The New Etiquette of Federalism: New York, Printz and Yeskey

In New York v. United States, 505 U.S. 144 (1992), the Court revived state sovereignty as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly commandeered state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections v Yeskey, 118 S.Ct. 1952 (1998). We clarify the distinctions that the Court has drawn between permissible and impermissible federal action as sympathetically as possible, but argue that even on the most charitable construction, those distinctions are justified neither by the values of federalism that the Court has invoked in defense of justiciable state sovereignty, nor by an effort to express in law the importance of federalism to national identity. New York and Printz explicitly recognize three distinctions within the set of federal directives: 1) between coercive and non-coercive directives (specifically, directives compliance with which is a condition for federal spending, or for the nonpreemption of state law); 2) between directives that are targeted at state officials, and directives that are generally applicable to both state officials and private parties; and 3) between directives addressed to state legislative or executive officials, and directives addressed to state adjudicators. We argue that the anti-commandeering cases are best interpreted, within the context of wider case law, as permitting the federal government to impose in addition a large and significant category of targeted, coercive duties upon state legislative or executive officials--those that are imposed pursuant to the federal preemption of state law. As we interpret the present case law, federal directives that require inaction by state officials do not constitute commandeering; only directives that require action by state officials can do so. In addition, the cases governing Congress\u27 powers to enforce the Reconstruction Amendments make clear that a statute properly grounded upon these powers can override whatever state sovereignty constraints limit federal authority under the Commerce Clause. In short, the emerging anti-commandeering jurisprudence is constituted by five demarcations, not three: (1) preemption versus commandeering; (2) coercion versus conditional spending or preemption; (3) targeted versus generally applicable federal statutes; (4) state legislative or executive officials versus state judicial officials; (5) the Commerce Clause versus the Reconstruction Amendments. After clarifying these demarcations, we evaluate them in light of the justifications for recognizing state sovereignty as an external limit to national power. Given the values that the Court has invoked to justify the existence of some justiciable federalism constraints upon the national government (values such as tyranny-prevention, political community, innovation, and the responsiveness of government to geographically diverse needs, preferences, and conditions), does it make sense to prohibit federal commandeering but not preemption, coercive but not noncoercive federal directives, and so on? We argue that none of the demarcations in the ani-commandeering jurisprudence except for the Reconstruction-Amendment demarcation is justified and that this one, although justified, is in its current doctrinal form unclear and probably unworkable. We explore, in the alternative, an expressive defense of the anti-commandeering jurisprudence, as seeking to impose an etiquette of federalism that alerts political actors to the norms of federalism, without directly confronting congressional value choices. We conclude that this defense is also unsuccessful