive Branch or the States.”144 According tothe New York majority, the Constitution built in certain rights for the peo-ple guaranteed by the structural relationship between the federal and stategovernments. Moreover, the Court concluded that this structural safeguardmust be defended not by the ostensibly aggrieved party—i.e., by the“states as states” or, more fundamentally, by “the People”—but rather by abenevolent federal judiciary.

In nearly the same breath, however, Justice O’Connor noted thatCongress still had the ability to “pre-empt state regulation contrary to fed-eral interests, and [the Constitution] permits the federal government tohold out incentives to the States as a means of encouraging them to adoptsuggested regulatory schemes.”145 Justice O’Connor’s conclusion thereforeplaced no limits on the substantive areas the federal government couldregulate, so long as the federal government pays for the privilege. Thus, astate could accept delegated federal duties, but only where the federal gov-ernment gives the state sufficient funds to administer the federal programat issue.

B. Elaborating the Nondelegation of Federal Unfunded Mandates:Printz v. United States

Printz v. United States146 applied to states’ executive authorities theprinciples of nondelegation and accountability that the New York147 Courtapplied to the states’ legislatures. Printz involved a challenge to the con-stitutionality of the interim provisions of the Brady Handgun ViolencePrevention Act (“Brady Act”), which imposed a five-day waiting periodon handgun purchases and required local law enforcement officials to run

142 Id. at 181-82 (“Just as the separation and independence of the coordinate branches of theFederal Government serves to prevent the accumulation of excessive power in any one branch, ahealthy balance of power between the States and the Federal Government will reduce the risk of tyr-anny and abuse from either front.”) (citing Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) and THE

FEDERALIST NO. 51 (James Madison)).143 Id. at 182.144 Id. Justice O’Connor relied on INS v. Chadha, 462 U.S. 919, 944-59 (1983), for this proposi-

tion. Chadha involved the “legislative veto,” which allowed Congress to delegate authority to theexecutive branch but reserve ultimate veto power of any executive decision in the House of Represen-tatives. Ultimately, the Court ruled the “legislative veto” unconstitutional because it allowed Congressto overrule executive action without a two-thirds majority vote by both houses of Congress. See id. at959.

145 New York, 505 U.S. at 188.146 117 S. Ct. 2365 (1997).147 New York v. United States, 505 U.S. 144 (1992).



background checks on purchased firearms.148 Chief law enforcement offi-cers (“CLEOs”) from Montana and Arizona challenged these provisions ofthe Brady Act as violating the Tenth Amendment by requiring state ex-ecutive officers to implement federal laws.149

Writing for the Court, Justice Scalia considered the structure of theConstitution and reiterated the accountability principle from New York.Looking to those sections of the Constitution that implicate the division ofpowers,150 and relying on the reasoning of New York and Lopez v. UnitedStates,151 Justice Scalia concluded that “[t]he Constitution . . . contem-plates that a State’s government will represent and remain accountable toits own citizens.”152 Serving as a “double security,”153 Justice Scalia notedthat “[t]his separation of the two spheres is one of the Constitution’sstructural protections of liberty.”154 Just as the Court had ruled in NewYork, the Printz Court emphasized the Court’s role as guarantor of politicalaccountability: “Members of Congress can take credit for ‘solving’ prob-lems without having to ask their constituents to pay for the solutions withhigher federal taxes.”155 Further, “even when the States are not forced toabsorb the costs of implementing a federal program, they are still put in theposition of taking the blame for its burdensomeness and for its defects.”156

After discussing this accountability principle, Justice Scalia expandedon the nondelegation rationale implicit in New York:

[T]he power of the President would be subject to reduction, if Congress could act as effec-tively without the President as with him, by simply requiring state officers to execute the

148 18 U.S.C. § 922(s) (1994). The Brady Act imposed a five-day waiting period, see id. §

922(s)(1)(A)(ii), and required that a firearms dealer: (1) receive from a firearms purchaser a swornstatement that the purchaser was not among the forbidden class of purchasers under the Act, see id. §922(s)(1)(A)(i)(I); (2) immediately verify the purchaser’s identification, see id. § 922(s)(1)(A)(i)(II);and (3) provide the purchaser’s sworn statement to the chief law enforcement officer (CLEO) of thepurchaser’s residence, see id. § 922(s)(1)(A)(i)(III), (IV). If the State either issued permits with back-ground checks, see id. § 922(s)(1)(C), or provided for instant background checks, see id. §922(s)(1)(D), then the seller needed neither submit a sworn statement nor wait five business days forthe CLEO to perform a background check.

149 For a lengthier discussion of the facts in Printz, see Jonathan H. Adler, Comment, The GreenAspects of Printz: The Revival of Federalism and Its Implications for Environmental Law, 6 GEO.MASON L. REV. 573 (1998).

150 Printz, 117 S. Ct. at 2376 (citing U.S. CONST. art. IV, § 3 (prohibiting involuntary reductionor combination of a State’s territory); id. art. III, § 2 (Judicial Power Clause); id. art. IV, § 2 (Privilegesand Immunities Clause); id. art. IV, § 4 (Guarantee Clause); id. art. V (3/4 of States vote to amendConstitution); id. art. I, § 8 (limited by amend. X)).

151 514 U.S. 549 (1995). Lopez involved a challenge to a federal criminal law that the Courtstruck down as unconstitutional because Congress acted beyond the grant of power in the CommerceClause power.

152 Printz, 117 S. Ct. at 2377 (citing to New York, 505 U.S. at 168-69 and Lopez, 514 U.S. at 576-77 (Kennedy, J., concurring)).

153 Id. at 2378 (quoting THE FEDERALIST NO. 51 (James Madison)).154 Id.155 Id. at 2382.156 Id.



laws. . . . “[The Commerce Clause] authorizes Congress to regulate interstate commerce di-rectly; it does not authorize Congress to regulate state governments’ regulation of interstatecommerce.”157

Using the same premise from Hodel and FERC that Justice O’Connor re-lied on in New York, Justice Scalia concluded that “the Federal Govern-ment may not compel the States to implement, by legislation or executiveaction, federal regulatory programs.”158 Justice Scalia closed with a ringingendorsement of the notion of a complete division of powers between fed-eral and state governments: “It is an essential attribute of the States’ re-tained sovereignty that they remain independent and autonomous withintheir proper sphere of authority.”159

In its brief in Printz, the United States Government argued in favor ofa rule that would limit New York by drawing a “distinction between ‘mak-ing’ law and ‘enforcing’ it, between ‘policymaking’ and mere ‘implemen-tation.’”160 Under this theory, so long as state executive officials werecalled upon merely to enforce and implement, rather than to make policy,the Brady Act could not be fairly characterized as “commandeering”autonomous state officials.161 Responding, Justice Scalia characterized theGovernment’s interpretation of federalism as “reminiscent of . . . the linethat separates proper congressional conferral of Executive power fromunconstitutional delegation of legislative authority for federal separation-of-powers purposes.”162 Justice Scalia argued that “the new line the Gov-ernment proposes” is not a bright one, because “[e]xecutive action that hasutterly no policymaking component is rare.”163 He questioned: “Is it reallytrue that there is no policymaking involved in deciding, for example, what‘reasonable efforts’ shall be expended to conduct a background check?”164

Yet ironically, even as Justice Scalia attempted to belittle the govern-ment’s rationale by comparing it to the moribund horizontal nondelegationdoctrine, the ultimate rule established in New York and Printz served tocreate what can only be called a “vertical nondelegation” doctrine.

Taken together, the Court’s majority opinions in New York and Printzmake the Court the ultimate arbiter of whether a decision by the federalgovernment to impose unfunded mandates upon the states violates the

157 Id. at 2378-79 (quoting New York, 505 U.S. at 166).158 Id. at 2380 (discussing Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S.

264 (1981), FERC v. Mississippi, 456 U.S. 742 (1982) and New York, 505 U.S. 144 (1992)). Thedissents in New York vigorously rebutted the underlying assertions from Hodel and FERC.

159 Id. at 2381.160 Id. at 2380.161 See Brief for the United States, 1996 WL 595005, at **15-18, Printz v. United States, 117 S.

Ct. 2365 (1997) (Nos. 95-1478, 95-1503).162 Printz, 117 S.Ct. at 2380 (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.

495, 530 (1935); and Panama Refining Co. v. Ryan, 293 U.S. 388, 428-29 (1935)).163 Id. at 2380-81.164 Id. at 2381 (referring to the Brady Act’s requirement in 18 U.S.C. § 922(s)(2) (1994)).



Tenth Amendment. Reminiscent of National League of Cities, the Courthas reasserted its role as mediator of federal-state conflicts; but it has doneso by torturing the principle of “political accountability” articulated inGarcia.

The principle that unfunded mandates are unconstitutional per seclosely resembles the type of structural limitations the Court imposed in itsearly horizontal nondelegation cases. In A.L.A. Schechter Poultry Corp. v.United States165 and Carter v. Carter Coal Co.,166 for example, the Courtused horizontal nondelegation and Tenth Amendment limitations to con-strict a delegation to a federal agency that regulated commerce throughoutthe nation. The horizontal nondelegation doctrine stood for a strict adher-ence to separation of powers principles. Similarly, in New York and Printz,the Court used a vertical nondelegation doctrine, ostensibly implicit in theTenth Amendment, to prohibit Congress from effectuating federal regula-tory policies through the “commandeering” of state executive officials.This vertical nondelegation doctrine, as contemplated by the New York andPrintz Courts, stands for an equally strict adherence to division of powers.

IV. A NALYSIS: A PUBLIC CHOICE CRITIQUE OF THE SUPREME COURT’SNEW FEDERALISM JURISPRUDENCE

In New York and Printz, the Court has constructed a jurisprudenceforbidding the federal government from “commandeer[ing]” or otherwiseforcing state officials to administer unfunded federal programs. In practice,this novel rule resembles a vertical equivalent to the horizontal nondelega-tion doctrine. Accordingly, this section analyzes New York and Printz un-der a theory of nondelegation.

The Court supports its decisions in New York and Printz on theground that, absent forceful judicial review, individual voters will be un-able to hold political candidates accountable. In the Court’s view, un-funded mandates will confuse the electorate and induce it to vote out thewrong officeholders. Instead of punishing the federal officials responsiblefor unpopular federal mandates administered by state officers, the Courtworries that myopic voters will erroneously hold state legislators and stateexecutive officials accountable at the polls for the actions of the federalgovernment. In other words, the Court has suggested that without its inter-vention, federal politicians will delegate duties and take credit for popularprograms, while avoiding blame for unpopular ones. Moreover, the statepoliticians charged with finding resources to pay for the administration offederal delegations will get the worst of both worlds; they will receive nocredit from voters for popular programs, but will receive the blame if in-

165 295 U.S. 495 (1935).166 298 U.S. 238 (1936).



creased taxes or decreased services result from having to fulfill federalunfunded mandates. The Court concluded that the political process wouldfail to bring this information to light.

Public choice interest group theory offers several useful tools to ana-lyze whether the Court’s new doctrine makes any sense. In particular, thedecisions in New York and Printz may be analyzed for their “agency cost,”“decision-making cost” and “accountability cost” implications. In simpli-fied terms, agency costs refer to the “costs engendered by a divergence ofthe agent’s goals and those of the principal . . . .”167 In the vertical delega-tion context, the principal is the federal government and the agent is thestate government entity. Decision-making costs refer to the costs of nego-tiating and reaching agreement on a single alternative by two or more indi-viduals (or even two or more entities).168 In the vertical delegation context,relevant decision-makers include congressmen, the President (with hisveto power), and intergovernmental lobbies such as the National Gover-nors’ Association. Accountability costs refer to the information costs asso-ciated with accurately communicating to voters which politicians shouldbe held responsible for which political decisions.169

Taken together, agency costs and decision-making costs constitute arough proxy for what the New York and Printz Courts have identified as“commandeering.” These two costs provide the best tracking device tomeasure whether political actors have the incentive to “commandeer”states through vertical delegation. Accountability costs, addressed directlyby the New York and Printz Courts, provide a way to evaluate the electoraleffects of vertical delegation.

A. Agency Costs and Decision-making Costs: “Commandeering” inNew York and Printz

Implicit in the New York and Printz Court’s analysis of vertical non-delegation is the insight, familiar in the horizontal nondelegation context,that “an increase in delegated legislative authority will increase ‘agencycosts,’ . . . but will also diminish the principals’ (legislators’) decision-making costs.”170 Discussing horizontal delegations, Professors Aranson,Gellhorn and Robinson have postulated that horizontal delegations allow

167 Peter Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 6 (1982).168 See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 98 (1962)

(“[T]wo or more separate decision-making units must agree on a single alternative; and it is in thereaching of agreement among two or more individuals that the costs of collective decision-making . . .will tend to be more than the mere sum of individual decision-making costs taken separately.”).

169 See Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory ofRegulation: Toward a Public-Choice Explanation of Federalism, 76 VA. L. REV. 265, 265 (1990)(discussing what has come to be known as the “political-support-maximization model”).

170 Aranson et al., supra note 167, at 6.



legislators to effectively shift responsibility for costly political decisions toexecutive branch regulatory agencies.171 The flip-side of their postulate isthat agency costs will increase over time as the regulatory bodies’ goalsdiverge from Congress’s original goal in passing the legislation.172 Whilethe initial passage of legislation may involve low decision-making costs,the congressional decision-making costs involved in the reversal of a mis-guided delegation will be much higher because a constituency will havebeen created to defend the new regulatory scheme.173 In describing the endresult of horizontal delegations, one scholar has established that “the highcost of subsequent termination by Congress ensures that agency costs willincrease over time.”174

Although these insights may be of great utility in determining thewisdom, or even the constitutionality, of horizontal delegations, the NewYork and Printz Courts have erroneously overlooked the fact that mini-mizing agency costs and decision-making costs presents few problems inthe context of vertical delegations.175 While it may be possible to lowerdecision-making costs by prohibiting Congress from delegating legislativepower to the non-legislative branches of the federal government, a reviewof the facts of New York176 and Printz177 dramatically underscores the fu-tility of such an approach in the context of vertical delegations.

New York presented a situation in which the states attempted to bindeach other to follow certain mutually advantageous rules by creating acredible threat of punitive action by the federal government.178 Specifi-

171 See id. at 64 (“By delegating both regulatory and legislative authority to the agencies, mem-

bers of Congress currently shift the cost of settling political conflicts while retaining some of the po-litical benefits of having acted.”).

172 See id. at 46-47 (analyzing the divergence of “incentives, preferences, and strategic choices ofbureaucrats and bureaus” from original delegation).

173 See JONATHAN RAUCH, DEMOSCLEROSIS 125 (1994) (“To create a new subsidy or anticom-petitive deal is hard, but to reduce a subsidy is much harder. And to completely eliminate a subsidy oran anticompetitive arrangement is hardest of all.”).

174 See STEARNS, supra note 14, at 200.175 Of course, some have argued that a Court imposed nondelegation doctrine is unnecessary in

legislative-executive delegations because it is preferable to have high agency costs by allowing regu-lators to make political decisions. See, e.g., Jerry Mashaw, Prodelegation: Why Administrators ShouldMake Political Decisions, 1 J.L. ECON. & ORG. 81 (1985).

176 New York v. United States, 505 U.S. 144, 200 (1992) (White, J., dissenting).177 Printz v. United States, 117 S. Ct. 2365 (1997).178 In game theory, where multiple players have the incentive to cheat and free ride off lawful

players, the creation of rules that impose an outside credible threat binds players who would otherwisecheat. See AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY 120-24 (1991).Justice White, in dissent in New York, 505 U.S. at 197, noted that the plan would have actually worked.New York, speaking through its legislature, recognized the federal law and consistently met the dead-lines set by the legislation without objection. See id. In the end, New York balked at taking title to itslow level radioactive waste on the eve of implementation. Justice White suggested that the Courtshould hold New York to the bargain it originally made under a theory of estoppel. See id. at 198. TheCourt had long recognized that when a state entered a compact, the state should be held to the bargain.See State ex rel. Dyer v. Sims, 341 U.S. 22, 35 (1951) (Jackson, J., concurring) (“[I]f the compact



cally, the states requested that the federal government give binding ap-proval to states forming regional compacts to deal with disposal of low-level radioactive waste.179 The states favored federal intervention in orderto discourage recalcitrant states from “free-riding” off the waste disposalefforts of their neighbors. Since authorities in complying states were un-likely, as a political matter, to tolerate such free-riding, the stubborn non-compliance of any single state could subvert the entire waste disposalscheme, with unfortunate consequences for the national environment.Moreover, the states were constrained to ask approval from Congress priorto entering an interstate compact because of the Compact Clause of theConstitution, which declares that “[n]o State shall, without the Consent ofCongress, . . . enter into any Agreement or Compact with another State.”180

Although Justice O’Connor conveniently avoided the issue, it is clearthat the decision-making costs of implementing interstate compacts arenecessarily high, because the states must, by definition, first agree amongthemselves to be bound. In New York, for example, all fifty states hadagreed in advance to be bound by the compact at issue; it was only NewYork’s refusal to honor its obligations that gave rise to a dispute.181

Moreover, Justice O’Connor’s conclusion that the federal government had“commandeered” the states when it passed the “take title” provision atissue in New York showed that the delegation at issue in New York im-posed few agency costs, because a delegation by a principal (Congress)that “commandeers” the authority of the agent (the states) obviously leaveslittle, if any, discretion in the hands of the state authorities.182 If the agentpossesses no discretion to develop policy in a manner antithetical to thewill of the principal, no agency costs may be said to exist. Thus, in thevertical delegation at issue in New York, agency costs remained low whiledecision-making costs remained high—an outcome directly opposite towhat would be expected of a horizontal delegation.183

In Printz, Justice Scalia embraced the holding of New York and ap-plied its “commandeering” rationale to a vertical delegation to state ex-ecutives.184 Justice Scalia, however, argued that state enforcement of theinterim provisions of the Brady Act would indeed impose agency costs—labeled “policymaking”—upon the federal government because the state system is to have vitality and integrity, [a state] may not raise an issue ultra vires, decide it, and releaseherself from an interstate obligation.”).

179 Recall that only one site was operating to take low-level radioactive waste. Due to this cir-cumstance the states, through the National Governor’s Association, came together with a proposal toremedy the situation. See New York, 505 U.S. at 150.

180 U.S. CONST. art. I, § 10, cl. 3; see also New York, 505 U.S. at 200 (White, J., concurring inpart and dissenting in part).

181 See New York, 505 U.S. at 150.182 See id. at 161.183 See Aranson et al., supra note 167, at 6.184 Printz v. United States, 117 S. Ct. 2365, 2381 (1997).



CLEOs had some input in defining what would constitute “reasonable ef-forts” in conducting background checks on gun purchasers.185

This paradoxical conclusion—that a delegation of federal authority tothe states may simultaneously “commandeer” autonomous state officialsand vest those same officials with excessive discretion—underscores thefutility of the Court’s vertical nondelegation jurisprudence. If state execu-tive officers did, in fact, have policymaking discretion in Printz, then per-haps vertical delegations do implicate agency costs after all, justifyingjudicial intervention. Yet, if the word “commandeering” is susceptible ofdiametrically opposite meanings in two cases that purport to establish thesame principle, the idea of “commandeering” is arguably deprived of ob-jective meaning and becomes nothing more than an all-purpose rhetoricaldevice. The Court cannot have it both ways. Either (1) the state officialswere “commandeered,” and no substantial agency costs accrued, or (2)they were not “commandeered,” in which case judicial intervention onbehalf of the states becomes unnecessary, even intrusive.

Finally, just as decision-making costs of the complex interstate com-pact were high in New York, legislative decision-making costs were alsohigh in Printz.186 Congress hammered out the specific interim provisionsof the Brady Bill for several sessions before it finally became law, over-seen by the watchful eyes of the two diametrically opposed, highly influ-ential lobbies on the gun-control issue.187

B. Accountability Costs in New York and Printz

While the foregoing discussion suggests that a consideration of theagency and decision-making costs implicit in the Court’s new “comman-deering” principle tends to undermine the Court’s reasoning in New Yorkand Printz, this section probes the accountability cost rationale that theCourt uses to justify judicial intervention. Justice O’Connor, in NewYork,188 and Justice Scalia, in Printz,189 announced that the prevention ofdistorted political accountability was a key justification for invalidating

185 Id. at 2380 (referring to 18 U.S.C. § 922(s)(2)). Justice Scalia also argued that CLEOs had the

option to refrain from notifying a gun dealer that a prospective purchaser was ineligible to purchase ahandgun. See id. at 2369. In the next paragraph, however, Justice Scalia did note that under the GunControl Act of 1968, 18 U.S.C. § 924(a)(5) (1994), any person who violates a portion of the act, in-cluding any amendments like the Brady Act, would be subject to imprisonment or fine. See id.

186 The Brady Act did not involve the derided porkbarreling (i.e. political credit-taking withoutincurring significant political costs to those who voted for the Act). See generally GEORGE F. WILL ,RESTORATION 20-21 (1992) (discussing the mohair subsidy).

187 Mark Johnson, 5-4 Decision Guts Brady Gun Control Law, RICH. TIMES-DISPATCH, June 28,1997, at A1 (“Gun rights groups, such as the National Rifle Association, successfully fended off theBrady law for years . . . .”).

188 New York v. United States, 505 U.S. 144, 169 (1992).189 Printz, 117 S. Ct. at 2382.



laws that delegate federal duties to state executive and legislative actors. Inboth cases, the Court opined that federal legislators will generally takecredit and avoid blame for decisions delegated to state executive and leg-islative officials.190 The Court has thus concluded that judicial review mostadequately protects political accountability. This dubious conclusion di-rectly contradicts precedent and the lessons of public choice analysis.191

The inherently self-regulating political process rarely needs to be protectedby judicial review.192

While carefully carving out her new rule in New York, JusticeO’Connor explicitly declined to overrule Garcia v. San Antonio Metro-politan Transit Authority.193 Yet, the rule in New York and Printz advo-cates judicial intervention in the political process and therefore contradictsGarcia’s basic rule:194 “The political process ensures that laws that undulyburden the States will not be promulgated.”195 Unlike the rule in Garcia,the implied vertical nondelegation doctrine adopted in New York andPrintz takes an overly pessimistic view of the political process and sug-gests that judicial review will be effective in ensuring that politicians re-main accountable to their constituents.196 In Printz, Justice Stevens’ dissentrejected the necessity of judicial review in the federalism context, arguingthat local officials faced with “disgruntled constituents” would have littledifficulty pointing to “the source of the misfortune.”197 Public choiceanalysis supports Justice Stevens’ opinion and militates against the exer-cise of judicial review in federalism cases.

Recall that the public-choice model of legislative action assumes thatlegislators are self-interested and principally focused on their reelectionprospects.198 According to scholars, congressmen tend to engage in threetypes of activities to enhance the possibility of reelection: (1) advertis-ing—increasing their individual name recognition in the congressionaldistrict;199 (2) credit claiming—internalizing the effect of beneficial treat-

190 See id.; New York, 505 U.S. at 169.191 But cf. John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1334

(1997) (suggesting that the Rehnquist Court has built a line of decisions creating “judicial safeguards”under the mantra of a variety of constitutional clauses).

192 The clear exception to this rule is where the Court is attempting to assure participation byindividuals within the political process. See generally Harper v. Virginia State Bd. of Elections, 383U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964);Baker v. Carr, 369 U.S. 186 (1962).

193 469 U.S. 528 (1985).194 See Yoo, supra note 191, at 1311 (suggesting that Garcia “is not, nor should it be” good law).195 Garcia, 469 U.S. at 556.196 See Aranson et al., supra note 167, at 55-64.197 Printz, 117 S. Ct. at 2395 n.18 (Stevens, J., dissenting).198 See FIORINA, supra note 16, at 37.199 See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 49-52 (1974). Fiorina

generally agrees with Mayhew’s characterization. See FIORINA, supra note 16, at 39 (“For most of thetwentieth century, congressmen have engaged in a mix of three kinds of activities: lawmaking, pork-



ment of governmental action on constituents (for example, findinggrandma’s lost social security check or getting increased budget expendi-tures for the district); and (3) position taking—public iteration of a popularvalue or opinion held by the congressman (for example, a roll-call vote onthe Brady Act or the Low-Level Nuclear Waste Amendments Act). 200

Above all else, the proponents of the vertical nondelegation doctrine fearcredit claiming.201 With credit claiming, goes the theory, decision-makingcosts are low while agency costs are kept intentionally high so that con-gressmen may both blame the “bureaucracy” for problems with legislationand extract political benefits by shepherding constituents through the frus-tratingly complex federal bureaucracy.202

The Court’s concern with credit claiming seems overstated, however,if not entirely misplaced in the vertical context. Usually, a congressmanseeks to claim credit for delivering the goods for the district, the state or aninterest group. A common theme of credit claiming by incumbents re-volves around what committees a congressman sits on, seniority on thosecommittees, and how that seniority can ensure that the district (and interestgroups within the district) will get legislation helpful only to thatdistrict.203 Examples of credit claiming often include saving jobs at facto-ries in the district or building a new dam or road. By contrast, the decisionsinvolved in New York or Printz involved vertical delegations of national,rather than purely regional, import.

On the other hand, when a congressman takes a public position on acontroversial political issue by recorded or roll-call vote, the congressmanmay no longer hide behind the bureaucracy; rather, the congressman mustexplain his position to constituents or face defeat at the polls.204 Make nomistake, congressmen calculate their position taking votes just as they dowith claiming credit. With position taking, the congressman will seek tomaximize election chances by pleasing an “attentive public” that closelymonitors the progress of particular legislation.205 The congressman must

barreling, and casework.”).

200 See MAYHEW, supra note 199, at 52-61 (credit claiming); see id. at 61-73 (position taking).201 See Aranson et al., supra note 167, at 57-58.202 A congressman benefits from the delegation of regulatory power by “shifting responsibility,

deriding the bureaucracy, and engaging in ombudsman-like activities with the agency to extract bene-fits from identifiable constituents. Congressmen can also threaten adverse agency actions against‘uncooperative’ constituents.” Id. at 58.

203 But see RICHARD F. FENNO, JR., CONGRESSMAN IN COMMITTEES 1-2 (noting that congress-men will match aspirations of “re-election, influence within the House [or Senate], and good publicpolicy” with the choice of committee assignments).

204 See JOHN W. KINGDON, CONGRESSMEN’S VOTING DECISIONS 47 (3d ed. 1989) (“Congress-men are constantly called upon to explain to constituents why they voted as they did.”).

205 See R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 64-65 (1990) (“Attentivepublics are those citizens who are aware that a specific issue is on the congressional agenda, knowwhat alternatives are under consideration, and have relatively firm preferences about what Congressshould do.”).



successfully gauge, not only constituent preferences, but the relativestrength of constituent preferences. Will the incumbent’s next opponentuse a particular position taking vote in a 30-second attack commercial?

The “position-taking” characterization better fits the legislation at is-sue in Printz and New York, in part because of the recorded nature of thevote. In particular, the House of Representatives took recorded votespassing the underlying legislation involved in both New York206 andPrintz.207 Although the Senate passed both pieces of legislation without aroll-call vote,208 several senators placed “no” votes on the record in theunderlying legislation in Printz.209 Thus, there was some use of position-taking despite the lack of a roll-call vote in the Senate. This is not surpris-ing, as senators tend to approach elections (and position-taking employedto enhance re-election chances) slightly differently than members of theHouse.210 Recall also that the decisionmaking costs of passing the legisla-tion were high in both New York and Printz, while the agency costs createdby the legislation were low, thereby decreasing the likelihood that reelec-tion seeking congressmen could benefit from assisting interest groups ingaining purely private benefits.211 This is the precise opposite of the para-digm alleged to occur in the context of horizontal delegations.212

Under a public choice model, accountability in federalism cases isadequately protected by the ordinary workings of the political system. Asone public choice commentator has suggested, “Congress will delegate tothe local regulators only when the political support it obtains from defer-ring to states is greater than the political support it obtains from regulatingitself.”213 This so-called “franchise theory of federalism” identifies threegeneral situations wherein congressmen are likely to allow states to regu-late activity in lieu of regulating the activity by direct federal regulation.214

The first such situation arises where a state, like Delaware in corporatelaw, has created a “regulatory regime that accumulates particularized ex-

206 See 131 CONG. REC. 35,252 (1985) (passing the Low-Level Radioactive Waste Policy

Amendments Act of 1985 by roll-call vote without a single dissenting vote).207 See 139 CONG. REC. H10,907-08 (daily ed. Nov. 22, 1993) (passing the Brady bill by roll call

vote).208 See 131 CONG. REC. 38,385 (1985) (acknowledging that the “Low-Level Nuclear Waste”

legislation would pass by “unanimous-consent agreement”).209 See 139 CONG. REC. S17,093 (daily ed. Nov. 24, 1993).210 See FIORINA, supra note 16, at 116 (“[M]ost Senate elections are significantly different from

most House elections. Reasonably enough, they appear to occupy a niche somewhere between presi-dential and House elections.”).

211 See supra Part IV.A.212 See Aranson et al., supra note 167, at 63-64 (“Our purpose . . . is not the reduction of legisla-

tion as such, but the reduction of legislation aimed at creating purely private benefits. Our justificationfor applying more rigorous standards to delegation rests on the prescription that delegation provides aprincipal means for the legislative production of private goods.”).

213 Macey, supra note 169, at 267.214 Id. at 268.



pertise, reputational value, or human capital in a specific subject area, that. . . represents a capital asset of that state.”215 Federal legislators will alsodelegate when state law can be customized to respond to local interestgroups that differ from state to state.216 Third, federal officials will defer tostate officials where deference to states will “avoid the loss of politicalsupport on issues for which there is no clear national consensus.”217

Delegation through unfunded mandates falls squarely into categorythree described above. Congressmen will choose to delegate federal dutiesthrough unfunded mandates only where congressmen reasonably believethat a national consensus exists to support the delegated program.218 Thus,“Congress always can decide to regulate when and if interest-group politi-cal support galvanizes around a particular regulatory solution, thereby sig-naling Congress that it can intervene safely.”219 This conclusion suggeststhat Congress will choose to regulate both substance and form based onsignals from lobbyists. Before New York and Printz, the Court had longrecognized that Congress could choose the preferred means to implementfederal programs.220 However, the Court, in New York and Printz, sug-gested that Congress should have chosen to either completely preempt thestates or give monetary incentives to give states the option to administerthe federal programs.221 Both New York and Printz, however, include fac-tual situations where Congress had been galvanized not to pre-empt thestates entirely, but to enact a system the states either explicitly agreed to orwould only have to administer for a short time.

New York presented a situation in which the states, speaking throughthe National Governors’ Association, “bargained among themselves toachieve compromises for Congress to sanction.”222 The National Gover-nors’ Association thereby signaled Congress that it could intervene safelyso long as it enacted the regulatory plan explicitly bargained over.

215 Id. at 276.216 See id. at 281 (noting that the “political-support-maximizing outcome for politicians in one

state may not be the political-support-maximizing solution for politicians in another”).217 Id. at 284.218 See RICHARD FENNO, HOMESTYLE 8-18 (1978) (noting that congressmen tend to view their

constituencies in varied ways including a reelection constituency specifically courted through deliber-ate legislative activity).

219 Macey, supra note 169, at 286.220 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (“Let the end be legitimate,

let it be within the scope of the constitution, and all means which are appropriate, which are plainlyadopted to that end, which are not prohibited, but consistent with the letter and spirit of the constitu-tion, are constitutional.”).

221 See Printz v. United States, 117 S. Ct. 2365, 2383 (1997) (holding a provision from the BradyAct unconstitutional where “it is the whole object of the law to direct the functioning of the state ex-ecutive”); New York v. United States, 505 U.S. 144, 188 (1992) (“The Constitution enables the Fed-eral Government to pre-empt state regulation contrary to federal interests, and it permits . . . incentives. . . . It does not, however, authorize Congress simply to direct States to [take title to] radioactive wastegenerated within their borders.”).

222 New York, 505 U.S. at 194 (White, J., concurring in part and dissenting in part).



The signals were more mixed concerning the passage of the interimgun-control legislation at issue in Printz,223 and regional variance of opin-ion regarding the gun control issue prevented legislators from permanentlydelegating gun control regulation to the states.224 Congress did, however,recognize that the states might be willing to administer the program on ashort-term basis, fully understanding that the federal government wouldimplement a more airtight national instant background check.225

Nonetheless, in both New York and Printz Congress acted consistentlywith the model of a rational vote-seeking politician; Congress listened toits constituents.226 In such circumstances, the states do not need the Courtto review unfunded mandates, because the political process, standingalone, has proven effective in reacting to the problem. As Justice Stevenspointed out in his Printz dissent, Congress had already passed the Un-funded Mandates Reform Act of 1995 to remedy the unfunded mandatesproblem.227 This legislation, even in the absence of judicial intervention,will successfully prevent future delegations of unfunded mandates bycompelling members of Congress to publicly acknowledge the unjust costsimposed on states.228

By creating a vertical nondelegation doctrine the Court has preemptedthe free play of the political marketplace and has given interest groups anincentive to use the judicial system to win political battles lost in the leg-islature.229 The Court is far less adept than Congress at choosing which

223 Macey listed gun control as an issue that differed from state-to-state, that Congress would notnormally choose to preempt. See Macey, supra note 169, at 281.

224 See Printz, 117 S. Ct. at 2365.225 Incidentally, the instant background check is now up and running. See Michael J. Sniffen,

Gun Buyers to Face Instant Checks, Oct. 30, 1998, available in 1998 WL 21781439.226 But cf. WILL , supra note 186, at 116 (arguing that representatives are too responsive to con-

stituent desires, “[l]eadership does not amount merely to being ‘responsive’ to . . . polling data.”); seealso HANNA F. PITKIN , THE CONCEPT OF REPRESENTATION 164 (1967) (“As a matter of political fact,legislators often pattern their actions not on what their constituents ought to want but on what theyanticipate their constituents will want . . . . This is natural; the legislators want to be reelected.”).

227 Printz, 117 S. Ct., at 2395 (1997) (Stevens, J., dissenting) (discussing congressional passageof the Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, 109 Stat. 48 (1995) (codified at 2U.S.C. §§ 602, 632, 653, 658a-g, 1501-1571 (Supp. II 1996)).

228 See Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The UnfundedMandates Reform Act of 1995, 45 U. KAN. L. REV. 1113, 1115 (1997) (“[I]f one believes that federal-ism interests are insufficiently protected, one should consider directing some efforts toward the adop-tion of new legislative procedures.”).

229 Robert Bork has suggested that interest groups turn to the Court to fight political battles alltoo often:

Each [interest] group gathers to demonstrate outside the White House, then forms .. . to begin the lengthy walk down Pennsylvania Avenue to Constitution Avenueand on to Capitol Hill. There the demonstrators march past the Houses of Congresswith hardly a glance and go straight to the Supreme Court building to make theirmoral sentiments known where they perceive those sentiments to be relevant.

ROBERT H. BORK, THE TEMPTING OF AMERICA 3 (1990). Justice Thomas, concurring in Printz, hon-estly capsulized the underlying point when he suggested that “a colorable argument” could be madethat the Brady Act violated the Second Amendment. Printz, 117 S. Ct. at 2386 (Thomas, J., concur-



interest group’s policy should be law. The effects of the Court’s recentdecisions serve only to stifle the development of a more fluid relationshipbetween the state and federal governments. In the end, the Court’s deci-sions may lead the federal government to further “aggrandize itself.”230

CONCLUSION

The new vertical nondelegation doctrine articulated in New York andPrintz has brought the Court full circle from the pre-New Deal era. In thepast several decades, through fits and starts, the Court has tried to formu-late new doctrines springing from the Tenth Amendment and placed limi-tations on federal regulation of states. The vertical nondelegation doctrineof New York and Printz suggests that the fear of “commandeering” and theprotection of political accountability provide twin principles that couldjustify judicial action to vindicate states’ rights. Yet the Court fails toprove that its proposed solutions constitute an improvement over the freeinterplay of political forces. Just like previous judicial doctrines thatsought to place Tenth Amendment limitations on the federal government,the vertical nondelegation doctrine must ultimately collapse under theweight of its own incoherence.

This Comment applied public choice interest group theory to test theassertions underlying the new vertical nondelegation doctrine. The analy-sis suggests that the factual situations of New York and Printz, viewedthrough the prism of public choice, militated against judicial intervention.The agency costs for the delegations were low and the decision-makingcosts to pass the legislation were high. Any accountability costs wereremedied by the give-and-take of the political process. At bottom, the po-litical process possesses a decided comparative advantage over the judicialprocess in vindicating the rights of “the people,” particularly as repre-sented by factional interest groups. The Court has yet to show a factualsituation that requires judicial intervention rooted in the Tenth Amend-ment. If the past is any guide, the factual situation may not exist.

Daniel S. Herzfeld*

ring). Pro- and anti-gun control advocates amassed on either side of the issue. See Brief of Gun Own-ers Foundation, 1996 WL 468617, 117 S. Ct. 2365 (1997) (No. 95-1478); Brief of Handgun Control,Inc., 1996 WL 585868, 117 S. Ct. 2365 (1997) (Nos. 95-1478, 95-1503); see also Johnson, supra note187, at A1 (“NRA lawyers challenged challenged Brady, not as a violation of the Second Amendmentright to bear arms, but as transgressing the 10th Amendment separation [sic] of powers between stateand federal government.”).

230 See Printz, 117 S. Ct. at 2396 (Stevens, J., dissenting).* George Mason University School of Law, Juris Doctor Candidate May, 1999; University of

Virginia, B.A. in History and Government & Foreign Affairs, May 1994. This article was inspired bydiscussions with Professor Maxwell Stearns. The author would like to especially thank fellow editorJohn Crossett for his thorough critique. Additionally, the author would like to thank Greg Greene,Eileen Cole, Jennifer Dacey, Michael Langan, and Nick Widnell for their perusal of earlier drafts.

Copyright: 1999 George Mason Law Review

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