•  
  •  
 

UC Law Constitutional Quarterly

George Bach

Abstract

The Tenth Amendment’s anticommandeering doctrine limits the ability of the federal government to issue directives to state legislative bodies and executive officials. While the Supreme Court’s path through the Tenth Amendment has been less than direct, New York v. United States and United States v. Printz clarified that the federal government cannot “commandeer” state legislatures or executives to implement federal policy. While the core of the Court’s approach to anticommandeering remains focused on halting congressional efforts to press state agents into implementing federal regulatory programs, the Haaland v. Brackeen decision may be read to expand the anticommandeering principle. That is, it could be used to invalidate certain federal action that regulates States even when the State is not made a puppet of the federal government.

In Haaland, the Court suggests there may be times (however “unlikely”) when a generally applicable law does run afoul of the Tenth Amendment’s anticommandeering doctrine. For example, when a law primarily affects the States or prohibits the exercise of its core sovereign regulatory functions.

In this Article, I argue that the Court in Haaland quietly strengthened the application of the anticommandeering doctrine, despite rendering an opinion that declines to find a violation of the Tenth Amendment when Congress imposes requirements on state courts. Specifically, the anticommandeering doctrine should be expanded to prohibit federal action that, as a practical matter, prohibits the exercise of a core state sovereign function such as the prosecution and adjudication of state crimes. I also offer a post- Haaland set of principles to guide any anticommandeering analysis.

Download

Share

COinS