Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York V. United States Revisited

Article excerpt

In New York v. United States,(1) which articulated the Supreme Court's current approach to the Tenth Amendment,(2) Justice O'Connor's majority opinion relied heavily on original understanding. "[T]he question whether the Constitution should permit Congress to employ state governments as regulatory agencies was a topic of lively debate among the Framers,"(3) wrote O'Connor, and all the justices seemed to agree on the most significant historical point: the founders generally thought that the national government should not be issuing orders to the states. That understanding led to the conclusion, accepted by six members of the Court, that "It]he Federal Government may not compel the States to enact or administer a federal regulatory program."(4)

On the last day of the 1996-97 term, the Court announced its decision in yet another Tenth Amendment case, Printz v. United States.(5) The Court once again immersed itself in history, this time analyzing several numbers of The Federalist(6) on the way to determining whether the national government could command state executive officers to participate in a federal regulatory scheme. Justice Scalia, for a five-justice majority, characterized Printz as a relatively straightforward application of New York:

We held in New York that Congress cannot compel the States

to enact or enforce a federal regulatory system. Today we

hold that Congress cannot circumvent that prohibition by

conscripting the State's officers directly. The Federal Government

may neither issue directives requiring the States to

address particular problems, nor command the States' officers,

or those of their political subdivisions, to administer or

enforce a federal regulatory program. It matters not whether

policymaking is involved, and no case-by-case weighing of the

burdens or benefits is necessary....(7)

Although some of the New York language was quite broad--two Printz dissenters characterized it as dictum(8)--that language was elevated to the level of a per se rule.(9)

The New York Court was right that the Constitution was intended to dramatically change the role of the states in the national government; we doubt that anyone would seriously dispute that point. It is also a matter of historical record--Justice O'Connor marshalled many pithy quotations to this effect--that many founders questioned the propriety and practicality of federal orders directed to state governments.(10)

But the Court may well have gotten the original understanding wrong by reading too much into the historical evidence presented to it. Questions of propriety are not the same as questions of constitutionality; as Justice Powell once observed, "Misguided laws may nonetheless be constitutional."(11) When, in Printz, Justice Scalia quoted James Madison to the effect that "[t]he practicability of making laws, with coercive sanctions, for the States as political bodies had been exploded on all hands,"(12) the Justice elevated Madison's practical point to a principle of constitutional law. Perhaps the national government ought to restrain itself from compelling states to participate in national regulatory schemes, but it is not clear that the Constitution requires that result.(13)

We shall present evidence in one substantive area, taxation, that we think undercuts the intellectual basis for both New York and Printz: many founders (including Alexander Hamilton) believed that the discredited revenue system of the Articles of Confederation, under which funds were requisitioned from the states, survived ratification of the Constitution. In theory at least, requisitions represented a significant exercise of federal power: the national government could order each state to supply a predetermined amount of revenue to the national treasury. What could be a clearer application of national power than mandating that state governments collect and send millions--or, if we adjust eighteenth-century figures to reflect modern revenue needs, billions--of dollars to the nation's capital? …