New York v. United States, 505 U.S. 144 (1992) (2024)

OCTOBER TERM, 1991SyllabusNEW YORK v. UNITED STATES ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECONDCIRCUIT

No. 91-543. Argued March 30, 1992-Decided June 19, 1992*

Faced with a looming shortage of disposal sites for low levelradioactive waste in 31 States, Congress enacted the Low-LevelRadioactive Waste Policy Amendments Act of 1985, which, among otherthings, imposes upon States, either alone or in "regional compacts"with other States, the obligation to provide for the disposal ofwaste generated within their borders, and contains three provisionssetting forth "incentives" to States to comply with thatobligation. The first set of incentives-the monetaryincentives-works in three steps: (1) States with disposal sites areauthorized to impose a surcharge on radioactive waste received fromother States; (2) the Secretary of Energy collects a portion ofthis surcharge and places it in an escrow account; and (3) Statesachieving a series of milestones in developing sites receiveportions of this fund. The second set of incentives-the accessincentives-authorizes sited States and regional compacts graduallyto increase the cost of access to their sites, and then to denyaccess altogether, to waste generated in States that do not meetfederal deadlines. The so-called third "incentive"-the take titleprovision-specifies that a State or regional compact that fails toprovide for the disposal of all internally generated waste by aparticular date must, upon the request of the waste's generator orowner, take title to and possession of the waste and become liablefor all damages suffered by the generator or owner as a result ofthe State's failure to promptly take possession. Petitioners, NewYork State and two of its counties, filed this suit against theUnited States, seeking a declaratory judgment that, interalia, the three incentives provisions are inconsistent with theTenth Amendment-which declares that "powers not delegated to theUnited States by the Constitution, nor prohibited by it to theStates, are reserved to the States" -and with the Guarantee Clauseof Article IV, § 4-which directs the United States to "guarantee toevery State ... a Republican Form of Government." The DistrictCourt dismissed the complaint, and the Court of Appealsaffirmed.*Together with No. 91-558, County of Allegany, New York v.United States et al., and No. 91-563, County of Cortland, New Yorkv. United States et al., also on certiorari to the same court.

145Held:1. The Act's monetary incentives and access incentivesprovIsIOns are consistent with the Constitution's allocation ofpower between the Federal and State Governments, but the take titleprovision is not. Pp. 155-183.(a) In ascertaining whether any of the challenged provisionsoversteps the boundary between federal and state power, the Courtmust determine whether it is authorized by the affirmative grantsto Congress contained in Article 1's Commerce and Spending Clausesor whether it invades the province of state sovereignty reserved bythe Tenth Amendment. Pp. 155-159.(b) Although regulation of the interstate market in the disposalof low level radioactive waste is well within Congress' CommerceClause authority, cf. Philadelphia v. New Jersey,437 U. S. 617,621-623, and Congress could, if it wished, pre-empt entirely stateregulation in this area, a review of this Court's decisions, see,e. g., Hodel v. Virginia Surface Mining &Reclamation Assn., Inc., 452 U. S. 264, 288, andthe history of the Constitutional Convention, demonstrates thatCongress may not commandeer the States' legislative processes bydirectly compelling them to enact and enforce a federal regulatoryprogram, but must exercise legislative authority directly uponindividuals. Pp. 159-166.(c) Nevertheless, there are a variety of methods, short ofoutright coercion, by which Congress may urge a State to adopt alegislative program consistent with federal interests. As relevanthere, Congress may, under its spending power, attach conditions onthe receipt of federal funds, so long as such conditions meet fourrequirements. See, e. g., South Dakota v. Dole,483 U. S. 203,206-208, and n. 3. Moreover, where Congress has the authority toregulate private activity under the Commerce Clause, it may, aspart of a program of "cooperative federalism," offer States thechoice of regulating that activity according to federal standardsor having state law pre-empted by federal regulation. See, e.g., Hodel, supra, at 288, 289. Pp. 166-169.(d) This Court declines petitioners' invitation to construe theAct's provision obligating the States to dispose of theirradioactive wastes as a separate mandate to regulate according toCongress' instructions. That would upset the usual constitutionalbalance of federal and state powers, whereas the constitutionalproblem is avoided by construing the Act as a whole to comprisethree sets of incentives to the States. pp. 169-170.(e) The Act's monetary incentives are well within Congress'Commerce and Spending Clause authority and thus are notinconsistent with the Tenth Amendment. The authorization to sitedStates to impose surcharges is an unexceptionable exercise ofCongress' power to enable

146Syllabusthe States to burden interstate commerce. The Secretary'scollection of a percentage of the surcharge is no more than afederal tax on interstate commerce, which petitioners do not claimto be an invalid exercise of either Congress' commerce or taxingpower. Finally, in conditioning the States' receipt of federalfunds upon their achieving specified milestones, Congress has notexceeded its Spending Clause authority in any of the four respectsidentified by this Court in Dole, supra, at 207-208.Petitioners' objection to the form of the expenditures asnonfederal is unavailing, since the Spending Clause has never beenconstrued to deprive Congress of the power to collect money in asegregated trust fund and spend it for a particular purpose, andsince the States' ability largely to control whether they will payinto the escrow account or receive a share was expressly providedby Congress as a method of encouraging them to regulate accordingto the federal plan. pp. 171-173.(f) The Act's access incentives constitute a conditionalexercise of Congress' commerce power along the lines of thatapproved in Hodel, supra, at 288, and thus do not intrude onthe States' Tenth Amendment sovereignty. These incentives presentnonsited States with the choice either of regulating waste disposalaccording to federal standards or having their waste-producingresidents denied access to disposal sites. They are not compelledto regulate, expend any funds, or participate in any federalprogram, and they may continue to regulate waste in their own wayif they do not accede to federal direction. Pp. 173-174.(g) Because the Act's take title provision offers the States a"choice" between the two unconstitutionally coercivealternativeseither accepting ownership of waste or regulatingaccording to Congress' instructions-the provision lies outsideCongress' enumerated powers and is inconsistent with the TenthAmendment. On the one hand, either forcing the transfer of wastefrom generators to the States or requiring the States to becomeliable for the generators' damages would "commandeer" States intothe service of federal regulatory purposes. On the other hand,requiring the States to regulate pursuant to Congress' directionwould present a simple unconstitutional command to implementlegislation enacted by Congress. Thus, the States' "choice" is nochoice at all. Pp. 174-177.(h) The United States' alternative arguments purporting to findlimited circ*mstances in which congressional compulsion of stateregulation is constitutionally permissible-that such compulsion isjustified where the federal interest is sufficiently important;that the Constitution does, in some circ*mstances, permit federaldirectives to state governments; and that the Constitution endowsCongress with the power

147to arbitrate disputes between States in interstate commerce-arerejected. Pp. 177-180.(i) Also rejected is the sited state respondents' argument thatthe Act cannot be ruled an unconstitutional infringement of NewYork sovereignty because officials of that State lent theirsupport, and consented, to the Act's passage. A departure from theConstitution's plan for the intergovernmental allocation ofauthority cannot be ratified by the "consent" of state officials,since the Constitution protects state sovereignty for the benefitof individuals, not States or their governments, and since theofficials' interests may not coincide with the Constitution'sallocation. Nor does New York's prior support estop it fromasserting the Act's unconstitutionality. Pp. 180-183.(j) Even assuming that the Guarantee Clause provides a basisupon which a State or its subdivisions may sue to enjoin theenforcement of a federal statute, petitioners have not made out aclaim that the Act's money incentives and access incentivesprovisions are inconsistent with that Clause. Neither the threat ofloss of federal funds nor the possibility that the State's wasteproducers may find themselves excluded from other States' disposalsites can reasonably be said to deny New York a republican form ofgovernment. pp. 183-186.2. The take title provision is severable from the rest of theAct, since severance will not prevent the operation of the rest ofthe Act or defeat its purpose of encouraging the States to attainlocal or regional selfsufficiency in low level radioactive wastedisposal; since the Act still includes two incentives to encourageStates along this road; since a State whose waste generators areunable to gain access to out-ofstate disposal sites may encounterconsiderable internal pressure to provide for disposal, evenwithout the prospect of taking title; and since any burden causedby New York's failure to secure a site will not be borne by otherStates' residents because the sited regional compacts need notaccept New York's waste after the final transition period. Pp.186-187.942 F.2d114, affirmed in part and reversed in part.O'CONNOR, J., delivered the opinion of the Court, in whichREHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and THOMAS, JJ.,joined, and in Parts III-A and III-B of which WHITE, BLACKMUN, andSTEVENS, JJ., joined. WHITE, J., filed an opinion concurring inpart and dissenting in part, in which BLACKMUN and STEVENS, JJ.,joined, post, p. 188. STEVENS, J., filed an opinionconcurring in part and dissenting in part, post, p.210.

148CounselPeter H. Schiff, Deputy Solicitor General of New York,argued the cause for petitioners in all cases. With him on thebriefs for petitioner in No. 91-543 were Robert Abrams,Attorney General, Jerry Boone, Solicitor General, andJohn McConnell, Assistant Attorney General. Edward F.Premo II filed briefs for petitioner in No. 91-558. MichaelB. Gerrard, Deborah Goldberg, and Patrick M. Snyderfiled briefs for petitioner in No. 91-563.Deputy Solicitor General Wallace argued the cause for thefederal respondents in all cases. With him on the brief wereSolicitor General Starr, Acting Assistant Attorney GeneralHartman, Ronald J. Mann, Anne S. Almy, LouiseF. Milkman, and Jeffrey P. Kehne. William B. Collins,Senior Assistant Attorney General of Washington, argued the causefor the state respondents in Nos. 91-543 and 91-563. On the briefwere Kenneth 0. Eikenberry, Attorney General ofWashington, T. Travis Medlock, Attorney General of SouthCarolina, and James Patrick Hudson, Deputy Attorney General,Frankie Sue Del Papa, Attorney General of Nevada, andAllen T. Miller, Jr., Assistant Attorney General.ttBriefs of amici curiae urging reversal were filed forthe State of Ohio et al. by Lee Fisher, Attorney General ofOhio, and James O. Payne, Jr., Mary Kay Smith, andPatricia A. Delaney, Assistant Attorneys General, and by theAttorneys General for their respective jurisdictions asfollows:Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E.Lungren of California, Elizabeth Barrett-Anderson of Guam, Roland WBurris of Illinois, Linley E. Pearson of Indiana, Chris Gorman ofKentucky, Michael E. Carpenter of Maine, Scott Harshbarger ofMassachusetts, Don Stenberg of Nebraska, Robert J. Del Tufoof New Jersey, Ernest D. Preate, Jr., of Pennsylvania, James E.O'Neil of Rhode Island, Mark W Barnett of South Dakota, Dan Moralesof Texas, Mario Palumbo of West Virginia, and James E. Doyle ofWisconsin; and for the Council of State Governments by StewartAbercrombie Baker.Briefs of amici curiae urging affirmance were filed forthe American College of Nuclear Physicians et al. by HaroldF. Reis; for the American Federation of Labor and Congressof Industrial Organizations by Robert M. Weinberg, DavidSilberman, and Laurence Gold; and for the Rocky

149JUSTICE O'CONNOR delivered the opinion of the Court. These casesimplicate one of our Nation's newest problems of public policy andperhaps our oldest question of constitutionallaw. The public policyissue involves the disposal of radioactive waste: In these cases,we address the constitutionality of three provisions of theLow-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L.99-240, 99 Stat. 1842, 42 U. S. C. § 2021b et seq. Theconstitutional question is as old as the Constitution: It consistsof discerning the proper division of authority between the FederalGovernment and the States. We conclude that while Congress hassubstantial power under the Constitution to encourage the States toprovide for the disposal of the radioactive waste generated withintheir borders, the Constitution does not confer upon Congress theability simply to compel the States to do so. We therefore findthat only two of the Act's three provisions at issue are consistentwith the Constitution's allocation of power to the FederalGovernment.IWe live in a world full of low level radioactive waste.Radioactive material is present in luminous watch dials, smokealarms, measurement devices, medical fluids, research materials,and the protective gear and construction materials used by workersat nuclear power plants. Low level radioactive waste is generatedby the Government, by hospitals, by research institutions, and byvarious industries. The waste must be isolated from humans for longperiods of time,Mountain Low-Level Radioactive Waste Compact et al. by Rex E.Lee, Carter G. Phillips, Richard D. Bernstein, and David K.Rees.Briefs of amici curiae were filed for the State ofConnecticut by Richard Blumenthal, Attorney General, andAaron S. Bayer, Deputy Attorney General; for theState of Michigan by Frank J. Kelley, AttorneyGeneral, Gay Secor Hardy, Solicitor General, and ThomasL. Casey, A. Michael Leffler, and John C.Scherbarth, Assistant Attorneys General; and for US Ecology,Inc., by Irwin Goldbloom.

150often for hundreds of years. Millions of cubic feet of low levelradioactive waste must be disposed of each year. See App.110a-111a; Berkovitz, Waste Wars: Did Congress "Nuke" StateSovereignty in the Low-Level Radioactive Waste Policy AmendmentsAct of 1985?, 11 Harv. Envtl. L. Rev. 437, 439-440 (1987).Our Nation's first site for the land disposal of commercial lowlevel radioactive waste opened in 1962 in Beatty, Nevada. Five moresites opened in the following decade: Maxey Flats, Kentucky (1963),West Valley, New York (1963), Hanford, Washington (1965),Sheffield, Illinois (1967), and Barnwell, South Carolina (1971).Between 1975 and 1978, the Illinois site closed because it wasfull, and water management problems caused the closure of the sitesin Kentucky and New York. As a result, since 1979 only threedisposal sitesthose in Nevada, Washington, and South Carolina-havebeen in operation. Waste generated in the rest of the country mustbe shipped to one of these three sites for disposal. See Low-LevelRadioactive Waste Regulation 39-40 (M. Burns ed. 1988).In 1979, both the Washington and Nevada sites were forced toshut down temporarily, leaving South Carolina to shoulder theresponsibility of storing low level radioactive waste produced inevery part of the country. The Governor of South Carolina,understandably perturbed, ordered a 50% reduction in the quantityof waste accepted at the Barnwell site. The Governors of Washingtonand Nevada announced plans to shut their sites permanently. App.142a, 152a.Faced with the possibility that the Nation would be left with nodisposal sites for low level radioactive waste, Congress respondedby enacting the Low-Level Radioactive Waste Policy Act, Pub. L.96-573, 94 Stat. 3347. Relying largely on a report submitted by theNational Governors' Association, see App. 105a-141a, Congressdeclared a federal policy of holding each State "responsible forproviding for the availability of capacity either within or outsidethe State

151for the disposal of low-level radioactive waste generated withinits borders," and found that such waste could be disposed of "mostsafely and efficiently ... on a regional basis." § 4(a)(1), 94Stat. 3348. The 1980 Act authorized States to enter into regionalcompacts that, once ratified by Congress, would have the authoritybeginning in 1986 to restrict the use of their disposal facilitiesto waste generated within member States. § 4(a)(2)(B), 94 Stat.3348. The 1980 Act included no penalties for States that failed toparticipate in this plan.By 1985, only three approved regional compacts had operationaldisposal facilities; not surprisingly, these were the compactsformed around South Carolina, Nevada, and Washington, the threesited States. The following year, the 1980 Act would have giventhese three compacts the ability to exclude waste from nonmembers,and the remaining 31 States would have had no assured outlet fortheir low level radioactive waste. With this prospect looming,Congress once again took up the issue of waste disposal. The resultwas the legislation challenged here, the Low-Level RadioactiveWaste Policy Amendments Act of 1985.The 1985 Act was again based largely on a proposal submitted bythe National Governors' Association. In broad outline, the Actembodies a compromise among the sited and unsited States. The sitedStates agreed to extend for seven years the period in which theywould accept low level radioactive waste from other States. Inexchange, the unsited States agreed to end their reliance on thesited States by 1992.The mechanics of this compromise are intricate. The Act directs:"Each State shall be responsible for providing, either by itself orin cooperation with other States, for the disposal of ... low-levelradioactive waste generated within the State," 42 U. S. C. §2021c(a)(1)(A), with the exception of certain waste generated bythe Federal Government, §§ 2021c(a)(1)(B), 2021c(b). The Actauthorizes States to

152"enter into such [interstate] compacts as may be necessary toprovide for the establishment and operation of regional disposalfacilities for low-level radioactive waste." § 2021d(a)(2). For anadditional seven years beyond the period contemplated by the 1980Act, from the beginning of 1986 through the end of 1992, the threeexisting disposal sites "shall make disposal capacity available forlow-level radioactive waste generated by any source," with certainexceptions not relevant here. § 2021e(a)(2). But the three Statesin which the disposal sites are located are permitted to exact agraduated surcharge for waste arriving from outside the regionalcompact-in 1986-1987, $10 per cubic foot; in 1988-1989, $20 percubic foot; and in 1990-1992, $40 per cubic foot. § 2021e(d)(1).After the 7-year transition period expires, approved regionalcompacts may exclude radioactive waste generated outside theregion. § 2021d(c).The Act provides three types of incentives to encourage theStates to comply with their statutory obligation to provide for thedisposal of waste generated within their borders.1. Monetary incentives. One quarter of the surchargescollected by the sited States must be transferred to an escrowaccount held by the Secretary of Energy. § 2021e (d)(2)(A). TheSecretary then makes payments from this account to each State thathas complied with a series of deadlines. By July 1, 1986, eachState was to have ratified legislation either joining a regionalcompact or indicating an intent to develop a disposal facilitywithin the State. §§ 2021e (e)(1)(A),2021e(d)(2)(B)(i). By January1, 1988, each unsited compact was to have identified the State inwhich its facility would be located, and each compact orstand-alone State was to have developed a siting plan and takenother identified steps. §§ 2021e(e)(1)(B), 2021e(d)(2)(B)(ii). ByJanuary 1, 1990, each State or compact was to have filed a completeapplication for a license to operate a disposal facility, or theGovernor of any State that had not filed an application was to havecertified that the State would be capable of disposing

153of all waste generated in the State after 1992. §§ 2021e(e)(l)(C), 2021e(d)(2)(B)(iii). The rest of the account is to bepaid out to those States or compacts able to dispose of all lowlevel radioactive waste generated within their borders by January1, 1993. § 2021e(d)(2)(B)(iv). Each State that has not met the 1993deadline must either take title to the waste generated within itsborders or forfeit to the waste generators the incentive paymentsit has received. § 2021e(d)(2)(C).2. Access incentives. The second type of incentiveinvolves the denial of access to disposal sites. States that failto meet the July 1986 deadline may be charged twice the ordinarysurcharge for the remainder of 1986 and may be denied access todisposal facilities thereafter. § 2021e(e)(2) (A). States that failto meet the 1988 deadline may be charged double surcharges for thefirst half of 1988 and quadruple surcharges for the second half of1988, and may be denied access thereafter. § 2021e(e)(2)(B). Statesthat fail to meet the 1990 deadline may be denied access. § 2021e(e)(2)(C). Finally, States that have not filed completeapplications by January 1, 1992, for a license to operate adisposal facility, or States belonging to compacts that have notfiled such applications, may be charged triple surcharges. §§2021e(e)(1)(D), 2021e(e)(2)(D).3. The take title provision. The third type of incentiveis the most severe. The Act provides:

"If a State (or, where applicable, a compact region) in whichlow-level radioactive waste is generated is unable to provide forthe disposal of all such waste generated within such State orcompact region by January 1, 1996, each State in which such wasteis generated, upon the request of the generator or owner of thewaste, shall take title to the waste, be obligated to takepossession of the waste, and shall be liable for all damagesdirectly or indirectly incurred by such generator or owner as aconsequence of the failure of the State to take possession

154of the waste as soon after January 1, 1996, as the generator orowner notifies the State that the waste is available for shipment."§ 2021e(d)(2)(C).These three incentives are the focus of petitioners'constitutional challenge.In the seven years since the Act took effect, Congress hasapproved nine regional compacts, encompassing 42 of the States. Allsix unsited compacts and four of the unaffiliated States have metthe first three statutory milestones. Brief for United States 10,n. 19; id., at 13, n. 25.New York, a State whose residents generate a relatively largeshare of the Nation's low level radioactive waste, did not join aregional compact. Instead, the State complied with the Act'srequirements by enacting legislation providing for the siting andfinancing of a disposal facility in New York. The State hasidentified five potential sites, three in Allegany County and twoin Cortland County. Residents of the two counties oppose theState's choice of location. App. 29a-30a, 66a-68a.Petitioners-the State of New York and the two counties-filedthis suit against the United States in 1990. They sought adeclaratory judgment that the Act is inconsistent with the Tenthand Eleventh Amendments to the Constitution, with the Due ProcessClause of the Fifth Amendment, and with the Guarantee Clause ofArticle IV of the Constitution. The States of Washington, Nevada,and South Carolina intervened as defendants. The District Courtdismissed the complaint. 757 F. Supp. 10 (NDNY 1990). The Court ofAppeals affirmed. 942 F.2d114 (CA2 1991). Petitioners have abandoned their due processand Eleventh Amendment claims on their way up the appellate ladder;as the cases stand before us, petitioners claim only that the Actis inconsistent with the Tenth Amendment and the GuaranteeClause.

155II AIn 1788, in the course of explaining to the citizens of New Yorkwhy the recently drafted Constitution provided for federal courts,Alexander Hamilton observed: "The erection of a new government,whatever care or wisdom may distinguish the work, cannot fail tooriginate questions of intricacy and nicety; and these may, in aparticular manner, be expected to flow from the the establishmentof a constitution founded upon the total or partial incorporationof a number of distinct sovereignties." The Federalist No. 82, p.491 (C. Rossiter ed. 1961). Hamilton's prediction has proved quiteaccurate. While no one disputes the proposition that "[t]heConstitution created a Federal Government of limited powers,"Gregory v. Ashcroft, 501 U. S. 452, 457(1991); and while the Tenth Amendment makes explicit that "[t]hepowers not delegated to the United States by the Constitution, norprohibited by it to the States, are reserved to the Statesrespectively, or to the people"; the task of ascertaining theconstitutionalline between federal and state power has given riseto many of the Court's most difficult and celebrated cases. Atleast as far back as Martin v. Hunter's Lessee, 1Wheat. 304, 324 (1816), the Court has resolved questions "of greatimportance and delicacy" in determining whether particularsovereign powers have been granted by the Constitution to theFederal Government or have been retained by the States.These questions can be viewed in either of two ways. In somecases the Court has inquired whether an Act of Congress isauthorized by one of the powers delegated to Congress in Article Iof the Constitution. See, e. g., Perez v. UnitedStates, 402 U. S.146 (1971); McCulloch v. Maryland, 4 Wheat. 316(1819). In other cases the Court has sought to determine whether anAct of Congress invades the province of state sovereignty reservedby the Tenth Amendment. See, e. g., Garcia v. San AntonioMetropolitan Transit Au-

156thority, 469 U. S. 528 (1985);Lane County v. Oregon, 7 Wall. 71 (1869). In a caselike these, involving the division of authority between federal andstate governments, the two inquiries are mirror images of eachother. If a power is delegated to Congress in the Constitution, theTenth Amendment expressly disclaims any reservation of that powerto the States; if a power is an attribute of state sovereigntyreserved by the Tenth Amendment, it is necessarily a power theConstitution has not conferred on Congress. See UnitedStates v. Oregon, 366 U. S. 643, 649(1961); Case v. Bowles, 327 U. S. 92, 102 (1946);Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,313 U. S. 508,534 (1941).It is in this sense that the Tenth Amendment "states but atruism that all is retained which has not been surrendered."United States v. Darby, 312 U. S. 100, 124(1941). As Justice Story put it, "[t]his amendment is a mereaffirmation of what, upon any just reasoning, is a necessary ruleof interpreting the constitution. Being an instrument of limitedand enumerated powers, it follows irresistibly, that what is notconferred, is withheld, and belongs to the state authorities." 3 J.Story, Commentaries on the Constitution of the United States 752(1833). This has been the Court's consistent understanding: "TheStates unquestionably do retai[n] a significant measure ofsovereign authority ... to the extent that the Constitution has notdivested them of their original powers and transferred those powersto the Federal Government." Garcia v. San AntonioMetropolitan Transit Authority, supra, at 549 (internalquotation marks omitted).Congress exercises its conferred powers subject to thelimitations contained in the Constitution. Thus, for example, underthe Commerce Clause Congress may regulate publishers engaged ininterstate commerce, but Congress is constrained in the exercise ofthat power by the First Amendment. The Tenth Amendment likewiserestrains the power of Congress, but this limit is not derived fromthe text of the Tenth Amendment itself, which, as we havediscussed,

157is essentially a tautology. Instead, the Tenth Amendmentconfirms that the power of the Federal Government is subject tolimits that may, in a given instance, reserve power to the States.The Tenth Amendment thus directs us to determine, as in this case,whether an incident of state sovereignty is protected by alimitation on an Article I power.The benefits of this federal structure have been extensivelycataloged elsewhere, see, e. g., Gregory v. Ashcroft,supra, at 457-460; Merritt, The Guarantee Clause and StateAutonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 3-10(1988); McConnell, Federalism: Evaluating the Founders' Design, 54U. Chi. L. Rev. 1484, 1491-1511 (1987), but they need not concernus here. Our task would be the same even if one could prove thatfederalism secured no advantages to anyone. It consists not ofdevising our preferred system of government, but of understandingand applying the framework set forth in the Constitution. "Thequestion is not what power the Federal Government ought to have butwhat powers in fact have been given by the people." UnitedStates v. Butler, 297 U. S. 1, 63 (1936).This framework has been sufficiently flexible over the past twocenturies to allow for enormous changes in the nature ofgovernment. The Federal Government undertakes activities today thatwould have been unimaginable to the Framers in two senses; first,because the Framers would not have conceived that anygovernment would conduct such activities; and second, because theFramers would not have believed that the Federal Government,rather than the States, would assume such responsibilities. Yet thepowers conferred upon the Federal Government by the Constitutionwere phrased in language broad enough to allow for the expansion ofthe Federal Government's role. Among the provisions of theConstitution that have been particularly important in this regard,three concern us here.First, the Constitution allocates to Congress the power "[t]oregulate Commerce ... among the several States."

158Art. I, § 8, cl. 3. Interstate commerce was an establishedfeature of life in the late 18th century. See, e. g.,The Federalist No. 42, p. 267 (C. Rossiter ed. 1961) ("The defectof power in the existing Confederacy to regulate the commercebetween its several members [has] been clearly pointed out byexperience"). The volume of interstate commerce and the range ofcommonly accepted objects of government regulation have, however,expanded considerably in the last 200 years, and the regulatoryauthority of Congress has expanded along with them. As interstatecommerce has become ubiquitous, activities once considered purelylocal have come to have effects on the national economy, and haveaccordingly come within the scope of Congress' commerce power. See,e. g., Katzenbach v. McClung, 379 U. S. 294 (1964);Wickard v. Filburn, 317 U. S. 111 (1942).Second, the Constitution authorizes Congress "to pay the Debtsand provide for the ... general Welfare of the United States." Art.I, § 8, cl. 1. As conventional notions of the proper objects ofgovernment spending have changed over the years, so has the abilityof Congress to "fix the terms on which it shall disburse federalmoney to the States." Pennhurst State School and Hospital v.Halderman, 451U. S. 1, 17 (1981). Compare, e. g., United States v.Butler, supra, at 72-75 (spending power does not authorizeCongress to subsidize farmers), with South Dakota v.Dole, 483 U.S. 203 (1987) (spending power permits Congress to conditionhighway funds on States' adoption of minimum drinking age). Whilethe spending power is "subject to several general restrictionsarticulated in our cases," id., at 207, these restrictionshave not been so severe as to prevent the regulatory authority ofCongress from generally keeping up with the growth of the federalbudget.The Court's broad construction of Congress' power under theCommerce and Spending Clauses has of course been guided, as it haswith respect to Congress' power generally, by the Constitution'sNecessary and Proper Clause, which

159authorizes Congress "[t]o make all Laws which shall be necessaryand proper for carrying into Execution the foregoing Powers." U. S.Const., Art. I, § 8, cl. 18. See, e. g., Legal Tender Case,110 U. S. 421,449-450 (1884); McCulloch v. Maryland, 4 Wheat., at411-421.Finally, the Constitution provides that "the Laws of the UnitedStates ... shall be the supreme Law of the Land ... any Thing inthe Constitution or Laws of any State to the Contrarynotwithstanding." U. S. Const., Art. VI, cl. 2. As the FederalGovernment's willingness to exercise power within the confines ofthe Constitution has grown, the authority of the States hascorrespondingly diminished to the extent that federal and statepolicies have conflicted. See, e. g., Shaw v. Delta AirLines, Inc., 463U. S. 85 (1983). We have observed that the Supremacy Clausegives the Federal Government "a decided advantage in thee] delicatebalance" the Constitution strikes between state and federal power.Gregory v. Ashcroft, 501 U. S., at 460.The actual scope of the Federal Government's authority withrespect to the States has changed over the years, therefore, butthe constitutional structure underlying and limiting that authorityhas not. In the end, just as a cup may be half empty or half full,it makes no difference whether one views the question at issue inthese cases as one of ascertaining the limits of the powerdelegated to the Federal Government under the affirmativeprovisions of the Constitution or one of discerning the core ofsovereignty retained by the States under the Tenth Amendment.Either way, we must determine whether any of the three challengedprovisions of the Low-Level Radioactive Waste Policy Amendments Actof 1985 oversteps the boundary between federal and stateauthority.BPetitioners do not contend that Congress lacks the power toregulate the disposal of low level radioactive waste. Space inradioactive waste disposal sites is frequently sold

160by residents of one State to residents of another. Regulation ofthe resulting interstate market in waste disposal is therefore wellwithin Congress' authority under the Commerce Clause. Cf.Philadelphia v. New Jersey, 437 U. S. 617, 621-623(1978); Fort Gratiot Sanitary Landfill, Inc. v. MichiganDept. of Natural Resources, 504 U. S. 353, 359(1992). Petitioners likewise do not dispute that under theSupremacy Clause Congress could, if it wished, pre-empt stateradioactive waste regulation. Petitioners contend only that theTenth Amendment limits the power of Congress to regulate in the wayit has chosen. Rather than addressing the problem of waste disposalby directly regulating the generators and disposers of waste,petitioners argue, Congress has impermissibly directed the Statesto regulate in this field.Most of our recent cases interpreting the Tenth Amendment haveconcerned the authority of Congress to subject state governments togenerally applicable laws. The Court's jurisprudence in this areahas traveled an unsteady path. See Maryland v. Wirtz,392 U. S. 183(1968) (state schools and hospitals are subject to Fair LaborStandards Act); National League of Cities v. Usery,426 U. S. 833(1976) (overruling Wirtz) (state employers are notsubject to Fair Labor Standards Act); Garcia v. SanAntonio Metropolitan Transit Authority, 469 U. S. 528 (1985)(overruling National League of Cities) (state employers areonce again subject to Fair Labor Standards Act). See also NewYork v. United States, 326 U. S. 572 (1946);Fry v. United States, 421 U. S. 542 (1975);Transportation Union v. Long Island R. Co., 455 U. S. 678 (1982);EEOC v. Wyoming, 460 U. S. 226 (1983);South Carolina v. Baker, 485 U. S. 505 (1988);Gregory v. Ashcroft, supra. This litigation presentsno occasion to apply or revisit the holdings of any of these cases,as this is not a case in which Congress has subjected a State tothe same legislation applicable to private parties. Cf. FERCv. Mississippi, 456 U. S. 742, 758-759(1982).

161This litigation instead concerns the circ*mstances under whichCongress may use the States as implements of regulation; that is,whether Congress may direct or otherwise motivate the States toregulate in a particular field or a particular way. Our cases haveestablished a few principles that guide our resolution of theissue.1As an initial matter, Congress may not simply "commandee[r] thelegislative processes of the States by directly compelling them toenact and enforce a federal regulatory program." Hodel v.Virginia Surface Mining & Reclamation Assn.,Inc., 452 U. S.264, 288 (1981). In Hodel, the Court upheld the SurfaceMining Control and Reclamation Act of 1977 precisely because it didnot "commandeer" the States into regulating mining. TheCourt found that "the States are not compelled to enforce thesteep-slope standards, to expend any state funds, or to participatein the federal regulatory program in any manner whatsoever. If aState does not wish to submit a proposed permanent program thatcomplies with the Act and implementing regulations, the fullregulatory burden will be borne by the Federal Government."Ibid.The Court reached the same conclusion the following year inFERC v. Mississippi, supra. At issue in FERCwas the Public Utility Regulatory Policies Act of 1978, a federalstatute encouraging the States in various ways to develop programsto combat the Nation's energy crisis. We observed that "this Courtnever has sanctioned explicitly a federal command to the States topromulgate and enforce laws and regulations." Id., at761-762. As in Hodel, the Court upheld the statute at issuebecause it did not view the statute as such a command. The Courtemphasized: "Titles I and III of [the Public Utility RegulatoryPolicies Act of 1978 (PURPA)] require only consideration offederal standards. And if a State has no utilities commission, orsimply stops regulating in the field, it need not even entertainthe federal

162proposals." 456 U. S., at 764 (emphasis in original). Because"[t]here [wa]s nothing in PURPA 'directly compelling' the States toenact a legislative program," the statute was not inconsistent withthe Constitution's division of authority between the FederalGovernment and the States. Id., at 765 (quoting Hodelv. Virginia Surface Mining & Reclamation Assn., Inc.,supra, at 288). See also South Carolina v. Baker,supra, at 513 (noting "the possibility that the Tenth Amendmentmight set some limits on Congress' power to compel States toregulate on behalf of federal interests"); Garcia v. SanAntonio Metropolitan Transit Authority, supra, at 556(same).These statements in FERC and Hodel were notinnovations. While Congress has substantial powers to govern theNation directly, including in areas of intimate concern to theStates, the Constitution has never been understood to confer uponCongress the ability to require the States to govern according toCongress' instructions. See Coyle v. Smith, 221 U. S. 559, 565(1911). The Court has been explicit about this distinction. "Boththe States and the United States existed before the Constitution.The people, through that instrument, established a more perfectunion by substituting a national government, acting, with amplepower, directly upon the citizens, instead of theConfederate government, which acted with powers, greatlyrestricted, only upon the States." Lane County v.Oregon, 7 Wall., at 76 (emphasis added). The Court has madethe same point with more rhetorical flourish, although perhaps withless precision, on a number of occasions. In Chief Justice Chase'smuch-quoted words, "the preservation of the States, and themaintenance of their governments, are as much within the design andcare of the Constitution as the preservation of the Union and themaintenance of the National government. The Constitution, in allits provisions, looks to an indestructible Union, composed ofindestructible States." Texas v. White, 7 Wall. 700,725 (1869). See also Metcalf & Eddy v.Mitchell, 269

163u. S. 514, 523 (1926) ("[N]either government may destroy theother nor curtail in any substantial manner the exercise of itspowers"); Tafflin v. Levitt, 493 U. S. 455, 458 (1990)("[U]nder our federal system, the States possess sovereigntyconcurrent with that of the Federal Government"); Gregory v.Ashcroft, 501 U. S., at 461 ("[T]he States retainsubstantial sovereign powers under our constitutional scheme,powers with which Congress does not readily interfere").Indeed, the question whether the Constitution should permitCongress to employ state governments as regulatory agencies was atopic of lively debate among the Framers. Under the Articles ofConfederation, Congress lacked the authority in most respects togovern the people directly. In practice, Congress "could notdirectly tax or legislate upon individuals; it had no explicit'legislative' or 'governmental' power to make binding 'law'enforceable as such." Amar, Of Sovereignty and Federalism, 96 YaleL. J. 1425, 1447 (1987).The inadequacy of this governmental structure was responsible inpart for the Constitutional Convention. Alexander Hamiltonobserved: "The great and radical vice in the construction of theexisting Confederation is in the principle of LEGISLATION forSTATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES,and as contradistinguished from the INDIVIDUALS of whom theyconsist." The Federalist No. 15, p. 108 (C. Rossiter ed. 1961). AsHamilton saw it, "we must resolve to incorporate into our planthose ingredients which may be considered as forming thecharacteristic difference between a league and a government; wemust extend the authority of the Union to the persons of thecitizens-the only proper objects of government." Id., at109. The new National Government "must carry its agency to thepersons of the citizens. It must stand in need of no intermediatelegislations .... The government of the Union, like that of eachState, must be able to address itself immediately to the hopes andfears of individuals." Id., No. 16, at 116.

164The Convention generated a great number of proposals for thestructure of the new Government, but two quickly took center stage.Under the Virginia Plan, as first introduced by Edmund Randolph,Congress would exercise legislative authority directly uponindividuals, without employing the States as intermediaries. 1Records of the Federal Convention of 1787, p. 21 (M. Farrand ed.1911). Under the New Jersey Plan, as first introduced by WilliamPaterson, Congress would continue to require the approval of theStates before legislating, as it had under the Articles ofConfederation. 1 id., at 243-244. These two plans underwentvarious revisions as the Convention progressed, but they remainedthe two primary options discussed by the delegates. One frequentlyexpressed objection to the New Jersey Plan was that it mightrequire the Federal Government to coerce the States intoimplementing legislation. As Randolph explained the distinction,"[t]he true question is whether we shall adhere to the federal plan[i. e., the New Jersey Plan], or introduce the nationalplan. The insufficiency of the former has been fully displayed ....There are but two modes, by which the end of a Gen[eral]Gov[ernment] can be attained: the 1st is by coercion as proposed byMr. P[aterson's] plane, the 2nd] by real legislation as prop[osed]by the other plan. Coercion [is] impracticable, expensive, cruelto individuals .... We must resort therefore to a nationalLegislation over individuals." 1 id., at 255-256(emphasis in original). Madison echoed this view: "Thepracticability of making laws, with coercive sanctions, for theStates as political bodies, had been exploded on all hands." 2id., at 9.Under one preliminary draft of what would become the New JerseyPlan, state governments would occupy a position relative toCongress similar to that contemplated by the Act at issue in thesecases: "[T]he laws of the United States ought, as far as may beconsistent with the common interests of the Union, to be carriedinto execution by the judiciary and executive officers of therespective states, wherein the exe-

165cution thereof is required." 3 id., at 616. This ideaapparently never even progressed so far as to be debated by thedelegates, as contemporary accounts of the Convention do notmention any such discussion. The delegates' many descriptions ofthe Virginia and New Jersey Plans speak only in general terms aboutwhether Congress was to derive its authority from the people orfrom the States, and whether it was to issue directives toindividuals or to States. See 1 id., at 260-280.In the end, the Convention opted for a Constitution in whichCongress would exercise its legislative authority directly overindividuals rather than over States; for a variety of reasons, itrejected the New Jersey Plan in favor of the Virginia Plan. 1id., at 313. This choice was made clear to the subsequentstate ratifying conventions. Oliver Ellsworth, a member of theConnecticut delegation in Philadelphia, explained the distinctionto his State's convention:"This Constitution does not attempt to coerce sovereign bodies,states, in their political capacity .... But this legal coercionsingles out the ... individual." 2 J. Elliot, Debates on theFederal Constitution 197 (2d ed. 1863). Charles Pinckney, anotherdelegate at the Constitutional Convention, emphasized to the SouthCarolina House of Representatives that in Philadelphia "thenecessity of having a government which should at once operate uponthe people, and not upon the states, was conceived to beindispensable by every delegation present." 4 id., at 256.Rufus King, one of Massachusetts' delegates, returned home tosupport ratification by recalling the Commonwealth's unhappyexperience under the Articles of Confederation and arguing: "Laws,to be effective, therefore, must not be laid on states, but uponindividuals." 2 id., at 56. At New York's convention,Hamilton (another delegate in Philadelphia) exclaimed: "But can webelieve that one state will ever suffer itself to be used as aninstrument of coercion? The thing is a dream; it is impossible.Then we are brought to this dilemma-either a federal

166standing army is to enforce the requisitions, or the federaltreasury is left without supplies, and the government withoutsupport. What, sir, is the cure for this great evil? Nothing, butto enable the national laws to operate on individuals, in the samemanner as those of the states do." 2 id., at 233. At NorthCarolina's convention, Samuel Spencer recognized that "all the lawsof the Confederation were binding on the states in their politicalcapacities, ... but now the thing is entirely different. The lawsof Congress will be binding on individuals." 4 id., at153.In providing for a stronger central government, therefore, theFramers explicitly chose a Constitution that confers upon Congressthe power to regulate individuals, not States. As we have seen, theCourt has consistently respected this choice. We have alwaysunderstood that even where Congress has the authority under theConstitution to pass laws requiring or prohibiting certain acts, itlacks the power directly to compel the States to require orprohibit those acts. E. g., FERC v. Mississippi, 456U. S., at 762-766; Hodel v. Virginia Surface Mining& Reclamation Assn., Inc., 452 U. S., at 288-289;Lane County v. Oregon, 7 Wall., at 76. The allocationof power contained in the Commerce Clause, for example, authorizesCongress to regulate interstate commerce directly; it does notauthorize Congress to regulate state governments' regulation ofinterstate commerce.2This is not to say that Congress lacks the ability to encouragea State to regulate in a particular way, or that Congress may nothold out incentives to the States as a method of influencing aState's policy choices. Our cases have identified a variety ofmethods, short of outright coercion, by which Congress may urge aState to adopt a legislative program consistent with federalinterests. Two of these methods are of particular relevancehere.

167First, under Congress' spending power, "Congress may attachconditions on the receipt of federal funds." South Dakota v.Dole, 483 U. S., at 206. Such conditions must (among otherrequirements) bear some relationship to the purpose of the federalspending, id., at 207-208, and n. 3; otherwise, of course,the spending power could render academic the Constitution's othergrants and limits of federal authority. Where the recipient offederal funds is a State, as is not unusual today, the conditionsattached to the funds by Congress may influence a State'slegislative choices. See Kaden, Politics, Money, and StateSovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 874-881(1979). Dole was one such case: The Court found noconstitutional flaw in a federal statute directing the Secretary ofTransportation to withhold federal highway funds from Statesfailing to adopt Congress' choice of a minimum drinking age.Similar examples abound. See, e. g., Fullilove v.Klutznick, 448U. S. 448, 478-480 (1980); Massachusetts v. UnitedStates, 435 U. S.444, 461-462 (1978); Lau v. Nichols, 414 U. S. 563, 568-569(1974); Oklahoma v. United States Civil ServiceComm'n, 330 U. S.127, 142-144 (1947).Second, where Congress has the authority to regulate privateactivity under the Commerce Clause, we have recognized Congress'power to offer States the choice of regulating that activityaccording to federal standards or having state law pre-empted byfederal regulation. Hodel v. Virginia Surface Mining& Reclamation Assn., Inc., supra, at 288. See alsoFERC v. Mississippi, supra, at 764-765. Thisarrangement, which has been termed "a program of cooperativefederalism," Hodel, supra, at 289, is replicated in numerousfederal statutory schemes. These include the Clean Water Act, 86Stat. 816, as amended, 33 U. S. C. § 1251 et seq., seeArkansas v. Oklahoma, 503 U. S. 91, 101 (1992)(Clean Water Act "anticipates a partnership between the States andthe Federal Government, animated by a shared objective"); theOccupational Safety and Health Act of 1970,

16884 Stat. 1590, 29 U. S. C. § 651 et seq., see Gadev. National Solid Wastes Management Assn., ante, at 97; theResource Conservation and Recovery Act of 1976, 90 Stat. 2796, asamended, 42 U. S. C. § 6901 et seq., see Department ofEnergy v. Ohio, 503 U. S. 607, 611-612(1992); and the Alaska National Interest Lands Conservation Act, 94Stat. 2374, 16 U. S. C. § 3101 et seq., see KenaitzeIndian Tribe v. Alaska, 860 F.2d312, 314 (CA9 1988), cert. denied, 491 U. S. 905 (1989).By either of these methods, as by any other permissible methodof encouraging a State to conform to federal policy choices, theresidents of the State retain the ultimate decision as to whetheror not the State will comply. If a State's citizens view federalpolicy as sufficiently contrary to local interests, they may electto decline a federal grant. If state residents would prefer theirgovernment to devote its attention and resources to problems otherthan those deemed important by Congress, they may choose to havethe Federal Government rather than the State bear the expense of afederally mandated regulatory program, and they may continue tosupplement that program to the extent state law is not pre-empted.Where Congress encourages state regulation rather than compellingit, state governments remain responsive to the local electorate'spreferences; state officials remain accountable to the people.By contrast, where the Federal Government compels States toregulate, the accountability of both state and federal officials isdiminished. If the citizens of New York, for example, do notconsider that making provision for the disposal of radioactivewaste is in their best interest, they may elect state officials whoshare their view. That view can always be pre-empted under theSupremacy Clause if it is contrary to the national view, but insuch a case it is the Federal Government that makes the decision infull view of the public, and it will be federal officials thatsuffer the consequences if the decision turns out to be detrimentalor unpopular.

169But where the Federal Government directs the States to regulate,it may be state officials who will bear the brunt of publicdisapproval, while the federal officials who devised the regulatoryprogram may remain insulated from the electoral ramifications oftheir decision. Accountability is thus diminished when, due tofederal coercion, elected state officials cannot regulate inaccordance with the views of the local electorate in matters notpre-empted by federal regulation. See Merritt, 88 Colum. L. Rev.,at 61-62; La Pierre, Political Accountability in the NationalPolitical Process-The Alternative to Judicial Review of FederalismIssues, 80 Nw. U. L. Rev. 577, 639-665 (1985).With these principles in mind, we turn to the three challengedprovisions of the Low-Level Radioactive Waste Policy Amendments Actof 1985.IIIThe parties in these cases advance two quite different views ofthe Act. As petitioners see it, the Act imposes a requirementdirectly upon the States that they regulate in the field ofradioactive waste disposal in order to meet Congress' mandate that"[e]ach State shall be responsible for providing ... for thedisposal of ... low-level radioactive waste." 42 U. S. C. §2021c(a)(1)(A). Petitioners understand this provision as a directcommand from Congress, enforceable independent of the three sets ofincentives provided by the Act. Respondents, on the other hand,read this provision together with the incentives, and see the Actas affording the States three sets of choices. According torespondents, the Act permits a State to choose first betweenregulating pursuant to federal standards and losing the right to ashare of the Secretary of Energy's escrow account; to choose secondbetween regulating pursuant to federal standards and progressivelylosing access to disposal sites in other States; and to choosethird between regulating pursuant to federal standards and takingtitle to the waste generated within the State.

170Respondents thus interpret § 2021c(a)(1)(A), despite thestatute's use of the word "shall," to provide no more than anoption which a State may elect or eschew.The Act could plausibly be understood either as a mandate toregulate or as a series of incentives. Under petitioners' view,however, § 2021c(a)(1)(A) of the Act would clearly "commandee[r]the legislative processes of the States by directly compelling themto enact and enforce a federal regulatory program." Hodel v.Virginia Surface Mining & Reclamation Assn.,Inc., 452 U. S., at 288. We must reject this interpretation ofthe provision for two reasons. First, such an outcome would, to saythe least, "upset the usual constitutional balance of federal andstate powers." Gregory v. Ashcroft, 501 U. S., at460. "[I]t is incumbent upon the federal courts to be certain ofCongress' intent before finding that federal law overrides thisbalance," ibid. (internal quotation marks omitted), but theAct's amenability to an equally plausible alternative constructionprevents us from possessing such certainty. Second, "where anotherwise acceptable construction of a statute would raise seriousconstitutional problems, the Court will construe the statute toavoid such problems unless such construction is plainly contrary tothe intent of Congress." Edward J. DeBartoloCorp. v. Florida Gulf Coast Building &Construction Trades Council, 485 U. S. 568, 575 (1988). Thisrule of statutory construction pushes us away from petitioners'understanding of § 2021c (a)(l)(A) of the Act, under which itcompels the States to regulate according to Congress'instructions.We therefore decline petitioners' invitation to construe §2021c(a)(1)(A), alone and in isolation, as a command to the Statesindependent of the remainder of the Act. Construed as a whole, theAct comprises three sets of "incentives" for the States to providefor the disposal of low level radioactive waste generated withintheir borders. We consider each in turn.

171AThe first set of incentives works in three steps. First,Congress has authorized States with disposal sites to impose asurcharge on radioactive waste received from other States. Second,the Secretary of Energy collects a portion of this surcharge andplaces the money in an escrow account. Third, States achieving aseries of milestones receive portions of this fund.The first of these steps is an unexceptionable exercise ofCongress' power to authorize the States to burden interstatecommerce. While the Commerce Clause has long been understood tolimit the States' ability to discriminate against interstatecommerce, see, e. g., Wyoming v. Oklahoma, 502 U. S.437, 454-455 (1992); Cooley v. Board of Wardens of Portof Philadelphia ex rel. Society for Relief of DistressedPilots, 12 How. 299 (1852), that limit may be lifted, as it hasbeen here, by an expression of the "unambiguous intent" ofCongress. Wyoming, supra, at 458; Prudential Ins. Co.v. Benjamin, 328 U. S. 408, 427-431(1946). Whether or not the States would be permitted to burden theinterstate transport of low level radioactive waste in the absenceof Congress' approval, the States can clearly do so withCongress' approval, which is what the Act gives them.The second step, the Secretary's collection of a percentage ofthe surcharge, is no more than a federal tax on interstatecommerce, which petitioners do not claim to be an invalid exerciseof either Congress' commerce or taxing power. Cf. UnitedStates v. Sanchez, 340 U. S. 42, 44-45(1950); Steward Machine Co. v. Davis, 301 U. S. 548, 581-583(1937).The third step is a conditional exercise of Congress' authorityunder the Spending Clause: Congress has placed conditions-theachievement of the milestones-on the receipt of federal funds.Petitioners do not contend that Congress has exceeded its authorityin any of the four respects our cases have identified. Seegenerally South Dakota v. Dole, 483 U. S., at207-208. The expenditure is for the general

172welfare, Helvering v. Davis, 301 U. S. 619, 640-641(1937); the States are required to use the money they receive forthe purpose of assuring the safe disposal of radioactive waste. 42U. S. C. § 2021e(d)(2)(E). The conditions imposed are unambiguous,Pennhurst State School and Hospital v. Halderman, 451U. S., at 17; the Act informs the States exactly what they must doand by when they must do it in order to obtain a share of theescrow account. The conditions imposed are reasonably related tothe purpose of the expenditure, Massachusetts v. UnitedStates, 435 U. S., at 461; both the conditions and the paymentsembody Congress' efforts to address the pressing problem ofradioactive waste disposal. Finally, petitioners do not claim thatthe conditions imposed by the Act violate any independentconstitutional prohibition. Lawrence County v.Lead-Deadwood School Dist. No. 40-1, 469 U. S. 256, 269-270(1985).Petitioners contend nevertheless that the form of theseexpenditures removes them from the scope of Congress' spendingpower. Petitioners emphasize the Act's instruction to the Secretaryof Energy to "deposit all funds received in a special escrowaccount. The funds so deposited shall not be the property of theUnited States." 42 U. S. C. § 2021e(d)(2)(A). Petitioners arguethat because the money collected and redisbursed to the States iskept in an account separate from the general treasury, because theSecretary holds the funds only as a trustee, and because the Statesthemselves are largely able to control whether they will pay intothe escrow account or receive a share, the Act "in no manner callsfor the spending of federal funds." Reply Brief for PetitionerState of New York 6.The Constitution's grant to Congress of the authority to "paythe Debts and provide for the ... general Welfare" has never,however, been thought to mandate a particular form of accounting. Agreat deal of federal spending comes from segregated trust fundscollected and spent for a particular purpose. See, e.g., 23 U. S. C. § 118 (Highway Trust Fund);

17342 U. S. C. §401(a) (Federal Old-Age and Survivors InsuranceTrust Fund); 42 U. S. C. § 401(b) (Federal Disability InsuranceTrust Fund); 42 U. S. C. § 1395t (Federal Supplementary MedicalInsurance Trust Fund). The Spending Clause has never been construedto deprive Congress of the power to structure federal spending inthis manner. Petitioners' argument regarding the States' ability todetermine the escrow account's income and disbursem*nts ignores thefact that Congress specifically provided the States with thisability as a method of encouraging the States to regulate accordingto the federal plan. That the States are able to choose whetherthey will receive federal funds does not make the resultingexpenditures any less federal; indeed, the location of such choicein the States is an inherent element in any conditional exercise ofCongress' spending power.The Act's first set of incentives, in which Congress hasconditioned grants to the States upon the States' attainment of aseries of milestones, is thus well within the authority of Congressunder the Commerce and Spending Clauses. Because the first set ofincentives is supported by affirmative constitutional grants ofpower to Congress, it is not inconsistent with the TenthAmendment.BIn the second set of incentives, Congress has authorized Statesand regional compacts with disposal sites gradually to increase thecost of access to the sites, and then to deny access altogether, toradioactive waste generated in States that do not meet federaldeadlines. As a simple regulation, this provision would be withinthe power of Congress to authorize the States to discriminateagainst interstate commerce. See Northeast Bancorp, Inc. v.Board of Governors, FRS, 472 U. S. 159, 174-175(1985). Where federal regulation of private activity is within thescope of the Commerce Clause, we have recognized the ability ofCongress to offer States the choice of regulating that activityaccording to fed-

174eral standards or having state law pre-empted by federalregulation. See Hodel v. Virginia Surface Mining & ReclamationAssn., Inc., 452 U. S., at 288; FERC v. Mississippi, 456 U. S., at764-765.This is the choice presented to nonsited States by the Act'ssecond set of incentives: States may either regulate the disposalof radioactive waste according to federal standards by attaininglocal or regional self-sufficiency, or their residents who produceradioactive waste will be subject to federal regulation authorizingsited States and regions to deny access to their disposal sites.The affected States are not compelled by Congress to regulate,because any burden caused by a State's refusal to regulate willfall on those who generate waste and find no outlet for itsdisposal, rather than on the State as a sovereign. A State whosecitizens do not wish it to attain the Act's milestones may devoteits attention and its resources to issues its citizens deem moreworthy; the choice remains at all times with the residents of theState, not with Congress. The State need not expend any funds, orparticipate in any federal program, if local residents do not viewsuch expenditures or participation as worthwhile. Cf. Hodel,supra, at 288. Nor must the State abandon the field if it doesnot accede to federal direction; the State may continue to regulatethe generation and disposal of radioactive waste in any manner itscitizens see fit.The Act's second set of incentives thus represents a conditionalexercise of Congress' commerce power, along the lines of those wehave held to be within Congress' authority. As a result, the secondset of incentives does not intrude on the sovereignty reserved tothe States by the Tenth Amendment.CThe take title provision is of a different character. This thirdso-called "incentive" offers States, as an alternative toregulating pursuant to Congress' direction, the option of takingtitle to and possession of the low level radioactive waste

175generated within their borders and becoming liable for alldamages waste generators suffer as a result of the States' failureto do so promptly. In this provision, Congress has crossed the linedistinguishing encouragement from coercion.We must initially reject respondents' suggestion that, becausethe take title provision will not take effect until January 1,1996, petitioners' challenge thereto is unripe. It takes many yearsto develop a new disposal site. All parties agree that New Yorkmust take action now in order to avoid the take title provision'sconsequences, and no party suggests that the State's wastegenerators will have ceased producing waste by 1996. The issue isthus ripe for review. Cf. Pacific Gas & Elec.Co. v. State Energy Resources Conservation and DevelopmentComm'n, 461 U. S.190, 201 (1983); Regional Rail Reorganization Act Cases,419 U. S. 102,144145 (1974).The take title provision offers state governments a "choice" ofeither accepting ownership of waste or regulating according to theinstructions of Congress. Respondents do not claim that theConstitution would authorize Congress to impose either option as afreestanding requirement. On one hand, the Constitution would notpermit Congress simply to transfer radioactive waste fromgenerators to state governments. Such a forced transfer, standingalone, would in principle be no different than a congressionallycompelled subsidy from state governments to radioactive wasteproducers. The same is true of the provision requiring the Statesto become liable for the generators' damages. Standing alone, thisprovision would be indistinguishable from an Act of Congressdirecting the States to assume the liabilities of certain stateresidents. Either type of federal action would "commandeer" stategovernments into the service of federal regulatory purposes, andwould for this reason be inconsistent with the Constitution'sdivision of authority between federal and state governments. On theother hand, the second alternative held out to stategovernments-regulating pur-

176suant to Congress' direction-would, standing alone, present asimple command to state governments to implement legislationenacted by Congress. As we have seen, the Constitution does notempower Congress to subject state governments to this type ofinstruction.Because an instruction to state governments to take title towaste, standing alone, would be beyond the authority of Congress,and because a direct order to regulate, standing alone, would alsobe beyond the authority of Congress, it follows that Congress lacksthe power to offer the States a choice between the two. Unlike thefirst two sets of incentives, the take title incentive does notrepresent the conditional exercise of any congressional powerenumerated in the Constitution. In this provision, Congress has notheld out the threat of exercising its spending power or itscommerce power; it has instead held out the threat, should theStates not regulate according to one federal instruction, of simplyforcing the States to submit to another federal instruction. Achoice between two unconstitutionally coercive regulatorytechniques is no choice at all. Either way, "the Act commandeersthe legislative processes of the States by directly compelling themto enact and enforce a federal regulatory program," Hodel v.Virginia Surface Mining & Reclamation Assn., Inc.,supra, at 288, an outcome that has never been understood to liewithin the authority conferred upon Congress by theConstitution.Respondents emphasize the latitude given to the States toimplement Congress' plan. The Act enables the States to regulatepursuant to Congress' instructions in any number of different ways.States may avoid taking title by contracting with sited regionalcompacts, by building a disposal site alone or as part of acompact, or by permitting private parties to build a disposal site.States that host sites may employ a wide range of designs anddisposal methods, subject only to broad federal regulatory limits.This line of reasoning, however, only underscores the criticalalternative a

177State lacks: A State may not decline to administer the federalprogram. No matter which path the State chooses, it must follow thedirection of Congress.The take title provision appears to be unique. No other federalstatute has been cited which offers a state government no optionother than that of implementing legislation enacted by Congress.Whether one views the take title provision as lying outsideCongress' enumerated powers, or as infringing upon the core ofstate sovereignty reserved by the Tenth Amendment, the provision isinconsistent with the federal structure of our Governmentestablished by the Constitution.IVRespondents raise a number of objections to this understandingof the limits of Congress' power.AThe United States proposes three alternative views of theconstitutional line separating state and federal authority. Whileeach view concedes that Congress generally may not compelstate governments to regulate pursuant to federal direction, eachpurports to find a limited domain in which such coercion ispermitted by the Constitution.First, the United States argues that the Constitution'sprohibition of congressional directives to state governments can beovercome where the federal interest is sufficiently important tojustify state submission. This argument contains a kernel of truth:In determining whether the Tenth Amendment limits the ability ofCongress to subject state governments to generally applicable laws,the Court has in some cases stated that it will evaluate thestrength of federal interests in light of the degree to which suchlaws would prevent the State from functioning as a sovereign; thatis, the extent to which such generally applicable laws would impedea state government's responsibility to represent and be accountableto the citizens of the State. See, e. g., EEOCv.

178Wyoming, 460 U. S., at 242, n. 17; TransportationUnion v. Long Island R. Co., 455 U. S., at 684, n. 9;National League of Cities v. Usery, 426 U. S., at853. The Court has more recently departed from this approach. See,e. g., South Carolina v. Baker, 485 U. S., at512-513; Garcia v. San Antonio Metropolitan TransitAuthority, 469 U. S., at 556-557. But whether or not aparticularly strong federal interest enables Congress to bringstate governments within the orbit of generally applicablefederal regulation, no Member of the Court has eversuggested that such a federal interest would enable Congress tocommand a state government to enact state regulation. Nomatter how powerful the federal interest involved, the Constitutionsimply does not give Congress the authority to require the Statesto regulate. The Constitution instead gives Congress the authorityto regulate matters directly and to pre-empt contrary stateregulation. Where a federal interest is sufficiently strong tocause Congress to legislate, it must do so directly; it may notconscript state governments as its agents.Second, the United States argues that the Constitution does, insome circ*mstances, permit federal directives to state governments.Various cases are cited for this proposition, but none support it.Some of these cases discuss the well established power of Congressto pass laws enforceable in state courts. See Testa v.Katt, 330 U.S. 386 (1947); Palmore v. United States, 411 U. S. 389, 402(1973); see also Second Employers' Liability Cases, 223 U. S. 1, 57 (1912);Claflin v. Houseman, 93 U. S. 130, 136-137(1876). These cases involve no more than an application of theSupremacy Clause's provision that federal law "shall be the supremeLaw of the Land," enforceable in every State. More to the point,all involve congressional regulation of individuals, notcongressional requirements that States regulate. Federal statutesenforceable in state courts do, in a sense, direct state judges toenforce them, but this sort of federal "direction" of state judgesis mandated by the text of the Suprem-

179acy Clause. No comparable constitutional provision authorizesCongress to command state legislatures to legislate.Additional cases cited by the United States discuss the power offederal courts to order state officials to comply withfederal law. See Puerto Rico v. Branstad, 483 U. S. 219, 228(1987); Washington v. Washington State CommercialPassenger Fishing Vessel Assn., 443 U. S. 658, 695(1979); Illinois v. City of Milwaukee, 406 U. S. 91, 106-108(1972); see also Cooper v. Aaron, 358 U. S. 1, 18-19 (1958);Brown v. Board of Education, 349 U. S. 294, 300(1955); Ex parte Young, 209 U. S. 123, 155-156(1908). Again, however, the text of the Constitution plainlyconfers this authority on the federal courts, the "judicial Power"of which "shall extend to all Cases, in Law and Equity, arisingunder this Constitution, [and] the Laws of the United States ... ;[and] to Controversies between two or more States; [and] between aState and Citizens of another State." U. S. Const., Art. III, § 2.The Constitution contains no analogous grant of authority toCongress. Moreover, the Supremacy Clause makes federal lawparamount over the contrary positions of state officials; the powerof federal courts to enforce federal law thus presupposes someauthority to order state officials to comply. See PuertoRico v. Branstad, supra, at 227-228 (overrulingKentucky v. Dennison, 24 How. 66 (1861)).In sum, the cases relied upon by the United States hold onlythat federal law is enforceable in state courts and that federalcourts may in proper circ*mstances order state officials to complywith federal law, propositions that by no means imply any authorityon the part of Congress to mandate state regulation.Third, the United States, supported by the three sited regionalcompacts as amici, argues that the Constitution envisions arole for Congress as an arbiter of interstate disputes. The UnitedStates observes that federal courts, and this Court in particular,have frequently resolved conflicts among States. See, e. g.,Arkansas v. Oklahoma, 503 U. S. 91

180(1992); Wyoming v. Oklahoma, 502 U. S. 437 (1992).Many of these disputes have involved the allocation of sharedresources among the States, a category perhaps broad enough toencompass the allocation of scarce disposal space for radioactivewaste. See, e. g., Colorado v. New Mexico, 459 U. S. 176 (1982);Arizona v. California, 373 U. S. 546 (1963). TheUnited States suggests that if the Court may resolve suchinterstate disputes, Congress can surely do the same under theCommerce Clause. The regional compacts support this argument with aseries of quotations from The Federalist and other contemporaneousdocuments, which the compacts contend demonstrate that the Framersestablished a strong National Legislature for the purpose ofresolving trade disputes among the States. Brief for Rocky MountainLowLevel Radioactive Waste Compact et al. as Amici Curiae17, and n. 16.While the Framers no doubt endowed Congress with the power toregulate interstate commerce in order to avoid further instances ofthe interstate trade disputes that were common under the Articlesof Confederation, the Framers did not intend that Congressshould exercise that power through the mechanism of mandating stateregulation. The Constitution established Congress as "asuperintending authority over the reciprocal trade" among theStates, The Federalist No. 42, p. 268 (C. Rossiter ed. 1961), byempowering Congress to regulate that trade directly, not byauthorizing Congress to issue trade-related orders to stategovernments. As Madison and Hamilton explained, "a sovereignty oversovereigns, a government over governments, a legislation forcommunities, as contradistinguished from individuals, as it is asolecism in theory, so in practice it is subversive of the orderand ends of civil polity." Id., No. 20, at 138.BThe sited state respondents focus their attention on the processby which the Act was formulated. They correctly

181observe that public officials representing the State of New Yorklent their support to the Act's enactment. A Deputy Commissioner ofthe State's Energy Office testified in favor of the Act. SeeLow-Level Waste Legislation: Hearings on H. R. 862, H. R. 1046, H.R. 1083, and H. R. 1267 before the Subcommittee on Energy and theEnvironment of the House Committee on Interior and Insular Affairs,99th Cong., 1st Sess., 97-98, 190-199 (1985) (testimony of CharlesGuinn). Senator Moynihan of New York spoke in support of the Act onthe floor of the Senate. 131 Congo Rec. 38423 (1985). Respondentsnote that the Act embodies a bargain among the sited and unsitedStates, a compromise to which New York was a willing participantand from which New York has reaped much benefit. Respondents thenpose what appears at first to be a troubling question: How can afederal statute be found an unconstitutional infringement of statesovereignty when state officials consented to the statute'senactment?The answer follows from an understanding of the fundamentalpurpose served by our Government's federal structure. TheConstitution does not protect the sovereignty of States for thebenefit of the States or state governments as abstract politicalentities, or even for the benefit of the public officials governingthe States. To the contrary, the Constitution divides authoritybetween federal and state governments for the protection ofindividuals. State sovereignty is not just an end in itself:"Rather, federalism secures to citizens the liberties that derivefrom the diffusion of sovereign power." Coleman v.Thompson, 501U. S. 722, 759 (1991) (BLACKMUN, J., dissenting). "Just as theseparation and independence of the coordinate branches of theFederal Government serve to prevent the accumulation of excessivepower in anyone branch, a healthy balance of power between theStates and the Federal Government will reduce the risk of tyrannyand abuse from either front." Gregory v. Ash-

182croft, 501 U. S., at 458. See The Federalist No. 51, p.323 (C. Rossiter ed. 1961).Where Congress exceeds its authority relative to the States,therefore, the departure from the constitutional plan cannot beratified by the "consent" of state officials. An analogy to theseparation of powers among the branches of the Federal Governmentclarifies this point. The Constitution's division of power amongthe three branches is violated where one branch invades theterritory of another, whether or not the encroached-upon branchapproves the encroachment. In Buckley v. Valeo,424 U. S. 1,118-137 (1976), for instance, the Court held that Congress hadinfringed the President's appointment power, despite the fact thatthe President himself had manifested his consent to the statutethat caused the infringement by signing it into law. SeeNational League of Cities v. Usery, 426 U. S., at842, n. 12. In INS v. Chadha, 462 U. S. 919, 944-959(1983), we held that the legislative veto violated theconstitutional requirement that legislation be presented to thePresident, despite Presidents' approval of hundreds of statutescontaining a legislative veto provision. See id., at944-945. The constitutional authority of Congress cannot beexpanded by the "consent" of the governmental unit whose domain isthereby narrowed, whether that unit is the Executive Branch or theStates.State officials thus cannot consent to the enlargement of thepowers of Congress beyond those enumerated in the Constitution.Indeed, the facts of these cases raise the possibility thatpowerful incentives might lead both federal and state officials toview departures from the federal structure to be in their personalinterests. Most citizens recognize the need for radioactive wastedisposal sites, but few want sites near their homes. As a result,while it would be well within the authority of either federal orstate officials to choose where the disposal sites will be, it islikely to be in the political interest of each individual officialto avoid being held accountable to the voters for the choice oflocation. If

183a federal official is faced with the alternatives of choosing alocation or directing the States to do it, the official may wellprefer the latter, as a means of shifting responsibility for theeventual decision. If a state official is faced with the same setof alternatives-choosing a location or having Congress direct thechoice of a location-the state official may also prefer the latter,as it may permit the avoidance of personal responsibility. Theinterests of public officials thus may not coincide with theConstitution's intergovernmental allocation of authority. Wherestate officials purport to submit to the direction of Congress inthis manner, federalism is hardly being advanced.Nor does the State's prior support for the Act estop it fromasserting the Act's unconstitutionality. While New York hasreceived the benefit of the Act in the form of a few more years ofaccess to disposal sites in other States, New York has never joineda regional radioactive waste compact. Any estoppel implicationsthat might flow from membership in a compact, see West Virginiaex rel. Dyer v. Sims, 341 U. S. 22,35-36 (1951)(Jackson, J., concurring), thus do not concern us here. The factthat the Act, like much federal legislation, embodies a compromiseamong the States does not elevate the Act (or the antecedentdiscussions among representatives of the States) to the status ofan interstate agreement requiring Congress' approval under theCompact Clause. Cf. Holmes v. Jennison, 14 Pet. 540,572 (1840) (plurality opinion). That a party collaborated withothers in seeking legislation has never been understood to estopthe party from challenging that legislation in subsequentlitigation.vPetitioners also contend that the Act is inconsistent with theConstitution's Guarantee Clause, which directs the United States to"guarantee to every State in this Union a Republican Form ofGovernment." U. S. Const., Art. IV; § 4. Because we have found thetake title provision of the Act

184irreconcilable with the powers delegated to Congress by theConstitution and hence with the Tenth Amendment's reservation tothe States of those powers not delegated to the Federal Government,we need only address the applicability of the Guarantee Clause tothe Act's other two challenged provisions.We approach the issue with some trepidation, because theGuarantee Clause has been an infrequent basis for litigationthroughout our history. In most of the cases in which the Court hasbeen asked to apply the Clause, the Court has found the claimspresented to be nonjusticiable under the "political question"doctrine. See, e. g., City of Rome v. United States,446 U. S. 156,182, n. 17 (1980) (challenge to the preclearance requirements ofthe Voting Rights Act); Baker v. Carr, 369 U. S. 186, 218-229(1962) (challenge to apportionment of state legislative districts);Pacific States Telephone & Telegraph Co. v.Oregon, 223 U.S. 118, 140-151 (1912) (challenge to initiative and referendumprovisions of state constitution).The view that the Guarantee Clause implicates onlynonjusticiable political questions has its origin in Lutherv. Borden, 7 How. 1 (1849), in which the Court was asked todecide, in the wake of Dorr's Rebellion, which of two rivalgovernments was the legitimate government of Rhode Island. TheCourt held that "it rests with Congress," not the judiciary, "todecide what government is the established one in a State."Id., at 42. Over the following century, this limited holdingmetamorphosed into the sweeping assertion that "[v]iolation of thegreat guaranty of a republican form of government in States cannotbe challenged in the courts." Colegrove v. Green,328 U. S. 549,556 (1946) (plurality opinion).This view has not always been accepted. In a group of casesdecided before the holding of Luther was elevated into ageneral rule of nonjusticiability, the Court addressed the meritsof claims founded on the Guarantee Clause without any suggestionthat the claims were not justiciable. See At-

185torney General of Michigan ex rel. Kies v. Lowrey,199 U. S. 233,239 (1905); Forsyth v. Hammond, 166 U. S. 506, 519(1897); In re Duncan, 139 U. S. 449, 461-462(1891); Minor v. Happersett, 21 Wall. 162, 175-176(1875). See also Plessy v. Ferguson, 163 U. S. 537, 563-564(1896) (Harlan, J., dissenting) (racial segregation "inconsistentwith the guarantee given by the Constitution to each State of arepublican form of government").More recently, the Court has suggested that perhaps not allclaims under the Guarantee Clause present nonjusticiable politicalquestions. See Reynolds v. Sims, 377 U. S. 533, 582 (1964)("[S]ome questions raised under the Guarantee Clause arenonjusticiable"). Contemporary commentators have likewise suggestedthat courts should address the merits of such claims, at least insome circ*mstances. See, e. g., L. Tribe, AmericanConstitutional Law 398 (2d ed. 1988); J. Ely, Democracy andDistrust: A Theory of Judicial Review 118, n., and 122-123 (1980);W. Wiecek, The Guarantee Clause of the U. S. Constitution 287-289,300 (1972); Merritt, 88 Colum. L. Rev., at 70-78; Bonfield, TheGuarantee Clause of Article IV; Section 4: A Study inConstitutional Desuetude, 46 Minn. L. Rev. 513, 560-565 (1962).We need not resolve this difficult question today. Even if weassume that petitioners' claim is justiciable, neither the monetaryincentives provided by the Act nor the possibility that a State'swaste producers may find themselves excluded from the disposalsites of another State can reasonably be said to deny any State arepublican form of government. As we have seen, these twoincentives represent permissible conditional exercises of Congress'authority under the Spending and Commerce Clauses respectively, informs that have now grown commonplace. Under each, Congress offersthe States a legitimate choice rather than issuing an unavoidablecommand. The States thereby retain the ability to set theirlegislative agendas; state government officials remain accountableto the local electorate. The twin threats

186imposed by the first two challenged provisions of the ActthatNew York may miss out on a share of federal spending or that thosegenerating radioactive waste within New York may lose out-of-statedisposal outlets-do not pose any realistic risk of altering theform or the method of functioning of New York's government. Thuseven indulging the assumption that the Guarantee Clause provides abasis upon which a State or its subdivisions may sue to enjoin theenforcement of a federal statute, petitioners have not made outsuch a claim in these cases.VIHaving determined that the take title provision exceeds thepowers of Congress, we must consider whether it is severable fromthe rest of the Act."The standard for determining the severability of anunconstitutional provision is well established: Unless it isevident that the Legislature would not have enacted thoseprovisions which are within its power, independently of that whichis not, the invalid part may be dropped if what is left is fullyoperative as a law." Alaska Airlines, Inc. v. Brock,480 U. S. 678,684 (1987) (internal quotation marks omitted). While the Act itselfcontains no statement of whether its provisions are severable,"[i]n the absence of a severability clause, ... Congress' silenceis just that-silence-and does not raise a presumption againstseverability." Id., at 686. Common sense suggests that whereCongress has enacted a statutory scheme for an obvious purpose, andwhere Congress has included a series of provisions operating asincentives to achieve that purpose, the invalidation of one of theincentives should not ordinarily cause Congress' overall intent tobe frustrated. As the Court has observed, "it is not to be presumedthat the legislature was legislating for the mere sake of imposingpenalties, but the penalties ... were simply in aid of the mainpurpose of the statute. They may fail, and still the great body ofthe statute have operative force, and the force contemplated by thelegislature in its

187enactment." Reagan v. Farmers' Loan & TrustCo., 154 U. S.362, 396 (1894). See also United States v. Jackson,390 U. S. 570, 585-586 (1968).It is apparent in light of these principles that the take titleprovision may be severed without doing violence to the rest of theAct. The Act is still operative and it still serves Congress'objective of encouraging the States to attain local or regionalself-sufficiency in the disposal of low level radioactive waste. Itstill includes two incentives that coax the States along this road.A State whose radioactive waste generators are unable to gainaccess to disposal sites in other States may encounter considerableinternal pressure to provide for the disposal of waste, evenwithout the prospect of taking title. The sited regional compactsneed not accept New York's waste after the 7-year transition periodexpires, so any burden caused by New York's failure to secure adisposal site will not be borne by the residents of other States.The purpose of the Act is not defeated by the invalidation of thetake title provision, so we may leave the remainder of the Act inforce.VIISome truths are so basic that, like the air around us, they areeasily overlooked. Much of the Constitution is concerned withsetting forth the form of our government, and the courts havetraditionally invalidated measures deviating from that form. Theresult may appear "formalistic" in a given case to partisans of themeasure at issue, because such measures are typically the productof the era's perceived necessity. But the Constitution protects usfrom our own best intentions: It divides power among sovereigns andamong branches of government precisely so that we may resist thetemptation to concentrate power in one location as an expedientsolution to the crisis of the day. The shortage of disposal sitesfor radioactive waste is a pressing national problem, but ajudiciary that licensed extraconstitutional

188Opinion of WHITE, J.government with each issue of comparable gravity would, in thelong run, be far worse.States are not mere political subdivisions of the United States.State governments are neither regional offices nor administrativeagencies of the Federal Government. The positions occupied by stateofficials appear nowhere on the Federal Government's most detailedorganizational chart. The Constitution instead "leaves to theseveral States a residuary and inviolable sovereignty," TheFederalist No. 39, p. 245 (C. Rossiter ed. 1961), reservedexplicitly to the States by the Tenth Amendment.Whatever the outer limits of that sovereignty may be, one thingis clear: The Federal Government may not compel the States to enactor administer a federal regulatory program. The Constitutionpermits both the Federal Government and the States to enactlegislation regarding the disposal of low level radioactive waste.The Constitution enables the Federal Government to pre-empt stateregulation contrary to federal interests, and it permits theFederal Government to hold out incentives to the States as a meansof encouraging them to adopt suggested regulatory schemes. It doesnot, however, authorize Congress simply to direct the States toprovide for the disposal of the radioactive waste generated withintheir borders. While there may be many constitutional methods ofachieving regional self-sufficiency in radioactive waste disposal,the method Congress has chosen is not one of them. The judgment ofthe Court of Appeals is accordinglyAffirmed in part and reversed in part.JUSTICE WHITE, with whom JUSTICE BLACKMUN and JusTICE STEVENSjoin, concurring in part and dissenting in part.The Court today affirms the constitutionality of two facets ofthe Low-Level Radioactive Waste Policy Amendments Act of 1985 (1985Act), Pub. L. 99-240, 99 Stat. 1842, 42 U. S. C. § 2021b etseq. These provisions include the monetary in-

189centives from surcharges collected by States with low-levelradioactive waste storage sites and rebated by the Secretary ofEnergy to States in compliance with the 1985 Act's deadlines forachieving regional or in-state disposal, see §§ 2021e(d)(2)(A) and2021e(d)(2)(B)(iv), and the "access incentives," which deny accessto disposal sites for States that fail to meet certain deadlinesfor low-level radioactive waste disposal management, § 2021e(e)(2).The Court strikes down and severs a third component of the 1985Act, the "take title" provision, which requires a noncomplyingState to take title to or to assume liability for its low-levelradioactive waste if it fails to provide for the disposal of suchwaste by January 1, 1996. § 2021e(d)(2)(C). The Court deems thislast provision unconstitutional under principles of federalism.Because I believe the Court has mischaracterized the essentialinquiry, misanalyzed the inquiry it has chosen to undertake, andundervalued the effect the seriousness of this public policyproblem should have on the constitutionality of the take titleprovision, I can only join Parts III-A and III-B, and Irespectfully dissent from the rest of its opinion and the judgmentreversing in part the judgment of the Court of Appeals.IMy disagreement with the Court's analysis begins at the basicdescriptive level of how the legislation at issue in these casescame to be enacted. The Court goes some way toward setting out thebare facts, but its omissions cast the statutory context of thetake title provision in the wrong light. To read the Court'sversion of events, see ante, at 150-151, one would thinkthat Congress was the sole proponent of a solution to the Nation'slow-level radioactive waste problem. Not so. The Low-LevelRadioactive Waste Policy Act of 1980 (1980 Act), Pub. L. 96-573, 94Stat. 3347, and its amendatory 1985 Act, resulted from the effortsof state leaders to achieve a state-based set of remedies to thewaste problem. They sought not federal pre-emption or intervention,but

190Opinion of WHITE, J.rather congressional sanction of interstate compromises they hadreached.The two signal events in 1979 that precipitated movement towardlegislation were the temporary closing of the Nevada disposal sitein July 1979, after several serious transportation-relatedincidents, and the temporary shutting of the Washington disposalsite because of similar transportation and packaging problems inOctober 1979. At that time the facility in Barnwell, SouthCarolina, received approximately three-quarters of the Nation'slow-level radioactive waste, and the Governor ordered a 50 percentreduction in the amount his State's plant would accept fordisposal. National Governors' Association Task Force on Low-LevelRadioactive Waste Disposal, Low-Level Waste: A Program for Action 3(Nov. 1980) (lodged with the Clerk of this Court) (hereinafter AProgram for Action). The Governor of Washington threatened to shutdown the Hanford, Washington, facility entirely by 1982 unless"some meaningful progress occurs toward" development of regionalsolutions to the waste disposal problem. Id., at 4, n. Onlythree sites existed in the country for the disposal of low-levelradioactive waste, and the "sited" States confronted theundesirable alternatives either of continuing to be the dumpinggrounds for the entire Nation's low-level waste or of eliminatingor reducing in a constitutional manner the amount of waste acceptedfor disposal.The imminence of a crisis in low-level radioactive wastemanagement cannot be overstated. In December 1979, the NationalGovernors' Association convened an eight-member task force tocoordinate policy proposals on behalf of the States. See Status ofInterstate Compacts for the Disposal of Low-Level RadioactiveWaste: Hearing before the Senate Committee on the Judiciary, 98thCong., 1st Sess., 8 (1983). In May 1980, the State Planning Councilon Radioactive Waste Management submitted the following unanimousrecommendation to President Carter:

191

"The national policy of the United States on low-levelradioactive waste shall be that every State is responsible for thedisposal of the low-level radioactive waste generated by nondefenserelated activities within its boundaries and that States areauthorized to enter into interstate compacts, as necessary, for thepurpose of carrying out this responsibility." 126 Congo Rec. 20135(1980).

This recommendation was adopted by the National Governors'Association a few months later. See A Program for Action 6-7; H. R.Rep. No. 99-314, pt. 2, p. 18 (1985). The Governors recognized thatthe Federal Government could assert its preeminence in achieving asolution to this problem, but requested instead that Congressoversee state-developed regional solutions. Accordingly, theGovernors' Task Force urged that "each state should accept primaryresponsibility for the safe disposal of low-level radioactive wastegenerated within its borders" and that "the states should pursue aregional approach to the low-level waste disposal problem." AProgram for Action 6.The Governors went further, however, in recommending that"Congress should authorize the states to enter into interstatecompacts to establish regional disposal sites" and that "[s]uchauthorization should include the power to exclude waste generatedoutside the region from the regional disposal site." Id., at7. The Governors had an obvious incentive in urging Congress not toadd more coercive measures to the legislation should the Statesfail to comply, but they nevertheless anticipated that Congressmight eventually have to take stronger steps to ensure compliancewith long-range planning deadlines for low-level radioactive wastemanagement. Accordingly, the Governors' Task Force

"recommend[ed] that Congress defer consideration of sanctions tocompel the establishment of new disposal sites until at least twoyears after the enactment of com-

192Opinion of WHITE, J.

pact consent legislation. States are already confronting thediminishing capacity of present sites and an unequivocal politicalwarning from those states' Governors. If at the end of the two-yearperiod states have not responded effectively, or if problems stillexist, stronger federal action may be necessary. But until thattime, Congress should confine its role to removing obstacles andallow the states a reasonable chance to solve the problemthemselves." Id., at 8-9.

Such concerns would have been mooted had Congress enacted a"federal" solution, which the Senate considered in July 1980. SeeS. 2189, 96th Cong., 2d Sess. (1980); S. Rep. No. 96-548 (1980)(detailing legislation calling for federal study, oversight, andmanagement of radioactive waste). This "federal" solution, however,was opposed by one of the sited State's Senators, who introduced anamendment to adopt and implement the recommendations of the StatePlanning Council on Radioactive Waste Management. See 126 CongoRec. 20136 (1980) (statement of Sen. Thurmond). The "state-based"solution carried the day, and as enacted, the 1980 Act announcedthe "policy of the Federal Government that ... each State isresponsible for providing for the availability of capacity eitherwithin or outside the State for the disposal of low-levelradioactive waste generated within its borders." Pub. L. 96-573, §4(a)(1), 94 Stat. 3348. The 1980 Act further authorized States to"enter into such compacts as may be necessary to provide for theestablishment and operation of regional disposal facilities forlow-level radioactive waste," § 4(a)(2)(A), compacts to whichCongress would have to give its consent. § 4(a)(2)(B). The 1980 Actalso provided that, beginning on January 1, 1986, an approvedcompact could reserve access to its disposal facilities for thoseStates which had joined that particular regional compact.Ibid.As well described by one of the amici, the attempts byStates to enter into compacts and to gain congressional ap-

193pro val sparked a new round of political squabbling betweenelected officials from unsited States, who generally opposedratification of the compacts that were being formed, and theircounterparts from the sited States, who insisted that the promisesmade in the 1980 Act be honored. See Brief for American Federationof Labor and Congress of Industrial Organizations as AmicusCuriae 12-14. In its effort to keep the States at the forefrontof the policy amendment process, the National Governors'Association organized more than a dozen meetings to achieve a stateconsensus. See H. Brown, The Low-Level Waste Handbook: A User'sGuide to the Low-Level Radioactive Waste Policy Amendments Act of1985, p. iv (Nov. 1986) (describing "the states' desire toinfluence any revisions of the 1980 Act").These discussions were not merely academic. The sited Statesgrew increasingly and justifiably frustrated by the seeminginaction of unsited States in meeting the projected actions calledfor in the 1980 Act. Thus, as the end of 1985 approached, the sitedStates viewed the January 1, 1986, deadline established in the 1980Act as a "drop-dead" date, on which the regional compacts couldbegin excluding the entry of out-of-region waste. See 131 CongoRec. 35203 (1985). Since by this time the three disposal facilitiesoperating in 1980 were still the only such plants acceptinglowlevel radioactive waste, the unsited States perceived a veryserious danger if the three existing facilities actually carriedout their threat to restrict access to the waste generated solelywithin their respective compact regions.A movement thus arose to achieve a compromise between the sitedand the unsited States, in which the sited States agreed tocontinue accepting waste in exchange for the imposition of strongermeasures to guarantee compliance with the unsited States'assurances that they would develop alternative disposal facilities.As Representative Derrick explained, the compromise 1985legislation "gives nonsited

194Opinion of WHITE, J.States more time to develop disposal sites, but also establishesa very firm timetable and sanctions for failure to live up [to] theagreement." Id., at 35207. Representative Markey added that"[t]his compromise became the basis for our amendments to theLow-Level Radioactive Waste Policy Act of 1980. In the process ofdrafting such amendments, various concessions have been made by allsides in an effort to arrive at a bill which all parties couldaccept." Id., at 35205. The bill that in large measurebecame the 1985 Act "represent[ed] the diligent negotiatingundertaken by" the National Governors' Association and "embodied"the "fundamentals of their settlement." Id., at 35204(statement of Rep. Udall). In sum, the 1985 Act was very much theproduct of cooperative federalism, in which the States bargainedamong themselves to achieve compromises for Congress tosanction.There is no need to resummarize the essentials of the 1985legislation, which the Court does ante, at 151-154. It does,however, seem critical to emphasize what is accurately described inone amicus brief as the assumption by Congress of "the roleof arbiter of disputes among the several States." Brief for RockyMountain Low-Level Radioactive Waste Compact et al. as AmiciCuriae 9. Unlike legislation that directs action from theFederal Government to the States, the 1980 and 1985 Acts reflectedhard-fought agreements among States as refereed by Congress. Thedistinction is key, and the Court's failure properly tocharacterize this legislation ultimately affects its analysis ofthe take title provision's constitutionality.IITo justify its holding that the take title provision contravenesthe Constitution, the Court posits that "[i]n this provision,Congress has crossed the line distinguishing encouragement fromcoercion." Ante, at 175. Without attempting to understandproperly the take title provision's place in the

195interstate bargaining process, the Court isolates the measureanalytically and proceeds to dissect it in a syllogistic fashion.The Court candidly begins with an argument respondents donot make: that "the Constitution would not permit Congresssimply to transfer radioactive waste from generators to stategovernments." Ibid. "Such a forced transfer," it continues,"standing alone, would in principle be no different than acongressionally compelled subsidy from state governments toradioactive waste producers." Ibid. Since this is notan argument respondents make, one naturally wonders why the Courtbuilds its analysis that the take title provision isunconstitutional around this opening premise. But having carefullybuilt its straw man, the Court proceeds impressively to knock himdown. "As we have seen," the Court teaches, "the Constitution doesnot empower Congress to subject state governments to this type ofinstruction." Ante, at 176.Curiously absent from the Court's analysis is any effort toplace the take title provision within the overall context of thelegislation. As the discussion in Part I of this opinion suggests,the 1980 and 1985 statutes were enacted against a backdrop ofnational concern over the availability of additional low-levelradioactive waste disposal facilities. Congress could havepre-empted the field by directly regulating the disposal of thiswaste pursuant to its powers under the Commerce and SpendingClauses, but instead it unanimously assented to the States'request for congressional ratification of agreements to which theyhad acceded. See 131 Congo Rec. 35252 (1985); id., at 38425.As the floor statements of Members of Congress reveal, seesupra, at 193-194, the States wished to take the lead inachieving a solution to this problem and agreed among themselves tothe various incentives and penalties implemented by Congress toensure

196Opinion of WHITE, J.adherence to the various deadlines and goals.1 The chiefexecutives of the States proposed this approach, and I am unmovedby the Court's vehemence in taking away Congress' authority tosanction a recalcitrant unsited State now that New York has reapedthe benefits of the sited States' concessions.AIn my view, New York's actions subsequent to enactment of the1980 and 1985 Acts fairly indicate its approval of the interstateagreement process embodied in those laws within the meaning of Art.I, § 10, cl. 3, of the Constitution, which provides that "[n]oState shall, without the Consent of Congress, ... enter into anyAgreement or Compact with another State." First, theStates-including New Yorkworked through their Governors to petitionCongress for the 1980 and 1985 Acts. As I have attempted todemonstrate, these statutes are best understood as the products ofcollective state action, rather than as impositions placed onStates by the Federal Government. Second, New York acted incompliance with the requisites of both statutes in key respects,thus signifying its assent to the agreement achieved among theStates as codified in these laws. After enactment of the 1980 Actand pursuant to its provision in § 4(a)(2), 94 Stat. 3348, New Yorkentered into compact negotiations with several other northeasternStates before withdrawing from them to "go it alone." Indeed, in1985, as the January 1, 1986, deadline crisis approached andCongress considered the 1985 legislation that is the subject ofthis lawsuit, the Deputy Commissioner for Policy and Planning ofthe New1 As Senator McClure pointed out: "[T]he actions taken in theCommittee on Energy and Natural Resources met the objections andthe objectives of the States point by point; and I want tounderscore what the Senator from Louisiana has indicated-that it isimportant that we have real milestones. It is important to notethat the discussions between staffs and principals have produceda[n] agreement that does have some real teeth in it at somepoints." 131 Congo Rec. 38415 (1985).

197York State Energy Office testified before Congress that "NewYork State supports the efforts of Mr. Udall and the members ofthis Subcommittee to resolve the current impasse over Congressionalconsent to the proposed LLRW compacts and provide interim accessfor states and regions without sites. New York State has beenparticipating with the National Governors' Association and theother large states and compact commissions in an effort to furtherrefine the recommended approach in HR 1083 and reach a consensusbetween all groups." See Low-Level Waste Legislation: Hearingson H. R. 862, H. R. 1046, H. R. 1083, and H. R. 1267 before theSubcommittee on Energy and the Environment of the House Committeeon Interior and Insular Affairs, 99th Cong., 1st Sess., 197 (1985)(testimony of Charles Guinn) (emphasis added).Based on the assumption that "other states will [not] continueindefinitely to provide access to facilities adequate for thepermanent disposal of low-level radioactive waste generated in NewYork," 1986 N. Y. Laws, ch. 673, § 2, the state legislature enacteda law providing for a waste disposal facility to be sited in theState. Ibid. This measure comported with the 1985 Act'sproviso that States which did not join a regional compact by July1, 1986, would have to establish an in-state waste disposalfacility. See 42 U. S. C. § 2021e (e)(l)(A). New York also compliedwith another provision of the 1985 Act, § 2021e(e)(1)(B), whichprovided that by January 1, 1988, each compact or independent Statewould identify a facility location and develop a siting plan, orcontract with a sited compact for access to that region's facility.By 1988, New York had identified five potential sites in Cortlandand Allegany Counties, but public opposition there caused the Stateto reconsider where to locate its waste disposal facility. SeeOffice of Environmental Restoration and Waste Management, U. S.Dept. of Energy, Report to Congress in Response to Public Law99-240: 1990 Annual Report on Low-Level Radioactive WasteManagement Progress 32-35

198Opinion of WHITE, J.(1991) (lodged with the Clerk of this Court). As it wasundertaking these initial steps to honor the interstate compromiseembodied in the 1985 Act, New York continued to take full advantageof the import concession made by the sited States, by exporting itslow-level radioactive waste for the full 7-year extension periodprovided in the 1985 Act. By gaining these benefits and complyingwith certain of the 1985 Act's deadlines, therefore, New Yorkfairly evidenced its acceptance of the federal-statearrangement-including the take title provision.Although unlike the 42 States that compose the nine existing andapproved regional compacts, see Brief for United States 10, n. 19,New York has never formalized its assent to the 1980 and 1985statutes, our cases support the view that New York's actionssignify assent to a constitutional interstate "agreement" forpurposes of Art. I, § 10, cl. 3. In Holmes v.Jennison, 14 Pet. 540 (1840), Chief Justice Taney statedthat "[t]he word 'agreement,' does not necessarily import anydirect and express stipulation; nor is it necessary that it shouldbe in writing. If there is a verbal understanding to which bothparties have assented, and upon which both are acting, it isan 'agreement.' And the use of all of these terms, 'treaty,''agreement,' 'compact,' show that it was the intention of theframers of the Constitution to use the broadest and mostcomprehensive terms; ... and we shall fail to execute that evidentintention, unless we give to the word 'agreement' its most extendedsignification; and so apply it as to prohibit every agreement,written or verbal, formal or informal, positive or implied, by themutual understanding of the parties." Id., at 572. (emphasisadded). In my view, New York acted in a manner to signify itsassent to the 1985 Act's take title provision as part of theelaborate compromise reached among the States.The State should be estopped from asserting theunconstitutionality of a provision that seeks merely to ensurethat, after deriving substantial advantages from the 1985 Act,

199New York in fact must live up to its bargain by establishing anin-state low-level radioactive waste facility or assuming liabilityfor its failure to act. Cf. West Virginia ex rel. Dyer v.Sims, 341 U. S.22, 35-36 (1951), Jackson, J., concurring:"West Virginia officials induced sister States to contract withher and Congress to consent to the Compact. She now attempts toread herself out of this interstate Compact .... Estoppel is notoften to be invoked against a government. But West Virginia assumeda contractual obligation with equals by permission of anothergovernment that is sovereign in the field. After Congress andsister States had been induced to alter their positions and bindthemselves to terms of a covenant, West Virginia should beestopped from repudiating her act." (Emphasis added.)BEven were New York not to be estopped from challenging the taketitle provision's constitutionality, I am convinced that, seen as aterm of an agreement entered into between the several States, thismeasure proves to be less constitutionally odious than the Courtopines. First, the practical effect of New York's position is thatbecause it is unwilling to honor its obligations to providein-state storage facilities for its low-level radioactive waste,other States with such plants must accept New York'swaste, whether they wish to or not. Otherwise, the manyeconomically and socially beneficial producers of such waste in theState would have to cease their operations. The Court's refusal toforce New York to accept responsibility for its own probleminevitably means that some other State's sovereignty will beimpinged by it being forced, for public health reasons, to acceptNew York's low-level radioactive waste. I do not understand theprinciple of federalism to impede the National Government fromacting as referee among the States to prohibit one from bullyinganother.

200Opinion of WHITE, J.Moreover, it is utterly reasonable that, in crafting a delicatecompromise between the three overburdened States that providedlow-level radioactive waste disposal facilities and the rest of theStates, Congress would have to ratify some punitive measure as theultimate sanction for noncompliance. The take title provision,though surely onerous, does not take effect if the generatorof the waste does not request such action, or if the State lives upto its bargain of providing a waste disposal facility either withinthe State or in another State pursuant to a regional compactarrangement or a separate contract. See 42 U. S. C. §2021e(d)(2)(C).Finally, to say, as the Court does, that the incursion on statesovereignty "cannot be ratified by the 'consent' of stateofficials," ante, at 182, is flatly wrong. In a caseinvolving a congressional ratification statute to an interstatecompact, the Court upheld a provision that Tennessee and Missourihad waived their immunity from suit. Over their objection, theCourt held that "[t]he States who are parties to the compact byaccepting it and acting under it assume the conditions thatCongress under the Constitution attached." Petty v.Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 281-282(1959) (emphasis added). In so holding, the Court determined that aState may be found to have waived a fundamental aspect of itssovereignty-the right to be immune from suit-in the formation of aninterstate compact even when in subsequent litigation it expresslydenied its waiver. I fail to understand the reasoning behind theCourt's selective distinctions among the various aspects ofsovereignty that may and may not be waived and do not believe thesedistinctions will survive close analysis in future cases. Hardpublic policy choices sometimes require strong measures, and theCourt's holding, while not irremediable, essentially misunderstandsthat the 1985 take title provision was part of a complex interstateagreement about which New York should not now be permitted tocomplain.

201IIIThe Court announces that it has no occasion to revisit suchdecisions as Gregory v. Ashcroft, 501 U. S. 452 (1991);South Carolina v. Baker, 485 U. S. 505 (1988);Garcia v. San Antonio Metropolitan Transit Authority,469 U. S. 528(1985); EEOC v. Wyoming, 460 U. S. 226 (1983); andNational League of Cities v. Usery, 426 U. S. 833 (1976); seeante, at 160, because "this is not a case in which Congresshas subjected a State to the same legislation applicable to privateparties." Ibid. Although this statement sends the welcomesignal that the Court does not intend to cut a wide swath throughour recent Tenth Amendment precedents, it nevertheless isunpersuasive. I have several difficulties with the Court's analysisin this respect: It builds its rule around an insupportable andillogical distinction in the types of alleged incursions on statesovereignty; it derives its rule from cases that do not support itsanalysis; it fails to apply the appropriate tests from the cases onwhich it purports to base its rule; and it omits any discussion ofthe most recent and pertinent test for determining the take titleprovision's constitutionality.The Court's distinction between a federal statute's regulationof States and private parties for general purposes, as opposed to aregulation solely on the activities of States, is unsupported byour recent Tenth Amendment cases. In no case has the Court restedits holding on such a distinction. Moreover, the Court makes noeffort to explain why this purported distinction should affect theanalysis of Congress' power under general principles of federalismand the Tenth Amendment. The distinction, facilely thrown out, isnot based on any defensible theory. Certainly one would be hardpressed to read the spirited exchanges between the Court anddissenting Justices in National League of Cities, supra, andin Garcia v. San Antonio Metropolitan Transit Authority,supra, as having been based on the distinction now drawn by theCourt. An incursion on state sovereignty

202Opinion of WHITE, J.hardly seems more constitutionally acceptable if the federalstatute that "commands" specific action also applies to privateparties. The alleged diminution in state authority over its ownaffairs is not any less because the federal mandate restricts theactivities of private parties.Even were such a distinction to be logically sound, the Court's"anticommandeering" principle cannot persuasively be read asspringing from the two cases cited for the proposition,Hodel v. Virginia Surface Mining & ReclamationAssn., Inc., 452U. S. 264, 288 (1981), and FERC v. Mississippi,456 U. S. 742,761-762 (1982). The Court purports to draw support for its ruleagainst Congress "commandeer[ing]" state legislative processes froma solitary statement in dictum in Hodel. See ante, at161: "As an initial matter, Congress may not simply 'commandee[r]the legislative processes of the States by directly compelling themto enact and enforce a federal regulatory program'" (quotingHodel, supra, at 288). That statement was not necessary tothe decision in Hodel, which involved the question whetherthe Tenth Amendment interfered with Congress' authority to pre-empta field of activity that could also be subject to state regulationand not whether a federal statute could dictate certain actions byStates; the language about "commandeer[ing]" States was classicdicta. In holding that a federal statute regulating the activitiesof private coal mine operators was constitutional, the Courtobserved that "[i]t would ... be a radical departure fromlong-established precedent for this Court to hold that the TenthAmendment prohibits Congress from displacing state police powerlaws regulating private activity." 452 U. S., at 292.The Court also claims support for its rule from our decision inFERC, and quotes a passage from that case in which we statedthat "'this Court never has sanctioned explicitly a federal commandto the States to promulgate and enforce laws and regulations.'"Ante, at 161 (quoting 456 U. S., at

203761-762). In so reciting, the Court extracts from the relevantpassage in a manner that subtly alters the Court's meaning. Infull, the passage reads: "While this Court never hassanctioned explicitly a federal command to the States to promulgateand enforce laws and regulations, cf. EPA v. Brown,431 U. S. 99(1977), there are instances where the Court has upheld federalstatutory structures that in effect directed state decisionmakersto take or to refrain from taking certain actions." Ibid.(citing Fry v. United States, 421 U. S. 542 (1975)(emphasis added)).2 The phrase highlighted by the Court merelymeans that we have not had the occasion to address whether Congressmay "command" the States to enact a certain law, and as I haveargued in Parts I and II of this opinion, these cases do not raisethat issue. Moreover, it should go without saying that theabsence of anyon-point precedent from this Court has nobearing on the question whether Congress has properly exercised itsconstitutional authority under Article 1. Silence by this Court ona subject is not authority for anything.The Court can scarcely rest on a distinction between federallaws of general applicability and those ostensibly directed solelyat the activities of States, therefore, when the decisions fromwhich it derives the rule not only made no such distinction, butvalidated federal statutes that constricted state sovereignty inways greater than or similar to2 It is true that under the majority's approach, Fry isdistinguishable because it involved a statute generally applicableto both state governments and private parties. The law at issue inthat case was the Economic Stabilization Act of 1970, which imposedwage and salary limitations on private and state workers alike. InFry, the Court upheld this statute's application to theStates over a Tenth Amendment challenge. In my view, Fryperfectly captures the weakness of the majority's distinction,because the law upheld in that case involved a far more pervasiveintrusion on state sovereignty-the authority of state governmentsto pay salaries and wages to its employees below the federalminimum-than the take title provision at issue here.

204Opinion of WHITE, J.the take title provision at issue in these cases. As Fry,Hodel, and FERC make clear, our precedents prior toGarcia upheld provisions in federal statutes that directedStates to undertake certain actions. "[I]t cannot beconstitutionally determinative that the federal regulation islikely to move the States to act in a given way," we stated inFERC, "or even to 'coerc[e] the States' into assuming aregulatory role by affecting their 'freedom to make decisions inareas of "integral governmental functions."'" 456 U. S., at 766. Ithus am unconvinced that either Hodel or FERCsupports the rule announced by the Court.And if those cases do stand for the proposition that in certaincirc*mstances Congress may not dictate that the States takespecific actions, it would seem appropriate to apply the teststated in FERC for determining those circ*mstances. Thecrucial threshold inquiry in that case was whether the subjectmatter was pre-emptible by Congress. See 456 U. S., at 765. "IfCongress can require a state administrative body to considerproposed regulations as a condition to its continued involvementin a pre-emptible field-and we hold today that it can-thereis nothing unconstitutional about Congress' requiring certainprocedural minima as that body goes about undertaking its tasks."Id., at 771 (emphasis added). The FERC Court went onto explain that if Congress is legislating in a pre-emptiblefield-as the Court concedes it was doing here, see ante, at173-174-the proper test before our decision in Garcia was toassess whether the alleged intrusions on state sovereignty "do notthreaten the States' 'separate and independent existence,' LaneCounty v. Oregon, 7 Wall. 71, 76 (1869); Coyle v.Smith, 221 U.S. 559, 580 (1911), and do not impair the ability of the States'to function effectively in a federal system.' Fry v.United States, 421 U. S., at 547, n. 7; National Leagueof Cities v. Usery, 426 U. S., at 852." FERC,supra, at 765-766. On

205neither score does the take title provision raise constitutionalproblems. It certainly does not threaten New York's independentexistence nor impair its ability to function effectively in thesystem, all the more so since the provision was enacted pursuant tocompromises reached among state leaders and then ratified byCongress.It is clear, therefore, that even under the precedentsselectively chosen by the Court, its analysis of the take titleprovision's constitutionality in these cases falls far short ofbeing persuasive. I would also submit, in this connection, that theCourt's attempt to carve out a doctrinal distinction for statutesthat purport solely to regulate state activities is especiallyunpersuasive after Garcia. It is true that in that case weconsidered whether a federal statute of general applicability-theFair Labor Standards Act-applied to state transportation entitiesbut our most recent statements have explained the appropriateanalysis in a more general manner. Just last Term, for instance,JUSTICE O'CONNOR wrote for the Court that "[w]e are constrained inour ability to consider the limits that the state-federal balanceplaces on Congress' powers under the Commerce Clause. SeeGarcia v. San Antonio Metropolitan Transit Authority,469 U. S. 528(1985) (declining to review limitations placed on Congress'Commerce Clause powers by our federal system)." Gregory v.Ashcroft, 501 U. S., at 464. Indeed, her opinion went on tostate that "this Court in Garcia has left primarily to thepolitical process the protection of the States againstintrusive exercises of Congress' Commerce Clause powers."Ibid. (emphasis added).Rather than seek guidance from FERC and Hodel,therefore, the more appropriate analysis should flow fromGarcia, even if these cases do not involve a congressionallaw generally applicable to both States and private parties. InGarcia, we stated the proper inquiry: "[W]e are convincedthat

206Opinion of WHITE, J.the fundamental limitation that the constitutional schemeimposes on the Commerce Clause to protect the 'States as States' isone of process rather than one of result. Any substantive restrainton the exercise of Commerce Clause powers must find itsjustification in the procedural nature of this basic limitation,and it must be tailored to compensate for possible failings in thenational political process rather than to dictate a 'sacredprovince of state autonomy.'" 469 U. S., at 554 (quotingEEOC v. Wyoming, 460 U. S., at 236). Where itaddresses this aspect of respondents' argument, see ante, at180-183, the Court tacitly concedes that a failing of the politicalprocess cannot be shown in these cases because it refuses to rebutthe unassailable arguments that the States were well able to lookafter themselves in the legislative process that culminated in the1985 Act's passage. Indeed, New York acknowledges that its"congressional delegation participated in the drafting andenactment of both the 1980 and the 1985 Acts." Pet. for Cert. inNo. 91-543, p. 7. The Court rejects this process-based argument byresorting to generalities and platitudes about the purpose offederalism being to protect individual rights.Ultimately, I suppose, the entire structure of our federalconstitutional government can be traced to an interest inestablishing checks and balances to prevent the exercise of tyrannyagainst individuals. But these fears seem extremely far distant tome in a situation such as this. We face a crisis of nationalproportions in the disposal of low-level radioactive waste, andCongress has acceded to the wishes of the States by permittinglocal decisionmaking rather than imposing a solution fromWashington. New York itselfparticipated and supported passage ofthis legislation at both the gubernatorial and federalrepresentative levels, and then enacted state laws specifically tocomply with the deadlines and timetables agreed upon by the Statesin the 1985 Act. For

207me, the Court's civics lecture has a decidedly hollow ring at atime when action, rather than rhetoric, is needed to solve anational problem.33 With selective quotations from the era in which theConstitution was adopted, the majority attempts to bolster itsholding that the take title provision is tantamount to federal"commandeering" of the States. In view of the many Tenth Amendmentcases decided over the past two decades in which resort to the kindof historical analysis generated in the majority opinion was notdeemed necessary, I do not read the majority's many invocations ofhistory to be anything other than elaborate window dressing.Certainly nowhere does the majority announce that its rule iscompelled by an understanding of what the Framers may have thoughtabout statutes of the type at issue here. Moreover, I would observethat, while its quotations add a certain flavor to the opinion, themajority's historical analysis has a distinctly wooden quality. Onewould not know from reading the majority's account, for instance,that the nature of federal-state relations changed fundamentallyafter the Civil War. That conflict produced in its wake atremendous expansion in the scope of the Federal Government'slaw-making authority, so much so that the persons who helped tofound the Republic would scarcely have recognized the many addedroles the National Government assumed for itself. Moreover, themajority fails to mention the New Deal era, in which the Courtrecognized the enormous growth in Congress' power under theCommerce Clause. See generally F. Frankfurter & J. Landis, TheBusiness of the Supreme Court 56-59 (1927); H. Hyman, A MorePerfect Union: The Impact of the Civil War and Reconstruction onthe Constitution (1973); Corwin, The Passing of Dual Federalism, 36Va. L. Rev. 1 (1950); Wiecek, The Reconstruction of FederalJudicial Power, 1863-1875, 13 Am. J. Legal Hist. 333 (1969);Scheiber, State Law and "Industrial Policy" in AmericanDevelopment, 1790-1987, 75 Calif. L. Rev. 415 (1987); Ackerman,Constitutional Politics/Constitutional Law, 99 Yale L. J. 453(1989). While I believe we should not be blind to history, neithershould we read it so selectively as to restrict the proper scope ofCongress' powers under Article I, especially when the history notmentioned by the majority fully supports a more expansiveunderstanding of the legislature's authority than may have existedin the late 18th century.Given the scanty textual support for the majority's position, itwould be far more sensible to defer to a coordinate branch ofgovernment in its decision to devise a solution to a nationalproblem of this kind. Certainly in other contexts, principles offederalism have not insulated States from mandates by the NationalGovernment. The Court has upheld congres-

208Opinion of WHITE, J.IVThough I disagree with the Court's conclusion that the taketitle provision is unconstitutional, I do not read its opinion topreclude Congress from adopting a similar measure through itspowers under the Spending or Commerce Clauses. The Court makesclear that its objection is to the alleged "commandeer[ingJ"quality of the take title provision. See ante, at 175. Asits discussion of the surcharge and rebate incentives reveals, seeante, at 171-172, the spending power offers a means ofenacting a take title provision under the Court's standards.Congress could, in other words, condition the payment of funds onthe State's willingness to take title if it has not alreadyprovided a waste disposal facility. Under the scheme upheld inthese cases, for example, moneys collected in the surchargeprovision might be withheld or disbursed depending on a State'swillingness to take title to or otherwise accept responsibility forthe lowlevel radioactive waste generated in state after thestatutory deadline for establishing its own waste disposal facilityhas passed. See ibid.; South Dakota v. Dole, 483 U. S. 203, 208209(1987); Massachusetts v. United States, 435 U. S. 444, 461(1978).Similarly, should a State fail to establish a waste disposalfacility by the appointed deadline (under the statute as presentlydrafted, January 1, 1996, §2021e(d)(2)(C)), Congress has the powerpursuant to the Commerce Clause to regulate directly the producersof the waste. See ante, at 174. Thus, as I read it, Congresscould amend the statute to say that if a State fails to meet theJanuary 1, 1996, deadline forsional statutes that impose clear directives on state officials,including those enacted pursuant to the Extradition Clause, see,e. g., Puerto Rico v. Branstad,483 U. S. 219,227-228 (1987), the post-Civil War Amendments, see, e.g., South Carolina v. Katzenbach, 383 U. S. 301, 319-320,334-335 (1966), as well as congressional statutes that requirestate courts to hear certain actions, see, e. g.,Testa v. Katt, 330 U. S. 386, 392-394(1947).

209achieving a means of waste disposal, and has not taken title tothe waste, no low-level radioactive waste may be shipped out of theState of New York. See, e. g., Hodel, 452 U. S., at 288. Asthe legislative history of the 1980 and 1985 Acts indicates, facedwith the choice of federal pre-emptive regulation andself-regulation pursuant to interstate agreement with congressionalconsent and ratification, the States decisively chose the latter.This background suggests that the threat of federal pre-emption maysuffice to induce States to accept responsibility for failing tomeet critical time deadlines for solving their low-levelradioactive waste disposal problems, especially if that federalintervention also would strip state and local authorities of anyinput in locating sites for low-level radioactive waste disposalfacilities. And should Congress amend the statute to meet theCourt's objection and a State refuse to act, the NationalLegislature will have ensured at least a federal solution to thewaste management problem.Finally, our precedents leave open the possibility that Congressmay create federal rights of action in the generators of low-levelradioactive waste against persons acting under color of state lawfor their failure to meet certain functions designated infederal-state programs. Thus, we have upheld 42 U. S. C. § 1983suits to enforce certain rights created by statutes enactedpursuant to the Spending Clause, see, e. g., Wilder v.Virginia Hospital Assn., 496 U. S. 498 (1990);Wright v. Roanoke Redevelopment and HousingAuthority, 479 U.S. 418 (1987), although Congress must be cautious in spellingout the federal right clearly and distinctly, see, e.g., Suter v. Artist M., 503 U. S. 347 (1992) (notpermitting a § 1983 suit under a Spending Clause statute when theostensible federal right created was too vague and amorphous). Inaddition to compensating injured parties for the State's failure toact, the exposure to liability established by such suits alsopotentially serves as an inducement to compliance with the programmandate.

210Opinion of STEVENS, J.vThe ultimate irony of the decision today is that in itsformalistically rigid obeisance to "federalism," the Court givesCongress fewer incentives to defer to the wishes of state officialsin achieving local solutions to local problems. This legislationwas a classic example of Congress acting as arbiter among theStates in their attempts to accept responsibility for managing aproblem of grave import. The States urged the National Legislaturenot to impose from Washington a solution to the country's low-levelradioactive waste management problems. Instead, they sought areasonable level of local and regional autonomy consistent withArt. I, § 10, cl. 3, of the Constitution. By invalidating themeasure designed to ensure compliance for recalcitrant States, suchas New York, the Court upsets the delicate compromise achievedamong the States and forces Congress to erect several additionalformalistic hurdles to clear before achieving exactly the sameobjective. Because the Court's justifications for undertaking thisstep are unpersuasive to me, I respectfully dissent.JUSTICE STEVENS, concurring in part and dissenting in part.Under the Articles of Confederation, the Federal Government hadthe power to issue commands to the States. See Arts. VIII, IX.Because that indirect exercise of federal power proved ineffective,the Framers of the Constitution empowered the Federal Government toexercise legislative authority directly over individuals within theStates, even though that direct authority constituted a greaterintrusion on state sovereignty. Nothing in that history suggeststhat the Federal Government may not also impose its will upon theseveral States as it did under the Articles. The Constitutionenhanced, rather than diminished, the power of the FederalGovernment.

211The notion that Congress does not have the power to issue "asimple command to state governments to implement legislationenacted by Congress," ante, at 176, is incorrect andunsound. There is no such limitation in the Constitution. The TenthAmendment 1 surely does not impose any limit on Congress' exerciseof the powers delegated to it by Article J.2 Nor does the structureof the constitutional order or the values of federalism mandatesuch a formal rule. To the contrary, the Federal Government directsstate governments in many realms. The Government regulatesstate-operated railroads, state school systems, state prisons,state elections, and a host of other state functions. Similarly,there can be no doubt that, in time of war, Congress could eitherdraft soldiers itself or command the States to supply their quotasof troops. I see no reason why Congress may not also command theStates to enforce federal water and air quality standards orfederal standards for the disposition of low-level radioactivewastes.The Constitution gives this Court the power to resolvecontroversies between the States. Long before Congress1 The Tenth Amendment provides: "The powers not delegated to theUnited States by the Constitution, nor prohibited by it to theStates, are reserved to the States respectively, or to thepeople."2 In United States v. Darby, 312 U. S. 100 (1941), weexplained:"The amendment states but a truism that all is retained whichhas not been surrendered. There is nothing in the history of itsadoption to suggest that it was more than declaratory of therelationship between the national and state governments as it hadbeen established by the Constitution before the amendment or thatit* purpose was other than to allay fears that the new nationalgovernment might seek to exercise powers not granted, and that thestates might not be able to exercise fully their reserved powers.See e. g., II Elliot's Debates, 123, 131, III id. 450, 464,600; IV id. 140, 149; I Annals of Congress, 432, 761,767-768; Story, Commentaries on the Constitution, §§ 1907-1908."From the beginning and for many years the amendment has beenconstrued as not depriving the national government of authority toresort to all means for the exercise of a granted power which areappropriate and plainly adapted to the permitted end." Id.,at 124; see also ante, at 155-157.

212Opinion of STEVENS, J.enacted pollution-control legislation, this Court crafted a bodyof" 'interstate common law,'" Illinois v. City ofMilwaukee, 406 U.S. 91, 106 (1972), to govern disputes between States involvinginterstate waters. See Arkansas v. Oklahoma, 503 U. S. 91, 98-99(1992). In such contexts, we have not hesitated to direct States toundertake specific actions. For example, we have "impose[d] onStates an affirmative duty to take reasonable steps to conserve andaugment the water supply of an interstate stream." Coloradov. New Mexico, 459 U. S. 176, 185 (1982)(citing Wyoming v. Colorado, 259 U. S. 419 (1922)).Thus, we unquestionably have the power to command an upstream Statethat is polluting the waters of a downstream State to adoptappropriate regulations to implement a federal statutorycommand.With respect to the problem presented by the cases at hand, iflitigation should develop between States that have joined acompact, we would surely have the power to grant relief in the formof specific enforcement of the take title provision.3 Indeed, evenif the statute had never been passed, if one State's radioactivewaste created a nuisance that harmed its neighbors, it seems clearthat we would have had the power3 Even if § 2021e(d)(2)(C) is "invalidated" insofar as itapplies to the State of New York, it remains enforceable againstthe 44 States that have joined interstate compacts approved byCongress because the compacting States have, in their agreements,embraced that provision and given it independent effect. Congress'consent to the compacts was "granted subject to the provisions ofthe [Act] ... and only for so long as the [entities] established inthe compact comply with all the provisions of [the] Act."Appalachian States Low-Level Radioactive Waste Compact Consent Act,Pub. L. 100-319, 102 Stat. 471. Thus the compacts incorporated theprovisions of the Act, including the take title provision. Thesecompacts, the product of voluntary interstate cooperation,unquestionably survive the "invalidation" of § 2021e(d)(2)(C) as itapplies to New York. Congress did not "direc[t]" the States toenter into these compacts and the decision of each compacting Stateto enter into a compact was not influenced by the existence of thetake title provision: Whether a State went its own way or joined acompact, it was still subject to the take title provision.

213to command the offending State to take remedial action. Cf.Illinois v. City of Milwaukee, supra. If this Courthas such authority, surely Congress has similar authority.For these reasons, as well as those set forth by JUSTICE WHITE,I respectfully dissent.

New York v. United States, 505 U.S. 144 (1992) (2024)

FAQs

What was the significance of New York v United States 1992? ›

Why it matters: The Supreme Court's decision in this case established that the federal government does not have the authority to force states to enact specific laws. To read more about the impact of New York v.

What was the outcome of the New York v United States case? ›

Justice Sandra Day O'Connor, writing for the majority, found that the federal government may not require states to “take title” to radioactive waste through the "Take Title" provision of the Low-Level Radioactive Waste Policy Amendments Act, which the Court found to exceed Congress's power under the Commerce Clause.

What did the Supreme Court rule in New York v United States 1992 )? ›

United States, 505 U.S. 144 (1992) The federal government cannot commandeer a state into enacting a certain law. The Low-Level Radioactive Waste Policy Amendments Act of 1985 resulted from a plan developed by the National Governors' Association.

What is the significance of the New York Times v United States? ›

Often referred to as the “Pentagon Papers” case, the landmark Supreme Court decision in New York Times Co. v. United States, 403 U.S. 713 (1971), defended the First Amendment right of free press against prior restraint by the government.

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