U.S. Supreme Court
NEW YORK v. UNITED STATES
505 U.S. 144 (1992)
JUSTICE O'CONNOR delivered the opinion of the Court.
This case implicates one of our Nation's newest problems of public policy,and perhaps our oldest question of constitutional law. The public policyissue involves the disposal of radioactive waste: in this case, we addressthe constitutionality of three provisions of the Low-Level RadioactiveWaste Policy Amendments Act of 1985. The constitutional question is asold as the Constitution: it consists of discerning the proper divisionof authority between the Federal Government and the States. We concludethat, while Congress has substantial power under the Constitution to encouragethe States to provide for the disposal of the radioactive waste generatedwithin their borders, the Constitution does not confer upon Congress theability simply to compel the States to do so. We therefore find that onlytwo of the Act's three provisions at issue are consistent with the Constitution'sallocation of power to the Federal Government....
I
By 1985, only three approved regional compacts had operational disposalfacilities; not surprisingly, these were the compacts formed around SouthCarolina, Nevada, and Washington, the three sited States. The followingyear, the 1980 Act would have given these three compacts the ability toexclude waste from nonmembers, and the remaining 31 States would have hadno assured outlet for their low level radioactive waste. With this prospectlooming, Congress once again took up the issue of waste disposal. The resultwas the legislation challenged here, the Low-Level Radioactive Waste PolicyAmendments Act of 1985.
The 1985 Act was again based largely on a proposal submitted by theNational Governors' Association. In broad outline, the Act embodies a compromiseamong the sited and unsited States. The sited States agreed to extend forseven years the period in which they would accept low level radioactivewaste from other States. In exchange, the unsited States agreed to endtheir reliance on the sited States by 1992....
The Act provides three types of incentives to encourage the States tocomply with their statutory obligation to provide for the disposal of wastegenerated within their borders.
1. Monetary incentives. One quarter of the surcharges collected by thesited States must be transferred to an escrow account held by the Secretaryof Energy. 2021e(d)(2)(A). The Secretary then makes payments from thisaccount to each State that has complied with a series of deadlines.....
2. Access incentives. The second type of incentive involves the denialof access to disposal sites. States that fail to meet the July, 1986, deadlinemay be charged twice the ordinary surcharge for the remainder of 1986,and may be denied access to disposal facilities thereafter....
3. The take-title provision. The third type of incentive is the mostsevere. The Act provides:
- "If a State (or, where applicable, a compact region) in which low-levelradioactive waste is generated is unable to provide for the disposal ofall such waste generated within such State or compact region by January1, 1996, each State in which such waste is generated, upon the requestof the generator or owner of the waste, shall take title to the waste,be obligated to take possession of the waste, and shall be liable for alldamages directly or indirectly incurred by such generator or owner as aconsequence of the failure of the State to take possession of the wasteas soon after January 1, 1996, as the generator or owner notifies the Statethat the waste is available for shipment."
Petitioners - the State of New York and the two counties - filed thissuit against the United States in 1990. They sought a declaratory judgmentthat the Act is inconsistent with the Tenth and Eleventh Amendments tothe Constitution, with the Due Process Clause of the Fifth Amendment, andwith the Guarantee Clause of Article IV of the Constitution....
II
A
These questions can be viewed in either of two ways. In some cases,the Court has inquired whether an Act of Congress is authorized by oneof the powers delegated to Congress in Article I of the Constitution. Inother cases, the Court has sought to determine whether an Act of Congressinvades the province of state sovereignty reserved by the Tenth Amendment.In a case like this one, involving the division of authority between federaland state governments, the two inquiries are mirror images of each other.If a power is delegated to Congress in the Constitution, the Tenth Amendmentexpressly disclaims any reservation of that power to the States; if a poweris an attribute of state sovereignty reserved by the Tenth Amendment, itis necessarily a power the Constitution has not conferred on Congress.
It is in this sense that the Tenth Amendment "states but a truism thatall is retained which has not been surrendered." As Justice Story put it,"[t]his amendment is a mere affirmation of what, upon any just reasoning,is a necessary rule of interpreting the constitution. Being an instrumentof limited and enumerated powers, it follows irresistibly that what isnot conferred is withheld, and belongs to the state authorities." Thishas been the Court's consistent understanding: "The States unquestionablydo retai[n] a significant measure of sovereign authority . . . to the extentthat the Constitution has not divested them of their original powers andtransferred those powers to the Federal Government."
Congress exercises its conferred powers subject to the limitations containedin the Constitution. Thus, for example, under the Commerce Clause, Congressmay regulate publishers engaged in interstate commerce, but Congress isconstrained in the exercise of that power by the First Amendment. The TenthAmendment likewise restrains the power of Congress, but this limit is notderived from the text of the Tenth Amendment itself, which, as we havediscussed, is essentially a tautology. Instead, the Tenth Amendment confirmsthat the power of the Federal Government is subject to limits that may,in a given instance, reserve power to the States. The Tenth Amendment thusdirects us to determine, as in this case, whether an incident of statesovereignty is protected by a limitation on an Article I power....
The actual scope of the Federal Government's authority with respectto the States has changed over the years, therefore, but the constitutionalstructure underlying and limiting that authority has not. In the end, justas a cup may be half empty or half full, it makes no difference whetherone views the question at issue in this case as one of ascertaining thelimits of the power delegated to the Federal Government under the affirmativeprovisions of the Constitution or one of discerning the core of sovereigntyretained by the States under the Tenth Amendment. Either way, we must determinewhether any of the three challenged provisions of the Low-Level RadioactiveWaste Policy Amendments Act of 1985 oversteps the boundary between federaland state authority.
B
Most of our recent cases interpreting the Tenth Amendment have concernedthe authority of Congress to subject state governments to generally applicablelaws. This case presents no occasion to apply or revisit the holdingsof any of these cases, as this is not a case in which Congress has subjecteda State to the same legislation applicable to private parties.
This case instead concerns the circ*mstances under which Congress mayuse the States as implements of regulation; that is, whether Congress maydirect or otherwise motivate the States to regulate in a particular fieldor a particular way. Our cases have established a few principles that guideour resolution of the issue.
1
While Congress has substantial powers to govern the Nation directly,including in areas of intimate concern to the States, the Constitutionhas never been understood to confer upon Congress the ability to requirethe States to govern according to Congress' instructions. The Court hasbeen explicit about this distinction. "Both the States and the United Statesexisted before the Constitution. The people, through that instrument, establisheda more perfect union by substituting a national government, acting, withample power, directly upon the citizens, instead of the Confederate government,which acted with powers, greatly restricted, only upon the States...."
In the end, the Convention opted for a Constitution in which Congresswould exercise its legislative authority directly over individuals, ratherthan over States. This choice was made clear to the subsequent state ratifyingconventions....
In providing for a stronger central government, therefore, the Framersexplicitly chose a Constitution that confers upon Congress the power toregulate individuals, not States. As we have seen, the Court has consistentlyrespected this choice. We have always understood that, even where Congresshas the authority under the Constitution to pass laws requiring or prohibitingcertain acts, it lacks the power directly to compel the States to requireor prohibit those acts. The allocation of power contained in the CommerceClause, for example, authorizes Congress to regulate interstate commercedirectly; it does not authorize Congress to regulate state governments'regulation of interstate commerce.
2
By either of these two methods, as by any other permissible method ofencouraging a State to conform to federal policy choices, the residentsof the State retain the ultimate decision as to whether or not the Statewill comply. If a State's citizens view federal policy as sufficientlycontrary to local interests, they may elect to decline a federal grant.If state residents would prefer their government to devote its attentionand resources to problems other than those deemed important by Congress,they may choose to have the Federal Government, rather than the State,bear the expense of a federally mandated regulatory program, and they maycontinue to supplement that program to the extent state law is not pre-empted.Where Congress encourages state regulation, rather than compelling it,state governments remain responsive to the local electorate's preferences;state officials remain accountable to the people.
By contrast, where the Federal Government compels States to regulate,the accountability of both state and federal officials is diminished. Ifthe citizens of New York, for example, do not consider that making provisionfor the disposal of radioactive waste is in their best interest, they mayelect state officials who share their view. That view can always be pre-emptedunder the Supremacy Clause if it is contrary to the national view, but,in such a case, it is the Federal Government that makes the decision infull view of the public, and it will be federal officials that suffer theconsequences if the decision turns out to be detrimental or unpopular....
With these principles in mind, we turn to the three challenged provisionsof the Low-Level Radioactive Waste Policy Amendments Act of 1985....
III
C
The take-title provision offers state governments a "choice" of eitheraccepting ownership of waste or regulating according to the instructionsof Congress. Respondents do not claim that the Constitution would authorizeCongress to impose either option as a freestanding requirement. On onehand, the Constitution would not permit Congress simply to transfer radioactivewaste from generators to state governments. Such a forced transfer, standingalone, would in principle be no different than a congressionally compelledsubsidy from state governments to radioactive waste producers. The sameis true of the provision requiring the States to become liable for thegenerators' damages. Standing alone, this provision would be indistinguishablefrom an Act of Congress directing the States to assume the liabilitiesof certain state residents. Either type of federal action would "commandeer"state governments into the service of federal regulatory purposes, andwould, for this reason, be inconsistent with the Constitution's divisionof authority between federal and state governments. On the other hand,the second alternative held out to state governments - regulating pursuantto Congress' direction - would, standing alone, present a simple commandto state governments to implement legislation enacted by Congress. As wehave seen, the Constitution does not empower Congress to subject stategovernments to this type of instruction.
Because an instruction to state governments to take title to waste,standing alone, would be beyond the authority of Congress, and becausea direct order to regulate, standing alone, would also be beyond the authorityof Congress, it follows that Congress lacks the power to offer the Statesa choice between the two. Unlike the first two sets of incentives, thetake-title incentive does not represent the conditional exercise of anycongressional power enumerated in the Constitution. In this provision,Congress has not held out the threat of exercising its spending power orits commerce power; it has instead held out the threat, should the Statesnot regulate according to one federal instruction, of simply forcing theStates to submit to another federal instruction. A choice between two unconstitutionallycoercive regulatory techniques is no choice at all. Either way, "the Actcommandeers the legislative processes of the States by directly compellingthem to enact and enforce a federal regulatory program," an outcome thathas never been understood to lie within the authority conferred upon Congressby the Constitution....
Whether one views the take-title provision as lying outside Congress'enumerated powers or as infringing upon the core of state sovereignty reservedby the Tenth Amendment, the provision is inconsistent with the federalstructure of our Government established by the Constitution.
IV
A
First, the United States argues that the Constitution's prohibitionof congressional directives to state governments can be overcome wherethe federal interest is sufficiently important to justify state submission.This argument contains a kernel of truth: in determining whether the TenthAmendment limits the ability of Congress to subject state governments togenerally applicable laws, the Court has, in some cases, stated that itwill evaluate the strength of federal interests in light of the degreeto which such laws would prevent the State from functioning as a sovereign;that is, the extent to which such generally applicable laws would impedea state government's responsibility to represent and be accountable tothe citizens of the State. But whether or not a particularly strong federalinterest enables Congress to bring state governments within the orbit ofgenerally applicable federal regulation, no Member of the Court has eversuggested that such a federal interest would enable Congress to commanda state government to enact state regulation. No matter how powerful thefederal interest involved, the Constitution simply does not give Congressthe authority to require the States to regulate. The Constitution insteadgives Congress the authority to regulate matters directly, and to pre-emptcontrary state regulation. Where a federal interest is sufficiently strongto cause Congress to legislate, it must do so directly; it may not conscriptstate governments as its agents....
Second, the United States argues that the Constitution does, in somecirc*mstances, permit federal directives to state governments. Variouscases are cited for this proposition, but none support it....
Third, the United States, supported by the three sited regional compactsas amici, argues that the Constitution envisions a role for Congress asan arbiter of interstate disputes. The United States observes that federalcourts, and this Court in particular, have frequently resolved conflictsamong States. Many of these disputes have involved the allocation of sharedresources among the States, a category perhaps broad enough to encompassthe allocation of scarce disposal space for radioactive waste. The UnitedStates suggests that, if the Court may resolve such interstate disputes,Congress can surely do the same under the Commerce Clause.
While the Framers no doubt endowed Congress with the power to regulateinterstate commerce in order to avoid further instances of the interstatetrade disputes that were common under the Articles of Confederation, theFramers did not intend that Congress should exercise that power throughthe mechanism of mandating state regulation....
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join,concurring in part and dissenting in part.
The Court strikes down and severs a third component of the 1985 Act,the "take title" provision, which requires a noncomplying State to taketitle to or to assume liability for its low-level radioactive waste ifit fails to provide for the disposal of such waste by January 1, 1996.The Court deems this last provision unconstitutional under principles offederalism. Because I believe the Court has mischaracterized the essentialinquiry, misanalyzed the inquiry it has chosen to undertake, and undervaluedthe effect the seriousness of this public policy problem should have onthe constitutionality of the take-title provision, I respectfully dissent....
My disagreement with the Court's analysis begins at the basic descriptivelevel of how the legislation at issue in this case came to be enacted.The Court goes some way toward setting out the bare facts, but its omissionscast the statutory context of the take-title provision in the wrong light.To read the Court's version of events, see ante, at 150-151, one wouldthink that Congress was the sole proponent of a solution to the Nation'slow-level radioactive waste problem. Not so. The Low-Level RadioactiveWaste Policy Act resulted from the efforts of state leaders to achievea state-based set of remedies to the waste problem. They sought not federalpre-emption or intervention, but rather congressional sanction of interstatecompromises they had reached....
To justify its holding that the take-title provision contravenes theConstitution, the Court posits that, "[i]n this provision, Congress hascrossed the line distinguishing encouragement from coercion." Without attemptingto understand properly the take-title provision's place in theinterstate bargaining process, the Court isolates the measureanalytically and proceeds to dissect it in a syllogistic fashion. The Courtcandidly begins with an argument respondents do not make: that "the Constitutionwould not permit Congress simply to transfer radioactive waste from generatorsto state governments." "Such a forced transfer," it continues, "standingalone, would in principle be no different than a congressionally compelledsubsidy from state governments to radioactive waste producers." Sincethis is not an argument respondents make, one naturally wonders why theCourt builds its analysis that the take title provision is unconstitutionalaround this opening premise. But having carefully built its straw man,the Court proceeds impressively to knock him down. "As we have seen," theCourt teaches, "the Constitution does not empower Congress to subject stategovernments to this type of instruction...."
I am convinced that, seen as a term of an agreement entered into betweenthe several States, this measure proves to be less constitutionally odiousthan the Court opines. First, the practical effect of New York's positionis that, because it is unwilling to honor its obligations to provide in-statestorage facilities for its low-level radioactive waste, other States withsuch plants must accept New York's waste, whether they wish to or not.Otherwise, the many economically and socially beneficial producers of suchwaste in the State would have to cease their operations. The Court's refusalto force New York to accept responsibility for its own problem inevitablymeans that some other State's sovereignty will be impinged by it beingforced, for public health reasons, to accept New York's low-level radioactivewaste. I do not understand the principle of federalism to impede the NationalGovernment from acting as referee among the States to prohibit one frombullying another....
The Court announces that it has no occasion to revisit such decisionsas Garcia v. San Antonio Metropolitan Transit Authority(1985) because "thisis not a case in which Congress has subjected a State to the same legislationapplicable to private parties." Although this statement sends the welcomesignal that the Court does not intend to cut a wide swath through our recentTenth Amendment precedents, it nevertheless is unpersuasive. I have severaldifficulties with the Court's analysis in this respect: It builds its rulearound an insupportable and illogical distinction in the types of allegedincursions on state sovereignty; it derives its rule from cases that donot support its analysis; it fails to apply the appropriate tests fromthe cases on which it purports to base its rule; and it omits any discussionof the most recent and pertinent test for determining the take-title provision'sconstitutionality.
The Court's distinction between a federal statute's regulation of Statesand private parties for general purposes, as opposed to a regulation solelyon the activities of States, is unsupported by our recent Tenth Amendmentcases. In no case has the Court rested its holding on such a distinction.Moreover, the Court makes no effort to explain why this purported distinctionshould affect the analysis of Congress' power under general principlesof federalism and the Tenth Amendment. The distinction, facilely thrownout, is not based on any defensible theory.....
It is clear, therefore, that, even under the precedents selectivelychosen by the Court, its analysis of the take-title provision's constitutionalityin this case falls far short of being persuasive. I would also submit,in this connection, that the Court's attempt to carve out a doctrinal distinctionfor statutes that purport solely to regulate state activities is especiallyunpersuasive after Garcia....
Ultimately, I suppose, the entire structure of our federal constitutionalgovernment can be traced to an interest in establishing checks and balancesto prevent the exercise of tyranny against individuals. But these fearsseem extremely far distant to me in a situation such as this. We face acrisis of national proportions in the disposal of low-level radioactivewaste, and Congress has acceded to the wishes of the States by permittinglocal decisionmaking, rather than imposing a solution from Washington.New York itself participated and supported passage of this legislationat both the gubernatorial and federal representative levels, and then enactedstate laws specifically to comply with the deadlines and timetables agreedupon by the States in the 1985 Act. For me, the Court's civics lecturehas a decidedly hollow ring at a time when action, rather than rhetoric,is needed to solve a national problem....
Exploring Constitutional Conflicts
